While the Judiciary does not wish to perform the Taxing Master’s function, the Taxing Master cannot make decisions that fall within the powers of the Judiciary. The taxation review of JB Scott Attorneys v Tetani (Review) (36381/2019) [2023] ZAGPPHC 358 discusses the duty of the Taxing Master and emphasises that the Taxing Master can only quantify such costs as are allowed in the court order; but cannot vary or read into a court order an absent order for costs. A current practice by the Judiciary is to request succinct court orders without provisions regarding costs related to, for example, travelling expenses or expert witnesses. The problem that arises when the Judiciary refuses to make a draft order, that contains items agreed to by the parties, an order of court, and changes the cost order to something such as - “party and party costs in the discretion of the Taxing Master”, is that the Taxing Master in whose discretion the costs have been left, does not have a discretion in all circumstances.
The decision in Road Accident Fund v Taylor and other matters (1136-1140/2021) [2023] ZASCA 64 (8 May 2023) relates to judicial overreach, and holds that settlement agreements between the parties should not ordinarily be interfered with unless there is a specific reason to do so. The amendment of settlement agreements and draft court orders which contain items agreed to between the parties, amounts to interference and judicial overreach, which results in the Taxing Master refusing to allow or consider costs not included in the court order because they do not have the discretion to do so.
This dilemma will be discussed in more detail below.
Rule 70(1)(a) describes the Taxing Master’s discretion as follows:
“The taxing master shall be competent to tax any bill of costs for services actually rendered by an attorney in his capacity as such in connection with litigious work and such bill shall be taxed subject to the provisions of subrule (5), in accordance with the provisions of the appended tariff: Provided that the taxing master shall not tax costs in instances where some other officer is empowered so to do.”
Rule 70(5)(a) further provides:
“The taxing master shall be entitled, in his discretion, at any time to depart from any of the provisions of this tariff in extraordinary or exceptional cases, where strict adherence to such provisions would be inequitable”
Do these provisions grant the Taxing Master a discretion regarding the costs in litigious matters in all circumstances? I will first deal with some of the instances where it is clear that the Taxing Master does not have a discretion, and then discuss the effect of the recent Supreme Court of Appeal judgment; Road Accident Fund v Taylor and other matters (1136-1140/2021) [2023] ZASCA 64 (8 May 2023) and the impact of this judgment on the discretion of the Taxing Master.
Rule 69 is concerned with counsels’ fees and contains certain provisions in this regard. Rule 69 (1) reads as follows:
“Save where the court authorises fees consequent upon the employment of more than one advocate to be included in a party and party bill of costs, only such fees as are consequent upon the employment of one advocate shall be allowed as between party and party.”
It is apparent from Rule 69(1) that the use of more than one counsel must be approved in a court order for fees for more than one counsel to be allowed on taxation. This is not left in the discretion of the Taxing Master and they will overstep their authority, should they allow fees for more than one counsel if this is not specifically provided for by order of court.
Rule 69(2) provides for the amount allowed for a second or further advocate:
“Where fees in respect of more than one advocate are allowed in a party and party bill of costs, the fees to be permitted in respect of any additional advocate shall not exceed one half of those allowed in respect of the first advocate.”
It follows from this subrule that, once again, the Taxing Master does not have a discretion to allow more than half of what the more senior counsel is allowed in a party and party bill. However, because rule 69(2) limits the fees of subsequent counsel only in respect of party and party bills of cost, should the costs of additional counsel be allowed by a court, a costs order for attorney and client costs will allow the second or further counsel more than half of the more senior counsel’s fees; generally, two thirds are allowed.
Where a matter has been enrolled but not proceeded with on a certain date, or proceeded with but no court order is made regarding the costs of that specific day’s postponement or trial attendance, there is essentially no order as to costs for those days. I will not discuss the specific circumstances that might lead to a party recovering costs for a trial date for which there is no court order. However, the general principle regarding the recovery of costs is that a costs order must be made for every court appearance and date for which the matter was set down. This could be a court order including costs for that day, or the inclusion of previous court dates in the final court order. The Taxing Master does not have the discretion to read something into a court order which has not been included, and therefore neither attorney’s fees nor counsel’s fees for unmentioned court days will be allowed.
A further cost order that becomes problematic and over which the Taxing Master has no discretion is a reserved cost order. Where costs have been reserved but never judicially determined, the costs remain undecided. Reserved costs are costs which have been set aside for later decision. They need to be determined by the court and not the Taxing Master. Again, the Taxing Master cannot read something into a court order which is not there and it follows that, if the court never decided, these costs are treated as ‘no order as to costs’ and each party is responsible for their own costs of that day.
Preparation or qualifying fees for witnesses or experts must be included in the court order. Rule 70(D)(5) confirms that preparation fees for a witness will not be allowed unless included in the court order or agreed to by all the interested parties. Again, this is not in the discretion of the Taxing Master.
