26/06/2026
THE FORMULAIC TAXATION OF COUNSEL'S FEES BY TAXING MASTERS
Introduction
It has become increasingly common in certain divisions of the High Court for Taxing Masters to adopt predetermined formulae when assessing the reasonableness of Counsel's fees.
Typical examples include:
• Perusal at a fixed rate of approximately 40 pages per hour;
• Drafting at a fixed rate of approximately 4 pages per hour; and
• Settling at a fixed rate of approximately 8 pages per hour.
• And a set rate per page such as R850 per page in some divisions.
The practical effect of this approach is that Counsel's actual time spent and fee charged are disregarded and replaced with a mathematical calculation based solely upon the length of a document or the number of pages involved.
In my view, such an approach is fundamentally inconsistent with the principles governing taxation and constitutes an impermissible fettering of the Taxing Master's discretion.
The Nature of the Taxing Master's Discretion
The taxation of costs has always been recognised as a discretionary judicial function.
A Taxing Master is required to determine whether costs were reasonably incurred and whether the amounts claimed are reasonable in the circumstances of the particular matter.
The exercise is inherently fact-specific.
No two matters are identical.
A ten-page opinion dealing with a novel constitutional issue may require substantially more time than a fifty-page document involving straightforward factual issues. Similarly, a twenty-page pleading in a complex commercial matter may require significantly more intellectual effort than a much longer pleading in a routine matter.
For this reason, the law has consistently recognised that a Taxing Master must consider:
• the complexity of the matter;
• the novelty of the legal issues;
• the volume and quality of evidence;
• the importance of the matter to the litigants;
• the skill, experience and seniority of Counsel;
• the urgency of the work;
• the time reasonably required to perform the work; and
• all other relevant circumstances.
The discretion exists precisely because legal work cannot be reduced to a mechanical formula.
Formulae Impermissibly Fetter the Discretion
The adoption of rigid page-per-hour formulae effectively predetermines the outcome before the Taxing Master has considered the particular circumstances of the matter.
Where a Taxing Master applies a rule such as:
"Counsel may only be allowed one hour per forty pages of perusal" the Taxing Master is no longer exercising a true discretion. Instead, the Taxing Master is applying a policy or tariff of his or her own creation.
This is contrary to the well-established principle that a decision-maker vested with a discretion may not fetter that discretion by adherence to a rigid policy.
A discretion must remain genuinely open to persuasion on the facts of each case.
Once a Taxing Master considers himself or herself bound by a predetermined formula, the discretion ceases to be exercised judicially.
The Absurdity of a Purely Mathematical Approach
The deficiencies of the formulaic approach become immediately apparent when practical examples are considered.
A twenty-page technical expert report dealing with engineering, medical negligence, marine architecture, forensic accounting or actuarial science may require many hours of detailed study and cross-referencing.
Likewise, a short constitutional argument raising a novel point of law may require extensive research and consideration.
Under a rigid formula, however, the Taxing Master may allow only a fraction of the time reasonably required merely because the document contains a limited number of pages.
Conversely, a lengthy but straightforward document may attract more time simply because it contains more pages.
The result is arbitrary and bears little relationship to the actual complexity of the work performed.
Page counts are not a reliable measure of intellectual effort.
Counsel's Actual Time Remains Relevant
Whilst the Taxing Master is not bound by Counsel's fee list or by the amount charged to the client, those factors remain highly relevant considerations.
Counsel's fee list constitutes direct evidence of the time spent and the professional judgment exercised by Counsel in performing the work.
The proper enquiry is not whether the Taxing Master would personally have spent the same amount of time, but whether the time claimed was reasonably spent by Counsel having regard to all relevant circumstances.
A Taxing Master is entitled to reduce excessive or unreasonable charges.
What a Taxing Master is not entitled to do is disregard Counsel's actual time entirely and substitute an arbitrary formula.
Uniformity versus Justice
It is sometimes argued that formulae promote consistency and predictability in taxation.
Whilst consistency is desirable, consistency cannot come at the expense of justice.
The purpose of taxation is not to produce identical outcomes in dissimilar cases. The purpose is to arrive at a fair and reasonable allowance in each individual matter.
Uniformity achieved through rigid formulae merely replaces the exercise of judgment with administrative convenience.
The law requires fairness, not mathematical uniformity.
Grounds for Review
Where a Taxing Master applies a rigid formula without properly considering the particular circumstances of the matter, strong grounds may exist for review.
Such grounds may include:
• Failure to exercise a discretion;
• Fettering of discretion;
• Application of an inflexible policy;
• Failure to consider relevant factors;
• Consideration of irrelevant factors;
• Misdirection in principle;
• Failure to apply a judicial mind;
• Reaching a result that no reasonable Taxing Master could reach on the facts.
A review court is generally reluctant to interfere with a Taxing Master's discretion. However, where it can be demonstrated that no true discretion was exercised because the decision was dictated by a formula, the matter moves beyond a mere disagreement on quantum and into the realm of reviewable irregularity.
The Need for Immediate Reviews
In my view, practitioners should not simply accept formulaic reductions of Counsel's fees.
If the profession acquiesces in the practice, it will become entrenched and eventually treated as though it were a binding tariff despite having no foundation in the Rules of Court, any statute, or established legal principle.
Whenever a Taxing Master openly applies a rigid page-per-hour formula or similar mechanical methodology, serious consideration should immediately be given to review proceedings.
The issue is not merely the amount taxed off in a particular matter.
The broader concern is the preservation of the Taxing Master's discretion itself.
Once discretion is replaced by formula, the taxation process ceases to be a judicial assessment and becomes an administrative calculation.
Conclusion
The taxation of Counsel's fees is, by its nature, a discretionary exercise requiring careful consideration of the unique circumstances of each matter.
Rigid formulae based upon page counts, hourly assumptions or predetermined ratios are incapable of accounting for the complexity, novelty, importance and intellectual demands of legal work.
Such formulae improperly fetter the Taxing Master's discretion, undermine the purpose of taxation and create outcomes that are often arbitrary and unjust.
A Taxing Master is entitled to scrutinise Counsel's fees rigorously and to reduce fees that are excessive or unreasonable. What the Taxing Master may not do is replace the exercise of discretion with a mathematical formula.
Where this occurs, affected parties should seriously consider bringing review proceedings, not merely to challenge the reduction in a particular matter, but to protect the fundamental principle that taxation must remain an exercise of judicial discretion rather than an exercise in arithmetic.
