LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C OF A (CIV) NO 06/2024
CIV/T/131/2011 CIV/APN/852012 CIV/APN/140/2018
In the matter between –
LESOTHO OBSERVATORY FOUNDATION APPELLANT
And
PALESA MEHLOLO 1STRESPONDENT
LAND ADMINISTRATION LSPP 2NDRESPONDENT
REGISTRAR OF DEEDS 3RDRESPONDENT
DEPARTMENT OF LSDP 4THRESPONDENT
ATTORNEYGENERAL 5THRESPONDENT
METOLONG DAMAND WATER SUPPLY 6THRESPONDENT
CORAM: MOSITO, P
SAKOANE, CJ
VAN DER WESTHUIZEN, AJA
HEARD: 8 OCTOBER 2024
DELIVERED: 1 NOVEMBER 2024
Summary
The insistence of a litigant to proceed with an appeal based on an incomplete record warrants a punitive costs order. To certify that a record complies with the Rules of Court, knowing that it is not the case, justifies a costs order against the relevant legal representative. The Law Society is to take notice, for the purposes of continuing professional development.
JUDGMENT
VAN DER WESTHUIZEN, AJA:
Introduction
[1] In this matter, a purported appeal against a decision of the High Court by Mahase J, in a dispute about the cancellation of a lease, the only issue for determination is costs.
Litigation history
[2] The matter has come a long way, indeed from 2011. Relevant for present purposes is only that the judgment appealed against was delivered on 13 December 2023, after which the appeal was noted on 31 January 2024.
[3] The appeal was enrolled for the October 2024 session of this Court. At the President’s roll-call on Monday 7 October 2024 counsel for the first respondent pointed out that the record was incomplete, rendering the appeal unfit to proceed. Counsel for the appellant submitted that the missing part or parts of the record were irrelevant for the appeal. The appeal could proceed, in the view of the appellant.
[4] The President urged the parties to consult and to inform the Court before 16h00 whether the matter would proceed. By the evening of Monday 7 October 2024, we were informed that the matter could not proceed, in view of the incomplete record; and that a postponement would be requested the next day.
[5] On the morning of Tuesday 8 October 2024, counsel for both sides appeared before this Court. On behalf of the appellant, it was submitted that the parties agreed that the appeal could not proceed, because of the state of the record. The evidence presented in the High Court was not included. This was allegedly because the tapes on which the evidence had purportedly been recorded, were missing. On the reason for this state of affairs counsel was vague and uncertain. It was not even clear whether the High Court judgment had been written with or without the benefit of the tapes, or a transcription thereof.
[6] After several questions from the bench, counsel for the appellant agreed that the matter should be struck off the roll, rather than be postponed.
[7] The President ordered that the matter be struck off.
Costs
[8] The determination of costs was reserved. Hence this judgment.
[9] On behalf of the appellant, the wasted costs were tendered, but on the ordinary scale of party and party. The first respondent’s counsel requested punitive costs.
[10] Two questions must be answered: (1) Should punitive costs be ordered? (2) Should these be payable ex boniis propriis? These are two different enquiries, namely (1) how much damages – on which scale – are payable; and (2) by whom – the appellant, or appellant’s counsel?
[11] The appellant stubbornly insisted that the appeal was ready to be heard, in spite of the state of the record. This was so, even at the roll-call, during which the President expressly enquired as to whether the appeal could proceed. One of the very purposes of the roll-call is to determine the state of readiness of matters, in order to save costs and indeed the time of the judges of this Court, each of whom has to hear more than 20 appeals in ten court days; and author often more than ten judgments in effectively two weeks.
[12] The appellant’s insistence up to 24 hours before the appeal hearing that the matter was ripe for hearing, in spite of the obviously unacceptable state of the record, requires a punitive cost order, namely on attorney and client scale, rather than on the regular party-party scale.
[13] Whether the appellant or its legal representative is responsible for the appellant’s litigation method and style, this Court can of course not determine with certainty. Of particular concern though, is the fact that – the appellant being responsible for the filing of the record – its lawyer certified that the record was in order. On 29 April 2024 Khathatso Dominic Mbulu (of KD Mabulu & Co Attorneys) - “appellant’s attorneys “– certified “that the attached record has been checked and that it is the correct copy of the proceedings … in compliance with the rules of this Honourable Court”.
[14] This is obviously false - if not fraudulent – and unprofessional to an extent that it could harm the legal profession as a whole. A judge who starts reading a record is supposed to be entitled to accept the word of an admitted officer of the court that the record complies with the rules of the court. Conduct of this kind by legal representatives deserves to be sanctioned. Whether or not a litigant insists to proceed with a meritless matter is often not in the hands of its lawyer. However, the certification of the record is ONLY in the lawyer’s hands. It is far removed from the client.
[15] Litigants have no choice but to put their trust in the hands of their lawyer. This also applies to their financial means and, indeed, often their house and entire lifestyle. Ordinary people who need legal assistance must be protected against unscrupulous or reckless lawyers.
[16] Relying on a range of previous decisions of this Court, counsel for the first respondent submitted in their written heads of argument that punitive costs went beyond compensating the aggrieved party. They were designed to punish for grossly negligent or intentional conduct.
[17] For example, in Lesotho Mineral Exploration versus Standard Lesotho Bank (C OF A (CIV) NO 40 OF 2014 [16]) Mosito P, for a unanimous Court, struck a matter off the roll with costs “for want of compliance with the Rules … and the filing of the incomplete record.” For another unanimous Court, Mtshiya AJA stated in Mamohato Molapo versus The Executor Estate Late Khomo Solomon Molapo and Others (C OF A (CIV) 38/2018 [20] ):”Given the sad history of this case which is attributable to the conduct of both the applicant and her counsel … punitive costs are called for. Both the applicant and her counsel did not act with the diligence expected from them …. They do not appear to be serious enough to prosecute the matter that they placed before the court.” The Court ordered costs on a legal practitioner and client scale.
[18] In In re Felleng Makeka versus Africa Media and Others (C OF A (CIV) NO 14/2022) Chinhengo AJA, for a unanimous Court, dismissed an appeal against a High Court order of costs de bonis propriis, with costs on an attorney and client scale ([37]). The Court stressed (in [19]) the inherent power of the court to make costs orders against legal practitioners. The Court stated that costs orders should not easily be made against lawyers who have to act on the instructions of clients. The court’s discretion must be exercised with care and discretion ([21]). This Court concluded: “Only when a legal practitioner’s conduct of proceedings is plainly unjustifiable” would a de bonis order be appropriate.
Conclusion
[19] In this matter a punitive costs order is called for, as stated above. Counsel’s conduct regarding the insistence to proceed with an appeal on a grossly incomplete record and especially the issuing of a misleading certificate indeed renders a de bonis order “plainly justifiable”. It was more than negligent, indeed grossly negligent, to the extent of being reckless and disrespectful to the apex court of Lesotho.
Order
[20] In view of the above, this matter was struck off the roll on 8 October 2024.
(a) Wasted costs are to be paid by the appellant, on a scale of attorney and client, de bonis propriis.
(b) For the purposes of the ongoing professional education of legal representatives, this judgment is referred to the Law Society of Lesotho.
_____________________________ J VAN DER WESTHUIZEN
ACTING JUSTICE OF APPEAL
I agree:
__________________________ KE MOSITO
PRESIDENT OF THE COURT OF APPEAL
I agree:
__________________________ S P SAKOANE
CHIEF JUSTICE
For the Appellant: mr K.D Mabulu
For the first Respondent: Adv V Tsenoli