C OF A
COURT OF APPEAL OF LESOTHO
BRAKE & CLUTCH APPELLANT
(PTY) LTD RESPONDENT
matter was called at 9.30 on the 10th instant, it was struck from the
roll with costs. This order was made because in
the Court's view
there were serious breaches of the Rules of the Court of Appeal and
because the appeal was entirely without merit.
We indicated to
counsel that we thought it may be a case that justified an award of
costs de bonis propriis and we afforded him
an opportunity to prepare
argument as to why such an order for costs should not be made.
matter then stood over until 2.15 p.m. on the 1 lth April. Mr.
Mphalane, appellant's attorney who practises under the firm name
N. Mphalane & Co., filed heads of argument and proceeded to
preamble to his written argument counsel contended that -
"This a matter (sic) in which the court is already convinced
that the appeal has been handled so badly that it calls for costs
on to submit that:
"The issue of costs de bonis propriis is raised by the court
mero motu, under such circumstances it becomes extremely difficult
convince the court otherwise to move from its stand."
concludes his preamble by saying:
'The only approach which one can adopt is to show some mitigating
factors which will shift the court from the stand already taken."
deal with the rest of counsel's submission below.
questioned Mr. Mphalane concerning the meaning of this preamble. He
very rapidly retreated from ascribing the literal meaning
words he used. He said he meant no more than to suggest that the
court had expressed a prima facte view and should not be
held to have
alleged that the court's mind was made up and that it could not be
persuaded otherwise than to grant a costs order
de bonis proprus.
Indeed he retracted any suggestion that he intended to ascribe such a
state of mind to the court.
to determine what an appropriate costs order should be, I set out the
2nd of June 1998 the Respondent issued a summons out of the High
Court in which it claimed:
of an amount of R54,814-39;
thereon at the rate of 15-5% a tempore morae (the rate was
subsequently amended to 18.5%);
same day a declaration (of which only one page is filed of record)
was issued from which it would appear that the claim was
of a balance due and owing for goods sold and delivered during
October to December 1997.
an appearance to defend was filed on Appellant's behalf on the 16th
of June 1998 by his attorneys N. Mphalane and Company.
for further particulars was filed on the 24 of June 1998, but as far
as I can ascertain from the record filed, never answered.
3rd of July 1998 a notice of application for summary judgment was
filed and served on Appellant's attorneys. The notice stated
application would be made on 3 August 1998. The notice contained an
affidavit by the financial manager of the Respondent
in which he
alleges inter alia that there is no bona fide defence to the action
and that the notice of intention to defend was
filed for the purpose
of delay. Summary judgment, it is common cause, was granted on August
alleged in an affidavit filed approximately a year later - i.e. on
the 5th of
1999 - that summary judgment was granted erroneously, because it was
granted on the 4th of August 1998 and not on the 3rd
Despite the terms of the notice served on appellant, the application
did not appear on the roll of cases to be heard
by the High Court as
published for the 3rd of August.
matters are to be noted at this point. The first is that nowhere in
the affidavit of the Appellant filed on the 5th of August
which condonation for the late noting of its appeal is sought (i.e. a
year after summary judgment was granted) is it alleged
the appellant or his legal representative had appeared in court on
the 3rd of August 1998 to oppose the application
or had in any other
way responded to the notice served.
at no stage was any evidence adduced, whether by affidavit or
otherwise, stating what appellant's defence was and denying
appellant's appearance was entered merely for the purpose of delay.
Certainly in the summary judgment proceedings no affidavit
filed in opposition to the summary judgment application.
while the Court does not know for what reason the matter was not on
the roll for the 3rd of August and how it came to
be heard only on
the following day, Appellant was clearly not prejudiced by what had
response to the granting of summary judgment occurred 12 months later
when the affidavit in which condonation for late
noting of an appeal
already referred to was filed. This application is directed at the
Court of Appeal and was filed with the Registrar
of this Court.
interim a writ of execution was issued dated the 7th of August 1998.
