Civil Litigation Costs in South Africa: What You May Pay

Key takeaways

Start with three separate cost records

Your account with your legal team

This is what you agree to pay for professional work under the mandate. It may include consultations, factual and legal analysis, correspondence, drafting, evidence preparation, procedural work, settlement negotiations, hearing preparation and appearances.

The engagement may use hourly rates, task fees, stage budgets or another lawful arrangement. Ask what triggers a charge, whose time is billed, how increments are recorded and which work needs approval. The fee agreement should also address deposits, frequency of accounts, late payment, termination and the treatment of money held for future work or expenses.

Your liability under that agreement exists independently of whether the court later makes a costs order. A 2026 High Court taxation judgment, MEC: Health, Gauteng v Taxing Master, expressly distinguishes attorney-and-client costs payable under the professional relationship from costs recoverable because a court awarded them.

Disbursements and external expenses

Disbursements are amounts paid or incurred for services outside the firm’s professional fee. Depending on the case, they can include sheriff’s service, counsel, correspondent attorneys, experts, interpreters, transcripts, records, travel, electronic platforms and document production.

Do not assume every external expense is included in an hourly rate or fixed stage fee. Ask:

• which items are included, excluded or estimated separately;
• whether the firm adds an administration charge;
• when money must be deposited before an expense is incurred;
• who approves experts, counsel and other material commitments; and
• whether unused amounts are reconciled when a stage ends.

An early case with few documents can become materially more expensive if expert evidence, interlocutory applications or a longer hearing becomes necessary. The budget should identify those triggers rather than hide them in one total.

Costs under a court order

A court may decide that one party must pay some of another party’s litigation costs. This is a judicial decision, not a refund policy. Costs are discretionary, and the order may address the whole case, one application, a postponement, a particular day, or no costs at all.

In ordinary private litigation, the successful party often asks for costs to follow the result, but that is not an automatic rule without exceptions. The nature of the case, success on the issues, the parties’ conduct, procedural choices, settlement steps and applicable legislation can affect the order.

Why a normal costs order rarely equals the whole client bill

The ordinary recoverable scale is commonly described as party-and-party costs. It aims to allow costs considered necessary or proper for the litigation under the applicable tariff and taxation process. It does not simply transfer the winning party’s private fee agreement to the losing party.

That distinction creates a shortfall in many cases:

text own lawyer and counsel accounts + case disbursements - money recovered under a costs order = the client’s remaining litigation spend

The amount recovered can only be known once the order, applicable scale, bill of costs, objections and taxation or agreement have been resolved. Any early estimate should therefore show expected own spend and possible recovery separately.

Use the attorney and advocate role guide to identify whose work may appear in the budget before accepting a combined estimate.

High Court party-and-party scales A, B and C

Uniform Rule 67A, effective from 12 April 2024, changed the structure of High Court party-and-party costs. A High Court costs order must indicate the scale under Rule 69. The court may consider the complexity of the matter and the value of the claim or importance of the relief. If the order does not identify a scale, Rule 67A provides that scale A applies.

The scales are called A, B and C. They set maximum tariff rates for specified recoverable appearance and related work; they are not a universal price list for what a firm may charge its client. The current tariff figures appear in the Uniform Rules, and later amendment notices must be checked before relying on an amount.

Rule 67A also directs attention to procedural efficiency. Relevant considerations may include unnecessary drafting or annexures, unnecessary procedures or hearing time, failures to comply with identified rules, the conduct of legal representatives and whether the case could have been conducted in a Magistrates’ Court.

The lesson for a litigant is practical: choosing the forum and running the case proportionately can affect both own spend and recoverability. A higher private hourly rate does not convert an ordinary costs order into a matching recovery.

What taxation does

When the amount due under a costs order is not agreed, the party with the order prepares a bill of costs. In the High Court, the taxing master applies the order, Rules 69 and 70 and the applicable tariffs. The party said to be liable can receive notice, inspect supporting material and object to items through the prescribed process.

The taxing master may allow, reduce or disallow items. Rule 70 refers to factors such as time necessarily taken, complexity, the subject matter and amount in dispute where discretion applies. It also restricts recovery for unnecessary duplication and other items that were not reasonably required.

Taxation is therefore not a retrial of the merits and does not rewrite the parties’ private engagement. It quantifies recoverable costs under the order and rules. The Rules Board amendment index should be checked because tariffs and procedural provisions can change.

