John Arnold Bredenkamp v Tanyaradzwa Precious Mashayamombe N.O and Yakub Mahomed

This was a review application concerning the taxation of a bill of costs in case HC 8103/14, which was essentially a debt collection matter that consumed three days for trial. The applicant challenged the taxing officer's (first respondent's) decision to allow: (a) a premium on legal practitioners' fees based on volume of work, and (b) item 124 of the bill of costs - a disbursement of $170,000.00 claimed as counsel's fees for Advocate Mpofu for conducting a three-day trial. At taxation, when the applicant challenged item 124, the second respondent simply produced an invoice from Mr. Mpofu, and the taxing officer ruled that the amount was recoverable merely because it had been paid, without inquiring into its reasonableness. The applicant contended this fee was grossly excessive and disproportionate, noting that at the highest Law Society tariff rate, it would equate to 540 hours or nearly 70 business days for a three-day trial. By comparison, Advocate Matinenga, who represented the applicant and had been an advocate since 1996, was paid $10,000.00.

• Whether the taxing officer acted unreasonably in allowing a premium on legal practitioners' fees based solely on volume of work without inquiring into reasonableness
• Whether the taxing officer committed a reviewable irregularity by failing to inquire into the reasonableness of counsel's fees claimed as a disbursement
• Whether counsel's fees must be subjected to scrutiny as to reasonableness during taxation or whether they are automatically recoverable if paid
• The proper application of Order 39 Rule 307 of the High Court Rules 1971 regarding taxation of costs
• Whether a contingency fee agreement with counsel constitutes a 'special fee to another legal practitioner' under Rule 307

1. The decision of the first respondent in the taxation of the bill of costs in case number HC 8103/14 to allow the recovery of the disbursement listed in that bill as item 124 is set aside; and the recovery of the disbursement from the applicant is hereby disallowed. 2. The second respondent shall draw a revised bill of costs to reflect the adjustments contemplated by paragraph 1 of this Order, as well as those adjustments imposed by the decisions of the first respondent that are unaffected by this order. 3. The second respondent shall pay the applicant's costs of suit.

The binding legal principles established are: (1) A taxing officer has a duty under Order 39 Rule 307 of the High Court Rules 1971 to inquire into the reasonableness of all costs, charges and expenses, including counsel's fees claimed as disbursements, and to allow only those that appear necessary or proper for the attainment of justice. (2) It is a reviewable irregularity for a taxing officer to allow counsel's fees merely because they were paid, without conducting an inquiry into their reasonableness when challenged by the paying party. (3) Counsel's fees from the de facto bar are not automatically recoverable as disbursements; they must be subjected to scrutiny as to reasonableness based on relevant criteria including the level of experience of the practitioner, the time actually taken on the task, the novelty and complexity of the undertaking, and market realities. (4) Every party to litigation has the right to have costs claimed by the successful party tested as to their reasonableness by a taxing officer. (5) Contingency fee agreements with counsel, if they constitute a 'special fee to another legal practitioner' as contemplated by Rule 307, are not allowable costs recoverable from the unsuccessful party.

The court made several important non-binding observations: (1) The general trend whereby counsel's fees from the de facto bar are merely accepted as disbursements should be discouraged. (2) The practice of counsel raising a first day fee and subsequent refresher fees should be encouraged and possibly even provided for in regulations. (3) It may be necessary for the Law Society and the de facto bar to jointly make a concerted effort to ensure that litigants are protected from possible inflated or unreasonable fees. (4) The court directed that a copy of the judgment should be made available to the Law Society. (5) The court noted with concern the 'alarming discrepancy' where 'junior counsel' in a three-day trial raised a fee far in excess of what 'senior counsel' raised, describing this as a demonstration of potential problems in the current system. (6) The court referenced with approval the remarks of the South African Constitutional Court in Camps Bay Ratepayers regarding the need to consider poverty and gross disparities when assessing the reasonableness of legal fees in countries where such conditions exist.

This case is significant in Zimbabwean legal practice as it establishes important principles regarding the taxation of counsel's fees and the role of taxing officers. It clarifies that counsel's fees from the de facto bar cannot be automatically accepted as disbursements merely because they were paid, but must be subjected to scrutiny for reasonableness during taxation. The judgment emphasizes the protective function of taxation in safeguarding litigants from excessive or unreasonable fees. It also provides guidance on contingency fee agreements with counsel and their treatment under taxation rules. The case highlights the need for transparency and regulation in legal fee structures, particularly concerning the practice of advocates charging fees, and suggests the need for cooperation between the Law Society and the de facto bar to protect litigants. The court's reference to socio-economic realities and the need to consider poverty and inequality when assessing the reasonableness of fees adds an important dimension to fee taxation in the Zimbabwean context.