By Nomfundo Manyathi-Jele
The Rules Board under, the auspices of the Justice Department, held an indaba on the legal costs of access to justice in Kempton Park in February 2014. The aim of the indaba was to facilitate discussion on the tariffs in the Supreme Court of Appeal, High Court and magistrates’ courts; the creation of a tariff for advocates and the overall impact of tariffs on access to justice. Topics discussed included sustainability of costs in the context of access to justice and the structure of court tariffs for attorneys.
The Chairperson of the Rules Board, Constitutional Court Justice Bess Nkabinde gave the welcome address and delegates who spoke included retired Deputy Judge President of the North Gauteng High Court, Willem Van Der Merwe; the Chairperson of the costs committee of the Rules Board, Patrick Hundermark and the Chairperson of the Law Society of South Africa costs committee, Asif Essa who made submissions on behalf of attorneys.
Justice Nkabinde said that the sensitivity of the discourse lay in the fact that the matters that were being discussed affected the livelihood of most of the people who were present at the indaba. ‘The matters affect the livelihood of most of us especially members of the legal profession, including sheriffs. It also affects members of the judiciary,’ she said.
Justice Nkabinde said that the civil justice system should respond to the needs of everyone, including the needs of lawyers and sheriffs, adding that one of the basic principles that should be met by the civil justice system for the promotion of access to justice was proportional cost in relation to the nature of the issues involved and services rendered by lawyers. ‘Our civil justice system does not meet this basic principle. In addition to it being complex and too slow, justice is also very costly. The cost problem is one feature that characterises the problem in our adversarial justice system,’ she said.
According to Justice Nkabinde, the vexed question is how to address the issue of court fees without making it impossible for those who render service to be reasonably remunerated. ‘How do we also strike a balance by ensuring that successful litigants are properly indemnified for all costs they have incurred in litigation and at the same time making sure that the unsuccessful litigants are not unduly penalised for failing claims against them,’ she asked.
Justice Nkabinde said that the quality of justice was the function of the courts and added that what matters was that justice was made accessible to all. She added that lawyers had a pivotal role to play in democracy. This role was to serve and bring justice to all and to make a positive difference to South African citizens.
Judge Van Der Merwe highlighted the fact that none of the resolutions that will be taken at the indaba would be binding of the Rules Board. He said that the focus of the indaba was on the recovery of cost on the basis that the successful party must be compensated. Judge Van Der Merwe said that Rules Board had to balance the interest of various service providers that provide a service throughout the civil justice value chain and the related costs. He said that in terms of the Legal Practice Bill, the Rules Board will be given two years to determine tariffs for all legal services that are rendered. The tariffs will be determined by a variety of factors that include the complexity of the case, the experience of the legal practitioner, the amount of work and the financial implications involved.
Judge Van Der Merwe concluded by saying that legal practitioners needed to understand their responsibility. ‘People become discontented with the Constitution and it affects the rule of law if what they read in the Constitution is not a reality to them. This discontent impacts the economy and the ability to practise your profession,’ he said.
Legal cost and access to justice
Mr Essa spoke on behalf of attorneys. He said that there were different role players involved in the administration of justice, adding that attorneys were involved in the filing of documents right up to the trial. He highlighted the fact that attorneys were not remunerated for that and added that this needed to be addressed.
‘It is unfortunate that people do not understand the whole purpose of tariffs which is to indemnify a successful litigant against an unsuccessful litigant,’ said Mr Essa, adding that it was not what the client pays the attorney.
Mr Essa said that, with regard to the legal costs on access to justice, attorneys can negotiate fees with clients, usually at the beginning of their mandate. This arrangement is contractual and with the informed consent of the client. ‘The client has the right not to engage the attorney if he or she is not satisfied with the fee structure. These are known as attorney-and-own-client-costs. This is where the public has lost sight of the whole issue of tariffs,’ he said.
Mr Essa said that tariffs increased four times in the past decade, namely in 2004, 2005, 2009 and 2013. He added that there was a disparity between attorney-and-own-client-costs on one hand and the party-and-party tariff on the other, adding that this inhibits access to justice.
Mr Essa said that various memoranda have been prepared over the years, amplified by economic data justifying increases that have not been implemented, thereby adversely affecting access to justice. He added that the recent increase in the statutory tariffs was inadequate and required immediate consideration.
Mr Essa said that the methodology and frequency of increases in tariffs and the method of the calculation of disbursements were causes of concern to the attorneys’ profession and the public. He concluded by saying that the legal profession as a whole, including sheriffs and advocates, needed to get together to discuss these issues.
Unbundling reasonableness
Advocate Ishmael Semenya SC spoke on behalf of the General Council of the Bar of South Africa. He said that there must be access to justice, but that the legal profession must contextualise what that entails. He said that the Constitution also speaks of the right of access to healthcare. ‘If you begin to read the right to healthcare to mean that Joe Soap will get access to the best cardiologist in the country or the right to housing to mean that Joe Soap will be living in Clifton, you are beginning to distort the conversation,’ he said.