Party-and-party, attorney-and-client and your own bill are different

Similar language causes avoidable confusion:

• Party-and-party costs are ordinary recoverable litigation costs allowed under the order, rules, tariff and taxation.
• Attorney-and-client costs in a court order generally describe a more generous, often punitive recovery scale. They are not made merely because one party lost.
• Your attorney’s account to you arises from the mandate and work performed, whether or not the court orders anyone else to pay costs.

In Prithilal v Akani Egoli, the Constitutional Court stressed that an attorney-and-client costs order is punitive unless it rests on an agreement, and that a court departing from the ordinary position must give reasons. The decision is a warning against treating punitive costs as routine or predictable.

There are other exceptional orders, including costs against a representative personally, but they require their own legal basis and process. Do not build a budget on the assumption that a court will punish the other party or make the client completely whole.

Constitutional litigation can follow a different starting point

The normal private-litigation summary is not universal. In Biowatch Trust v Registrar, Genetic Resources, the Constitutional Court established an important approach for genuine constitutional litigation between a private party and the state: ordinarily, a successful private party should recover costs from the state, while an unsuccessful private party should not be ordered to pay the state’s costs.

That principle has boundaries, including the character of the litigation and misconduct. It should not be assumed merely because a pleading mentions the Constitution or a state entity. A qualified practitioner must classify the claim and current authority.

Contingency fees are a regulated arrangement

“No win, no fee” is not an informal promise that can be reduced to a percentage written in a message. Where the Contingency Fees Act applies, the agreement must satisfy the Act and prescribed form requirements.

The Act allows an agreement when the practitioner considers that the client has reasonable prospects of success. It requires the agreement to be in writing and to address the proceedings, what counts as success or partial success, the calculation of fees, disbursements, early termination and other funding options.

For a success fee higher than normal fees, section 2 limits the uplift to no more than 100% above the practitioner’s normal fees. For a claim sounding in money, the total success fee may not exceed 25% of the amount awarded or obtained, excluding costs for that calculation. Both limits must be applied; the 25% figure is not an automatic fee.

The Act also specifies a 14-day withdrawal period, subject to payment for necessary or essential protective work and disbursements as provided by the Act. Settlement has additional affidavit and explanation requirements. Because coverage and compliance are fact-sensitive, have the complete signed agreement reviewed rather than relying on a headline percentage.

Contingency does not necessarily remove disbursements or exposure to an opponent’s costs. The agreement must explain how those risks are handled.

Build a stage-based litigation budget

A single estimate for “the whole case” can be misleading before pleadings close, documents are exchanged or the hearing length is known. Use decision gates.

For each stage, ask for:

1. the assumptions supporting the estimate;
2. work included and excluded;
3. professional fees separated from disbursements;
4. the people and rates likely to be used;
5. a range or cap and the event that reopens it;
6. the next point at which continuing remains proportionate; and
7. the likely effect of settlement, postponement or new evidence.

The litigation preparation checklist can expose document and evidence work before it surprises the budget.

Read every settlement proposal for costs

A settlement may address the main claim but leave costs unresolved. Before accepting, identify whether the proposal includes:

• each party paying its own costs;
• one party paying an agreed amount for costs;
• costs to be taxed if not agreed;
• a specified scale or forum tariff;
• counsel, expert or other expenses; and
• the costs of implementing or enforcing the settlement.

Do not assume “in full and final settlement” answers every costs question. The exact wording, pending applications and existing orders matter. Ask the lawyer to compare the net outcome after fees, disbursements, possible recovery and tax consequences requiring separate advice.

Questions to ask before authorising the next stage

• What do I owe under the mandate even if we lose or settle?
• Which disbursements need my advance approval?
• Is an advocate or expert already included in the estimate?
• What work has already fallen outside the original scope?
• Which facts could materially increase the next stage’s cost?
• What costs order will we seek, and why is that realistic?
• How much of my actual spend might remain unrecovered even if successful?
• What cost exposure could arise if this application or case fails?
• When will I receive work-in-progress and disbursement reports?
• What is the least expensive lawful step that protects the position now?

Use the litigation-lawyer profile route to test provider fit, and the lawyer directory only after the immediate stage and budget questions are defined.

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