CIV/APN/156/2002

IN THE
HIGH COURT OF LESOTHO

HELD AT
MASERU

In the
matter between:

O-RIVER
TEXTILES (PTY) LTD Applicant

and

N. MOKABO
1st Respondent

M. Thoo
2nd Respondent

S. Kopano
3rd Respondent

T.
Makhoali 4th Respondent

N. Lenkoe
5th Respondent

R.
Phosa 6th Respondent

M. Mpholo
7th Respondent

M.
Makhula 8th Respondent

M. Mofolo
9th Respondent

Nthethe
10th Respondent

R. Kolane
11th Respondent

M.
Mokitimi 12th Respondent

M. Thabi
13th Respondent

M.
Mosoeunyane 14th Respondent

L. Lekefe
15th Respondent

Commissioner
of Police 16th Respondent

Attorney
General 17th Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice T. Monapathi on the 19th day of
September 2002

On Monday
the 16th September 2002 Counsel came before me in my Chambers.

2

Indeed a
few things were discussed in my Chambers on the last mentioned about
a matter of this application. It was against the background that the
Applicant had on the 15th April 2002 withdrawn its application,
meaning that the order that was recorded was that the rule was
discharged. What followed was an application by the Respondents for
costs of their opposition. This was opposed by Applicants.

This
Court insisted that on the same day there be argument over the award
of costs. This was done because on that day Mr. Fosa and Mr. Semoko
appeared before me, argument followed and I made an award of costs to
Respondent. The ordinary principle being that costs follow the
result. This principles was well captured by Solomon ACJ, CG Maasdorp
JA and De Villiers AJ concurring in the case of Union Government v
Meiberg 1919 ADA 77 at 489. He did not of course lose sight of the
general rule that the judge has a discretion on the question of
costs. See also Civil Practice of the Supreme Court of South Africa
Van Winsen et.al 1997 4th ed p. 703-705 and authorities cited
thereat; Nqojane v Liphoto and Others 1980(1) LLR 51.

It was in
the circumstances such as the present where withdrawal of the
application would be tantamount to the opposition being successful
and the Respondents having to be put back in pocket in their costs
that I made an order

3

of costs
against the Applicant after he had withdrawn his application. The
discharge of the rule is tantamount to a judgment or final order and
the effects thereof are to render the Respondent thereat successful
against the Applicant. Joubert et.al have the following to say on
this point:

"A plaintiff or applicant who withdraws his action or
application is in the same position as an unsuccessful litigant
because after all his claim or application is futile and the
defendant or respondent is entitled to all costs caused by the
institution of proceedings by the withdrawing party. (The Law of
South Africa 1985 Vol.3 at p. 478-479).

I am
aware that these Respondents accordingly filed their bill of costs
which is dated the 25th April 2002, rather when it was filed before
Court. It was on 25 April 2002 and it called for the parties to
present themselves before Taxing Master. It is recorded that Mr. Fosa
and Mr. Mohaleroe did appear before Taxing Master Mr. Mphakoanyane.

This
morning my impression was disabused. It had been as if the Taxing
Master had sent the matter for review. What seems to have been the
correct situation is that the Taxing Master was appraised of a
certain notice of motion having been filed in the 25th April 2002
which was connected with the order that had been made as stated
hereinbefore. Furthermore it is said, this morning, by Mr. Fosa that
at that time he had not been served with the notice of motion when he
appeared before the Registrar.

4

Indeed I
realise that the minute by the Taxing Master speaks of variation of
recission in terms of Rule 45 of the Court Rules which confirms what
Counsel are saying this morning. Nothing in the papers suggested any
good ground why the order of withdrawal and discharge of the rule and
my order for costs against Applicant ought to be varied or rescinded.
I must say with emphasis that the rules of Court are quite clear on
the requirements for rescission as outlined under Rule 45. And these
requirements have been repeated in many cases including the cases of
Athmaram v Singh 1989(3) SA 953(D) at 957; Ntlaloe v Attorney General
1985-1990 LLR 345. And the learned authors, Van Winsen et.al (supra)
summarise those requirements in the following manner:

"....... but it is clear that in principle and in the long
standing practice of our courts, two essential elements are:

1. that
   a party seeking relief must present a reasonable and acceptable
   explanation for his default, and

   
   

2. that
   on the merits that party has a bona fide defence which prima facie
   carries some prospects of success."

