Zhiqiang Gao & Anor v The Taxing Master & 2 Ors

### Preamble
Judgment No. SC 131/22
1
Chamber Application No. SC 463/22
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REPORTABLE (115)

ZHIQIANG     GAO   (2)  GUIBIAO     ZHANG

v

THE     TAXING     MASTER

DALIAN     TIANCHENG     MINERAL     RESOURCES      (PRIVATE)     LIMITED

BAOMING     HUANG

SUPREME COURT OF ZIMBABWE

HARARE:	2 NOVEMBER 2022 & 25 NOVEMBER 2022

A Chimhofu, for the applicants,

Ms G Dzitiro, for the second and third respondents.

IN CHAMBERS

MATHONSI JA:	This is an opposed application for the review of taxation done by the first respondent in terms of r 56(2) of the Supreme Court Rules, 2018 (“the Rules”). Essentially, the applicants contend that the first respondent acted wrongly in deciding that the second and third respondents’ legal practitioner was entitled to levy her fees using only the upper margin fee of her applicable range of fees and in allowing a fifty percent premium on the fees levied.

The Court holds that the first respondent erred in allowing a fifty percent premium on the fees charged by the second and third respondents’ legal practitioner. The court holds that there is no basis at law for interfering with the first respondent’s decision to allow the levying of legal practitioner and client fees using the legal practitioner’s upper margin of her applicable range.

The procedure for the review of the taxation of costs is not intended to subject a bill of costs to another taxation in the hope that a lower fee may be obtained.  Instead, it is established to prevent an injustice against a litigant liable to pay costs due to an injudicious exercise of discretion by a Taxing Officer.  As RABIE CJ remarked in the case of Ocean Commodities Inc & Others v Standard Bank of SA Ltd & Others 1984 (3) SA 15 (A) at 18E-G:

“[T]he Court must be satisfied that the Taxing [Officer] was clearly wrong before it will interfere with a ruling made by him ... the Court will not interfere with a ruling made by the Taxing [Officer] in every case where its view of the matter in dispute differs from that of the Taxing [Officer], but only when it is satisfied that the Taxing [Officer’s] view of the matter differs so materially from its own that it should be held to vitiate his ruling.”

THE FACTS

The applicants filed an application for condonation of the late noting of an appeal and for the extension of time within which to appeal under case number SC 214/22.  On 29 June 2022, this Court heard that application and dismissed it with costs on the legal practitioner and client scale.

Buoyed by that dismissal, the second and third respondents proceeded to file a bill of costs with the Registrar, for taxation.  On 29 August 2022, the first respondent taxed the bill of legal practitioner and client costs which was allowed, with few amendments.  A total sum of US$7 192.50 in fees was allowed and in addition, a further sum of US$3 596.25 as fifty percent premium was also allowed giving a total of US$11 063.75. The applicants were dissatisfied by that outcome.

THE APPLICATION

On 16 September 2022, the applicants filed the instant application for review of the taxation in terms of r 56(2) of the Rules of this Court relying mainly on two grounds set out in para 12 of the first respondents founding affidavit, thus:

“12.1.	The first respondent erred in allowing a 50% premium on the taxed costs awarded to the second and third respondents’ legal practitioner when the work which was billed for by the legal practitioner did not fall within the 4 categories which may justify charging a premium as provided by the Law Society General Tariff of Fees for Legal Practitioners, 2021.

12.2.	The first respondent erred in allowing the legal practitioner to bill her fees using the upper margin of her applicable range of hourly rate (USD150 – USD210) throughout when some of the attendances in the bill were non-legal and clerical work which did not justify the upper margin fee as guided by Law Society General Tariff of Fees for Legal Practitioners, 2021.”

On these grounds, the applicants seek relief in the following terms:

“IT IS ORDERED THAT:

The application be and is hereby granted.

The premium charged on the legal costs allowed by the taxing master Ms T. Makoto on 29 August 2022 in the sum of USD3 596.25 be and is hereby disallowed.

The taxing master be and is hereby directed to redo the taxation using the legal practitioner’s lower margin of USD150.00 on all non-legal and clerical attendances itemised on the bill.

The 2nd and 3rd Respondents to pay the Applicants’ cost of this review.”

