Top court raises concern over counsel fees

In a judgment handed down yesterday, the 11 judges slashed the amounts a senior advocate and his junior could charge one of their clients. The original dispute stems from a legal clash over a sea view in Camps Bay. It was effectively a bid by Camps Bay resident Anthony 'Buddy' Herman to prevent his neighbour, Gerda Harrison, from building a three-storey house that would interfere with his view. However, Herman lost the battle. In November, 2010, the Constitutional Court denied leave to appeal against a High Court ruling and ordered the applicants to pay the respondents' legal costs for the application. But Herman, who is also an attorney and represents the applicants, said they objected to the legal costs for Harrison's two counsel. According to the 2010 Constitutional Court judgment, the advocates representing Harrison were Henry Viljoen SC and JC Marais. They originally charged R453 150 and R263 500 respectively. Following the applicants' objection, the court's Taxing Master had cut this down by almost half to R240 000 for Viljoen and R160 000 for Marais. The report adds the losing party were still not happy and sought a review of the Taxing Master's decision, which gave rise to yesterday's Constitutional Court judgment. The judges found that the amount awarded was 'so disproportionate to what is fair and reasonable' that it had to be set aside. They again slashed the legal fees, this time to R180 000 for Viljoen and R120 000 for Marais. Full Cape Times report (subscription needed) Media summary and judgment

In its judgment, the court confirmed that counsel's fees on appeal should be adjusted in cases with a long history of litigation - where the arguments on appeal were 'largely a rehearsal of issues that had already been well-trampled out before previous courts,' says a Business Day report. But the judges also said they felt 'obliged' to express their 'disquiet at how counsel's fees have burgeoned in recent years'. 'To say they have skyrocketed is no loose metaphor,' the court said. They said they hoped their judgment would influence 'the concept of what... is reasonable for counsel to charge'. 'No matter the complexity of the issues, we can find no justification, in a country where disparities are gross and poverty is rife, to countenance appellate advocates charging hundreds of thousands of rand to argue an appeal,' the court said. The court said 'skilled professional work deserves reasonable remuneration' and that, in many cases, clients were willing to pay market rates to secure the best services. But it said that, in SA, the legal profession owed a 'duty of diffidence' in charging fees that went beyond what the market could bear. Full Business Day report