Randall Titus & Associates v Zilwa Attorneys

Zilwa Attorneys filed a notice of intention to tax a bill of costs on an attorney and client scale for professional work allegedly performed as local correspondent attorneys for Randall Titus & Associates (Randall Attorneys), a Cape Town firm, in a burial dispute matter. The services were allegedly requested by Mr Gary Colin Jansen, a consultant at Randall Attorneys. The bill contained 34 items totaling R75,549.03 (including VAT) for fees and disbursements. On 19 February 2024, the Taxing Mistress appended her allocatur for R190,059.03. Randall Attorneys objected to the bill on multiple grounds including: lack of valid mandate, items not recognized by tariff, work not actually done, no file notes, actions not necessary or proper, and excessive telephonic consultations. They also contended the Taxing Mistress acted mero motu (on her own motion) in determining their liability. Mr Jansen similarly objected, stating he never gave mandate to Zilwa Attorneys. Randall Attorneys required the Taxing Mistress to state a case for review under Uniform Rule 48.

• Whether the Taxing Mistress was competent to determine liability for costs claimed by correspondent attorneys in the absence of a specific court order
• Whether the Taxing Mistress correctly exercised her discretion in allowing the items in the bill of costs
• Whether Zilwa Attorneys had a valid mandate to act as correspondent attorneys for Randall Attorneys
• Whether the fees claimed were reasonable and necessary in the circumstances
• Whether items 24 and 25 (preparation of memorandum and brief) constituted duplication
• Whether a party can raise objections on review that were not raised during taxation proceedings

The review is dismissed, with costs payable by Randall Titus & Associates (the review applicant).

The binding legal principles established are: (1) A Taxing Master/Mistress has competence under Uniform Rule 70(8) to determine liability for costs claimed by correspondent attorneys, even in the absence of a specific court order awarding such costs - this is a matter for the Taxing Master's determination in exercise of discretion, not a function reserved for the court making the cost order; (2) On review of a taxation under Uniform Rule 48, the court will only interfere with the Taxing Master/Mistress's exercise of discretion where it is shown that he/she was actuated by improper motive, did not apply his/her mind, disregarded proper factors or considered improper ones, acted upon wrong principles, wrongly interpreted rules of law, or gave a ruling no reasonable person would have given; (3) A review of taxation is not an extra opportunity to a taxation hearing - a party who fails to object or make submissions before the Taxing Master cannot invoke the review procedure in a belated attempt to attack items allowed by the Taxing Master; (4) The Taxing Master/Mistress may call for documentary evidence under Rule 70(2) and need not insist on file notes where other satisfactory evidence of work done is provided.

The court observed that there is a meaningful distinction between preparing a memorandum for counsel (which involves analysis of legal principles and authorities and their application to facts) and preparing a brief for counsel (which involves collation of information, documents and papers necessary for prosecution of proceedings). These are distinct tasks and do not constitute duplication. The court also noted approvingly that in attorney and client taxation, the tariff applicable to party and party costs is not binding but serves as a guide, and items not in the tariff may be included where there is no express or implied agreement authorizing higher charges. The court emphasized the modern reality of legal practice where telephonic consultations may be necessary and reasonable, particularly in urgent, high-profile matters involving out-of-town attorneys.

This judgment clarifies important principles regarding taxation of bills of costs in South African law: (1) It confirms that a Taxing Master/Mistress has jurisdiction under Uniform Rule 70(8) to determine liability for correspondent attorneys' fees without a specific court order directing such payment; (2) It reinforces that on attorney and client taxation, the party and party tariff is merely a guide, and items not in the tariff may be allowed if reasonable; (3) It affirms the broad discretion of the Taxing Master/Mistress and the limited scope of review - courts will only interfere where discretion was not judicially exercised or the decision is clearly wrong; (4) It establishes that a review under Rule 48 is not an extra opportunity to taxation - parties who fail to make submissions or present evidence at taxation cannot raise those matters for the first time on review; (5) It provides guidance on what constitutes reasonable costs in modern litigation contexts involving out-of-town attorneys and telephonic consultations.