The second and third respondents opposed the application.  In an opposing affidavit deposed to by the third respondent, they raised a number of preliminary objections. On the merits, they strongly asserted that their legal practitioner levied a premium because the matter was of significant importance to them and it was filed in a superior court in which there were brief timelines for the filing of pleadings.  The importance of the matter to the second and third respondents was also relied on as a basis for levying fees solely using the upper margin of their legal practitioner’s applicable charge outrate.

The Registrar of this Court prepared a report in terms of r 56(3) which I will comprehensively advert to later.

At the commencement of the hearing, I directed the parties to address me on the preliminary objections raised and the merits of their respective cases in one go.  In the course of the arguments, it dawned on counsel that the preliminary objections were not dispositive of the application.  I will however canvass the preliminary objections taken in the opposing affidavit for the sake of completeness hereunder.

THE PRELIMINARY OBJECTIONS

The second and third respondents averred that the application did not comply with r 56(1) as it did not cite the registrar, that the founding affidavit was based on hearsay evidence and that the applicants had not paid the taxed costs awarded to the respondents in three earlier cases.

In the second and third respondents’ view, not only does r 56(2) of the Rules of this Court require an applicant to give notice to the Registrar but the Rules also require the applicant to cite the Registrar as a party in the application for the review of taxation.  The relevant rule requires a party aggrieved by taxation to give “notice of review to the Registrar and the opposite party”.

The reason why subrule (2) of r 56 requires the Registrar to be directly made aware of the institution of review proceedings is quite simple.  The Registrar conducts every taxation of costs and must, upon a challenge of the taxation, report to the court on the factual findings he or she made and the reasons for his or her decision in accordance with r 56(3).

It seems to me that the first preliminary objection raises the question of the identity of the person who presides over taxation proceedings.  The applicants have cited “The Taxing Master” as first respondent.  They contend that the Registrar presiding over taxation may interchangeably be called a “Taxing Master” or “Taxing Officer”.  The point of departure is to make the observation that the Registrar conducts taxation in accordance with the High Court Rules, 2021.  See r 56(1).   In turn r 72(1) of the High Court Rules, 2021 provides that every Registrar shall be a taxing officer for the purpose of taxing costs and, may designate such persons as he or she considers fit and for whom he or she shall be responsible, as assistant taxing officers.

I reiterate that the Rules, read conjunctively, ascribe the title of “taxing officer” to a registrar conducting taxation proceedings.  The objection taken by the second and third respondents invites me to restate the pertinent observations of McNally JA in ICL Zimbabwe Ltd v The Taxing Master, Supreme Court & Anor; Mwatsaka v ICL Zimbabwe Ltd & Anor S–45–99 at p 2, regarding the identity of a registrar conducting taxation proceedings.  The learned Judge of Appeal remarked:

“In passing I remark that the term “Taxing Master” is strictly alien to this jurisdiction. The Supreme Court Rules speak of taxation by “a registrar”. The High Court Rules (Order 38) speak of “Taxing Officers” - see particularly Rule 306. The expression “Taxing Master” seems to have come in from South Africa in cases such as Doyle v Salgo 1958 R & N 218 (FSC); Joss v Joss and The Taxing Master HC-S-359-81; and Williams v The Taxing Master 1982 (1) ZLR 122 (H). It was also used in Cone Textiles (Pvt) Ltd v C. Pettigrew (Pvt) Ltd and Anor 1984 (1) ZLR 274 (S); and in T.A. Holdings Ltd v Maceys Consolidated (Pvt) Ltd and Anor 1988 (2) ZLR 453 (S). I spoke of the “Taxing Officer” in Machiels v Coghlan, Welsh & Guest (The Law Society of Zimbabwe intervening) S176 98(not yet reported) I think it is the more accurate term.”

On consideration of the facts of this case and the law, the citation of “The Taxing Master” instead of “The Registrar” or “The Taxing Officer”, cannot possibly defeat the application.  The Registrar had actual notice of the application.  She prepared a report in due course and placed it before the Court. More importantly, the second and third respondents do not claim to have been prejudiced by the citation. In the circumstances, to hold that the application is fatally defective would, to my mind, be allowing sterile formalism to defeat the course of justice and sound judgment.  It would amount to putting premium on form rather than substance.  Having said that, it ought to be stated that litigants must heed the caution that it is incorrect to cite “The Taxing Master” instead of the “Registrar” or “The Taxing Officer”.

