Christian Brothers College v Nokuthula Mpfulili N.O. and Ndabezinhle Mazibuko

This was an application for review of the taxing officer's decision in assessing costs in HC 31/14. The applicant (Christian Brothers College) challenged the taxing officer's assessment of advocate's fees in a bill of costs. The advocate had been paid $700 but the taxing officer disallowed most of this amount and substituted $240. The applicant argued that the taxing officer misdirected herself by subjecting the advocate's fees to taxation in terms of the High Court fees tariff (SI 12/2011) instead of treating them as disbursements actually and reasonably incurred. The 2nd respondent (Mazibuko) opposed the application, arguing that advocate's fees should be treated like any other legal practitioner's fees (not as disbursements), that since independence Zimbabwe has a fused bar, and that costs were awarded on a party-and-party scale so the applicant should not recover costs at a legal practitioner-client scale. During the hearing, applicant's counsel sought to amend the relief to have the matter remitted back to the taxing officer for taxation in terms of Rule 311(a) which provides for taxation of fees when another legal practitioner is employed.

• Whether the taxing officer correctly assessed advocate's fees as legal fees per the High Court tariff, or whether she should have treated them as disbursements actually and reasonably incurred
• Whether advocate's fees can be claimed as disbursements in the context of Zimbabwe's fused bar
• Whether the taxing officer properly exercised her discretion in terms of Rule 311 of the High Court Rules
• Whether the amendment to the relief sought should be allowed

1. The bill of costs in HC 31/14 was set aside. 2. The matter was remitted back to the 1st respondent (the taxing officer) for a taxation to be conducted with full regard for the provisions of Rule 311 in relation to the advocate's fees claimed therein. 3. Each party to bear its own costs.

The binding legal principle established is that when a taxing officer assesses advocate's fees in a bill of costs, she must exercise her discretion in accordance with Rule 311 of the High Court Rules. Rule 311(a) allows for the taxation of counsel's fees as disbursements, with the onus on the party seeking to have them taxed off to show they were not reasonably incurred. The taxing officer must apply the guidelines in Rule 311(b) and provide clear reasoning for any disallowance or reduction of such fees. Where it is unclear whether the taxing officer properly exercised her discretion under Rule 311, the matter should be remitted back for proper taxation in accordance with the rule.

The court made obiter observations on the debate about whether advocate's fees should be treated differently in the context of Zimbabwe's fused bar (since independence) compared to the historical divided bar system. The court noted the 2nd respondent's argument that "the Advocate's fees were previously regarded as a disbursement when there was a divided bar and since independence, the bar was fused" and that "there is no longer room for such an approach." However, the court did not definitively resolve this policy question, instead focusing on the proper application of Rule 311. The court also observed that both parties had arguable cases, which justified not awarding costs to either party and allowing both to present meaningful submissions to the taxing officer.

This case is significant in Zimbabwean law (and relevant to South African practitioners for comparative purposes) as it clarifies the approach to taxation of advocate's fees in the context of a fused bar. The judgment emphasizes the importance of taxing officers properly applying Rule 311 when assessing fees for "another legal practitioner" (counsel/advocates), and clarifies that such fees can be treated as disbursements subject to reasonableness requirements. The case reinforces that taxing officers must provide clear reasoning for their decisions and apply the correct legal framework when assessing advocate's fees on a party-and-party scale. It also demonstrates the court's willingness to allow procedural amendments where they address the substance of the dispute and serve the interests of justice.