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The legal costs, which a successful litigation party will be entitled to, are determined by

  1. the type of cost order awarded to the party by the court and;
  2. the applicable court tariffs.

This article will briefly explain the three main cost orders which can be awarded by our courts as well as the process of enforcing such cost orders.

One often hears an aggrieved party in a dispute threatening the guilty party with court action (to seek an appropriate remedy) and also to hold such guilty party liable for the costs of the intended legal action. This article will very briefly explain the different cost orders which courts can grant, as well as the process to be followed to enforce such cost orders.

There are three main cost orders which can be granted by South African courts:

  1. party and party costs
  2. attorney and client costs, and;
  3. attorney and own client costs.

 

The process of enforcing the cost order is the same regardless of the specific cost order granted by the court. A party in whose favour the cost order was granted (which is normally also the party who obtained the successful result in the litigation proceedings) must have a bill of costs drawn up. The bill of costs will set out all work done by the attorney as listed items in which the specific task is explained with the corresponding fee and disbursement reflected next to it. The bill of costs is then served on the other party, who may then object to it. The bill of costs is then finally taxed by the relevant court’s taxing master (a process during which the different items and fees are scrutinised and either allowed or removed/taxed off). The cost order can thereafter be enforced like any other monetary judgment.

Party and party costs can be described as the default costs order granted by South African courts. This means that costs can be claimed by the party in whose favour such order has been granted for all legal work which was necessary for the matter to proceed and which is provided for in the court tariffs. In other words, the taxing master will only allow items on the bill of costs which were necessary to be taken in order for the matter to move forward. Matters in the lower courts will be subject to scales A to D, and the applicable scale is determined by the monetary amount awarded as well as whether the matter was instituted in a District Magistrates Court or a Regional Magistrates Court. There is only one tariff for matters instituted in the High Court, but the High Court can use its discretion to award costs on a lower scale should it be just and equitable to do so (for instance, the High Court may grant costs on a lower scale if the matter could easily and conveniently have been instituted in a lower court).

Costs awarded on an attorney and clients scale are still subject to the prescribed court tariffs, but the party in whose favour the cost order was granted can claim more items in the bill of costs as the taxing master will allow all items which relate to the matter, regardless of whether or not such item was necessary to take the matter forward. For instance, only necessary consultations during which instructions must be obtained and emails can be included in the bill of costs in terms of a party and party cost order whereas follow-up emails and extra, unnecessary consultations will also be allowed in terms of an attorney and client cost order.

The last cost order which will be discussed in this article is the attorney and own client cost order. Such a cost order can only be granted by the High Court as the Magistrates Court Act does not make provision for it, and the lower courts can only act in terms of legislation (which is why these courts are often described as “creatures of statute”). Attorney and own client costs orders are only granted by prior agreement between the parties (commercial agreements often make provision for such an order in any litigation pursuant to the agreement) or if the court, in its discretion, wants to give an adverse cost order against a party to show its displeasure of such party’s conduct

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.

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Jan Fourie

Director |  Attorney, Notary & Conveyancer | BA. LLB

Jan graduated in 1974 with a five-year BA LLB degree from the University of Stellenbosch, whereafter he was admitted as an advocate and prosecuted as such in the Cape Town and Wynberg Courts. In 1974, he joined Swemmer & Levin as the Candidate Attorney of Mr Levin (founding member) and was admitted as an attorney on 7 April 1976, as a conveyancer on 11 January 1978, and as a Notary on 19 December 1984. Since 1974, he has served in various committees, including the West Coast Chamber of Commerce, the Vredenburg School Committee, and the Malgas Lions Club. 

Furthermore, Jan was the author of the first bilingual law book, The New Debt Collecting Procedures (Die Nuwe Skuldinvorderingsprosedures), which was used by all the Magistrate Courts throughout South Africa. With the founding of the Small Claims Court in Vredenburg, Jan served as one of the first Commissioners. He is currently based at Swemmer & Levin’s Vredenburg office and has been with our firm for more than 47 years.