Turning to the objection that the founding affidavit is riddled with hearsay evidence, I draw on the decision of the Constitutional Court in Chirambwe v President of the Republic of Zimbabwe & Ors CCZ–4-21, at p 30, para 65, where the Court reiterated the useful test of “whether the deponent to the affidavit would be a competent viva voce witness to the facts were he called to testify”.  The objection hangs on the point that the deponent to the founding affidavit was not physically present when the taxation occurred yet he speaks of what transpired during the taxation.

I agree with the applicants’ concise, but outright, response that their bases for seeking review did not require them to have been present when taxation took place.  The grounds relied on in these review proceedings impugn the reasoning of the first respondent, which is derivable from her report.

Contrary to the second and third respondent’s averments, the deponent of the first applicant’s founding affidavit is a competent witness to the essential facts on which the application is grounded.  For the greater part, the averments sustaining the application are dependent upon the consideration of the taxed bill of costs and the Law Society General Tariff of Fees for Legal Practitioners, 2021.  The fact that there are other references to events that the first applicant has no personal knowledge of does not detract from the import of the application. The objection is of no moment.

Finally, it was contended that the applicants not having paid the second and third respondents’ taxed costs in earlier proceedings, this Court has the discretion to decline to hear the matter until the applicants have settled the outstanding bills of costs.

It is correct that this court has the discretion whether or not to stay the proceedings pending payment of the second and third respondents’ taxed costs.  See Makoni v Makoni & Anor S–7–18.  I decided to exercise my discretion in favour of hearing the parties essentially because part of the taxed costs that the second and third respondents stated had not been paid were the costs granted to them in SC 214/22 and yet the costs of suit granted in those proceedings are the subject of this application.  It is not only impractical but also not in the interests of the parties to stay this application. This would only serve to further protract the litigation between the parties.

Having disposed of the preliminary objections, I turn now to the parties’ submissions on the application.

SUBMISSIONS BY THE PARTIES

Mr Chimhofu for the applicants anchored his challenge on two points.  The first was that the first respondent, in allowing the bill of costs, did not have regard to the fact that the matter did not fall within the categories set out in the Law Society Tariff in which a premium may be charged. The second was that the first respondent allowed the second and third respondents’ legal practitioner to bill her costs using only the upper-margin of her applicable basic hourly charge outrate including for work that he characterised as “non-legal and clerical”.

On the premium charged, Mr Chimhofu relied on Note 5 of the Law Society Tariff to make the point that a premium may be charged in special circumstances like where the matter was handled by a senior legal practitioner, commercial in nature or complex.  According to counsel, the matter that was argued in this Court was a simple application for condonation which did not meet any of the five criteria set out in Note 2 of the Tariff in terms of which a premium may be raised. After drawing attention to items 10, 11 and 12 of the bill of costs, counsel submitted that it would be pointless to have a tariff if a legal practitioner were allowed to charge a premium for any attendance made by him or her.

The same argument was advanced regarding the first respondent’s taxation and allowing of costs that were pegged on the upper margin of the legal practitioner’s applicable charge outrate.  Mr Chimhofu submitted that Note 5 of the Tariff was clear on the factors to be considered before a fee on the upper margin of the applicable range was imposed.  There would be no point in providing a range of fees, so it was argued, if a legal practitioner had to stick to the upper margin only.

In respect of the second and third respondents’ contention that the matter was of importance to them, Mr Chimhofu submitted that it is not the mere incantation that the matter is of particular importance that carries weight.  In counsel’s view, in her report filed pursuant to this application, the Registrar has to relate to the actual factors that imbued the matter with importance.  In advancing that argument, Mr Chimhofu took the view that some of the attendances for which a fee on the upper margin of the applicable range was charged were clerical.

Overall, Mr Chimhofu contended that the question that has to be asked is whether it is fair and reasonable for a legal practitioner to charge a premium over and above his or her regular fees charged on the upper margin of the applicable tariff.  He relied on the judgment of this Court in Cone Textiles (Pvt) Ltd v C Pettigrew (Pvt) Ltd and Another 1984 (1) ZLR 274 (S).

Per contra, Ms Dzitiro’s point of departure was that the attendances described by the applicant as “clerical” were actually carried out by a legal practitioner. This Court having been digitalised, so Ms Dzitiro argued, legal practitioners are carrying out most attendances on the Integrated Electronic Case Management System.

