C OF A
(CIV) 6 OF 1992
LESOTHO COURT OF APPEAL
MAKOTOKO 1ST APPELLANT
MAROSO 2ND APPELLANT
TJABO 3RD APPELLANT
LEFOTHANE 4TH APPELLANT
PITSO 5TH APPELLANT
MPAHANE 1ST RESPONDENT
MOFOLO 2ND RESPONDENT
MOLAPO 3RD RESPONDENT
BOOTS 4TH RESPONDENT
PULUMO 5TH RESPONDENT
SENEKANE 6TH RESPONDENT
PAKISO MOEKETSI 7TH RESPONDENT
15th of March 1991 the appellants sought and obtained a Rule against
the Respondents in the following terms -
That a Rule Nisi be and is hereby issued calling upon the
Respondentsherein to show cause, if any, on Monday the 8th day of
April, 1991 at 9.30 in the forenoon, or as soon thereafter as the
may conveniently be heard why:
(a) the 1st to 5th Respondents shall not be interdicted from holding
themselves out as members of the Executive Committee of the
Poultry Co- perative limited.
(b) The 1st to 6th Respondents shall not be ordered to hand over,
forthwith, to the applicants all the property of the said co-
(c) The purported election of the 1st to 5th Respondents
as members of the Executive Committee of the said co-operative at a
meeting held on the 28th December, 1990 shall
not be declared void
and of no force or effect.
(d) The 6th Respondent shall not be ordered to
pay, in his personal capacity, the costs of this Application and, in
the alternative, the 1st to 5th Respondents shall not be ordered
pay such costs jointly and severally with the 6th Respondent.
(e) The Applicants shall not be granted further or alternative
of the rule nisi was effected on the 20th of March, 1991. No notice
of intention to oppose the confirmation of the rule
was filed on
behalf of the first five respondents.
Attorney General, however intimated his intention to oppose such
confirmation on behalf of the 6th respondent who was the
District Co-operative officer forthe Leribe district and the
Seventh respondent who was the Registrar of Co-operative Societies in
terms of Proclamation 47 of 1948.
to Molai J. who heard the matter in the Court a quo the following
transpired in Court on and after the return date of
on the return day, 8th April, 1991, the
came for hearing, the court was told by both counsels that the
parties had reached a settlement in that the rule was to be
save that the question of costs was to be deferred to a date to be
arranged with the Registrar of the High Court. The
accordingly confirmed in terms of prayers (a) (b) and (c) thereof.
12th September, 1991 the matter came for argument on the question of
costs, the court was told that the applicants did
not insist that the
1st to 5th and the 7th Respondents should be ordered to pay costs.
They insisted however, that only the 6th
Respondent, who had acted
against the instructions of the Registrar of Co- operatives, should
be ordered to pay costs de bonis
propriis and at the scale of
then made an order on the 13th of February, 1992 "discharging
prayer l(d) of the interim order with costs". The
thereupon lodged what purported to be a notice of appeal against the
order of Molai J. on the following grounds:
"1. The Court a quo erred in declining to award costs to the
Appellants when they had been successful in their Application.
2. The Appellants' prayer having been for costs against the 6th
Respondent, alternatively against him jointly and severally with
other Respondents, the Court a quo misdirected itself in not awarding
costs to the Applicants at all, simply because the Court
erroneously it is submitted, that the 6th Respondent was not
responsible for any conduct warranting his being mulcted
in costs in
his personal capacity.
