Ndzamela v Eastern Cape Development Corporation Ltd and Another

• Jurisdiction: South Africa
• Judge: Peko ADJP and Ebersohn AJ
• Judgment Date: 02 April 2004
• Docket Number: 244/02
• Court: Transkei High Court
• Hearing Date: 02 April 2004
• Citation: 2004 (6) SA 378 (TkH)

Ndzamela v Eastern Cape Development Corporation Ltd and Another
2004 (6) SA 378 (TkH)

2004 (6) SA p378

Citation	2004 (6) SA 378 (TkH)
Case No	244/02
Court	Transkei High Court
Judge	Peko ADJP and Ebersohn AJ
Heard	April 2, 2004
Judgment	April 2, 2004

Flynote : Sleutelwoorde B

Costs — Attorney — Attorney appearing in High Court or doing work of advocate — Attorney who appears in High Court entitled to similar treatment as counsel — Counsel getting one fee for reading, preparation, drawing of heads and appearing in Court; thus, where attorney has already read record in his capacity as attorney, cannot C charge second time therefor — Preparation for hearing and preparation of heads of argument included in first day's fee — Attorney not entitled to fee to read papers to refresh memory, unless there is postponement for considerable period, in which case refresher may be paid as remuneration for additional work — Attorney entitled only to two-thirds fee for second day. D

Costs — Taxation — Uniform Rules of Court, Rule 70(9) providing that page to contain at least 250 words — Contents of Rule clear and peremptory, thus not merely guide, but worded to prevent abuse — Problem arising where less than 250 words on page — Practice used in certain Division offering practical solution: Taxing Master counts number of words on randomly selected pages to determine how many words E on average per page, then multiplies average figure by number of pages, divides sum total by 250, resulting in number of pages for taxing purposes.

Headnote : Kopnota

Rule 70 of the Uniform Rules of Court deals with the taxation and tariff of fees of attorneys. Rule 70(9) provides as follows: 'Save for the forms set out in the First Schedule to these Rules, a page shall F contain at least 250 words and four figures shall be counted as a word.' The contents of Rule 70(9) are clear and peremptory and are thus not merely a guide, but have been worded in this manner to prevent abuse. (Paragraph [19] at 383C.) The question arises what is to be done by Taxing Masters in circumstances where there are less than 250 words on a page, where, for example, documents are typed in a large G font size.

In the Transvaal Provincial Division a page is taken as 250 words in accordance with Rule 70(9). In practice the Taxing Master counts the number of words on a few pages selected at random to determine how many words there are on average on a page, and having arrived at an average then multiplies the average figure by the number of pages and then divides the sum total by 250 resulting in the number of 'pages' there H are for taxing purposes. (Paragraph [21] at 383D - E.) The practical approach adopted by the Taxing Master in the Transvaal Provincial Division adequately deals with the matter and results in a logical and pragmatic resolution to the problem created by the Practice Rule in certain Divisions requiring Court documents to be typed in font size 15. (Paragraph [22] at 383G - H.) I

An attorney appearing at a High Court hearing is entitled to similar treatment as an advocate. An advocate gets one fee for reading, preparation, drawing of heads and appearing in Court. Where an attorney has already read the papers in his capacity as an attorney, he cannot charge for it a second time. The preparation for the hearing as well as the preparing of the heads are included in the attorney's first day's fee and cannot be charged in addition J

2004 (6) SA p379

thereto. An attorney is not entitled to a fee to read the papers to refresh his memory. Where there A is a postponement for a considerable period, a refresher may be payable to counsel (and thus to an attorney) to remunerate him for the additional work. An attorney is entitled only to a two-thirds fee for the second day. (Paragraph [46] at 386D - F and 386F/G - H.)

Cases Considered

Annotations

Reported cases B

Stubbs v Johnson Brothers Properties CC and Others 2004 (1) SA 22 (N): approved and applied.

Rules Considered

Rules of Court

The Uniform Rules of Court, Rule 70(9): see The Supreme Court Act and The Magistrates' Courts Act and Rules 3rd ed (Juta, 2003) at 86. C

Case Information

Review of taxation. The facts appear from the judgment of Ebersohn AJ.

Judgment

Ebersohn AJ: D

[1] This is a review of a bill of costs referred to this Court by the Taxing Master.

