Deviating from the prescribed tariffs in Rule 70 of the Uniform Rules of Court

In Coetzee v Taxing Master, South Gauteng High Court and Another 2013 (1) SA 74 (GSJ), Judge Sutherland was tasked with determining whether an attorney who does not conclude a fee agreement with a client in a litigious matter can be paid a fee different to that prescribed in the tariff in Rule 70 of the Uniform Rules of Court (“URC”). For purposes of the determination, Judge Sutherland considered the scope and meaning of Rules 70(1) and 70(5) of the URC. 

Rule 70(1) provides that 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. Further, Rule 70(5) states that 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.

Following a detailed examination of relevant case law, Judge Sutherland summarised the law as follows – 

• The tariff in Rule 70 is only binding on taxation of party and party costs, and not any other costs.
• The tariff in Rule 70 must be used as a guide in the taxation of:
  • Penal costs ordered by a court to be paid by the losing party, called “costs on the attorney and client scale”.
  • Costs in a bill presented by an attorney to that attorney’s own client, called “attorney and own client” costs.
• In all exercises to tax a bill of costs, including party and party costs, the taxing master has a discretion to depart from the tariff. 
• All departures from the tariff for any kind of bill of costs requires the taxing master to apply his mind to what is fair and reasonable and in that regard he shall apply his mind to the express provisions of Rule 70(5).
• Where an attorney and that attorney’s client have agreed on fees and there is a complaint that the fees agreed are not reasonable, the taxing master shall exercise her discretion to determine the reasonableness of the fees, which determination may be identical to the tariff in Rule 70 or be different and at a higher rate.
• In the absence of an agreement between an attorney and that attorney’s client about fees to be paid by the client to that attorney for services rendered, the taxing master shall exercise her discretion to determine reasonable fees, which may be identical to the tariff in Rule 70 or be different and at a higher rate.