BERE J: Mr Hungwe of Messrs Hungwe and Partners
legal Practitioners, Harare
is the duly appointed executor in the above referred estate. The executor has
been involved with this estate from 2005 up until now. Counsel has yet to draw
up the final estate account.
It is noted that this estate has
been quite involving as it necessitated quite some protracted litigation in
order to trace and fully account for some of the state assets.
In presenting his bill to the taxing
officer the executor has sought to rely on the law society tariff of 2009 for
work done from the year 2005 up to 2009. The taxing officer felt constrained to
pass the bill as he felt it was not competent for the executor to rely on the Law
Society of Zimbabwe tariff for work done before that particular tariff came
into operation. The executor thought it was proper to do so and this culminated
in the taxing officer referring the matter to me in terms of the rules of this
court.
It is necessary to re-state the
arguments raised by the parties involved in this case since no formal papers
were filed as the cited rule does not seem to provide for the filing of proper
court papers.
The executor's position as I
understood it was that this particular estate has been quite involving and can
be traced back to the year 2005 when he was duly appointed executor of this
estate. The executor worked on this matter from 2005 up until March of 2009
when he had to attend court to note judgment in one of the cases involving the estate
which incidentally I had the privilege to preside over.
Counsel's uncontroverted argument
was that in his capacity as executor services were rendered and reasonable costs incurred which
costs his law firm is entitled to recover from the estate itself.
In buttressing his position the
executor sought to rely on the letter of 15 December 2009 from the Law Society
of Zimbabwe as well as the case of Kwindima
Fabiola v Mvundura Louis.
I will comment on these later in my judgment.
It was further argued by the
executor that he could not have presented his bill of costs to the taxing
officer before he had finished all the work involving the estate in question
hence the delay in compiling and presenting the bill for taxation.
The executor firmly believed that
once he had presented the bill to the taxing officer, the taxing officer could
not raise any objection mero moto
unless such officer had some interest in the matter. In fact the executor's
argument was so blunt – he argued the taxing officer had no authority to deny
his law firm the fees as per his bill of costs.
Mr Mudefi (“the taxing officer”), whilst
accepting that he had no qualms with the compilation of the bill per se raised concern with the
executor's use of the 2009 Law Society fees tariff for work that was done long
before that tariff came into operation.
The taxing officer's position was
that he believed that every year the Law Society of Zimbabwe publishes its
tariff for fees in order to guide legal practitioners in recovering their fees
for work done and that the tariff applicable in each year must be restricted to
the work done in that particular year.
It was also the taxing officer's
position that his duty was not merely to rubber stamp bills of costs presented
to him but raise objections if he felt such bills did not comply with the
relevant tariff, and in this case the Law Society tariff. The officer was of
the view that if he felt the fees charged were a departure from those allowed
by the relevant tariff, and therefore unreasonable, he could on his own
initiative raise an objection, even in the absence of the other party to the
litigation.
The Legal Position
In my view this matter ought not to
have ended up on my desk for guidance. I consider the issues raised to have
been fairly straight forward and that recourse ought to have been had to the
relevant High Court rules on taxation.
The rule in question reads as
follows:-
“In the taxation of costs in respect
of work done in connection with any matter not referred to in subrule (2),
including the taxation of costs as between a legal practitioner and his own
client in respect of work done in connection with judicial proceedings, a
taxing officer shall be guided as far as possible by any tariff by the Law
Society of Zimbabwe or recommended by the Council of the Society under the
Legal Practitioners Act, 1981 [Cap 27:07]”
(my emphasis)
It is quite apparent to me that the above
referred rule makes it mandatory for the taxing
officer to be guided by the Law
Society of Zimbabwe. The taxing officer's discretion is limited to the
guidelines as provided for by the Law Society of Zimbabwe and he has every
reason to demand full compliance with the relevant tariff in the taxation of
fees charged by any legal practitioner.
