THE
HIGH COURT OF SWAZILAND
Civil
Case No.3185/01
In
the matter between:
SAMUEL
S. EARNSHAW & PARTNERS Plaintiff
AND
PAUL MABANDLA SHIBA Defendant
CORAM: MASUKU
J.
For
Plaintiff: Mr W.E. Mkhatshwa
For
Defendant: Adv. E.V. Thwala
(Instructed
by J.S.
Magagula
& Company)
JUDGEMENT
1st
August, 2002
This
is an action in which the Plaintiff seeks recovery of E2, 800 in
respect of professional services rendered to the Defendant. In
response, the Defendant filed what he referred to as a special plea
and in which he stated that the Plaintiff's claim is fatally
defective and ought to be set aside for the reason that Plaintiff
seeks to enforce payment of its costs before presenting the same for
taxation before the Taxing Master.
I
pause to state that it is regrettable that this Court should still be
burdened with dealing with minor claims at this day and age. The
legislation should be amended increasing the monetary jurisdiction of
the Magistrates' Courts to enable them to deal with such claims.
2
The
Legal Position.
Authority
is legion for the proposition that taxation of the attorney and
client bill is not a prerequisite for legal proceedings for the
recovery of fees but that should a client require Taxation of the
bill, the bill must be taxed before the matter can proceed.
In
BENSON AND ANOTHER VS WALTERS AND OTHERS 1981 (4) SA 1981 (4) SA 42
(CPD) at 49 C - D, Van den Heever J. stated the following:-
"Taxation
is not a prerequisite to a client's liability. If the client is
satisfied with the attorney's charges or had agreed them in advance,
there is no reason why the attorney should not claim his fees.
Taxation is merely a method whereby the reasonableness of the fees
charged by one of the officers of the Court is prima facie determined
by another, where this is put in issue by the client. "
On
appeal against this judgement, van Heerden J.A. stated the following
in BENSON AND ANOTHER VS WALTERS AND OTHERS 1984 (1) SA 73 (AD) at 84
A - B.
"In
my view, this passage is consistent with the view that taxation is
not a prerequisite for the institution of an action on a bill of
costs, but that, if a client insists on taxation, the action cannot
proceed until the bill has been taxed."
In
DE VILLIERS VS SCHOLTS 1931 CPD 91 at 94, Gardiner J.P. said: -
"It
is well established in our practice that judgement cannot be given on
an attorney and client bill, until it has been taxed, if such
taxation has been demanded."
See
also ALLISON VS MASSEL AND MASSEL [1954] (4) SA 569 (T.P.D.) at
575;
KRUGER VS RESNIK 1955 (3) SA 378; and Herbstein and Van Winsen, "The
Civil Practice of the Supreme Court of South Africa", 4th
Edition, Juta, 1997 at page 736.
3
The
next question, having determined the operative principle is the
manner in which the client, already in receipt of a summons requiring
payment in respect of fees should raise the issue of taxation. The
learned author Harms, in his work entitled, "Amler's Precedents
of Pleading", Fourth Edition, at page 40 states the following:-
"Taxation
of the attorney and client bill is not a prerequisite for legal
proceedings for the recovery of fees. A client may however by way of
special plea require taxation of the bill. Only after taxation can
the case then proceed. "
It
would appear that the above excerpt provides the appropriate manner,
indicating that the question can be raised by way of a special plea,
which is dilatory in nature. I pause to state that this is what the
Defendant has done in casu.
An
attorney, who is desirous of claiming his fee from his client must
allege and prove:-
(a) the
mandate;
(b) the
performance of the mandate; and
(c) an
agreement as to the amount payable
(d) in
the absence of the last agreement, he must allege and prove the
reasonable remuneration for the work done in terms of an implied
term.
It
is my view, that taxation is one way in which a litmus test of the
reasonableness of the fee can be conducted. The further question,
which was raised by the Plaintiff's attorney, is the assessment of
the reasonableness of the fee in non-litigious work. I must however
point out, contrary to Mr Mkhatshwa's view that the instant matter is
not a non-litigious one. By non-litigious, I do not understand that
it is meant those matters which are finalised without having been
submitted to the Courts. Rather, it refers to matters which do not
involve litigation from start to finish e.g. drafting contracts,
conveyancing, patent law e.t.c. A matter, like an MVA claim cannot be
classified as non-litigious only because it was settled before it
could be filed in Court. 1 accordingly find that this is a litigious
matter which is subject to the tariff set out in the Rules of Court.
In
my view, the proper procedure to follow in a quest to determine the
reasonableness or otherwise, of an attorney's fee in a non-litigious
matter is to be found in the provisions of
4
Bye-law
16 (2) of The Law Society of Swaziland Bye-Laws, 1992, which provides
as follows; -
"It
shall be competent for the Council or any committee appointed by
Council for that purpose, at the request of any person or member, to
assess the fees payable by such person to a member in respect of the
performance of such person of any work by a member in his capacity as
such. "
In
conclusion, it is clear that the Defendant has taken a good point.
The Bill of Costs annexed to the Plaintiff's Particulars of Claim be
and is hereby referred to the Taxing Master for taxation on notice to
both parties. The proceedings are stayed pending the taxation.
I
order that costs be in the cause.
T.S.
MASUKU
JUDGE
