Camps Bay Ratepayers' and Residents' Association and Another v Harrison and Another

This matter concerned a review of the taxation of counsel's fees following unsuccessful litigation by the Camps Bay Ratepayers' and Residents' Association. The litigation had a long history: starting with an urgent application in the High Court for an interdict (which succeeded), followed by a review application (which failed), an unsuccessful appeal to the Supreme Court of Appeal, and finally an unsuccessful constitutional challenge in the Constitutional Court where leave to appeal was refused and the application dismissed with costs including costs of two counsel. Senior counsel charged R453,150 (inclusive of hourly preparation and appearance) while junior counsel charged R263,500, both including VAT. After objection, the Constitutional Court's Taxing Master taxed these down to R240,000 for senior counsel and R160,000 for junior counsel (plus VAT). The losing party sought a review of this allocatur on the basis that the fees remained excessive, arguing that a Supreme Court of Appeal guideline from 2006 (which provided for fees of no more than R75,000 for senior counsel and R50,000 for junior counsel in the absence of special circumstances, adjusted for inflation) should apply.

• Whether the Taxing Master's award of counsel's fees was so disproportionate as to vitiate the ruling and warrant setting aside
• What constitutes reasonable counsel's fees in party-and-party costs where the main issues had already been thoroughly canvassed in lower courts
• The application and relevance of the Supreme Court of Appeal guideline on counsel's fees to the Constitutional Court

1. The review succeeded. 2. The Taxing Master's award (allocatur) in respect of counsel's fees in this Court was set aside. 3. In its stead, there was substituted the amounts of R180,000 for senior counsel and R120,000 for junior counsel, plus VAT.

The binding legal principle is that when taxing counsel's fees in the Constitutional Court, where the main issues have already been thoroughly traversed in lower courts and the arguments are largely a rehearsal of issues already well canvassed, counsel's fees must be adjusted accordingly and significantly reduced from what might otherwise be charged. A Taxing Master's award will be set aside where the amount awarded is so disproportionate to what is fair and reasonable as to vitiate the award. The principle of indemnification for litigation costs must be balanced against reasonableness, taking into account all circumstances including the previous litigation history. The Court will interfere with a Taxing Master's allocatur only when the view is so materially different as to vitiate the ruling.

The Court made important obiter observations expressing disquiet at the escalation of counsel's fees in recent years, stating 'to say that they have skyrocketed is no loose metaphor.' The Court emphasized that 'in our country the legal profession owes a duty of diffidence in charging fees that goes beyond what the market can bear.' While acknowledging that skilled professional work deserves reasonable remuneration and that many clients are willing to pay market rates, the Court stressed that 'in a country where disparities are gross and poverty is rife' there is no justification for appellate advocates charging hundreds of thousands of rands to argue an appeal. The Court recognized that many counsel take cases pro bono and make allowances for indigent clients, but observed that 'those beneficent practices should find a place even where clients can pay.' These observations were made to influence the concept of what is reasonable for counsel to charge. The Court noted it was not necessary to decide whether the Supreme Court of Appeal guideline should apply in the Constitutional Court.

This case is significant for establishing guidelines on the taxation of counsel's fees in the Constitutional Court, particularly where issues have been extensively canvassed in lower courts. It represents a strong judicial statement on the reasonableness of counsel's fees in South Africa, emphasizing that the legal profession owes a duty of diffidence in charging fees that goes beyond mere market considerations. The judgment addresses the escalation of legal fees and contextualizes this within South Africa's socio-economic realities of gross disparities and poverty. It affirms the principle that previous litigation history is especially significant when taxing costs in the Constitutional Court, and that where arguments are largely a rehearsal of issues already thoroughly argued in lower courts, fees should be adjusted accordingly. The case also clarifies that the Court's taxation affects only party-and-party costs recovery, while the winner remains liable to counsel for reasonable fees as between attorney and client.