City of Gweru v Richard Masinire

### Preamble
Judgment No. SC 27/20
1
Civil Appeal No. SC 45/13
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REPORTABLE	(24)

CITY     OF     GWERU

v

RICHARD     MASINIRE

SUPREME COURT OF ZIMBABWE

MATHONSI JA

HARARE:	5 FEBRUARY 2020

A. Muchandiona, for the appellant

Respondent in default

IN CHAMBERS

MATHONSI JA:	This is a dispute arising from the taxation of the appellant’s bill of costs.  By judgment of this Court delivered on 27 September 2018 in City of Gweru v Masinire SC 56/18, in an appeal against the judgment of the Labour Court which nullified the dismissal of the respondent from employment as Chamber Secretary of the appellant municipality, the court allowed the appeal with costs.

The appellant’s costs of the appeal on a party and party scale were therefore to be taxed in accordance with the relevant provisions of the tariff for the time being used by the High Court of Zimbabwe.  This is in terms of r 56(1) of the Supreme Court Rules, 2018.  It provides:

“Where costs are allowed they shall be taxed by a registrar and legal practitioners’ fees shall be charged and taxed in accordance with the relevant provisions of the tariff for the time being used by the High Court of Zimbabwe.”

It was during the course of taxation of the contested bills of costs incurred by the appellant in prosecuting the appeal, that certain questions arose which the parties desired to have referred to a judge in chambers for decision.  This is in terms of r 313 of the High Court of Zimbabwe Rule, 1971. The course of action adopted by the parties is captured in a letter from Masinire and Chakabva legal practitioners to Danziger and Partners dated 10 June 2019.  The letter was copied to the registrar of this Court and states, in relevant part:

“At our meeting with the taxing officer on the 5th of June 2019, the taxing officer was also of the view that a partner couldn’t be viewed as a correspondent in the sense of the rules.  It was his intuition, hence we agreed to make submissions to him after the parties’ attempt to reason as between themselves.  This is what I have done.  I expect your response in this regard.  If we still differ over the issue, the taxing officer said regard will be had to Rule 313 of the High Court Rules of Zimbabwe which states:

‘Taxing Officer may refer point to Judge in Chambers

The taxing officer may, without filing any formal documents, submit any point arising at a taxation for decision by a judge in chambers, and it shall be competent for the taxing officer and for the legal practitioners who appeared at the taxation to appear before the judge respecting such point.’

We took notice that in your letter you indicated that we should write to you by the 10th of June 2019 failure of which you approach the taxing officer for a date to proceed with taxation.  It was the same taxing officer who requested us to attempt to solve the disputed issue failure of which both of us submit our views regarding the issue which he may place before a judge in chambers in terms of Rule 313 above if he fails to make a determination.”

The parties failed to resolve the dispute resulting in the registrar referring the matter to me for a decision in chambers. Although a notice of set down for the hearing of the matter on 5 February 2020 was served on the respondent’s legal practitioners, neither the respondent, who is himself a legal practitioner running his own practice, nor his legal practitioner, appeared at the hearing.

Two issues were referred to me for determination.  These are:

Whether a partner in a law firm can be viewed as a correspondent as to be entitled to submit a separate bill of costs for taxation; and

Whether the costs of transcription of an appeal record done by a private company should be allowed on taxation of a bill of costs.

Before determining the issues, it is necessary to set out, in brief, the material facts giving rise to the dispute.  This matter originated in Gweru where the appellant employed the respondent as its Chamber Secretary.  He was discharged from employment following a hearing conducted in terms of the Labour (National Employment Code of Conduct) Regulations, S.I. 15/2006.  The respondent appealed to the Labour Court in Bulawayo against the dismissal.

The appellant engaged the services of Danziger and Partners legal practitioners based in Gweru and Mr Mutseyekwa, a senior partner at their Gweru office, dealt with the matter.  He made certain attendances on the instructions of the appellant.  The Labour Court sitting at Bulawayo upheld the respondent’s appeal holding that the respondent’s dismissal was a nullity.

The appellant was aggrieved.  It noted an appeal to this Court against the judgment of the Labour Court.  I must add that the law firm of Danziger and Partners also has an office in Harare.  With the appeal now pending in the court in Harare, it became necessary for Danziger and Partners of Gweru to pass on instructions for attendances in Harare to the Harare office of the same law firm.  Mr Muchandiona, who is based in Harare, made certain attendances in that regard.  The appellant was successful on appeal as I have said.

