Don’t lightly question advocates’ honesty and ethics – Judge

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16 Aug 2018

While the mayor of one of SA’s largest metropoles, Athol Trollip, struggles to hold onto his seat in the face of determined and united opposition parties, a new High Court judgment ensures he will never be forgotten, at least not by the country’s lawyers. Legal writer Carmel Rickard, in her A Matter of Justice column on the Legalbrief site explains why the case of Trollip v Troon, concerning taxation of counsel’s fees, will be avidly read by court practitioners. The case, says Rickard, was significant for a number of reasons, including providing clarity that the court’s taxing authorities may not routinely demand that counsel ‘prove their claims’. The judge, she added, said while taxing officers had wide discretion about what costs and expenses to allow and refuse, this did not mean that there was a duty upon practitioners to ‘prove their claims’. Absolute integrity and scrupulous honesty was expected of legal practitioners and so a taxing officer was ‘entitled to take counsel’s fee list at face value as constituting a record of the work that has been done’. ‘The honesty and professional ethics of counsel ought not to be lightly questioned,’ the judge said.


Ironically, the judgment really has nothing to do with Athol Trollip, the embattled mayor of Nelson Mandela Bay, even though it bears his name.

Rather, it concerns his advocate, Izak Smuts SC, and the decision by the taxing officer of the Eastern Cape High Court (Grahamstown) to halve Smuts’ bill.

Smuts was briefed to act for Trollip in a R5m defamation claim against former ANC councillor, Lawrence Troon, who had made serious allegations against the mayor.

The trial, due to start on 13 February 2017, was postponed after an application by Troon on the previous court day. He tendered the costs of his postponement application as well as Trollip’s wasted costs and an order was granted by the court at about 10h45 on what would have been the first day of trial. In the wake of that decision Smuts charged a full first day trial fee of R27 000, and his bill was submitted for taxing.

The court’s taxing officer, however, decided to disallow half the fee, and it was this decision that led to the new judgment by a full bench of the High Court.

It is significant for a number of reasons, including finding that certain court ‘guidelines’ on taxation are invalid, and clarifying that the court’s taxing authorities may not routinely demand that counsel ‘prove their claims’.

Taxation of costs was an integral part of any judicial process and no legal matter that went to court was finally concluded until the costs ordered by the court had been taxed, said the court. This was to ensure that justice was done to both the winning and the losing party.

True, taxing officers had a wide discretion about what costs and expenses to allow and what to refuse, and were not allowed to ignore evidence that work, charged for, had not in fact been done. But this did not mean ‘that there is a duty upon practitioners to “prove their claims”, as it were’.

The legal profession was ‘distinguished and venerable’ and its members were officers of the court. As a result, ‘absolute personal integrity and scrupulous honesty’ were expected of them. A taxing officer was thus ‘entitled to take counsel’s fee list at face value as constituting a record of the work that has been done’.

‘The honesty and professional ethics of counsel ought not to be lightly questioned.’

Where a matter was withdrawn or postponed – as happened in the Trollip matter – the taxing officer had to determine a reasonable fee for counsel, taking into account when the case was postponed.

Advocates and attorneys were not in a comparable position if a trial in which they were involved did not go ahead, and there was thus a difference between the trial fee an advocate could charge when a trial was postponed on or shortly before the trial date, and the fee an attorney could charge.

Counsel had to reserve the day for trial, along with other days to allow for the trial to be completed and could not properly accept any other brief for the days reserved as this would amount to double-briefing. For counsel, accepting a trial brief meant a loss of opportunity to earn fees from other work. Attorneys, on the other hand, were able to do other work if a trial was postponed or settled at the last minute.

But taxing officers were wrong if they believed that an advocate, submitting a full first day trial fee for a matter which was settled or postponed, had to show that that he or she had turned away work and had no other work. The taxing officer’s starting point had to be that ‘in the absence of evidence to the contrary, advocates … render fees honestly and behave ethically’.

In this case the taxing officer seemed to have applied a section of the ‘guidelines’ on taxing costs in the Eastern Cape High Courts when she decided that Smuts was only entitled to half his fee. These were only ‘guidelines’, and not to be applied rigidly. They could also not conflict with the common law or the Uniform Rules of court. Where they did so, it would be irregular to apply them.

The court pinpointed several places where the guidelines conflicted with case law and found that in applying the guidelines under these circumstances the taxing officer ‘committed a material error of law’.

The taxing officer seemed to have found that Smuts did other work on the day the trial was postponed, even though there was no evidence of this. As she explained it, her decision was based on her belief that Smuts was not at court when the matter was postponed. That in turn was based on listening to a recording of the proceedings from which it was clear, according to her, that Smuts was not present.

Whatever recording she heard was irrelevant, said the court, because the postponement was dealt with in chambers and so there was no recording of proceedings. The inference she drew from the recording she heard was thus based on an incorrect assumption and was in any event ‘not the most probable inference’ to have drawn.

Her decision halving Smuts’ fee was thus ‘irrational’ – there was no rational connection between the facts and the decision – and she was clearly thinking of chamber work, rather than appearance work, with her faulty expectation that Smuts should show he did no other work on that day, after the postponement.

A taxing officer should start from the premise that advocates acted honestly and ethically, said the court, rather than from the opposite view.

‘In other words, in the absence of reason to believe that counsel charged improperly, it was unnecessary for counsel to present evidence to establish the loss of opportunity to justify a full first day fee.’ By halving counsel’s fee on the assumption that he had ‘returned to his chambers to do other work’, the respondent applied a wrong principle and committed ‘a material error of law’.

As the taxing officer had clearly erred, the court ordered that the full fee charged by Smuts be approved.

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)

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