The recent taxation review in the matter JB Scott attorneys v Wendy Tetani is centred on the court order recording that no contingency fee agreement existed between the parties. The Taxing Master therefore did not take the contingency fee agreement into account and ruled that, in accordance with the court order, no contingency fee agreement existed between the parties. In paragraph (3) of the review, the Taxing Master’s stated duty was to “not ignore or vary the order made by the Judge, but to quantify the costs in accordance with the court order”.
Paragraph (5) of the review discusses the relevant case law:
“Courts have established that it is the duty of the taxing master to give effect to the order for costs, not to vary it to suit his or her perceptions of what the order should have been. This view was authoritatively held as far back by the court in Vercuil Magistrate of Wynberg & Another 1928 CPD at 532. Subsequent thereto, the Appellate Division in Benson v Walters 1984 (1) SA 73 (A) endorsed this view that the liability for costs is determined by the court and the amount of the liability is determined by the taxing master.”
I have set out some examples and discussed the position of case law that illustrate that, in the absence of a court order, a Taxing Master does not have the discretion to grant various types of costs. My primary reason for discussing these instances regarding the Taxing Master’s discretion is that, when a draft order, with all the relevant costs included, is handed to the court, the presiding Judge cannot merely delete everything to do with costs, grant party and party costs and leave the rest in the discretion of the Taxing Master. There will be situations where more than one counsel is required, where further costs must be specified, and where it is reasonable and necessary for certain costs to have been incurred which may not form part of strict party and party costs and so cannot be allowed by the Taxing Master without a specific order.
Road Accident Fund v Taylor is an interesting judgment concerning judicial overreach by the court a quo. The Supreme Court of Appeal identified the question as follows: ‘The principal issue concerns the consequences of the settlement of disputed issues in litigation and the powers of a court in relation thereto’ [para 1]. Where a matter has been settled between the parties and a draft order which includes costs aspects requires to be made an order of court, can a court refuse to make the settlement agreement an order of court? Or can it change the terms of the agreement and not allow certain agreed items?
The decision in RAF v Taylor discusses the three requirements which must be met before a settlement can be made an order of court. These are: the settlement must relate to the litigation at hand; it must not be illegal, unconstitutional or contrary to public policy; and there must be a reason or advantage to having the settlement made an order of court. I would argue that having the settlement and costs made an order of court is necessary both for execution, should the other party default, and in order to have the matter taxed and recover the costs. Even though a court order is no longer necessary to be able to tax all matters, it may still be a requirement in RAF matters in order for the fund to make payment and for the Taxing Master to allow the costs in accordance with the agreement between the parties, and therefore it is certainly more beneficial.
RAF v Taylor also describes the nature of a settlement agreement or compromise in paragraph 36 of the judgement:
'The essence of a compromise (transactio) is the final settlement of disputed or uncertain rights or obligations by agreement. Save to the extent that the compromise provides otherwise, it extinguishes the disputed rights or obligations. The purpose of a compromise is to prevent or put an end to litigation. Our courts have for more than a century held that, irrespective of whether it is made an order of court, a compromise has the effect of res iudicata (a compromise is not itself res iudicata (literally ‘a matter judged’) but has that effect)’
It held that ‘once the parties have disposed of all disputed issues by agreement inter se, it must logically follow that nothing remains for a court to adjudicate upon or determine’ [para 39].
In paragraph 38 of the judgment, previous case law is discussed, which aptly describes the effect of an agreement between the parties:
‘The object therefore of a compromise is to end, or to destroy, or to prevent a legal dispute. The effect of a compromise is res judicata; and, according to Domat, the effect is even stronger than that of a judgment inasmuch as, unlike in the case of judgments, the parties have consented to the terms on which they intend to compromise.’
Paragraph 39 continues:
“This court proceeded to say, with reference to Estate Erasmus v Church, that when concluded, such a compromise disposes of the proceedings. The culmination of all of this, for purposes of this judgment, as stated in Legal-Aid South Africa v Magidiwana and Others [2014] ZASCA 141; 2015 (2) SA 568 SCA para 22, is that once ‘the parties have disposed of all disputed issues by agreement inter se, it must logically follow that nothing remains for a court to adjudicate upon or determine’.
To conclude, I am of the opinion that settlement agreements and draft orders which reflect an agreement between parties, should not be interfered with and should be made an order of court provided they comply with the three requirements set out above. The Judiciary needs to realise the consequences of changing an agreement. If a court does not allow certain costs, the Taxing Master does not have a discretion to allow these costs as the Taxing Master cannot read provisions into the court order. Ultimately, the successful party who has been awarded their costs, is the party that suffers by not being able to recover all their reasonable and necessarily incurred costs.