Upon taxation, Danziger and Partners Gweru prepared a bill of costs relating to their attendances made by Mr Mutseyekwa in Gweru while the office in Harare prepared a separate bill relating to the attendances made by Mr Muchandiona in Harare.  The Harare bill was drawn by Mr Muchandiona as “correspondent” to Danziger and Partners of Gweru.

The respondent took issue with the submission of a second bill of costs, not because the attendances contained in it were not made or were unnecessary, but merely because a partner in the same law firm cannot be a correspondent of the law firm.  That is how the first issue referred to me arose.

Meanwhile, during the process of preparing the appeal record at the Labour Court in Bulawayo, the registrar of that court had some constraints.  He was unable to undertake the transcription of the appeal record internally.  In his wisdom, the registrar out sourced the business of transcription of the record.  By letter dated 1 March 2013, the registrar advised the appellant’s legal practitioners of that predicament and later instructed them to pay for the transcription directly to the private service provider.  The letter reads in pertinent part:

“The above subject matter refers.  You are please being requested to inspect the attached record for confirmation of all documents having been included in the record.

…

Please take notice that the cost of preparing CITY OF GWERU VS RICHARD MASINIRE is as follows:

Photocopying 750 pages @ $0,15 x 6 records	= $675.00

Transcribing 140 pages @ $4.50/page 		= $630.00

Glue binding @ $1.50 per record x 7 		= $350.00

$1 655.00

Please take note that due to lack of resources the services would (sic) be done by private service provider.”

In due course, the registrar supplied Danziger and Partners with the banking details of the private service provider with instructions to pay the service provider for the transcription.  There is proof that payment of $1 655.00 was made by the firm to the service provider on 17 October 2013.  The second issue relating to allowing the transcription costs arises from that set of facts.  The respondent questions why the registrar outsourced the business of transcription, and photocopying instead of performing the exercise at a cheaper rate.

WHETHER A PARTNER IN A LAW FIRM CAN BE VIEWED AS A CORRESPONDENT

The issue as formulated completely misses the point.  In a taxation, the paramount issue is never which partner or professional assistant did what in legal proceedings.  The issue for consideration is whether the costs were reasonably incurred.  If they were, such costs should be allowed.  The starting point is to have regard to r 308 for the High Court Rules. It provides:

“308.	Service rendered, work done and disbursements

A taxing officer may tax all bills of costs for services (other than conveyancing) actually rendered by a legal practitioner or by a notary public in his capacity as such including disbursements made whether in connection with litigation or not, and whether the work was done before or after the date on which the rules came into operation.

In the taxation of costs as between party and party in respect of work done in connexion with judicial proceedings, a taxing officer shall be guided as far as possible by the tariff of legal practitioners fees prescribed in the High Court (Fees and Allowances) Rules, 1994.

Provided that no regard shall be paid to any amendment to the said tariff of fees if the work concerned was done before the said amendment came into operation.”

The High Court (Fees and Allowances) Rules, (S.I. 164B of 1994) were repealed by S.I. 2-191 of 1997.  The current Rules are contained in S.I. 166 of 2005 which repealed the First Schedule to the High Court (Fees and Allowances) Rules, 2000 published in S.I. 82 of 2000.

In terms of s 5 of Part 1 of the First Schedule:

“Where, in the taxing officer’s opinion, more than one legal practitioner has been necessarily engaged in the performance of any work covered by this tariff, each legal practitioner shall be entitled to be remunerated on the basis set out in this tariff for the work reasonably and necessarily done by him or her.”

Section 8 thereof recognises what is referred to as “a country legal practitioner,” presumably referring to one practicing outside the city where the seat of the court is located.  As has been shown above, this provision of the tariff gives effect to r 308(2).  Those legal practitioners are allowed to instruct others operating close to the seat of the court usually referred to as correspondents.  To the extent that the Fees and Allowances Rules recognise the right of a country legal practitioner to instruct another legal practitioner operating next to the seat of the court, it matters not that the latter is from the same law firm as long as the firm operates 2 different offices.

What should concern the taxing officer is whether the second legal practitioner has been necessarily engaged to perform work for a client.  To my mind it is necessary to engage a legal practitioner in Harare where the seat of this Court is, if you are a legal practitioner based in Gweru.  To that extent, the question of the instructed legal practitioner being a partner in the same firm pales into insignificance.

Put in another way, the argument raised by the respondent becomes academic if one has regards to the fact that the attendances contained in the second bill of costs could well have been contained in the main bill.  The main bill was generated by Mr Mutseyekwa of the Gweru office of Danziger and Partners.  Would the respondent raise the same objection if the second bill of costs was incorporated in the first?  Certainly not, because his gripe appears to be with the preparation of the second bill by a different partner and not its contents.