Mr Semenya said he believes what the Constitution intends to convey is that all those people who have legitimate civil disputes must be able to go and ventilate those disputes and have them arbitrated on in accordance with law by competent judicial practitioners. ‘We all agree that the provision of legal services must be reasonable, the controversy is how to unbundle that concept of reasonableness,’ he said.
‘Ultimately if we all agree that the services that are rendered by the advocates’ profession in litigation are essential, can it really matter that they are rendered by someone wearing the hat of an advocate or that of an attorney?’ he asked.
Advocate Semenya concluded by saying that the ratio of legal [services] practitioners to the population of South Africa [citizens] was distorted. He added that the profession needed to be open to more members to allow access to justice to a broader audience.
Professor Jonathan Bloom presented a report on behalf of the South African Board for Sheriffs detailing a tariff overview of the past decade. He also presented a financial model on adjustments to future tariff increases.
Resolutions
The delegates then divided into four groups for the breakaway session. The groups discussed the following –
Professor at the University of Cape Town and Rules Board member, Mohamed Paleker said that group 1 believed that in an ideal world the burden of ensuring that everyone has access to justice should principally fall on the state as the Constitution talks about access to the courts (s 34) and that everyone is equal before the law (s 9). ‘So in an ideal world the state should offer assistance to anyone who finds themselves needing to go to court,’ he said.
Mr Paleker added that we are not living in an ideal world and that we need to be realistic. He said that the state has limited resources and that these resource constraints required creative and new thinking. Mr Paleker added that before one can even talk about legal fees and the cost of litigation, it is vitally important to consider whether the civil justice system is in need of an overhaul. ‘If you look at developments in England and Germany and other jurisdictions, the reform of a legal costs regime always occurred in conjunction with an overhaul of the civil justice system. So before trying to overhaul our legal costs regime, we must first think about our justice system,’ he said.
Mr Paleker added that alternative dispute resolution also needed to be looked at and utilised more. He said that the jurisdiction of the small claims court needed to be reviewed to allow for greater access to justice. ‘We should consider both the monetary and the substantive jurisdiction of small claims courts as turning to these courts can attend to, this can reduce the costs of legal services as legal representation is not permitted in these courts,’ he said.
Mr Paleker said: ‘We do not have enough lawyers in the country involved in a diverse range of new legal services. Perhaps if there were more attorneys and advocates in the country offering alternative services, it would increase competition which would in turn drive down prices and make access to justice more accessible. This is something the Justice Department must take up. They must think of ways of having more graduates involved in new areas of legal services within the civil justice system’ he said.
KwaZulu-Natal attorney and member of the Rules Board, Thoba Poyo-Dlwati spoke on behalf of group 2. She said that her group resolved that the application of the tariffs different version of taxation] in the country needed to be harmonised because it was currently not uniformly applied in the provinces across the country.
Her group also said that tariff increases should take place annually and should be based on the consumer price index but that the tariffs needed to be reviewed every three years.
On the issue of how to calculate disbursements group 2 said that a disbursement was a recovery of what one incurred, so one must recover what one has incurred.
Ms Poyo-Dlwati said that for the calculation of disbursements, the AA rates or the national treasury guides should be used for travelling cost calculations as well the rates charged by various cell phone providers for cellular calls and that these rates should be provided to the taxation officials.
Group 2 resolved that the tariff structure for the Magistrates’ Courts, High Court and Supreme Court of Appeal should be retained.
Cape Town attorney and Rules Board member Graham Bellairs gave group 3’s resolutions. He said that there is an urgent plea by the sheriffs that travelling expenses must be increased urgently as sheriffs are tariff bound and do not have the cushion that attorneys have [that] of having attorney-and-own-client-tariffs. Mr Bellairs said that new process was required particularly in respect of the frequency of increase in tariffs. ‘Sheriff’s charges must be kept in line with the escalation of costs in the economy and therefore must be reviewed on an annual basis,’ he said.
He added that there needed to be uniformity of tariffs in all the courts, adding that there must be a harmonisation between the tariffs for sheriffs in the High Court and the lower courts. ‘Tariffs must be simplified. They currently go on for pages. They must also be more user friendly,’ he said.
Mr Bellairs said that the travelling expense should also be the same all the courts.
On behalf of group 4 Cape Town advocate and Rules Board member Paul Farlam said that they had two views on whether there was a need for tariffs. One view was that it was helpful to have a tariff because it promotes uniformity and gives a degree of certainty to litigants as they will know how much they are expected to pay in advance. He added that it could also help bring the cost down for the losing party. The other view was that tariff recovery fees were not necessary and would not provide any benefit to the litigant. ‘There was a strong sense that access to justice might be better enhanced as the successful party could recover their cost as much as possible and a tariff would not necessarily enhance that,’ he said.
Speaking on the structure of the tariff, Mr Farlam said that there was general consensus that there should not be a fixed fee or fixed amount. Instead, there should be some sort of range that would take into account the nature of the matter, the seniority and experience of the advocate as well as the regional differences as advocate fees differ in the different parts of the country.
Mr Farlam said that there was a unanimous decision in his group that advocate fees are time based and not item based.
Nomfundo Manyathi-Jele, nomfundo@derebus.org.za
This article was first published in De Rebus in 2014 (April) DR 14.
