Rule 43 -- limitation of costs

By: WILLIE WANDRAG LEGAL COSTS CONSULTANT  02-27-2009
Keywords: consultant, Legal Costs

HIGH COURT RULE 43

Under the heading Matrimonial matters, this rule governs proceedings relating to certain applications for interim ancillary relief in matrimonial matters. Its scope is defined in sub rule (1).

A. PROCEDURE The procedure to be followed is set out in sub rules (2) to (6). It is generally accepted that the object of the rule is that applications in terms of rule 43 may be dealt with as expeditiously and inexpensively as possible. The failure on the part of litigants to adhere to this has been the subject of criticism in a number of cases:-

Varkel v. Varkel 1967(4) SA 129 (C) at 131 G
Zaphiriou v. Zaphiriou 1967(1) SA 342 (W)
van der Walt v. Van der Walt 1979(4) SA 891(T)
Smit v. Smit 1978(2) SA 720 (W)
Grauman v. Grauman 1984(3) SA 477 (W) at 478 H to 479 A
Von Reiche Basson v. Swart 1988(1) SA 813(T) at 815 D to 816 A
Patmore v. Patmore 1997(4) SA 785 (W) *
Visser V. Visser 1992(4) SA 530 (SECLD) *
Du Preez v. Du Preez 2009(6) SA 28 (T) *
 * In these 3 matters the court struck the application off the roll and ordered that the attorneys were not to charge their client/s any fees.

B. COSTS
In keeping with the clearly stated object of the rule, sub rules (7) and (8) regulate the costs aspect. The cases indicate that the rule is imperative and applicable even as between attorneys and their own clients.
Von Reiche Basson v. Swart 1988(1) SA 813 (T) at 817
Swart v. Swart (Prentice Hall Weekly Legal Service 1987(2)
Judgment by Daniels,J. in the T.P.D. dated 27 July 1987: Headnote: ‘HUSBAND AND WIFE - Rule 43 Application - costs - an attorney is not entitled to higher fees on the attorney and own client basis than the maximum prescribed fees.’
Varkel v. Varkel at 133 H: ‘ .. It is not the intention of the Rule merely to limit counsel to a fee of R25 on a party-and-party basis. The rule is explicit that counsel may not charge more than R25.’ (The amounts were subsequently increased to the present levels.) Subrule 43(7) limits the fee of counsel appearing under this rule to R80 if the claim is undefended and R170 if defended, unless the court in an exceptional case directs otherwise.
The Varkel v.Varkel judgment suggested that counsel would not be precluded, by the 2. provisions of the sub rule, from charging an additional fee for consulting with the client ‘... before the appearance in Court to qualify himself to lead his client’s evidence and to cross-examine his client’s opponent. Counsel would not be precluded by the Rule from receiving a fee for such a consultation and, in deciding what fee would be fair and reasonable, .... the Taxing Master would have regard to the fact that the maximum fee for appearance is ... R25.’ In similar vein it is suggested that counsel’s assistance may be sought, in an appropriate case, on the settlement of the ‘statement’. It is clear that the decision in the Varkel case related to the procedure that provided for delivery of an unsworn statement in the nature of a declaration (by the applicant) or in the nature of a plea (by the respondent) which would be dealt with in the form of a ‘summary hearing at which the two parties state their cases viva voce before the Court’. The rule was subsequently amended to the effect that a sworn statement in the nature of a declaration and a sworn reply in the nature of a plea be delivered. There is, under the present rule, no summary hearing and clearly no opportunity for leading evidence or for cross-examination.
The judgment of Daniels, J. in Von Reiche Basson v. Swart 1988(1) SA 813(T) appears to be the only and definitive authority dealing with the interpretation and application of sub rules 43(7) and 43(8) in their present form. Various earlier judgments, including Varkel v. Varkel, were considered and the suggestion that counsel may charge fees in addition to those provided for in rule 43(7) was rejected. Whilst Daniels, J. agreed with the judgment of Van Winsen, J. ( in Varkel) regarding the fact that the provisions of the subrule extend to attorney and client costs as well, he rejected the proposal that it indicated that counsel could charge fees, in addition to the amount provided in sub rule (7), for consultation and settling the statements and emphasised that it could only be allowed in an exceptional case and that the Court was to decide whether the matter could be regarded as ‘ an exceptional case’. In the absence of a court order waiving the provisions of rule 43(7), counsel’s fees in an opposed Rule 43 application is therefore clearly limited to R170 - inclusive of all work done in regard to the application. Sub rule 43(8) limits the attorneys fees to a maximum of R300 (if unopposed) and R350 (if opposed) unless the court in an exceptional case otherwise directs.

It is important to note that rules 43(7) and 43(8) do not constitute a tariff for the costs of rule 43 applications, but prohibits the legal practitioners (counsel and attorneys) from charging more than the amounts mentioned therein - unless the court directs otherwise. By its very nature it deals with what an attorney or advocate may charge his/her own client.
I do not believe that an attorney may legally contract with a client to disregard the provisions of the court rules where there is a specific prohibitive provision such as in rule 43.

To the extent (limited by the rule, in the absence of an order by the court that the limitations be waived) that the successful party, who obtains an order that the unsuccessful party must pay the costs of a rule 43 application, is 'out of pocket' such party may then recover the limited amounts from the unsuccessful party.
 
Note also that these amounts relate to all fees in connection with a rule 43 application and that the fact that there may be two sets of attorneys (viz. an instructing attorney and a correspondent at the seat of the court) acting on behalf of a party will not increase the prescibed maxima. (See Von Reiche Basson at 816I to 817B).

WILLIE WANDRAG

Keywords: consultant, Legal Costs

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