[2] The applicant brought an application in this Court against the two respondents to be reinstated in his post. The application succeeded and Norman AJ ordered the first respondent to pay the costs of the application. E

[3] Attorneys Tshiki & Sons of Umtata were the attorneys of record of the applicant and attorney M Tshiki, a member of the firm, appeared at the hearing of the opposed motion, he being an attorney admitted in this regard. F

[4] After the matter was decided attorneys Tshiki & Sons presented a bill of costs to the Taxing Master of this Court and he taxed the bill and according to his allocatur the bill was taxed and allowed at R56 157,35.

[5] The first respondent was dissatisfied with the rulings of the Taxing Master and filed a notice in terms of Rule 48(1) of the G Uniform Rules of Court and the review to this Court followed.

[6] The judgment of Magid J in Stubbs v Johnson Brothers Properties CC and Others 2004 (1) SA 22 (N) resolved many costs and taxing problems flowing forth from some attorneys also now appearing in the High Courts and I am in respectful agreement with his H judgment and the principles thereof are to be applied in this Division too. As there, however, seem to be aspects not resolved in his judgment and as there are different contentions amongst Taxing Masters and different approaches to the items in contention, it is necessary to decide the matter once and for all and the Acting Deputy Judge I President constituted a Full Bench to deal with this review.

[7] The bill of costs in the matter reads as follows and the amounts taxed off by the Taxing Master appear in square brackets after the relevant item: J

2004 (6) SA p380

Ebersohn AJ

Date		Particulars	Fees	Disbs A
1.	16/4/02	Consultation with client taking instructions to bring a High Court application by way of urgency. 4½ hours at R100 per ¼ hour	2 000,00
2.		Drafting founding papers, 44 pages at R100 per page	4 400,00	B
3.		Perusing annexures to the founding papers to determine relevance thereof for purposes of incorporation into the founding papers, 39 pages at R20 per page	780,00	C
4.		To making copies thereof to keep, serve and file. At R1 per copy. 117 copies	117,00
5.		To attending to the issue of the founding papers by the Registrar, 25 minutes D	80,00	80,00
6.		To sending the papers to the sheriff through the couriers	40,00	40,00
7.		To attending receipt of and perusing returns of service. Two pages at R20 per page	40,00
8.		To drawing cheque for sheriff and paid E	20,00	176,41
9.		To attending receipt of and perusing affidavit deposed to by Sonwabo Petros Zondo and annexures thereto. 60 pages at R20 per page	1 200,00	F
10.		Attending receipt of and perusing affidavit by Johannes Deetlefs together with annexures, 47 pages at R20 per page	940,00
11.		To attending consultation with the applicant on the answering affidavit of Sonwabo Petros Zondo and annexures thereto. 8½ hours at R100 per ¼ hour G	3 400,00	[400,00]
12.		To consultation with the applicant on the answering affidavit of Johannes Deetlefs and annexures thereto. 3½ hours at R100 per ¼ hour H	400,00	[200,00]
13.		To drafting applicant's replying affidavit 44 pages at R100 per page	4 400,00
14.		To drafting filing notice thereto. 1 page at R40 per page	40,00	I
15.		To drafting confirmatory affidavit of Mpeleki Tshiki, 2 pages at R40 per page	80,00	J

2004 (6) SA p381

Ebersohn AJ

Date		Particulars	Fees	Disbs. A
16.	07/02	To attending further consultation with the applicant discussing in preparation for hearing of the application. 2½ hours at R100 per ¼ hour	1 000,00	[400,00]
17.		To perusing the whole record in preparation for hearing of the application. 241 pages at R20 per page	4 820,00	B
18.		To preparation for hearing of the application. 1½ days of 8½ hours per day at R300 per ½ hour being counsel's rate C	7 500,00	[2 500,00]
19.		To preparing for and drafting heads of argument. 8½ hours at R300 per ½ hour being counsel's rate	5 100,00	[900,00]
20.	20/02	To drawing notice of setdown for 8 August 2002, two pages at R40 per page	80,00
21.		To attending Court in the opposed motion Court on 8 August 2002 being counsel's rate	5 000,00	D
22.		To further perusal of the record refreshing memory (fee reduced by ½ of the full fee) E	2 410,00	[410,00]
23.		To attending Court when the matter was argued and judgment reserved	5 000,00
24.	09/02	To attending Court to note judgment 30 minutes	200,00	F
25.		To perusing judgment and reporting to client. 18 pages at R20 per page	360,00
Total			R50 407,00	R396,41
Less taxed of			4 810,00

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