Counsel for the second and third respondents also made the point that the applicants were inviting this Court to become the “taxing master” by challenging specific items on the taxed bill of costs.  In her view, more was required from the applicants and it was incumbent on them to demonstrate that the first respondent’s reasoning in allowing the charges was faulty and unreasonable. Counsel submitted that because it is contended that the first respondent erred does not mean that she acted unreasonably. Consequently, to demonstrate that the first respondent had not acted unreasonably in her taxation, Ms Dzitiro drew attention to the face of the bill of costs where justification was provided for charging a premium and using the upper margin only.

The other item of concern was the premium charged. While suggesting that the first respondent’s report was terse and admitting that she did not apply her mind to the premium charged, Ms Dzitiro entreated me to look beyond the report and consider the matter as a whole.  In counsel’s view, the premium was justifiable on the basis of the importance of the matter to the second and third respondents.  The importance of the matter to the respondents was said to be common cause and to have been admitted by the applicants in earlier litigation.

From the foregoing, there are two key issues commending themselves for determination.  These are:

Whether or not the first respondent erred in allowing the premium of fifty percent on the taxed costs.

Whether or not the first respondent erred in allowing the bill of costs charged using the upper margin of the legal practitioner’s applicable range only.

THE LAW

There are settled principles that Courts have regard to in reviewing any decision of a Taxing Officer. Those principles are adequately summarised in ICL Zimbabwe Ltd case supra at pp 2 – 3:

“The principles by which the Court is to be guided when it is asked to review the decisions of the Taxing Officer are well established. Squires J set them out in Williams v The Taxing Master supra at 125, …   He set out two grounds:-

‘Firstly on the application of common law rights on review which involve a finding that he was grossly unreasonable or erred on a point of principle or law.   In such a situation the Court would be at large and entitled to substitute its opinion for that of the Taxing Master (sic).   It should not be overlooked that even when such grounds for interference exist it need not follow that the Taxing Master’s (sic) decision must necessarily be set aside or altered.   He may have arrived at the correct decision for a wrong or even improper reason.

Secondly, regardless of the absence of any common law ground for interference, the Court has a duty to interfere if satisfied that the Taxing Master (sic) was clearly wrong in regard to some item.   In such a case the Court will substitute its own opinion for that of the Taxing Master (sic) even if it is a matter involving degree.’

(See also Ocean Commodities Inc v Standard Bank of SA Ltd 1984 (3) SA 1 (A)).   This second criterion has been called “a graft on the main principle”.   The Court allows itself a wider power to interfere in the decision of one of its own officers, because it is operating on familiar ground.   It will be more hesitant to intervene in a discretionary decision by other public officials or tribunals.’” (The underlining is for emphasis.)

Herbstein and van Winsen’s, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa, 5 ed, Vol. 2 at 1002 provides useful guidance on the approach of the Courts to a decision of a Taxing Officer:

“The Court is very reluctant to interfere with the exercise of the taxing master’s discretion. It will not readily do so, except on certain well–known but limited grounds.”

The case of Preller v Jordaan 1957 (3) SA 201 (O) at 203C-E, quoted by Herbstein and van Winsen makes it clear that the Court will not interfere:

“unless it is found that he [ie the taxing master] has not exercised his discretion properly, as for example, when he has been actuated by some improper motive, or has not applied his mind to the matter, or has disregarded factors or principles which were proper for him to consider, or acted upon wrong principles or wrongly interpreted rules of law, or gave a ruling which no reasonable man would have given.” [The underlining is for emphasis.]

SYNTHESIS

Whether or not the first respondent erred by allowing the premium of fifty percent on the taxed costs.

The first respondent allowed a premium of fifty percent on the taxed costs. In her report, she provides the following reason for allowing the premium:

“2. Firstly, the Registrar allowed 50% premium to the respondents because they stated the matter was difficult as evidenced by the appellants (sic) who hired two advocates to represent them in the matter and that it was of particular importance to their clients. This is supported by the Law Society Tariff of April on note 2 (2,1 and 2,5).”

It is correct that Note 2 of the Law Society’s General Tariff of Fees for Legal Practitioners (USD)   (“the Law Society Tariff”), which took effect in April 2021, allows a legal practitioner to charge a premium if the matter is complex or the questions raised are difficult or novel (Note 2.1) or the matter is of particular importance to the client (Note 2.5).

The second and third respondents’ legal practitioner was instructed to oppose SC 214/22 which was an application for condonation of the late noting of an appeal and extension of time within which to appeal.  I agree with Mr Chimhofu that that matter was not complex. Opposing such an application is routine, fairly undemanding and based on settled principles, especially for a legal practitioner with over ten years of experience.

