Taxation of legal costs: Is a cost creditor shielded by legal professional privilege?

• Author: Moosa, F.
• DOI: https://doi.org/10.47348/SALJ/v139/i3a6
• Published date: 25 August 2022
• Date: 25 August 2022
• Citation: (2022) 139 SALJ 623
• Pages: 623-649

623

https://doi.org/10.47348/SALJ/v139/i3a6

TAXATION OF LEGAL COSTS: IS A

COST CREDITOR SHIELDED BY LEGAL

PROFESSIONAL PRIVILEGE?

FAR EED MOO SA†

Associate Professor, Department of Mercantile & Labour L aw,

University of the Western Cape

Taxation of legal costs in the high co urts of South Africa is a qu asi-judicial proceeding

during which a Taxing Ma ster assesses t he fairness of a bill o f costs, quantie s the

amount payable to a cost cr editor, and issues an allo catur which ce rties the su m

payable by a cost debtor. It is argu ed that this legal proc ess, which is regul ated by

Uniform Rule 70 read w ith Uniform Rule 69, implicates a cost debtor’s funda mental

right, under s 34 of the Co nstitution of the Re public of South Af rica, 1996, to fair

dispute resolution a t any independen t forum. In term s of Uniform Rule 70(3B)

(a), prior to the enro lment of a bill for taxat ion, a cost debtor is entitl ed ‘to inspect

such document s or notes pert aining to any item on t he bill’. This article a rgues that

the inspection e nvisaged is a pre-t axation discove ry procedure a imed at enabling a

cost debtor to deter mine which item s on a bill of costs are objec tionable, and the

grounds therefor. With reference to rele vant judicial pre cedent and the est ablished

principle s of interpret ation, this art icle hypothesis es that, having r egard to the

clear, unambiguous, pe remptory la nguage of Unifor m Rule 70(3B)(a), as well as

the purpose sought to b e achieved by the r ight of inspectio n, the law has, in thi s

context, excluded t he operation of the c ost creditor’s common-l aw right to asser t legal

professional pr ivilege as rega rds documentatio n pertainin g to any item claimed in th e

bill of costs. This i s unlike the position pre vailing at a pre-tr ial discover y procedure

catered for in Unifor m Rule 35. This artic le also argues th at, in accordan ce with

s 39(2) of the Constitution, the broad c onstructio n of the right of insp ection under

Uniform Rule 70(3B)(a) adva nced here promot es both a cost debtor’s fundam ental

right in s 34 of the Constitu tion, and the values o f justice and the r ule of law which

are deeply imbri cated in the Bill of R ights.

Taxation – lega l costs – legal profession al privilege

I IN TRODUC TION

‘Civil just ice costs too much, and that high cost both denies acces s to

justice to the aver age citi zen and contr ibutes subst antia lly to the co st of

doing business for the moder n corporation.’1

† BProc LLB ( Western Cape) LLM (Cape Town) LLD (Wester n Cape). htt p s ://

www.orcid.org/0000-0002-2161-287X. I disclose that I was the attorney of record

for the applica nt in the pri mary case discussed in t his article.

1 H M Kritz er, A Sarat, D M Trubek, K Bumi ller & E McNichol

‘Understa nding the costs of lit igation: The case of t he hourly-fee lawyer’ (1984) 9

American B ar Foundation Research Journa l 559.

(2022) 139 SALJ 623

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624 (2022) 139 TH E SOUTH AFRICA N LAW JOURNAL

https://doi.org/10.47348/SALJ/v139/i3a6

Section 342 of the Constitut ion of the Republic of South Africa, 1996

guara ntees the right to every qua lifying per son3 ‘to seek the assistance of a

court’4 for the fair r esolution of a justiciable dispute. T his right ‘ensures the

peaceful, regulated and institutionalised mechanisms to resolve disputes

without resorting to self-help’.5 Hence, this r ight has, appropriately, been

described a s ‘a bulwark against vigilantism, a nd the chaos and anarchy

which it causes’.6 However, the right to access a court does not guarantee

that access w ill be obtained whenever it is soug ht. This is so, in part,

because of the high costs of civil litigation, which sometimes cannot be

funded.7 Litigation costs, especially in the higher cour ts, are proh ibitive.8

They can cause a n inequal ity of arms, a notion ant ithetical to the values

of fairness and justice underpinning s 34 of the Constitution.9 Therefore,

legal costs can have the eect of deny ing a litigant access to justice.10 Even

if a litigant secures the funds required for exercising the right to institute

or defend civil proceeding s, this is not the end of the matter on costs.

Liabilit y for costs looms l arge throughout the litigation process. The

guiding principle fol lowed by South Afr ican courts is that ‘the successfu l

part y is entitled to his costs u nless the court for good rea son in the exercise

of its discretion deprives him of those costs’.11

2 Section 34 re ads: ‘Everyone has the rig ht to have any di spute that ca n be

resolved by the appl ication of law decided in a fa ir public hea ring before a court

or, where appropriate, another independent and i mpartial tr ibunal or for um.’

3 Although the Bill of R ights on ly applies to persons physically present on

South Afr ican soil (see Kaunda v P resident of the Republic of So uth Africa 2005 (4) SA

235 (CC) para 36), for ta x admi nistration pur poses it ought t o apply to person s

located beyond Sout h Africa’s territori al lim its. See Fareed Moosa ‘Doe s the Bill

of Rights apply extraterrit orial ly for tax a dmin istrat ion purposes?’ (2020) 31

Stellenbosch LR 37.

4 Ba rkhuizen v Napier 2007 (5) SA 323 (CC) par a 31.

5 Chief Lesapo v No rth West Agricultural B ank 2000 (1) SA 409 (CC) para 22;

Zondi v MEC for Traditional and L ocal Gove rnment Aair s 2005 (3) SA 589 (CC)

para 61.

6 Chi ef Lesap o ibid para 22.

7 L egal Aid South Afri ca v Magidiwana 2 015 (6) SA 494 (CC) paras 25 –6.

8 Kintetsu World Expre ss South Afric a (Pty) Ltd v LD C Consultants CC [2 013]

ZAGPJHC 241 para 16.

9 S v S 2019 (6) SA 1 (CC) par as 40–1, 45–9.

10 AF v MF 2019 (6) SA 422 (WCC) par as 37–56. Also, see Kgomotso

Ramotsho ‘H igh lit igation cos ts deprive the poor access to ju stice’ 2018

(November) De Reb us 11.

11 Pretoria Garr ison Institutes v D anish Variety Produc ts (Pty) Ltd 1948 (1) SA

839 (A) at 863; Ferrei ra v Levin NO 1996 (2) SA 621 (CC) par a 3. An exception

to the usua l rule th at costs follow the result is the principle emanat ing from

Biowatch Trust v Regi strar, Genetic Resou rces 2009 (6) SA 232 (CC). The Biowatch

principle, a nd its underl ying rat ionale, were ex plaine d in Harri elall v University

of Kwa-Zulu Natal 2018 (1) BCLR 12 (CC) para 11 as fol lows: ‘That r ule

applies in ever y constit utional matter involving org ans of Stat e.The r ule seeks

to shield unsuccessfu l litig ants from the obliga tion of payin g costs to the st ate.

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