Prescription of claims based on bill of costs

September 1st, 2018
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By Regomoditswe Confort Marakalla

This article discusses the law relating to the taxation of a bill of costs. In particular, it reflects on whether or not a successful party’s claim against the other party based on the taxed bill of costs can prescribe in terms of the Prescription Act 68 of 1969 (the Act), whether the right to tax also prescribes, and if so, when? This article will not dwell on circumstances where a settlement agreement was entered into between parties (whether made an order of court or not in terms of r 41 of the Uniform Rules of Court).

There are two schools of thought relating to the prescription of claims based on taxed bills of costs.

On the one hand, it is averred that a –

  • right to tax a bill of costs prescribes after three years; and
  • further taxed bill of costs prescribes after three years.

As such, a party who has been awarded costs should proceed with taxation and enforce its right of the taxed bill within the three-year period. That is so, because a party does not enjoy an unlimited period to quantify and recover its costs. As such, the prescription period of three years effects on a parties’ right to tax a bill of costs and also the taxed bill of costs in itself.

On the other hand, it is argued that a taxed bill of costs should be regarded as one whole part of a claim to a judgment, which was ordered in favour of a party. Thus, the taxed bill of costs does not trigger a separate cause of action. Succinctly put, an allocatur of a Taxing Master does not amount to a judgment for purposes of execution, but is simply complementary to what a court could not quantify. This is so because quantification lies exclusively with the Taxing Master and not a court. Furthermore, prior to execution, a judgment for costs should first be granted and the allocatur of the Taxing Master must follow. The judgment and the allocator are not divisible, but mutually complementary in nature and taxation is a procedural step towards quantification and thus prescribes after 30 years.

As a general rule, a successful litigant will be awarded a costs order in their favour. Ordinarily, what would follow is a bill to be presented to the Taxing Master for taxation. As an aside, what consequential effect would there be if a bill of costs is presented more than three years since judgment?

For purposes of a right to tax a bill, and recovery thereof, due regard is had to s 11 of the Act, which provides various categories of debts that prescribe after certain periods under subs (a) to (d). For costs that have been taxed, s 11(a)(ii) is activated, because where a judgment has been granted for costs, a taxed bill of costs arises out of that judgment and will only prescribe after 30 years and not three years, also extending a right to tax.

The first school of thought may have found its reasoning in the old r 66 before its amendment. Rule 66 required a party to have a judgment revived after three years if they desired to execute the judgment, until the 30 year period, as envisaged in s 11(a)(ii), had expired.

Rule 66 as currently couched, jettisoned the aspect of superannuation. It could not have been the intention of the legislature that once judgment for costs have been granted, followed by taxation even after three years, the right to tax would prescribe while on the other hand the judgment costs still stands. As such, where judgment is granted, a right to tax a bill cannot prescribe in three years and its enforcement vice versa (see Botha and Others v Scholtz and Another; In re: Botha and Others v Member of the Executive Council: Local Government and Housing Free State Province and Others (FB) (unreported case no 3424/2016 R182/2007, 9-3-2017) (Molitsoane AJ)).

One of the main purposes of the Act is to guard and protect a debtor from old claims. That purpose, however, is distinguishable due regard had to be the prescriptive period of 30 years as opposed to three years. As a rule of thumb, if judgment creditors were allowed to be lackadaisical in pursuit of their claim without incurring the prescription sting, that purpose would be subverted. Unfortunately a taxed bill of costs is a sequela to a judgment (see Jordan and Co Ltd v Bulsara 1992 (4) SA 457 (E)).

The disadvantages of enforcement of a judgment against an erstwhile party liable for costs are one of the shortcomings an unsuccessful party must bear. The period of prescription of a taxed bill of costs is couched in terms wide enough to include the judgment for costs. As such, a right to tax a bill of costs and a taxed bill of costs only prescribes after 30 years. More so, a taxed bill of costs does not create a fresh cause of action, but is merely an integral part of the proceedings before a court and the Taxing Master (on quantification). In my view, a party does not enjoy an unlimited right to enforce or tax its bill of costs, but as long as the judgment – which ignites such rights is still in force – such rights are guarded.

Regomoditswe Confort Marakalla LLB (NWU) is a candidate attorney at Van Velden-Duffey Inc in Rustenburg.

This article was first published in De Rebus in 2018 (September) DR 19.

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