There are two broad categories under which the High Court may grant a costs order in civil proceedings (either for or against a litigant), namely, on the scale of “party and party” or “attorney and client”.

“Attorney and client” costs are generally reserved for circumstances involving misconduct by a party during the course of litigation, or where a case is devoid of merit so as to amount to a waste of the court’s time, or where there has been agreement on the applicability of this scale.

This article however seeks to briefly shed light on “party and party” costs and the 3 scales (A, B, and C) that are applicable to such a costs order in terms of Uniform Rule 67A.

Uniform Rule 67A came into operation on 12 April 2024 and deals specifically with party and party costs.

Rule 67A(3) requires a costs order to indicate the scale (either A, B, or C) under which party and party costs have been granted. Scale A refers to a maximum amount of R375.00 per quarter of an hour or part thereof, scale B to a maximum amount of R750.00 per quarter of an hour or part thereof, and scale C refers to a maximum amount of R1 125.00 per quarter of an hour or part thereof.

Given that the maximum amount awarded under each scale varies significantly, the allocation of the specific scale under which party and party costs are granted becomes important.

Rule 67A(3) goes on to set out the factors that the Court may have regard to when determining the appropriate scale under which party and party costs may be awarded. These include the complexity of a matter, and the value of the claim or importance of the relief sought.

Further, Rule 67A(3) also provides that where a costs order does not reflect a scale, then scale A shall apply to the party and party costs that has been awarded.

A question may arise as to when the scales referred to in Uniform Rule 67A apply. Do they, for instance, apply to a matter instituted prior to 12 April 2024 but heard only at a later date?

This was clarified in the case of Mashava v Enaex Africa (Pty) Ltd and Others, where the Court indicated that the Rule 67A amendment can only apply prospectively. The court confirmed that the scales could apply to cases instituted before 12 April 2024 but heard thereafter, such that the applicable scale would only apply to work done on the matter after 12 April 2024. The Court provided an example to illustrate the position, which is quoted below:

“Take, for example, a motion instituted in 2023, in which written argument was filed in January 2024, and in which oral argument was presented on 15 April 2024. A party and party costs order on the “C” scale is made on 15 April 2024. The “C” scale will only apply to counsel’s preparation and attendances (if they are otherwise recoverable) after 12 April 2024, to the appearance itself, and to any recoverable post-hearing attendances. Fees for work done before 12 April 2024 will be recoverable under the rules applicable to the taxation of counsel’s costs as they were then.”

The Court also noted that the default position set under Rule 67A is that, in the absence of contrary indication, counsel’s costs will be recovered on scale A.

The above represents only a part of the judgment, which should be read in full for a complete understanding of Rule 67A.

Tel: +27 31 5705398  Email: gerard.vadivalu@gb.co.za