One of the most common questions clients ask after a legal victory is: “Now that I’ve won, does the other side have to pay my Attorneys’ bill?”
The general rule is that “costs follow the event.” This means the losing party is typically ordered to pay the legal costs of the winning party. However, “winning” does not always mean you walk away with zero expenses.
Understanding how the court awards costs, and the different “scales” used to calculate them, is essential for anyone entering the Court.
1. The Reality: You Rarely Get 100% Back
It is a common misconception that a court order for “costs” covers every cent you spent on your attorney. In reality, legal fees are divided into different categories. Unless the judge specifies otherwise, you are usually awarded costs on the “Party and Party” scale, which typically covers only a portion of your actual legal spend.
2. Understanding the Different Cost Scales
The South African legal system uses different scales to determine how much the loser must pay. Think of these as levels of “generosity.”
A. Party and Party Scale (The Default)
This is the most common cost order. These are the costs necessarily incurred in the litigation.
- The Limit: These fees are strictly limited to a statutory tariff set by the government.
- The Gap: Because the official tariff is often lower than the private rates charged by experienced attorneys and advocates, a Party and Party order usually covers only 50% to 70% of your actual legal bill. You remain responsible for the “shortfall” to your own lawyer.
B. Attorney and Client Scale (The “Penalty” Scale)
If the court is unhappy with the losing party’s conduct (perhaps they were dishonest, delayed the case unnecessarily, or acted in bad faith) the judge may award costs on an Attorney and Client scale.
- The Benefit: This is a higher scale intended to ensure the winner is not out of pocket. It covers more than the basic tariff and includes most work done by your lawyer, provided it was reasonable.
- It is often used as a punitive measure to “punish” the loser for poor behaviour during the case.
C. Attorney and Own Client Scale
This is the highest possible scale. It essentially means the loser must pay the winner’s entire legal bill, exactly as the winner’s attorney charged it. This is very rare and is almost exclusively awarded when there is a prior written contract (like a loan agreement or lease) that specifically states the parties will pay on this scale in the event of a dispute.
3. New in 2024: The “A, B, and C” Complexity Scales
To make costs more predictable, recent changes to the High Court Rules (Rule 67A) now require judges to rank the complexity of a case when awarding costs. When a judge awards costs, they will now specify a scale:
- Scale A: For straightforward, uncomplicated matters.
- Scale B: For matters of average complexity.
- Scale C: For highly complex cases involving difficult legal points or vast amounts of evidence.
This ensures that the “tariff” applied matches the actual effort required to argue the case.
4. The Gatekeeper: The Taxing Master
Even after the judge grants a cost order, the losing party doesn’t just “write a check”. The winner’s attorney must prepare a “Bill of Costs,” which is then reviewed by a court official called the Taxing Master.
The Taxing Master “taxes” (reviews) the bill to ensure the charges are fair and allowed under the rules. They have the power to “slash” items from the bill if they think the work was unnecessary or the fee was too high..
5. What if You Represented Yourself?
If you acted as a Litigant in Person (without a lawyer) and you win, the rules are different.
- You cannot claim “professional fees” for your own time or for “studying the law,” as you are not a qualified legal practitioner.
- You can claim your disbursements—actual out-of-pocket expenses such as court filing fees, sheriff’s service fees, and travel costs related to the case.
Winning a court case is a significant achievement, but the financial recovery is a process in itself. While the court aims to assist the winner, there is almost always a “gap” between what you pay your lawyer and what you recover from the loser.
by Jaques van den Ende