3. In the light of all the circumstances of the case, the case for
awarding costs against the 6th Respondent in his personal capacity
was, it is submitted, so strong that the Court a quo could not but
have upheld it."
matter was called before us I raised with Mr. Sello (who appeared for
the appellants) the question whether the appeal was
us having regard tothe provisions of Section 16(1)(b) of the
Court of Appeal Act of 1978. In terms of Section 16(1)(b) an appeal
to the Court of Appeal
from an order as to costs only, can
brought with the leave of the Court of Appeal.
conceded that he had overlooked this provision and that no such leave
was obtained. He submitted, however that we should
failure to make a formal application for such leave to appeal in
terms of the Rules and allow him to make the application
We were disposed to do so in the special circumstances of this case.
merits of the appeal Mr. Sello did not contend that the Sixth
Respondent should solely have been held liable for the costs
appellants in the Court a quo.He submitted, however, that the
sixth respondent should have been ordered to pay such costs jointly
and severally with the first
pointed out to him that according to the judgement of Molai J. to
which I have previously referred, the appellants had on
September, 1991 expressly stated that they were not asking for costs
against the first five respondents, (who had in these
not been represented on appeal.) Mr. Sello's answer was that Molai J.
was wrong in his recollection of what had transpired
before him on
the 12th of September, 1991 and that Mr. Mohapi Counsel for the sixth
on appeal would confirm this. Mr. Mohapi. In reply, however did not
confirm that Molai J. was wrong. On the contrary,
he supported the
version of Molai J. as to what had transpired in the Court. We must,
in the circumstances, and in the absence
of any contrary evidence,
assume that any order for costs against the first five respondents
had been waived by the appellants
in the Court a quo and that it
would not be proper for us on appeal to make any order directing the
first five respondents to pay
the costs of the appellants jointly and
severally with the sixth respondent as requested by Mr. Sello.
refusing to make any order of costs against the sixth respondent the
Court a quo exercised a discretion. We are not entitled
with that discretion, unless it was improperly exercised or unless it
compelled a result which no reasonable person
could support. There
was in my view nothing improper in the exercise of the Court's
discretion and there were indeed reasonable
grounds on which it could
readily be justified. The sixth respondent had bona fide grounds for
believing that the Registrar of
Co-operative Societies (sixth
respondent) had on the 23rd of January 1991 accepted that the
appellants were not in lawful office
on behalf of the Leribe Poultry
Co-operative Society and that the subsequent letter of the
February, 1991 from the Seventh Respondent did not change that
position. This bona fide belief, influenced the sixth respondent
take possession of the records ofthe Leribe Poultry Co-operative,
(which the appellants sought to reverse in terms of the rule nisi).
In forming these views and
in his bona fide conduct persuant
thereto,the Sixth Respondent was acting purely in his official
capacity. An order against him for costs, in these circumstances, is
(Mokoena v Commissioner ofPrisons and Another 1985
(1) SA 368 at 375; Coetzeestroom Estate and GM Co. v Registrar of
Deeds 1902 TS 216).
with the difficulties, Mr. Sello was driven to confine his attack on
the order of the Court a quo, to that portion which directed
prayer l(d) of the interim order be discharged "with costs".
Mr. Sello argued that the effect of this order was
theappellants to pay the costs of the respondent.
I am not
quite sure whether Molai J. actually intended to direct the appellant
to pay the costs of the respondent but this is certainly
recorded. There can be no justification, however, for such an order.
The appellants had succeeded in obtaining in effect
relief which they had sought. There could be no reasonable basis
whatever for directing the appellants
the costs of the respondents in these circumstances. None is
suggested by Molai J.
Mohapi was driven to concede this, but he contended that this was not
a ground of appeal relied upon on behalf of the appellant.
perfectly correct but the result of upholding so formal an objection
would be to confirm an order which is plainly without
and one which might not have been even intended by Molai J. In these
circumstances, we were prepared to allow Mr.
Sello to effect a formal
amendment to his notice of appeal to meet the objection.
being had to the limited success achieved by the appellants on
appeal, and the fact that they needed condonation in at least
respects in order to achievesuch success, the fairest course
would be to make no order in respect of the costs on appeal.
result I order that
of the order of the Court a quo is set aside and substituted by the
l(d) of the interim order is discharged".
OF COURT OF APPEAL
COURT OF APPEAL
at Maseru this 20TH day of JULY 1992.
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