The President of the Republic of South Africa and Others v Gauteng Lions Rugby Union and Others

Following an appeal and recusal application heard in the Constitutional Court over eight days in May 1999, the Court upheld the appeal with costs against two respondents (the Gauteng Lions Rugby Union and Dr Louis Luyt) and made a separate costs order against Dr Luyt alone for the recusal application. Both orders were on a party and party basis and included costs for three counsel. The appellants' State Attorney submitted a consolidated bill of costs totaling R1,139,145.30 for taxation, comprising attorneys' fees and counsel's fees (the latter calculated on an hourly/daily rate basis). The taxing master allowed R1,054,986.85 total, including R784,000 for counsel's fees (allocated equally across eight hearing days) and R25,650 for the attorney's perusal fee. The respondents challenged these amounts as excessive, arguing that counsel's fees should follow Supreme Court of Appeal practice (composite first-day fee plus lower refreshers) and that the perusal fee tariff was incorrectly applied. The case involved unprecedented constitutional issues including the President being ordered to give evidence and be cross-examined, resulting in adverse credibility findings, followed by an application for recusal of all Constitutional Court judges.

• Whether the taxing master correctly taxed counsel's fees on a party and party basis
• Whether counsel's fees should be calculated as a composite first-day fee with refreshers or as equal daily fees
• Whether separate allowance for preparatory work and written argument is appropriate in Constitutional Court matters
• Whether the attorney's perusal fee was calculated at the correct tariff rate
• Whether the taxing master applied correct principles in assessing the reasonableness of counsel's fees
• The proper application of Constitutional Court Rule 21 read with Supreme Court of Appeal Rules regarding taxation
• Whether time-based billing by counsel is an appropriate basis for party and party taxation

1. The taxing master's allocatur was set aside and the bill referred back for fresh taxation in light of the judgment. 2. The appellants were ordered to pay the respondents' costs of the review of taxation, limited to costs of drafting the notice of review, perusing the stated case and appellants' contentions, and drafting the respondents' contentions.

On review of taxation of party and party costs: (1) Courts will only interfere where the taxing master was 'clearly wrong', though less deference is owed on matters where the court has superior knowledge; (2) Party and party costs aim to indemnify the successful party for costs reasonably incurred, not to provide full recovery of attorney-client fees; (3) Time spent and hourly rates charged by counsel are not determinative criteria for party and party taxation - the ultimate test is whether the resultant amount is fair; (4) Separate costs orders must be taxed separately and not consolidated; (5) In Constitutional Court matters, separate allowance for written argument may be appropriate in exceptional circumstances under CC Rule 21(2) given the greater emphasis on written submissions compared to SCA practice; (6) Even where separate allowance for written argument is made, cumulative debiting (composite first-day fee plus full preparation fees) must be avoided; (7) The taxing master must apply the criteria of complexity, volume, prevailing fee levels, inflation, and fair compensation, with flexibility in extraordinary circumstances per SCA Rule 18G(5) Notes I and II.

Kriegler J made several important observations: (1) The bifurcated apex of the judicial hierarchy has both disadvantages and benefits, including that the Constitutional Court should generally rely on the SCA's experience in matters relating to legal practice and professional conduct; (2) The Court's constitutional jurisdiction may warrant different approaches to cost awards for policy reasons, but this does not ordinarily affect the detailed taxation of costs; (3) The practice of billing on a time basis 'puts a premium on slow and inefficient work and conduces to the charging of fees that are wholly out of proportion to the value of the services rendered' (citing Van Niekerk); (4) Time-based billing may be appropriate as a starting point but 'cannot displace an objective assessment of the features of the case'; (5) Taxing masters must be watchful that allowing time-based rates does not encourage unnecessarily lengthy written submissions, which burdens not only the paying party but all who must read them; (6) The case was of exceptional complexity involving unprecedented constitutional issues including a head of state being ordered to give evidence and be cross-examined, and a wholesale recusal application against the entire Constitutional Court.

This is the first case of its kind in the Constitutional Court providing comprehensive guidance on taxation of party and party bills of costs in that Court. It establishes that: (1) Constitutional Court review of taxation follows Supreme Court of Appeal principles; (2) The 'clearly wrong' test applies to review of taxation decisions; (3) Time-based billing by counsel is not determinative and must be objectively assessed against the value and necessity of work done; (4) Written argument for the Constitutional Court may warrant separate allowance in appropriate cases due to its greater importance compared to the SCA practice; (5) Party and party costs aim to provide reasonable indemnification, not full recovery of attorney-client fees; (6) The taxing master must properly distinguish between separate cost orders. The judgment provides detailed guidance on assessing counsel's fees in complex constitutional litigation while cautioning against excessive or cumulative billing practices.