Petrotrade (Pvt) Ltd v Muchic Marketing Services (Pvt) Ltd

### Preamble
1
HH 187-21
48577/15
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PETROTRADE (PVT) LTD

versus

MUCHIC MARKETING SERVICES (PVT) LTD

HIGH COURT OF ZIMBABWE

FOROMA J

HARARE, 28 April 2021

Review Judgment

C Z Chikara, for the applicant

Ms L Rufu, for the respondent

FOROMA J: This is a review referred to the High Court in terms of Order 32 r 5 (3) as read with r 5 (5) of the Magistrates Court (Civil) Rules 1980. According to the magistrate the issue for determination is presented as follows - When a magistrate has granted costs on an attorney-client scale, is the taxing officer allowed to use tariffs as provided in General Tariff of fees for Legal Practitioners 2011 which allows for higher remuneration in comparison to party and party scale or whether and when is the General Tariff of Fees for Legal Practitioners 2011 applicable to costs granted in the Magistrate Court.

According to the stated case prepared by the magistrate in terms of Order 32 r 5 (3) the ground for review is that the scale of fees as stipulated in the General Tariff of Fees for Legal Practitioners 2011 is not applicable in the Magistrate Court as provided in s 43 (2) of the Act [Chapter 7:10]

The relevant background to this application is that on the 15 February 2016 the Magistrate’s Court granted first respondent’s application for rescission of judgment with costs on an attorney and client scale. The reasons for the punitive order of costs are not material to this review matter. On 22 March 2016 the second respondent as the taxing officer taxed first respondent’s attorney and client bill of costs using the scale of fees stipulated in the General Tariff of fees for Legal Practitioners 2011 which was objected to by applicant who unsuccessful applied for a review of the second respondent’s taxation to the magistrate.

Dissatisfied with the magistrate’s decision on review applicant then requested the magistrate to state a case for determination by a judge in terms of Order 32 r 5 (3) of the Magistrates Court Civil Rules. The magistrate’s decision with which the applicant was dissatisfied upheld the second respondent’s decision to use the General Tariff of fees for Legal Practitioners 2011 as the scale of fees for taxing the first respondent’s attorney-client bill of costs. I shall return to deal with the magistrate decision later in the actual review of the decision.

For now, it is important to note that this matter is not properly before me by reason of the parties’ failure to comply with the rules in the following respects.

After the applicant had timeously requested the magistrate to state a case in terms of Order 32 (5) (3) aforesaid both applicant and first respondent failed to observe the time lines imposed by the Rules requiring either party within a further seven days (if so advised) to submit contentious in writing to the magistrate in terms of Order 32 Rule 5 (4) of the said Civil Rules. Applicant filed its contentious on the 17 August 2016 when it ought to have filed same by 10 August 2016 considering that he had complied with s 5 (3) aforesaid on the 1 August 2016. First respondent filed its contentious on 19 August instead of doing so on 10 August 2016. Both parties failed to comply with the aforesaid rule despite being notified in writing by the Clerk of Court of the need to comply with the provisions of the said rule.

Despite the late filing of their respective contentions by the parties the magistrate proceeded to place the case before the judge within 14 days of the receipt of the parties’ contentions without ado i.e. regardless of the parties’ failure to comply with the rules as aforesaid.

This too was a contravention of the rules of the magistrate’s court governing the presentation of the stated case as the magistrate did not have to delay the laying of the stated case before a judge until the parties had filed their contentious given that the said contentions had to be filed within a further seven days of requesting the magistrate to state a case for the decision of a judge. The 14 days within which the magistrate is required to lay the stated case before a judge is calculated from the date when the last set of contentions was filed with the magistrate or the expiry of the seven days within which the contentions had to be filed whichever comes first. This is clear from the use in s 5 (5) of the following words – (5). The magistrate shall lay the case forthwith, but not later than fourteen days after receipt of such contentions. Any other interpretation including in particular the one by the magistrate in casu results in an absurdity for example if none of the parties opted to file any contentions then either the magistrate would wait indefinitely for the contentions to be filed despite the rules providing that the said contentious had to be submitted within a further seven days of requesting the magistrate to state a case.

