The Commercial Case Law Index is a collection of judgments from African countries on topics relating to commercial legal practice. The collection aims to provide a snapshot of commercial legal practice in a country, rather than present solely traditionally "reportable" cases. The index currently covers 400 judgments from Uganda, Tanzania, Nigeria, Ghana and South Africa.
Get started on finding judgments that are relevant to you by browsing the topic list on the left of the screen. Click the arrows next to the topic names to reveal a detailed list of sub-topics. Most judgments are accompanied by a short summary written by subject-matter expert postgraduate students from the University of Cape Town.
The appellant sought to overturn a taxation ruling of the Deputy Registrar, contending that the latter had erred in fact and law in coming to its decision. The order prohibited the appellant from charging its client certain fees for services rendered over and above the initial instruction costs.
The Registrar had found that the appellant was estopped from claiming the fees due to the allegedly misleading way it had conducted itself in respect of the client regarding the anticipated bill of costs. The appellate court upheld the challenge, finding that the provisions of the Advocates Act expressly regulated the exclusion of bills of costs, thereby limiting – in terms of s 14 of the Judicature Act – the High Court’s discretion to apply principles of equitability when adjudicating disputes of this nature.
Both legislation and case law affirmed the appellant’s right to taxation of its bill of costs against the respondent, as it had met the relevant statutory requirements.
The issues before the court were whether the registrar erred in law when he did not exercise his jurisdiction to refer the matter to a judge for a final disposal of issues he had found as contentious in his ruling; whether the learned registrar erred in law when he unilaterally dismissed the matter without determining the contentious issues raised therein and whether it is in the interest of justice that the appellant is granted leave to tax its Advocate-Client Bill of Costs.
The court stated that the claims did not arise out of a single transaction and the best way forward for the applicant was to file an action (civil suit) to recover these various claims.
The court came to the conclusion that the application was for recovery of costs and the registrar had no jurisdiction to entertain a dispute between advocate and client as to whether costs or fees were due. Secondly it is alleged that the bill is illegal or arises from an illegal contract. The court upheld the registrar’s decision not to entertain the bill and refer the parties to a suit with the only question remaining of whether he ought to have referred the parties to the judge for trial of the suit. The court reiterated that the registrar reached the right conclusion.
The matter of recovery of costs was contentious and the registrar had no jurisdiction to entertain it.
The court dismissed the appeal.
The appellant sought a declaration against the respondent that the Constitutional Court erred in refusing to award the appellant costs as a successful party and that it also based that refusal to award costs on incorrect principles.
The reference on taxation can be made to the Supreme Court on two grounds namely; on a matter of law or principle or on the ground that the bill of costs as taxed is in all circumstances manifestly excessive or manifestly inadequate.
The court held that there was no principle of law to the effect that the decision of the taxing officer must be subjected to the application of a ‘magic formula’ which when applied would result in a precise figure being arrived at in an almost automatic manner. Every case must be decided on its own merits and its peculiar circumstances, such as prolixity of the case in its preparation and any other peculiar complications in its presentation to the court.
The court held that, due to the difference in cases, uniformity and consistency may at times be defeated. Moreover, other factors ought to be considered by the taxing master. The fund or person bearing the costs must be considered before setting the award. A balance has to be struck between keeping the costs of litigation as reasonable as possible so as not to restrict access to court to only the wealthy, and the need to allow reasonable level of remuneration of advocates to attract worthy recruits to the profession.
In the result, the application was upheld.
The appellant appealed against a taxing officer’s order awarding the second respondent costs of 1, 900, 739/= contending that the instruction fee awarded was based on an incorrect value of the suit. The respondents’ counsel raised preliminary objections inter alia that couldn’t be permitted to raise a new point of law that was not argued in the lower court.