In correspondence attached to be condonation application
appear that appellant's attorneys, on the spurious ground that
judgment had been granted on the wrong day, sought to negotiate
settlement. Not all the correspondence between the parties is
annexed. However, it is clear that by the 21st of April 1999 all
overtures for a settlement had explicitly been rejected by
Respondent. Respondent's attorneys made it clear that they required
payment "of the full capital amount including interest and
costs" and that the writ, "will be executed accordingly."
On the 21
st of May 1999 an attempt was made by appellant's attorneys to secure
a joint approach to the Judge to rectify the matter,
on the ground
that judgment had been granted erroneously. This overture was
rejected. Respondent's attorneys stated in a letter
dated 14th June
1999 that as far back as 1lth November 1998 it was made clear that
execution would be stayed only until such time
as the actual amount
owing was ascertained. (Appellant had admitted in the correspondence
that it owed respondent M32,890.) In
their letter dated 14 June 1999
Respondent's attorneys confirmed that unless the full amount owing
was paid, the writ would be
deal with the subsequent events.
averment is made in the condonation application that the appellant
has a bona fide defence "which is clearly laid out in
L.B.C. herein". L.B.C. is the correspondence referred to above
as well as a court roll for the 4th August 1998 which
illegible, but which I will assume does not reflect that the summary
judgment application in casu was included in
it. How this can be said
constitute a bona fide defence is difficult to comprehend. No other
evidence is presented in support of appellant's contention
has any defence to respondent's claims.
application for condonation of the late noting of the appeal -I
repeat that it was filed 12 months after summary judgment was
- was not sought from the High Court but was directed to this Court.
The heading makes this quite clear. Despite this fact,
submits in his heads of argument that "the only inadvertence"
for which he could be held accountable is
his "error of
judgment" for "the application to note an appeal out of
time which is not addressed to this honourable
Court but to the court
of the Court of Appeal was held during the first two weeks of October
1999. No explanation has been given as to why this
matter was not
enrolled for hearing at that session. No further papers were filed.
The matter was then enrolled - without any record
of the proceedings
in the High Court - for hearing at this session (April 2000) - 9
months after the appellant had filed his application
and his grounds of appeal. (Rule 3(7) prescribes that an appeal must
be enrolled within three months of the noting
of an appeal.)
relevant procedural step is that the appellant's heads of argument
are filed late (on the 17th of March 2000 for a session
the 5th of April). The explanation for the delay is that appellant
did not have the funds to finance the appeal.
The fees (M3,000) were,
according to appellant, only deposited with Mr. Mphalane on the 14th
of March 2000.
above recital of the facts the following is beyond dispute:
appeal against the granting of summary judgment was without any
the 6th of August 1999, one year after the granting of summary
judgment, a notice of appeal was filed in the High Court accompanied
by an application for condonation of the late filing of the notice
directed at this Court (six weeks is the period prescribed).
acceptable explanation is advanced for the delay.
case is made out that appellant has prospects of success in the
appeal is enrolled 4 months out of the time prescribed by the Rules.
explanation is furnished for such delay and no application for
condonation is made.
record is incomplete in material respects despite the certification
by Mr. Mphalane. One of the copies actually has 10 pages
of argument from Appellant are filed late and a fee of M3,000 is
extracted for the prosecution of an appeal which is not
months out of time but is indisputably without any merit whatsoever.
already referred to Mr. Mphalane's argument in which he incorrectly
states that his only "inadvertence" was an
judgment" in not filing his application for condonation for the
late filing of his notice of appeal in the
High Court and not in this
contrast the above record of the undisputed facts demonstrates how
lamentably this officer of the court has failed to properly
his client's interests
comply with the Rules of Court directed at the expeditious and
equitable determination of disputes.
a further matter to which I must refer. In argument before us and on
two separate occasions Mr. Mphalane stated that the
first he or his
client knew of the application for summary judgment was when the writ
of execution was served. This statement was
demonstrably untrue. The
record shows that the application for summary judgment was served on
Messrs. N. Mphalane & Co. on
the 3rd of July 1998 - a month
before the application was to be heard.