   
   

It is
being kind to say that this is abuse of Court process. It is more
than that. This morning Counsel were to argue this application, when
an important principle is revealed namely that the Rule 45 which
allows for variation or rescission can only apply where there was a
substantive order made by the Court. This substantive order can come
about by reason of a judgment by

5

default
or judgment as to merits after hearing evidence. I am satisfied that
this was not the position inasmuch as the application was withdrawn.
On this principle therefore the application should fail much as this
was conceded to by Mr. Semoko for Applicant.

I have to
comment more about this application. It is that it was seriously
misconceived and I agreed that it was misplaced. It could only be
called abuse of Court process. Clearly the purpose of the rules of
Court is to expedite the business of the Court. Counsel should
therefore interpret and apply the rules in a spirit that will
facilitate expeditious and prudent work of the courts and enable
speedy and inexpensive litigation. In this regard the Court has
powers to prevent flagrant abuse of court process and vexatious
litigation. See the cases of Standard Credit Corporation v Bester &
Others 1987(1) SA 812; Eastern Assurance Co. V Cardwell's Trustee
1918 AD 262 at 272.

In the
case of Phakiso Molise & Others v Commissioner of Police &
Others LLR 1997-98 228 it was held by the Court that where there are
apparent irregularities of procedure which render a case frivolous,
then an award of costs on attorney and client scale is justifiable. I
would be bund by these authorities to award costs on a higher scale
but I am reluctant to do so because the impression I get from the
notice of motion leaves no doubt that it was a result

6

of
serious misunderstanding of High Court rules and a serious error of
judgment. The content of the notice of motion was an instant
indication that there was something gone awry. For the future Counsel
are advised to consider more seriously the true meaning and
interpretation of rules. So that I would nevertheless award costs on
an ordinary scale.

I am
tempted to make any observation about the dispute about the number of
Respondents. Inasmuch as the bill was already presented before the
Taxing Master, this is the matter that will be dealt with by the
Taxing Master who will still make his own judgment and necessary
orders. If there is need to refer this matter to a Judge of the High
Court he will do so on proper grounds.

Clearly
the Applicants herein were dissatisfied with the bill of costs as
placed before the Taxing Master. They felt, and rightly, that they
could not proceed to tax the bill because the bill as a whole was not
proper. Hence their argument that it be set aside. In simple terms,
their argument was that the appearance of many respondents on the
bill of costs, which respondents had not been joined or cited in the
case itself, at least on the papers that they proceeded on amounted
to little more than unnecessary duplication of costs. As it was held
by the learned judge Mr. Justice Ramodibedi in the case of Evaristus
R Sekhonyana & 26 Others v Attorney General & 3 Others
1991-96 LLR1417 at

7

1421 that
is the issue following basically in the powers and functions of the
registrar. I agree entirely with the learned judge. I must add that
Rule 49 state in unequivocal terms, the procedure to be followed in
review proceedings. This rule must be read together with Rule 56(3)
of the Rules which provides thus:

"(3) The taxing Master shall allow such costs, charges,
expenses, and disbursements as, in his opinion appear to him to have
proper or necessary for the attainment of justice or for defending
the rights of any party but, save as against the party who has
incurred the same, no costs shall be allowed which, in the opinion of
the Taxing Master, were incurred through over caution, negligence or
by mistake, or by unusual disbursements."

On the
strength of the requirements laid down by these rules, as
acknowledged with approval in the cases of Evaristus R Sekhonyana and
26 Others v Attorney General &

3 Others
(supra) and that of Mothebesoane v Mothesoane 1973 LLR 211; I find
that Counsel did not comply with procedure and were wrongly before
me. Perhaps the right procedure as rightly pointed out in the case of
Mothebesoane v Mothebesoane (supra) would be that provided under Rule
8(7) of the High Court Rules thereby annexing the said bill of costs.
Otherwise Applicant will only come before Court when the bill has
been taxed and certain items were taxed off or on as the case may be.

This is
my judgment.

T.
Monapathi

Judge

19th
September 2002