Legal costs in the South African legal system

This is the second part of our introduction to our civil court system. These articles are intended to introduce you to some of the concepts you will encounter in our civil court system. These principles are not applicable in every case and we urge you to discuss them with your attorney in the context of your specific case.

One of the more significant consequences of approaching a Magistrates Court as opposed to a High Court is your legal costs. Both courts apply a tariff of court fees with different scales. Perhaps the easiest way to understand these tariffs is in relation to medical aid rates. If you belong to a medical aid you will know that when you visit a doctor your medical aid will pay only a portion of the doctor’s actual fee (unless you have a doctor who charges medical aid rates). You then have to foot the bill for the balance. Our court tariffs work in a similar way. If you are awarded legal costs in a court case (costs usually follow the result so if you win, you are awarded legal costs), your costs have to be “taxed” before you can recover from your opponent. This means that an officer of the court called a “taxing master” will compare your actual legal costs to tariff and either allow or disallow certain amounts that you wish to recover. Your costs will be set out in a document called a “bill of costs”.

As an example, the tariff in the High Court sets a rate of R125 per quarter hour for an attorney to attend a consultation. This works out to R500 per hour. You will often find that your attorney charges you more than R500 per hour for his/her attendances and the difference between the tariff rate of R500 per hour and what your attorney charges you is called the “attorney-client” differential. This differential is analogous to the difference between medical aid rates and private rates your doctor may charge you. You can only recover the amount the taxing master allows you to recover based on the tariff. This figure is known as your “taxed costs”.

It does get a little more complicated as there are different scales of legal costs. The figures mentioned above form part of the “party and party” scale (the most common scale). Other scales allow you to recover more of your costs and include “attorney and client” costs (you may have seen references to this scale of costs on credit agreements you may have signed) but these scales have to either have been specifically agreed to by the parties or specially ordered by the court.

The tariff in the Magistrates Court is lower than in the High Court so if your attorney is charging you the same hourly rate for work in the Magistrates Court as he/she charges in the High Court, you are actually entitled to recover less of your actual costs in the Magistrates Court, relatively speaking.

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