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Matrimonials – The rule 43 banana skin : Finally Resolved

Some time ago Bills of Cost published in a newsletter to client’s the dreaded situation in respect of the recovery of costs in Rule 43 proceedings ( with specific reference to Rule 43 (7) & (8 )) and the potential devastating financial implications these extreme limitations placed on the recovery of Attorneys and Counsel’s charges by the successful party.

Unless a Court directed otherwise , a successful party could only recover R 2130.00 i.r.o Attorney’s fees and R 1066.00 i.r.o Counsel’s charges in defended applications despite the fact that the real costs incurred by  that party far exceeded even the costs of the actual Divorce proceedings.  Taxing Masters also had no discretion on the matter either.

For decades this disparity between the actual costs of litigation vs the limitations of the Rule stirred hot debates and numerous  submissions were made to the Rules Board calling for serious re-consideration of the Rule.  At the Costs Indaba of February 2014 this issue was thankfully addressed seriously and the result has finally been announced.

As per Government Gazette 41142 of 29 September 2017, Rule 43 (7) & (8) is repealed which means that as from 1 November 2017 costs awards in terms of this Rule shall be recoverable via the normal drawing and taxation processes as provided for under Rule 70.

What Attorneys should however still be wary of and should seriously consider and address when asking for costs orders under Rule 43, is what the Taxing Masters views will be on taxation i.r.o work done before 1 November 2017.  It is our view and advice that this cannot be taken for granted and it will be in the best interest of the successful party to canvass also the pre 1 November costs  to avoid possible disappointment on taxation at a later stage.

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