The foregoing defaults would normally justify the refusal/dismissal of the review of the magistrate’s decision mero motu without considering the merits. As neither of the parties as between applicant and first respondent stands to suffer any prejudice by their own defaults and that of the magistrate, I have considered it to be in the interests of justice particularly in light of the importance of the case that the said defaults be condoned. I accordingly condone the said defaults by each of the defaulters.

I now proceed to deal with the review of the case placed before me. I will restate the issue just as a reminder – it is – when a magistrate has granted costs on an attorney and client scale is the taxing officer allowed to use the tariffs provided in the General Tariff of fees for Legal Practitioners in casu the one ruling at the time of taxation being the 2011 Tariff to tax the bill. Section 43 of the Magistrate Court Act [Chapter 7:10] in subsection (1) reads as follows

(1)	The stamp fees costs and charges in connection with any Civil proceedings in Magistrate Courts shall be taxed as between party and party payable in accordance with the scales prescribed in rules.

(2)	As between legal practitioner and client the same scales as provided in subsection (1) shall apply; but the Clerk of the Court may in his discretion allow, at rates based so far as may be upon such scales additional costs and charges for services reasonably performed by the legal practitioner at the request of the client for which no remuneration is prescribed as between party and party.”

It is common cause that the bill of costs the subject of review by the Magistrate was taxed on the basis of rates obtaining in the General Tariff of fees for Legal Practitioners 2011 yet in very clear and unambiguous language the Act stipulates that in taxing legal practitioner and client costs (interchangeably referred to as attorney and client costs) the same scales as provided in sub-section (1) shall apply. The use of the word shall in the interpretation of statutory provisions connotes the peremptory nature of the prescribed action.

The learned magistrate in his review judgment after correctly quoting the provision of s 43 (2) went into error in considering that the discretion of the clerk of court as taxing officer extends to determining the rates or scales other than the statutorily prescribed party and party scale. On account of this error the learned magistrate committed a second error namely that the use of the General Tariff fees for Legal Practitioners 2011 provided a scale of fees that the taxing officer could utilize in the taxation of legal practitioner and client bills without making any distinction as to whether items charged in the bill are party and party or not. As a result of the second error the entire bill of costs was taxed on the scale provided in the General Tariff of fees for legal practitioners thus disregarding the provision that all party and party attendances in an attorney and client bill had to be taxed on a party and party scale as provided in the Magistrates Court Rules.

A correct interpretation of s 43 (2) therefore is that it gives discretion to the Clerk of Court as taxing officer to allow as recoverable in an attorney and client bill on a party and party scale charges and costs for services which do not qualify as party and party in terms of the Magistrates Court tariff which services have reasonably been performed by the legal practitioner at the request of the client. The discretion conferred by s 43 (2) does not authorize the clerk of court to tax any item in an attorney and client bill of costs on a scale other than the party and party scale as provided in s 43 (1). Put differently the discretion granted in the taxation of attorney and client bills relates to allowing as chargeable and recoverable attendances by a legal practitioner not ordinarily allowable as party and party attendances in a party and party tariff which should be then be taxed on the party and party scale. Clearly the discretion relates to allowing the attendances not ordinarily allowed in a party and party bill which attendances once allowed are charged on the party and party scale (i.e. as if they were party and party attendances.

Our law is different from s 80 (2) (4) of the South African Magistrates Court Act which grants a wider discretion to the Clerk of Court subject to review as the Magistrate’s Court tariff does not lay down the tariff in respect of costs as between attorney and client unlike our tariff which prescribe the attorney and client tariff as being the party and party tariff subject to the discretion aforesaid— See Heney v van Zyl 1956 (4) SD 6 (c).

In the circumstances the answer to the issue referred for determination in the stated case is that it is not lawful for the Clerk of Court taxing an attorney and client bill of costs to have any regard to the General Tariff of fees for Legal Practitioners whether ruling at the time the legal practitioner rendered services or at the time of taxation of the bill of costs as all bills of costs for civil work in the magistrates court are taxed on the party and party scale as prescribed in the rules.

In the circumstances it is ordered that:

(1)	The application for review succeeds with costs and the taxed bill of costs the subject of review is set aside.

(2)	The clerk of court is directed to tax the 1st respondent’s attorney and client costs afresh using the correct tariff.

Dhlakama B Attorneys, applicant’s legal practitioners

Dzimba Jaravaza & Associates, respondent’s legal practitioners