legal costs

In South Africa the losing party is usually ordered to pay the legal costs of the successful party.  However, there will be a difference between what the successful party paid their attorney and what they can recover.  The reason is that a “tariff” system is used in respect of legal costs.  This is similar to the insurances industry, where your insurance company pay less than what the doctor charges.

These tariffs are only increased occasionally by amending and updating the “Rules of Court”.  There are different tariffs for High Court and Magistrates’ Court matters.

The tariff most commonly awarded is the “party and party” tariff.

It is necessary that the Judge or Magistrate order the losing party to pay the legal costs in their judgement.  If no order as to cost is made by the Judge or Magistrate then legal costs are not recoverable.

The process of quantify (calculating) the costs amount that may be recovered is another Court procedure, which we explain below.

In our experience the cost recoverable is usually between 40% and 60% of your attorneys fees.

The different kinds of cost tariffs

Party and party

This is the tariff most often awarded by the Courts.

The tariff lists the attendances claimable and the cost that may be claimed in respect of those attendances.

It allows you (the successful party) to claim back legal costs that relate to the attendances mainly between your attorney and the other sides attorney in respect of the legal proceedings.

Mostly, it does not permit recovering cost relating to attendance between you and your attorney.

For example: phone calls between you and your attorney cannot be claimed ... but telephone calls between your attorney and the other sides attorney can be claimed.

The attendances must be is specific to the Court case; it does not involve attendances before the summons or notice of motion were issued and served.

Attorney and client

The same tariff is used as in party and party cost awards, however, the attendances that can be claimed are broader and include those between you and your attorney. In other words, you can claim for more attendances.

In additional the Taxing Master has a greater discretion when determining the amounts claimable by you.

Attorney and "own" client

These are the actual fees that you pay your attorney.

NB: Attorney and "own" client costs are not awarded by the Courts in the normal course.  The only way a court can order a party to pay Attorney and "own" client costs is if the parties have agreed that such costs will be payable.

 

Difference between High Court costs and Magistrates Court costs

High Court costs

The tariff of the High Court of South Africa are determined by Rule 70 of the Rules of Court.

High Court costs awards usually include advocates fees.

Magistrates' Court costs

The Magistrates' Court tariffs are are also governed by the Rules of Court.

There are 4 "scales" for the the Magistrates' Court tariff - Scale A, B, C, and D. Scale A allows the lowest costs to be recovered while and scale D allows the highest.

The value of your successful claim will determine which scale will be applied.

A Magistrate must specifically order that advocates Fees are recoverable in the order.

 

Taxation of legal costs

After winning your case and getting a costs order in your favour, you will still need to quantify the amount due to you.

This is done by preparing a bill of costs according to the tariff awarded to you by the Court.

Thereafter, the bill of costs is served on the other party and the matter is scheduled to be heard by the TAXING MASTER for TAXATION.

The taxing master is an officer of the Court who has the authority to determine which attendances are claimable and which are not.  The taxing master will confirm the amount of costs payable.

After taxation the "taxed" bill of costs is recoverable; if the other-side does not pay the "taxed" amount on demand, the taxed bill is treated the same way as any order of Court.  See our article on execution of court Judgements here.

 


DISCLAIMER: THERE ARE MORE CONSIDERATIONS THAN WE CAN COVER IN THIS ARTICLE SO ONLY USE THIS INFORMATION AS A GUIDE.   THIS INFORMATION DOES NOT CONSTITUTE LEGAL ADVICE.  IT IS ALWAYS BEST TO DISCUSS YOUR SITUATION WITH AN ATTORNEY; CONTACT US AT 0861 88 88 35helpdesk@gcm-legal.com AND THROUGH THE CONTACT FORM ON THIS PAGE.

Pin It on Pinterest

Share This