Regarding the importance of the matter to the second and third respondents, the subjective nature of that ground of charging a premium admittedly makes the assessment difficult.  What may be a routine matter to legal practitioners, such as bail applications or even unopposed matters, may be emotively important to their clients.  In fact, it may invariably be argued that every matter is important to the client.  It is for this reason that it is often said that “there is no such thing as a small case”.

According to the respondents, the applicants could not be heard to deny the importance of the matter when they enlisted the services of two advocates to deal with the application. During the oral arguments, Mr Chimhofu clarified that the applicants hired only one advocate and that the other lawyer was simply the instructing attorney.  However, Ms Dzitiro added that the matter was important to her clients because it had taken two years of litigation between the parties before the second and third respondents could execute the eviction order in their favour and obtain peace of mind.

In my view what is of critical importance is the principle and the basis upon which the first respondent exercised her discretion in allowing the premium.  Quite frankly, the fact that the opposing party was represented by one advocate and another lawyer is not good enough a basis for holding that the second and third respondents attached importance to the matter.  That conclusion could not be derived merely from what the second and third respondents told the first respondent.  It must appear from the report that the taxing officer considered the propriety of the explanation given.  It does not appear in the report as the first respondent only accepted what she was told hook-line-and sinker without critical analysis. Therefore, the first respondent failed to apply her mind properly to the facts and the principles.

There was no basis for allowing a premium of 50% over and above the ordinary fees in respect of a simple case of opposing an application for condonation.  The preamble to the bill of costs did not establish the importance of the matter as suggested by Ms Dzitiro.  The reason given by the first respondent does not justify the charging of a premium.

A Taxing Officer is duty-bound to be objective, to apply his or her mind to the material presented to him or her and to be guided by the applicable tariff.  See r 72 of the High Court Rules, 2021.  Where a legal practitioner levies a premium on the fees on the ground that the matter was of importance to the client, he or she must consider all the circumstances of the case, the nature of the case, the effect of the order of the court on the dispute between the parties and their respective rights and obligations.  The Taxing Officer must consider whether a party claiming a premium conducted the case in a way that supports the claims that the matter was of importance to him or her.

Therefore, the premium was improperly allowed and the decision of the first respondent in that respect ought to be set aside.

Whether or not the first respondent erred in allowing the bill of costs charged using the upper margin of the legal practitioner’s applicable range only.

On this aspect, the first respondent reports that:

“Furthermore, the respondents were allowed to charge using the upper margin as the Legal Practitioner of 10-14 years 11 months experience (sic) which has an hourly range of 150us -210us (sic) per hour. This was reasonable before the Registrar. Note 5 of the Law Society gives entitlement to Legal Practitioners to charge rates which are at the lower or upper margins or anywhere in between those margins”

It is common cause that the second and third respondents’ legal practitioner had more than twelve years of experience at the time of the attendances charged for.

The second and third respondents were awarded costs on a legal practitioner and client scale.  Rule 72(7) of the High Court Rules, 2021, provides that in the taxation of costs as between a legal practitioner and his or her own client in respect of work done in connection with judicial proceedings, a taxing officer shall be guided as far as possible by any tariff by the Law Society of Zimbabwe.

It is also common cause that the applicable range of fees for a legal practitioner with between ten years and fourteen years and eleven months experience is US$150 – US$210. Accordingly, the second and third respondents’ legal practitioner’s fees were almost entirely charged using the upper margin of her applicable range of fees, that is US$210.

It is pertinent that the Law Society Tariff provides guidelines on its application.  For the greater part, the explanatory directions contained therein are directive rather than prescriptive.  For good measure, Note 5 thereof provides that:

“The ranges of hourly fees recommended in this tariff are designed to take into account both the varying levels of experience of practitioners and their varying costs of practice. Legal practitioners are entitled to charge rates which are at the lower or upper margins or anywhere in between those margins.” (The underlining is for emphasis.)

Mr Chimhofu challenged the decision of the first respondent allowing the costs charged using only the upper margin of the applicable range of fees. There was nothing precluding that approach.  Legal practitioners are entitled to charge fees at rates which are at the lower or upper margins or anywhere in between the margins of their applicable range in terms of the Law Society’s Tariff.  The first respondent cannot, therefore, be faulted for taxing the bill of costs computed using the applicable upper margin only.

