Dr. Weder, Kauta & Hoveka Inc. v Square Foot Development CC NAHCMD (28 July 2023)

Flynote

Taxation – Attorney and client bill – Taxation of an attorney and client bill is not a prerequisite for legal proceedings to recover fees – Unless the fees have been agreed upon, the client may by way of a special plea require taxation of the bill – at that stage – the court cannot adjudicate upon the bill of costs before taxation.

Facts 

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 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. 

With respect to the interlocutory application, apart from the case number alleged, it was not indicated whether the matter is litigious or non-litigious. Not even an invoice for the disbursements due and owing to the aforementioned advocates was attached. A perusal of the Ejustice court file in the matter cited in the plaintiff’s particulars of claim, revealed that the plaintiff represented the first and second defendants in that matter after summons was issued against them, and others, in the aforementioned case number. The action was instituted on 23 March 2019, and the records reflect that the plaintiff represented the defendants in that matter until on or about 26 February 2020, when the plaintiff filed a status report evincing its withdrawal as practitioners of record for the defendants.

Based on the above, the court concluded that the services for which the plaintiff claimed payment, were rendered in respect of a litigious matter, the case number cited in the particulars of claim. In fact, this was not disputed by the parties. 

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

Issues for determination

The court had to determine who, between the Law Society of Namibia and the Taxing Master, is empowered to tax the bill.

Discussion 

‘[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 actually 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), in accordance with 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) With a view to awarding the party who has been awarded an order for costs a full indemnity for all costs reasonably incurred by him or her in relation to 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.”

[24] Section 48(d) of the Legal Practitioners Act provides:

“The Council may exercise the powers of the Law Society and, without limiting the generality of that power, may -(d) prescribe the manner of assessment of the fees payable by any person to a legal practitioner in respect of the performance on behalf of such person of non-litigious work and in respect of expenses reasonably incurred by the legal practitioner in connection with the performance of that work and, at the request of such person or legal practitioner or of its own accord, assess such fees in the prescribed manner . . .”

[25] Furthermore, rule 23(1) of the Amended Rules of the Law Society of Namibia provides:

“The Council, or any committee appointed by the Council for that purpose, may at the request of any person or member, assess the fees and disbursements payable by such person or a member in respect of the performance of any work other than litigious work by a member in his capacity as legal practitioner: Provided that the Council or the committee shall not assess fees and disbursements in instances where a state official is empowered to do so or where fees and disbursements for the work in question are prescribed by any statutory tariff, save as in such an instance where an agreement exists between the legal practitioner and his client as far as the fee is concerned.”

[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 in relation to 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 in accordance with 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 lis 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. Parker J, writing for the court, found: 

“[6] The crucial question that arises is: who should tax the plaintiff’s bill of costs?  Both Ms. Engelbrecht and Mr. Coleman agree that the bill should be taxed by the Registrar qua taxing master of this Court.  Counsel referred me to textual and case-law authorities, which I have duly consulted.  Counsel argue that the legal basis of the taxing master’s duty in this regard is Rule 70 (1) of the Rules of Court.  I respectfully agree with them.  

The opening lines of Rule 70 (1) states:  “The taxing master shall be competent to tax any bill of costs for services actually rendered by an attorney in his or her capacity as such in connection with litigious work …” (My emphasis)  The word “competent” simply means “legally qualified”.   Considering the ipssisima verba of the above-quoted provision in Rule 70 (1), it is idle for one to contend that the competency of the taxing master under that rule is restricted to costs ordered by this Court.  If that was the intention of the maker of the Rules, nothing would have prevented the maker from making such of his or her intention known by clear, express words.  The provision in the Rule clearly says “any bill of costs” presented “by an attorney” for “litigious work”.

[7] I, therefore, hold that there is no legal impediment preventing the taxing master from taxing the plaintiff’s bill: indeed, Rule 70 (1) is an enabling provision in this regard.  A fortiori, both parties agree the plaintiff bill of costs should be taxed by the taxing master.”

[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, that 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 in 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.’

Held that:

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. 

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.

The taxing master shall be the registrar of this court, and the matter will be stayed pending the finalisation of that process.

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