Pieter Smit

Director | Attorney & Conveyancer | BA. LLB

Pieter obtained his BA Law degree from Stellenbosch University in 1995 and his LLB degree from the North-West University in Potchefstroom in 1998. He served his articles at Marais Muller Attorneys from 1998 to 1999 and was admitted as an attorney in 2000 and as a conveyancer in 2002. Pieter is the founder of PP Smit Attorneys, which opened its doors in 2004. He also became a director of Swemmer & Levin in 2006. Pieter loves the outdoors and participating in all forms of sport, including tennis, golf, fishing, spearfishing, scuba diving, and hiking. 

Johann Maree

Director | Attorney | BA. LLB

Johann matriculated at Oudtshoorn High School and attended Stellenbosch University, where he obtained his BA Law and LLB degrees. Following his studies, he worked for three years as State Prosecutor at the Magistrate’s Court in Cape Town. Johann completed his legal training with the State Attorney in Pretoria and then moved to his hometown, Oudtshoorn, where he worked as a lawyer for a year. In 1983, he finally moved to Vredenburg and joined Swemmer & Levin, where he is still practising as a director. When he is not in the office, Johann enjoys cycling and in his earlier days, he used to be a long-distance junkie.

Richard Phillips

Director | Attorney | Bcom & BProc

After matriculating at Paarl Boys’ High School, Richard completed his BCom and BProc degrees at the University of Port Elizabeth. He served his articles with Van Wyk Fouchee in Paarl and quickly developed an affinity for litigation. Richard has always had a deep love for the ocean and when he was presented with an opportunity to join Swemmer & Levin on the West Coast, he agreed without hesitation and has been with our firm since 1997. Richard specialises in general litigation and divorces. When he is not in the office or with his family, he tries to spend as much time as possible in or on the water.

Jandré Smith

Director | Attorney | LLB

Jandré grew up and matriculated in the small Klein Karoo town of Oudtshoorn. He furthered his studies at the North-West University in Potchefstroom, obtaining his LLB degree during 2015. He completed his articles at Swemmer & Levin in 2017 and was subsequently appointed as a professional assistant. In 2020, Jandré was promoted to the position of director at the firm, where he practises in the Litigation department at our Langebaan office. When not practising law, Jandré is an avid sports fan. He has a passion for nature and enjoys camping, trail running, and mountain biking with his family.

Andre van der Walt

Director | Attorney | LLB

Andre graduated in 2015 with an LLB degree from the University of Pretoria. He later went on to obtain his NQF 7 Certificate in the Administration of Deceased Estates from the University of South Africa, which allowed him to further his career in deceased estates and the drafting of wills and trusts. Andre served his articles at Barnard & Patel Attorneys under the supervision of Mr YAS Patel. After being admitted as an attorney in 2016, he continued working at Barnard & Patel Attorneys as a professional assistant in the deceased estates department.

Andre joined Van Rensburg Attorneys in 2019 and was head of the deceased estates department until 2021. He then received the opportunity to move to the West Coast, where he joined Swemmer & Levin Attorneys. Andre loves travelling and enjoys the beauty that our country has to offer with his friends, family, and loved ones.

Harmann Potgieter

Attorney | LLB

Harmann graduated in 2018 with an LLB degree from the North-West University’s Potchefstroom Campus. He went on to study and grow in various fields, including doing a course on the Consumer Protection Act and a course at the University of South Africa where he obtained his NQF 7 Certificate in the Administration of Deceased Estates.

Harmann completed his articles of clerkship at Swemmer & Levin under the supervision of Mr Richard Phillips. After being admitted as an attorney in 2020, Harmann continued with Swemmer & Levin as a professional assistant in the deceased estates department as well as the litigation department. He loves to study, possesses a deep curiosity about the world, and is dedicated to giving back to the community.

Carla Cloete

Attorney, Conveyancer & Notary | LLB

Carla obtained her LLB at the North West University, Potchefstroom Campus in 2015. She completed her articles in 2017 with Brits Dreyer Inc in Bellville. She is an admitted Attorney, Notary and Conveyancer. After her articles she relocated to Kimberley where she worked as a professional assistant in the Conveyancing department of Van de Wall Inc. Coming back to her Western Cape roots, she now joins the Swemmer & Levin team as a professional assistant.