JJVR v Taxing Master, High Court of South Africa (Western Cape Division) and Another (Horowitz and  South African Legal Practice Council as intervening parties) [2024] 1 All SA 178 (WCC)

By Shekesh Sirkar

In a recent full court judgment, in the matter of JJVR, the court addressed a crucial issue concerning the authority of costs consultants to appear before a Taxing Master and handle the taxation of a litigant’s bill of costs, in instances where they are not admitted and enrolled as legal practitioners in terms of the Legal Practice Act 28 of 2014 (LPA).

Background

The case involved a contested divorce proceeding between Mr JJVR and Mrs AJVR. Mrs AJVR sought the taxation of cost orders made in her favour during the litigation. Mr JJVR engaged a costs consultant, a Ms Pauline Erasmus, to handle the taxation process. Multiple hearings were held for the taxation, with Ms Erasmus ‘representing’ Mr JJVR while being accompanied by a duly admitted legal practitioner.

However, on one occasion, the assistant Taxing Master informed Ms Erasmus that she would not allow her to address her on any issues relating to the taxation and would only permit a duly admitted legal practitioner to do so. As a result, the taxation process was postponed. Ms Erasmus inquired about the reasons for this decision and the Taxing Master clarified that it was not a new practice and it had always been the position that only a legal practitioner with rights of appearance can present a matter for taxation.

Dissatisfied with this explanation, Mr JJVR initiated legal proceedings to review the Taxing Master’s decision not to allow Ms Erasmus to represent him in the taxation process. The review application was launched in September 2022, and several parties, including the first and second intervening parties and the Legal Practice Council (LPC), the regulatory body for legal practitioners, sought to intervene in the proceedings. The matter was eventually argued before a full court on 28 July 2023.

Navigating the legal framework

The court examined the historical legal context, which dated back to Roman-Dutch law, when only admitted advocates had the right to appear in superior courts in South Africa. This legal position was upheld by the judgment in Bills of Costs (Pty) Ltd and Another v the Registrar, Cape, NO and Another 1979 (3) SA 923 (A), where the court reaffirmed that taxation is an integral part of legal proceedings.

The LPA was enacted to regulate the activities of legal practitioners and candidate legal practitioners. Section 25(1) explicitly states that only admitted and enrolled legal practitioners have the prerogative to appear in any court of law. During legal arguments, the LPC’s position was clear: It contended that appearance at a taxation before the Taxing Master may only be undertaken by a duly admitted legal practitioner. The LPC opposed the notion that a costs consultant be permitted to appear before the Taxing Master with a legal practitioner in tow.

The court upheld the Taxing Master’s decision not to allow Ms Erasmus, who was not a duly admitted legal practitioner, to appear before her. The court asserted that it would be detrimental to the legal system and society to permit someone with a history of dishonesty and fraud to participate in a process where the integrity associated with a legal practitioner is critical.

Regarding the appearance of a cost consultant alongside a legal practitioner, it was argued (and endorsed by the court) that this arrangement was merely a sham, with the cost consultant taking the lead while the legal practitioner played a passive role. This practice had serious consequences, as the legal practitioner was unprepared and unable to challenge the bill of costs when the cost consultant was prohibited from participating.

The court concluded that the Taxing Master’s decision not to allow a costs consultant, who was not a legal practitioner, was lawful, and there could be no question of any absence of rationality in the Taxing Master’s ruling. The review application was accordingly dismissed.

Appearance before the Taxing Master

The precedent in the Bills of Costs judgment establishes that only persons who can appear before a Taxing Master in a Supreme Court (as it was then known) are persons who are permitted to practice in such court. At the time of the Bills of Costs judgment, South Africa’s legal landscape dictated that only duly admitted advocates had the right to appear in superior courts, while both advocates and admitted attorneys possessed the right to appear in lower courts. Although s 25(3) of the LPA now allows admitted attorneys to appear in superior courts, this does not impact who may appear at a taxation before the Taxing Master in the High Court – both attorneys and advocates have retained that right.

No subsequent authority from the Appellate Division, now the Supreme Court of Appeal, or the Constitutional Court was presented to the court to indicate the overturning of the Bills of Costs decision. In adherence to the stare decisis principle, courts are obliged to adhere to decisions of higher courts, which bind them. In addition to this, considering the analysis of the LPA, the court held that the statutory changes introduced by the LPA have not altered the position established by the Bills of Costs decision, aligning with the relevant statutes of that period.

What does this signify? Advocates possess the right to appear before the Taxing Master by virtue of their automatic right to appear in superior courts. Attorneys, duly admitted and enrolled to practise as legal practitioners, have the right to practise across the Republic of South Africa, and by extension, the right to appear before a Taxing Master. This is clearly articulated in s 25(1) of the LPA, read with r 70(E)(2) of the Uniform Rules of Court. Conversely, an attorney who has been admitted and enrolled on the non-practising roll, faces a restriction in their professional activities, in that they may not attend taxations before the Taxing Master. This limitation stems from the explicit provision outlined in s 25(1) of the LPA, which states that only admitted and enrolled legal practitioners are entitled to appear in any court of law, thereby including the appearance before a Taxing Master.

Fee sharing and the role of costs consultants

The court agreed with the LPC that compensating a costs consultant, who is not an admitted legal practitioner, for attending taxation and seeking to recover the fee from the client, constituted a prohibited fee-sharing arrangement. Only attorneys are entitled to claim fees specified in the tariff of fees under r 70 of the Uniform Rules of Court.

However, attorneys are allowed to delegate the task of drafting a bill of costs to a third party, including a costs consultant, who is not an admitted legal practitioner, provided the attorney certifies the accuracy of the bill of costs. This delegation is not considered fee-sharing but underscores the trust and professional responsibility placed in legal practitioners.

The court ruled that the applicant had failed to make out a case for the relief sought, and the application was accordingly dismissed.

Conclusion

This landmark full court judgment reinforces the exclusive rights of duly qualified, practising, legal practitioners to represent clients before a Taxing Master. It underscores the importance of upholding the legal profession’s integrity and serves as a warning to non-legal practitioner costs consultants regarding the limits of their role. Furthermore, it clarifies the role of costs consultants, in the context of fee sharing for drafting bills of costs, highlighting the need to adhere to established legal standards and norms.

Shekesh Sirkar BA LLB (UWC) is a legal practitioner at Herold Gie Attorneys in Cape Town. Mr Sirkar represented the third intervening party in the matter.

This article was first published in De Rebus in 2024 (May) DR 43.