Mphalane submitted that the court would not "make an order
lights (sic)" and that an error of judgment would not be
sufficient to order costs to be paid by an attorney de bonis
propriis. Indeed, it is correct that good reasons must exist for
making such an order. See Khan v Mzovuyo 1991 (3) S.A. 47 (TK.) at 48
(D-G). In its judgment op.cit. the court cites with approval
summary of the law as set out in Vermaak's Executor v Vermaak's Heirs
1909 T.S. 679 at 691 which reads as follows:
'The whole question was very carefully considered by this Court in
Potgieter's case (1908 TS 982), and a general rule was formulated
the effect that in order to justify a personal order for costs
against a litigant occupying a fiduciary capacity his conduct
connection with the litigation in question must have been mala fide,
negligent or unreasonable."
Court an unexplained delay in prosecuting an appeal was described as
"undoubtedly a serious matter." (See Kaleem
v. Hlajoane C
of A 29/1996 delivered on the10th of August 1998). The case is
distinguishable in as much as there were other serious
impropriety which weighed with the Court in making the
costs order. However, Leon JA who delivered the judgment of the Court
refers to the serious nature of the failure to prosecute
diligently and in accordance with the rules. Undue delays ensue and
these considerations had on more than one occasion
been stressed by
the court. That was in July 1998. Since then and at every subsequent
session this Court has stressed the need
for compliance with the
Rules, particularly those that were promulgated with the objective of
avoiding undue delays in the judicial
these pronouncements appear to have had little impact. We have
therefore warned practitioners that we would in appropriate
make special orders as to costs.
question is, is this such a case? The test as formulated in Vermaak's
case above and endorsed by Hancke J in the Khan case (supra)
us to determine whether, in the conduct of the litigation, the legal
representative was negligent or unreasonable.
Herbstein & van Weisen's Civil Practice of the Supreme Court of
South Africa. 4th Ed. at p.731-732 the learned authors say
'The court will in appropriate circumstances award costs de bonis
propriis against an attorney. Webb & others v Botha is an
case, in which the attorney obstructed the interests of justice,
occasioned unnecessary costs to be incurred by all the
parties to the
appeal and delayed the final determination of the action to such an
extent that prejudice to the parties might well
result. More recently
a legal practitioner was ordered to pay costs de bonis propriis where
he had acted in an irresponsible and
grossly negligent or reckless
manner, misleading the court and causing prejudice to the other
party. An order to pay wasted costs
de bonis propriis was made
plaintiff's attorney where his conduct was unreasonable and
negligent, and his handling of his client's case was slack and
characterised by lack of concern." (Emphasis
set out above the worst aspects of the matter in which the
proceedings were conducted by Mr. Mphalane. For none of them
one which he erroneously described as an error of judgment, he has
offered no explanation at all for any of the following:
failure to file a proper record.
failure to timeously file such defective record as he did.
failure to explain the delay of 7 months in doing so .
failure to note the appeal timeously - it was noted one year late.
failure to explain such delay satisfactorily.
misleading and untruthful statements to the Court referred to above.
the matter on appeal when in fact no defence had been presented in
the court below and no reasons had been advanced why
a defence, if
there was one, was not advanced in the court below.
result of his gross negligence and flagrant disregard of the Rules
and the principles of good practice, a matter in which summary
judgment was granted as long ago as the 4th of August 1998, was
delayed until today. Finality is a key objective of litigation.
Mphalane has through slack and incompetent handling of this
litigation caused undue and unnecessary delays thus precluding
achievement of this objective. His conduct seen as a whole, obliges
us to decree that he personally should pay the costs of
It is ordered accordingly.
direct that a copy of this judgment should be served on the appellant
in the person of its managing director Mr. Morgan
Moledi so that he
is made aware that the obligation to pay the costs of this appeal is
that of Mr. Mphalane and not that of the
on the 13th day of April 2000.
Appellant: Mr. Mphalane
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law