Most people are vaguely familiar with the concept that the successful party is entitled to “costs”, or to get some back back for the legal fees he has incurred. The problem comes in with those “costs” are…

This whole thing of costs can be quite confusing, so let’s start with the basics… (warning, this discussion is going to get quite technical!)….

In essence, you will be paying your attorney a professional fee for his work, just as you would do with your doctor. There are more than one basis on which these fees can be calculated:

*you can have a normal fee agreement (normally Rxx/hr), where the attorney will charge you for every minute he spends working on your file (most attorneys bill in increments of 6 minutes, or 1/10th of an hour, the reasoning behind this is that, even if a phone call only lasts 4 minutes, it does also take time to get the phone number and dial the number, etc)

* you can have come to a contingency fee arrangement with your attorney, where the attorney only charges you if your case is successful (doesn’t happen all that often since you do really need a very very strong case to make it worthwhile for the attorney and the law caps the potential fee for the attorney to double his normal fee, which is results in it being quite a risky situation for the attorney).

* no agreement – this is not very common but sometimes attorneys do forget to enter into a fee agreement with a client, which then means that the attorney can only charge up to a maximum of the prescribed court rates (see what the court rates are, later).

The above fees, are what I would call, PAYABLE FEES, and will be the amount that you will receive on your account from your attorney every month (he should be sending you a bill every month, although I know that this is not always the case in practice… if you don’t receive accounts regularly, it is considered by the Law Society as unprofessional conduct and you can complain at the law society) .

Payable fees remain payable to your attorney, whether you win or lose.

This brings us to RECOVERABLE FEES. This baby is the big one, and is the one which trips most people up…

The general costs which the court awards a winner are the party/party costs, which is the least “lucrative” scale of costs which can be awarded to the winner. In essence, the winner can claim back the costs from the loser for everything which his attorney did to “take the case further”. So, drafting and issuing a summons is taking the matter further, but your attorney phoning you to tell you that the summons has been served is not “taking the matter further” and although he will charge you for that call, the loser will not have to pay you back for that call.

If your attorney asks the court for a special costs order such as attorney/client, you will be able to claim those feedback calls or letters back from the loser. Attorney/own-client is an outdated extension of attorney/client, whereby more leeway was sometimes given in which of those feedback calls can be claimed back from the loser.

De bonis properiis is a special order which a court will grant against the loser and his attorney, where the attorney and/or his client will have to foot the bill. This is for situations where attorneys have made a mess of acase and have caused costly delays, etc.

So, that deals with the subject matter of what you can claim from the loser, but not yet, how much you can claim. In essence, even if you are entitled to get back the costs for the summons or warrant or day in court, it doesn’t mean that you’ll get the same moola for the summons back from the loser as what that summons cost you initially – you can’t rent a bentley-lawyer and get back bentley-supporting-tariffs back from the defendant, since the monetary amount for the summons is provided for in a list of tariffs.

There are various tariff lists which are applicable over various courts (magistrates courts, high courts, appeal courts, etc) and some of the tariffs also distinguish between different claims (value of the claim influences the amount claimable for the summons, etc).

A good example would be a normal summons issued from the Magistrate’s Court: if a normal attorney (associate, not partner or candidate attorney) would draft this summons for you, it would take around 30 minutes for a simple claim, which equates to something in the region of R500. If your claim falls within the highest possible tariff, you’ll only be able to get R277 back from the loser for the summons, although you had to pay R500+ for the summons to be drafted.

The difference between the R500 and the R277, is basically the self-payment gap – which is quite similar to the difference between what your doctor charges you for a consultation and what your medical aid pays out to you.

The tariffs have been updated back in 2004 and the gap between what attorneys charge and what is recoverable is by now quite large.

The famous saying that “The law is open to all, just like the Ritz hotel” is as valid today as ever.

>>>>> For a graphical representation of the legal costs structure, click here.