- July 28, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
This was an interlocutory proceeding seeking an order to have a bill of costs drawn by the plaintiff (Dr. Weder, Kauta & Hoveka Inc.) taxed. In the main action, the plaintiff claimed payment of money for professional services rendered by the plaintiff to the defendants, for representation in litigation before the High Court. The defendants admitted that the plaintiff performed certain professional services but denied that they approved the appointment of instructed counsel and that the amount claimed by the plaintiff constituted a fair and reasonable fee for the services rendered. The particulars of the claim alleged specifically that legal services were rendered in the matter bearing case number HC-MD-CIV-ACT-DEL-2019/01372 and as an attachment was an invoice, including disbursements due to two advocates.
Although not raised in the form of a special plea, the defendants pleaded that the action be stayed pending the taxation of the plaintiff’s bill. They further pleaded that they did not approve the appointment of instructed counsel and that the plaintiff had not rendered an invoice to the defendants.
The court had to determine who, between the Law Society of Namibia and the Taxing Master, is empowered to tax the bill.
Discussion
Schimming-Chase J
‘[22] It is trite that although taxation of an attorney-and-client bill is not a prerequisite for legal proceedings to recover fees (Chapman Dyer Miles & Moorhead Inc. v Highmark Investment Holdings CC [1997] 4 A11 SA 247 (D), 1998 (3) SA 608 (D)), unless the fees have been agreed upon, the client may by way of a special plea require taxation of the bill, and at that stage, the court cannot adjudicate upon the bill of costs before taxation (Benson v Walters [1984] 1 A11 SA 283 (A), 1984 (1) SA 73 (A)).
[23] Rule 125 of the rules of this court provides:
“(1) The taxing officer is, subject to rule 124, competent to tax a bill of costs for services rendered by a legal practitioner in connection with litigious work of the court and he or she must tax such bill, subject to subrules (7), (8) and (11), by the provisions contained in Annexures D and E, except that the taxing officer may not tax costs in instances where some other officer is empowered to do so.”
Further:
“(3) to award the party who has been awarded an order for costs a full indemnity for all costs reasonably incurred by him or her about his or her claim or defence and to ensure that all such costs are borne by the party against whom such order has been awarded the taxing officer must on every taxation allow all such costs, charges and expenses as appear to him or her to have been necessary or proper for the attainment of justice or for defending the rights of any party.”
[26] From a reading of the Legal Practitioners Act and the Amended Rules of the Law Society of Namibia, the Law Society shall only be enjoined to tax costs at the request of any person – and assess fees and disbursements payable by such person, in respect of the performance of any work other than litigious work.
[27] As outlined earlier in this judgment, it is common cause between the parties that the alleged professional services rendered by the plaintiff to the defendants pertain to litigation before this court. Therefore, the Law Society in its statutory capacity cannot tax the bill of the plaintiff where the dispute about litigious work persists between the parties.
[28] The argument of the plaintiff thus stands to be rejected. I refer to President of the Republic of Namibia and Others v Anhui Foreign Economic Construction Group Corporation Ltd and Another 2017 (2) NR 340 (SC) para 49, where the Supreme Court held:
“As was made clear by the High Court, the starting point in any enquiry relating to the exercise of public power is that the rule of law and the principle of legality require that public officials and institutions may only act by powers conferred upon them by law. As was unequivocally stated by this court in the Rally for Democracy and Progress matter, the Constitution requires that the exercise of any public power is to be authorised by law – either by the Constitution itself or by any other law.”
[29] What thus remains for consideration, is the contention of the defendants that the person responsible for the taxation of the plaintiff’s bill of costs is the Registrar of the High Court, referring to Grindlays International Finance (Rhodesia) Ltd v Ballam 1985 (2) SA 636 (W) 645E.
[30] On a proper reading of Grindlays, it is evident – with respect, that the court states a common cause proposition that the taxing master is an officer of the Supreme Court-appointed in terms of s 34(1)(a) of the Supreme Court 59 of 1959, deriving his authority to tax bills of costs from rule 70(1)(a) of the Uniform Rules of Court.
[31] While it is not for the taxing master to decide whether the client is liable to the attorney, the taxing master may during taxation consider whether there is evidence that the work was done and disallow fees claimed for work not done (Harms, L. Amler’s Precedents of Pleadings. Eight Edition. P 52). Once the allocator is issued, the parties are at liberty to enforce their rights.
[32] I find it apposite in the circumstances to refer to Nate Ndauendapo v Aussenkehr Farms (Pty) Ltd 2007 (1) NR 162 (HC). Similar to the present matter, the lines between the parties in Ndauendapo concerned the payment of fees for professional legal services rendered. Also on all fours with the present matter, the court was confronted with the question as to who shall be empowered to tax the bill of the plaintiff.
[33] The interpretation by counsel for the defendants of Grindlays read with Ndauendapo – decided before the amendment of the rules of this court in 2014, lends itself to a favourable finding that although not specifically defined in the 2014 rules of this court, the taxing master enjoined with the taxation of the plaintiff’s bill of costs, shall be the registrar of this court. It is a litigious matter. This finding is compounded when read with Practice Direction 46(1) of this court, which requires: ‘a party who desires to have a bill of costs taxed must submit a written request to the registrar for a date for taxation, and the request must be accompanied by a copy of the bill to be taxed.’
[34] As to costs in the present interlocutory, the general rule is that costs are at the discretion of the court. I do not believe that a costs order should be made in the matter, given the nature of the application.’
It was therefore held that:
a) The Law Society as a repository of public power, cannot tax the bill of the plaintiff where the dispute on fees relates to litigious work conducted.
b) It is not for the taxing master to decide whether the client is liable to the attorney, but the taxing master may during taxation consider whether there is evidence that the work was done and disallow fees claimed for work not done. Thereafter an allocator is issued on which further action may be taken.
c) The taxing master shall be the registrar of this court, and the matter will be stayed pending the finalisation of that process.