It occurs to me that the taxing officer should always be guided by the objectives of taxation set out in r 307.  It provides:

“With a view to affording the party who has been awarded an order for costs a full indemnity for all costs reasonably incurred by him in relation to his claim or defence and to ensure that all costs shall be borne by the party against whom such order has been awarded, the taxing officer shall on every taxation allow all such costs, charges and expenses as appear to him to have been necessary or proper for the attainment of justice or for defending the rights of any party, but save as against the party who incurred the same, no costs shall be allowed which appear to the taxing officer to have been incurred or increased through over – caution, negligence or mistake, or by payment of a special fee to another legal practitioner, or special charges and expenses to witnesses or other persons or by other unusual expenses.” (The underlining is for emphasis).

The taxing officer is given a discretion to allow or disallow costs, and in doing so, he or she makes a value judgment having regard to the guiding principle that the party in whose favour an award of costs has been made, is fully indemnified for all the costs reasonably incurred.  It does not matter that two partners in the same firm have raised separate bills.  In fact it is desirable that they do in order to allow for a smooth taxation and for each of them to be called upon to justify the charges they separately raised.

There is no doubt that in the circumstances of this case, where the appellant was represented by a legal practitioner based in Gweru, it was reasonable for him to engage another legal practitioner based in Harare for purposes of prosecuting the appeal.  For a start, the appellant was required by the rules of court to have an address for service within Harare.  There was need to attend at the court registry to file documents and to also attend court.  What should concern the taxing officer is ensuring that there was no duplication of roles and that all attendances were necessary.

I find support in the remarks of LANDMAN J in Maseka v Law Society of the Northern Provinces (443/06) [2010] ZANWHC 13 where it was stated at paragraph 19:

“Where a litigant does not reside at the seat of the court where the litigation is being conducted, he will be entitled to enlist the services of one attorney at the place where he resides (or carries on business) and the services of another at the seat of the court.  If he is successful and is awarded the costs of the litigation, he will be entitled to recover from the unsuccessful party the reasonable costs incurred by both attorneys.  Fees for attendance in court at a trial are usually allowed only for one set of attorneys acting for a party, that is either for the attorney at the place where the litigant resides (or carries on business) or for the attorney practicing at the seat of the court.”

What was lost to the respondent is that the two sets of legal practitioners, namely Messrs Mutseyekwa and Muchandiona, though partners in a law firm called, Danziger and Partners, are in fact operating from different offices.  The former is in the Gweru office where the appellant is based or carries on business.  The latter is in the Harare Office where the seat of the court is located.  Strictly speaking therefore, Mr Muchandiona can safely be regarded as a correspondent.

The issue is resolved.  I find that the second bill of costs prepared by the Harare Office of Danziger and Partners should also be taxed.  In doing so, the taxing officer must be on the lookout for, and eliminate, any duplicated costs.

WHETHER THE COSTS OF TRANSCRIPTION DONE BY A PRIVATE COMPANY SHOULD BE ALLOWED

This second issue is fairly straight forward.   I have said the r 307 gives full indemnity to the successful party for all costs reasonably incurred by that party.  I am aware that r 436 of the High Court Rules requires any person with an interest in a matter in respect of which there exists a record, to apply to the registrar to have the record transcribed.  Indeed, the appellant complied with that provision when it approached the registrar of the Labour Court for the transcription.

The court notes and recorded discs are the property of the court.  Ordinarily transcription is done by the court transcriber.  What we have however in this case is a unique situation in which the registrar pleaded lack of resources to perform the exercise.  Without the involvement of the appellant, the registrar took it upon himself to outsource the services of transcription.  While this is completely undesirable, it is not the fault of the appellant.

More importantly, there is evidence that the appellant incurred the cost of transcription.  As it is entitled to full indemnity for all reasonably incurred costs, and it cannot be said that the cost of transcription was unreasonably incurred in the circumstances, the appellant is entitled to recover from the respondent what it paid to the private service provider.  The cost should be allowed.

In the result, it is ordered that:

The taxing officer is directed to tax the second bill of costs prepared by Danziger and Partners legal practitioners of Harare and allow costs reasonably incurred by the appellant.

The taxing officer is directed to allow the costs, incurred by the appellant for the transcription of the appeal record, in the sum of $1 655.00.

There is no order as to costs.

Danziger & Partners, appellant’s legal practitioners