It is important to bear in mind that the thrust of the applicants’ attack is the upper margin rate used to compute the fees. However, since a legal practitioner is entitled to charge his or her fees using the upper margin, it is not enough to impugn a bill of costs solely on that basis.  Characterising some of the work for which a fee was levied on the upper margin as non-legal or clerical, especially without demonstrating the same in the founding affidavit, is not sufficient to upset the decision of the first respondent.  It must be appreciated that costs on the scale of legal practitioner and client are, by their nature, punitive.  The court awards them where a party is guilty of some conduct the court frowns upon.  The best way to avoid the pain is for the litigant not to attract such a sanction rather than questioning why the legal practitioner levied fees at the upper limit when the Tariff allows it.

Mr Chimhofu argued that the ultimate question that must be asked is whether the costs are fair, reasonable and necessary. He referred to the “globular figure” of the fees as being excessive.  It is true that the reasonableness of the quantum of costs allowed by a Taxing Officer may be reviewed. However, it must be emphasised that the courts are slow to interfere with a Taxing Officer’s assessment of the quantum of fees allowable except in exceptional circumstances. These include where the point in issue is one “on which the Court is able to form as good an opinion as the Taxing [Officer] and perhaps, even a better opinion”.  See President of the Republic of South Africa and Others v Gauteng Lions Rugby Club and Another [2001] ZACC 5; 2002 (2) SA 64 (CC) at para 14.

The President of the Republic of South Africa case supra cites an instance where the court has better knowledge on a particular question than the Taxing Officer as an example of such a situation.  In that court’s reasoning, this may be the case where a point as to the admissibility of a segment of evidence is determined by the court and subsequently has a material bearing on the costs items in dispute.

In this case, no legally cognisable ground has been presented before me on the basis of which I may interfere with the quantum of fees allowed by the first respondent.  It has not been shown that the Taxing Officer disregarded the nature of the work performed in assessing the quantum of the fees.  The Taxing Officer was guided by the Law Society’s Tariff.  The mere fact that the fees allowed may be regarded as high cannot be a basis for setting aside the first respondent’s exercise of discretion.

All too often, legal practitioners are approaching the court alleging that the fees at a legal practitioner and client scale allowed by a Taxing Officer are “too high”, “unfair” or “unreasonable”.  However, in many such cases, including the present one, no basis is laid for the court to interfere with the assessment of the quantum of fees allowed in terms of the applicable tariff.

As I have already observed, the pain and agony of such costs is that they are usually high.  It is for that reason that they have often been monikered as “punitive” and “admonitory”. Herbstein and van Winsen, op cit., at 954 state that in the event that such costs are awarded, “the successful litigant becomes entitled to recover from the unsuccessful party all the costs that on taxation are due by him to the attorney”.  For this reason, courts are not easily persuaded to grant costs on the scale of a legal practitioner and client.

I conclude, therefore, that the applicants have not established any of the narrow grounds upon which I can interfere with the first respondent’s assessment of the quantum of fees allowable.  The ground of review ought to be dismissed.

DISPOSITION

The applicants have only managed to establish one out of the two grounds presented on review.  As a result, the application succeeds partially to the extent that the first respondent erroneously allowed a premium on the fees charged.

On the question of costs, I agree with Mr Chimhofu that costs are determined on a case-by-case basis.  Hence, a court may not have regard to a litigant’s conduct in a case that is not before it.  In this regard the applicants cannot be penalized for conduct falling outside the four corners of this application.  There is no basis for awarding punitive costs as urged by counsel for the second and third respondents.

Costs, as has been stated time and time again, must not be awarded using hindsight.  The applicants were within their rights to file this application and contest the decision of the first respondent.  As a matter of fact, the applicants have succeeded on one of their grounds of review.  In addition, they are not guilty of any unconscionable or unethical conduct. In the circumstances of their partial success, it is only right that each party must bear its own costs.

In the result, it be and is hereby ordered that:

The application succeeds in part.

The decision of the first respondent  made on 29 August 2022 allowing the premium charged on the legal costs in the sum of US$3 596.25 be and is hereby set aside and the premium thereof is disallowed.

The application to set aside the decision allowing the costs of the second and third respondents is dismissed.

Each party shall bear its own costs.

Rusinahama-Rabvukwa Attorneys, applicants’ legal practitioners

G. Dzitiro Attorneys, second & third respondents’ legal practitioners