(A) ICL Zimbabwe Limited v (1) The Taxing Master, Supreme Court (2) Amos Mwatsaka; (B) Amos Mwatsaka v (1) ICL Zimbabwe Limited (2) The Taxing Master, Supreme Court

ICL Zimbabwe Limited dismissed Mwatsaka in March 1991, leading to protracted litigation. Mwatsaka won the initial matter (judgment SC-175-95) and ICL won the ultimate appeal (judgment SC-164-98). In each appeal, the successful party was awarded costs. Both parties were dissatisfied with the taxation of their respective bills of costs by the Assistant Registrar (Taxing Officer) of the Supreme Court. ICL challenged the taxation in Case No. SC 661/94 where Mwatsaka had been successful, and Mwatsaka challenged the taxation in Case No. SC 82/98 where ICL had been successful. The matters came before the court as reviews of the taxation in terms of Rule 48(2) of the Supreme Court Rules.

• What are the principles governing review of decisions by the Taxing Officer?
• What is the proper terminology for the official conducting taxation (Taxing Master vs Taxing Officer)?
• Can a litigant appearing in person recover costs incurred for legal advice and opinions from practitioners not on record?
• Can a litigant appearing in person recover any costs at all?
• Can a litigant appearing in person recover costs of drawing the bill of costs and attending taxation?
• Should sales tax be added to an award of costs for a litigant in person?
• Are counsel's fees (fees of 'another legal practitioner') allowable as party and party costs following fusion of the legal profession?
• What is the appropriate standard for reviewing the quantum of counsel's fees allowed by the Taxing Officer?
• Can an instructing legal practitioner charge for attendance at court when counsel also appears?

1. In each case the Taxing Officer is directed to amend the taxation in the light of the rulings in this judgment; 2. There will be no order as to costs in either application.

1. Reviews of taxation decisions are governed by two principles: (a) common law grounds requiring gross unreasonableness or error of principle/law, and (b) a wider power to interfere if the Taxing Officer was clearly wrong on any item, given the court's supervisory role over its own officers. 2. The proper term in Zimbabwean law is 'Taxing Officer' not 'Taxing Master'. 3. Costs incurred for legal advice and opinions from legal practitioners not on record are not recoverable as party and party costs, being legal practitioner and client costs rather than costs 'of and in the proceedings' (subject to exceptional circumstances such as exceptional complexity or novelty). 4. Litigants appearing in person may recover reasonable costs such as travelling, typing and photocopying expenses under Rule 48(1). 5. Sales tax should not be added to a bill of costs for a litigant in person who will not actually incur that liability. 6. Following fusion of the legal profession, counsel's fees ('another legal practitioner's' fees) remain allowable as party and party costs in the Supreme Court under Part I s 7 of SI 191/97, which permits such fees at 'such overall fee as the taxing officer considers fair and reasonable'. 7. Both counsel and the instructing legal practitioner may charge for attendance where both are necessarily engaged, pursuant to Part I para 5 of SI 191/97.

McNally JA observed that the expression 'Taxing Master' appears to have been imported from South African cases and is not strictly accurate in the Zimbabwean context. The judge expressed concern that Part I s 7 of SI 191/97 places too great a burden on Taxing Officers in assessing the reasonableness of counsel's fees without adequate guidance, particularly given rapid inflation. He suggested that the 'de facto Bar' should consider developing recommended tariffs similar to those produced by the Law Society, or alternatively that the Rules Committee or Law Reform Commission might address this issue. The judge also noted that the absence in the Supreme Court Rules of a proviso equivalent to High Court Rule 311 (allowing disallowance of counsel's fees in unopposed matters or where no legal practitioner appeared on the other side) may reflect a policy that in the highest court, parties should be encouraged to be represented by specialist legal representatives rather than discouraged from instructing counsel.

This case provides important guidance on the review of taxation of bills of costs in Zimbabwe. It clarifies the proper terminology ('Taxing Officer' rather than 'Taxing Master'), establishes the scope of recoverable costs for litigants appearing in person, and most significantly addresses the vexed question of whether counsel's fees remain recoverable as party and party costs following fusion of the legal profession. The judgment confirms that despite fusion, the Supreme Court Rules specifically contemplate and permit the recovery of counsel's fees ('another legal practitioner') as party and party costs, rejecting arguments that such costs should be borne by the client. The case also highlights deficiencies in the fee guidance available to Taxing Officers and suggests the need for agreed fee guidelines similar to the Law Society's recommended tariffs.