Taxation of litigation costs under uniform rule 70: attorneys acting as counsel are entitled to equal reimbursement for equal work by advocates

Abstract

Unlike during the apartheid era, high courts are no longer the terrain of advocates solely. By law, qualifying attorneys have a right of audience there. When attorneys render services usually performed by advocates and they secure a party-and-party costs order for their clients, then a question arising is whether the unsuccessful litigant is liable to indemnify the successful litigant on the lower tariff ordinarily applicable to attorneys' fees under Uniform Rule 70, or the higher tariff of reasonable fees applied to advocates under Uniform Rule 69. This important issue in the law of costs forms the core subject of this article. It engages therewith through a critical analysis of the prevailing case law dealing with Uniform Rule 70(3) read with Uniform Rule 70 tariff item A(10), as well as an application of the mandatory interpretive directive in section 39(2) of the Constitution of the Republic of South Africa, 1996 taken with the tools of textual, contextual and purposive interpretation. This article argues that Taxing Masters, as gatekeepers of fairness and practicality in determining the recoverability of litigation costs, cannot when taxing a party-and-party bill apply one standard or set of rules for assessing advocates' fees in relation to high court work and then apply another for assessing attorneys' fees for doing the same (or substantially the same) work. Such a situation would be inimical to the tenets of the rule of law promoting justice and equity which apply at a taxation, being a legal proceeding in a forum envisaged by section 34 of the Constitution. This article argues further that Taxing Masters must embrace the salutary principle that attorneys are entitled to equal pay for equal work done as counsel, and that a contrary approach would endorse the notion that advocates are more equal than attorneys, a view antithetical to the values of and fundamental rights to dignity and equality entrenched in the Constitution, all of which find application when a Taxing Master exercises his public powers under Uniform Rule 70(1).