It
is clear that the taxing officer was within his rights to demand that work done
in 2005 be charged in accordance with the relevant and applicable Law Society
tariff as at that year. In my view the subsequent years ought to have followed
the same approach. It was certainly not competent for the executor to seek to
rely on the tariff of September 2009 in his computation of fees due to him for
any work done before that date. Such any approach was clearly a violation of
the Law Society guidelines.
Once
there was disagreement between the taxing officer and the executor it became
unavoidable for the matter to be referred to a judge in chambers for a
determination hence the referral of the matter to me.
The
approach adopted by the taxing officer is specifically provided for under rule
313 of the High Court Rules
and that rule requires no interpretation.
There
can be no question that the taxing officer is not merely there to rubber stamp
any bill for taxation presented to him. A cursory reading of order 38 shows
that the taxing officer has a lot of discretion thrust upon him and he is
therefore not always expected to be in agreement with any bill presented to
him. In determining whether the fees charged are reasonable, the officer has to
inter alia refer to the relevant
tariff and this is precisely what he did in this matter.
The
executor in this matter has sought to rely on the letter from the Law Society
of Zimbabwe as authority for the proposition that he was justified to rely on
the tariff of 2009 to charge for work done prior to that date.
With
respect the letter from the Law Society of Zimbabwe cannot possibly be relied
upon as authority for the proposition to flout the Law Society's own
regulations for the levying of legal fees. That letter is not precedent. If
anything it is no more than an ordinary letter carrying the opinion of the
executive secretary of the Law Society as an organisation.
The
Law Society in its own wisdom has year after year created tariffs which must be
used in the computation of legal fees by its members. None of those tariffs are
to be used with retrospective effect in the absence of the Law Society
specifically stating so. In any event it is inconceivable in my view that the
Law Society would encourage its members to recoup their legal fees in United States
dollars for the time when it was illegal in this country to deal in foreign
currency without complying with the relevant exchange control regulations.
The
executor has also sought to rely on the case of Kwindima Fabiola and Mvundura
Louis (supra) as another authority to
justify the use of the Law Society tariff of 2009 for use for work done prior
to that date. The argument raised was that the estate would be unjustly
enriched if the executor were to be forced to rely on tariffs which would
result in him getting the valueless local currency.
I
have gone through the referred case and I am afraid this case has been quoted
out of context. The ratio in Kwindima's case (supra) has either been completely misunderstood or there has been
an conscious effort to hijack it. In the first place, that case was
specifically dealing with a claim for damages and the instant case has nothing
to do with such a claim.
The
issue in the instant case is simply whether or not the executor should use the
Law Society tariff of 2009 for work that was done prior to that year. The much
talked about tariff clearly states in its preamble that it is to be “with
effect from 1 April 2009”. If the Law Society wanted the tariff to be used for
any other period other than that stated then it should have stated so.
I
am aware of the difficulties which have dissuaded the executor from relying on
the tariffs for 2005, 2006 and 2007. The effect of relying on such tariffs is
that the executor will be laden with a bill in local currency, which currency
has been rendered obsolete or otiose by the advent of dollarization. Although
officially the local currency remains legal tender in this country it is not a
secret that the introduction of the multi currency regime has literally led to
the debasement of the Zimbabwe
dollar and its subsequent and unceremonious disappearance from
circulation.
In
my view the issues to do with the current value of the Zimbabwe dollar
are issues which require the intervention of the legislature and not the
courts. The legislature must come up with an acceptable method of giving value
to the Zimbabwe
dollars that have literally been locked out of circulation. This has affected
almost even citizen or enterprise in the country. The predicament the executor
finds himself in is therefore not peculiar to him. I did comment in an almost related matter on
this aspect in the case of Blessmore Chanakira
.
In
conclusion I am more than satisfied that the method of computing fees desired
by the executor is untenable. The taxing officer must be commented for his
vigilance for he was justified to decline passing the executor's bill.
The
matters raised are of some significance and for that reason there shall be no
order as to costs.
Hungwe & Partners, legal practitioners and
the
Taxing Officer
