More than a year after the implementation of Rule 67A, which includes the determination of scales of fees for counsel, the question of the success of this insertion can be assessed. Before publication of this insertion, the determination of counsel’s fees was in the discretion of the Taxing Master. Now, Rule 67A provides that the court must determine on which scale party and party costs will be awarded against another party.
Rule 67A came into operation in April 2024. Rule 67A(3)(a) states that “a costs order shall indicate the scale in terms of rule 69, under which costs have been granted.” Rule 69 was simultaneously amended to include three scales of fees for counsel. The maximum fees per hour obtainable under the three scales are R1 500 for scale A, R3 000 for scale B and R4 500 for scale C. Rule 67A also now provides that any reference to counsel includes an attorney acting as counsel. As a result, the insertion now refers to any legal practitioner who appear in the superior courts, rather than limiting the tariff in Rule 69 to only advocates.
This places an attorney acting as counsel in the same shoes as counsel as far as fees are concerned. This was not always so and attorneys acting as counsel did not necessarily obtain a day fee in the same circumstances as counsel. Now, whether counsel or an attorney acting as counsel appears, the scale on which opponent is liable should be included in the court order. If this does not occur, Rule 67A(3)(c) provides that scale A shall apply to the costs awarded by the court.
When the previous dispensation is considered, which provided that the determination of counsel’s fees was in the discretion of the taxing master, this amendment clearly makes sense. Who better than the presiding officer who has heard the matter from its inception, who has a good understanding of the entire matter and is aware of its complexities and all other relevant factors, to be the one to decide on costs and counsel’s fees.
Hennie De Beer Game Lodge CC v Waterbok Bosveld Plaas CC 2010 (5) SA 124 (CC) was decided before Rule 67A came into existence, at the time when the Taxing Master was saddled with the determination of counsels’ fees. Even then, the court held that “in determining reasonable remuneration for counsel, this court is in a better position than the taxing master to assess what went into the affidavit. Waterbok makes no complaint about the hourly amount the taxing master has allowed, namely R1200. The parties’ sole dispute is about the number of hours. It is therefore appropriate for this court to finalise the disputed bill itself. It is therefore not necessary to remit the matter to the taxing master.”
Several court decisions have either considered or implemented these new scales in their judgments. A few cases will be discussed below.
Mashava v Enaex Africa (Pty) Ltd (2022/18404) [2024] ZAGPJHC 387 (22 April 2024) discusses the meaning and application of Rule 67A. It considers the two scales of cost orders in civil proceedings, being party and party scale and attorney and client scale, and emphasises that Rule 67A only applies to party and party cost awards. It also notes that the scales apply to any legal practitioner doing the work of counsel, as discussed above, and the factors to consider when deciding on a scale: importance; value; and the complexity of the matter.
If there was any misconduct or unethical conduct, the scale may be reduced, even if the party would otherwise be entitled to it. The judgment states that the court shall indicate the scale on which counsel’s fees have been granted and that, if a court does not indicate this scale in the court order, scale A is applicable (Rule 67A (3)(c)). The scales cannot be applied retrospectively.
What is the position if the court does not mention a scale? Does this indicate a desire on the court’s behalf to have scale A applied, or is this merely an indication that costs were not brought to the court’s attention? Whose responsibility is it to raise this issue? Although I would always advise counsel to pertinently deal with this issue, the Rules do direct the court to address costs. Unfortunately, one does take the chance of only having a scale A cost order allowed if the issue is not addressed by counsel.
The court in Mashava proceeded to apply the principles discussed above. It held that scale A is the appropriate scale to apply in run of the mill cases and should only be deviated from if the matter is unusually complex, important or valuable. One can agree with this. However, I struggle to agree with the assumption that, because the point in limine was simple and the matter was dismissed on that point, this should be the only consideration when determining counsel’s scale of fees. Although the point in limine might have been simple, counsel does not generally charge different tariffs for different parts of the litigation process.
Counsel is generally appointed based on the merits of the whole matter, not on points in limine or interlocutory applications. Also, litigants wish to appoint counsel to act throughout the matter, not to engage different counsel for every different aspect or application that might occur during the litigation. Counsel is required to prepare on all aspects of the matter and cannot rely on the fact that the matter is likely be dismissed on a point in limine.
The further discussions in Mashava regarding the extreme costs of litigation and counsels’ fees cannot be argued with. However, if, as in this case, costs follow the event, litigants have to consider that cost awards could be granted against them. If the opposing counsel has been reasonably appointed and has prepared diligently, I believe that the successful party should not be punished unnecessarily when recovering their costs. It must be mentioned that, in casu, scale C was argued for, which might have been somewhat ambitious.
In the matter of Phaleng-Podile v Compeg Services (Pty) Ltd (22/19883) [2024] ZAGPJHC 481 (6 May 2024), Rule 67A was not fully discussed but was applied. The decision emphasised that most of the work was done before implementation of Rule 67A on 12 April 2024 and that only the preparation of heads of argument and the hearing remained. This was viewed as work not of the type or complexity that would warrant an award of costs on scale B or C, and therefore the fees charged for work after 12 April 2024 were allowed on scale A.
What I find interesting about this application of Rule 67A is that preparation and oral argument were deemed not worthy of a higher scale. Or did the court consider that the matter was not particularly complex, and so the drafting of heads of argument, preparation and argument did not warrant scale B or C? I am not persuaded that preparation and oral argument are in general of such a nature as to warrant only scale A. The importance, value and the complexity of the matter should, in my opinion, always play a role, regardless of how much work remains to be done after Rule 67A came into effect. Presumably the court was referring to the circumstances surrounding this specific matter.
Lastly, the more recent decision of M.L v Van Der Merwe (5560/2019) [2025] ZAWCHC 88 (7 March 2025) involving a medical negligence matter in the Western Cape, was decided in favour of the defendant, with costs for counsel awarded on scale C. The judgment on the merits has been taken on appeal and has yet to be finalized. However, before the judgment a quo was handed down, heads of argument regarding costs as per Rule 67A, as well as a copy of the Mashava judgment were requested by the court. Although the judgment discussed the merits of the matter comprehensively, costs are only discussed briefly.
The court determined that costs were to follow the event and mentioned that most of the costs had occurred before the amendment and so were liable to be determined as per the previous dispensation. The court mentioned the seniority of defendant’s attorney as well as that of the plaintiff’s advocate. This should perhaps not be a factor when determining the scale of fees of counsel, but could be an indication of the complexity, value and importance of the matter. This was specifically mentioned by the court, which held that, having regard for all the applicable factors, the scale awarded for work performed after 12 April 2024 was on scale C.
From the above, it is evident that the Mashava decision has set the tone for determination of the scales for counsel after 12 April 2024 and the principles articulated therein are being implemented in subsequent matters. In depth discussions regarding a determination of the complexity, value and importance of the relevant litigation should follow suit in subsequent judgments.
One could argue that matters are deemed either very complex and valuable to the parties, or simple, and that the middle ground of scale B needs to be found. When trying to limit costs, it is unhelpful to identify the majority of matters as not complex and so devalue the important role that legal practitioners play in fighting for the rights of the public, and the effort that legal practitioners expend on matters that may not be deemed very complex, yet still require special expertise to bring about a successful outcome.