C OF A
(CIV) NO. 19 OF 1999
LESOTHO COURT OF APPEAL
MPHALANE First Appellant
DUROW Second Appellant
van den Heever JA
appeal concerns a matter that has rather an unhappy history behind
it. It is a needless dispute that has degenerated into an
ding dong affair between the parties as they shuttle between the High
Court and this Court. There is no doubt that only
lawyers stand to
benefit financially from such endless and, I might say, senseless
then to give a brief resume of the essential facts. In certain case
No. CIV/T/599/97 of the High Court the Second Appellant
Respondent for goods sold and delivered. Monapathi J granted default
judgment which he
altered mero motu to summary judgment in the absence of the parties
to the litigation. In due course the Respondent
appealed against the
latter decision of summary judgment and applied for stay of execution
pending appeal. The result of this application
was an order by
Monapathi J in the following terms:-
"(1) Applicant to pay M10 970.00 which he acknowledged he owed.
pays with effect from February 1998 a sum of M2 000.00 to be placed
in trust with creditor's lawyers until heard in
property attached to be returned to the debtor (Appellant) at the
place they were taken.
Sheriff to present before the Registrar a bill of costs within 30
of proceedings for the Court of Appeal to be prepared before the end
of March 1998 failing which execution will proceed.
of this application are awarded to the Respondent" (the
Respondent in this appeal).
It is not
really disputed that the Respondent paid to the First Appellant, who
is an attorney acting for the Second Appellant, the
sums of money as
ordered by Monapathi J.
to this Court Monapathi J's above-mentioned order drew criticism from
my Brother Browde in the following terms:-
"Apart from the fact that paragraph 2 of the above order is
incomprehensible it also escapes me how the learned judge, in
application for a stay of execution, came to make an order which had
nothing whatever to do with the relief sought by the Appellant
application for a stay nor with the prayer of the respondent which
simply asked that the application be dismissed with costs.
issued by Monapathi J is, therefore, completely irregular and falls
to be set aside."
result the Respondent's appeal was upheld with costs and the order by
Monapathi J altered to read :-
'The application for summary judgment is dismissed with costs."
succeeded to have the order of Monapathi J set aside by this Court
the Respondent then sued the Appellants for repayment
of the monies
he had paid in terms of the order of the court a quo. It proves
convenient to quote the Respondent's prayers in the
Notice of Motion
in full. They read as follows:
"1. Payment of a total sum of M10-000, held in trust by 1st
Defendant by reason of Judgment of this Honourable Court in
thereon at the rate of 18% from 1st August 1998 after
date of Judgment to date of payment following on the Judgment in C OF
A (CIV) 4/98 delivered on 31/07/98.
of a total sum of M10-970 paid at 1st Defendant for transmission to
2nd Defendant in CIV/T/599/97 this amount to be paid
Defendants jointly and severally, the one paying the other to be
thereon at the rate of 18% from 1st August 1998 to date of payment.
and/or alternative relief."
course the Respondent applied for summary judgment on the ground that
the Appellants had no bona fide defence and that their
defend was made solely for the purposes of delay. Both Appellants
opposed the application for summary judgment on
the ground that they
intended raising a counter claim based on an acknowledgement of debt
relating to the original claim of goods
sold and delivered as fully
set out above. Hence the Appellants contended that they had a bona
fide defence and that there was
a "pending case" before the
High Court. In this regard it seems clear that the Appellants are
referring to the aforesaid
case No. CIV/T/599/97 in which summary
judgment was set aside by this Court. There can be no doubt
therefore, and this is common
cause, that that case is still pending.
hearing arguments in the application for summary judgment Monapathi
"dismissed the opposition to the application for summary
judgment with costs." This is how the Learned judge put it
his own words in his judgment:-
"I concluded that there were no facts proved or to be proved
that would establish a bona fide defence in favour of the Defendants.
I dismissed the opposition to the application for summary judgment
respect this was regrettably an entirely unsatisfactory way to put
it. The real issue was whether or not summary judgment should
granted and not whether opposition thereto should be dismissed.
Failure by the court a quo to specifically refuse or grant summary
judgment as requested in the application is a fatal omission in the
circumstances of this case. The result is then obvious namely
the court a quo has not said the last word and summary judgment that
was sought was never granted after all. That being so
the crisp point
which arises for decision in this appeal is whether or not the
Appellants were entitled to appeal to this Court
fact that summary judgment had not been granted against them as a
matter of fact. On the contrary the "order"
of the court a
quo literally left the application for summary judgment hanging in
16 of the Court of Appeal Act 1978 provides for the right of appeal
in the following terms:-
"16. (1) An appeal shall lie to the Court -
all final judgments of the High Court;
leave of the Court from an interlocutory order, an order made ex
parte or an order as to costs only.
right of appeal given by subsection (1) shall apply only to
judgments given in the exercise of the original jurisdiction of
As to what the terms "final judgment" and "interlocutory
order1' entail the leading case of Pretoria Garrison Institutes
Danish Variety Products (Pty) Ltd. 1948 (!) SA 839 A.D. is very
instructive. There the Appellate Division laid down the principle
be applied in determining whether a preparatory or procedural order
is purely interlocutory namely that such an order is purely
interlocutory, unless it is such as to "dispose of any issue or
any portion of the issue in the main action or suit or unless
irreparably anticipates or precludes some of the relief which would
or might have been given at the hearing."
test it seems to me that the order of the court a quo dismissing the
Appellants' opposition to summary judgment was merely
or procedural exercise before deciding the real issue whether or not
to grant summary judgment. In view of the discretion
vested in the
court a quo in terms of Rule 45(1 )(c) of the High Court Rules it was
incumbent on the court to decide whether in
the light of its
dismissal of the Appellants' opposition, the case was a proper one
for summary judgment. In my view it is only
if the court a quo had
decided this issue in the affirmative that there would have been a
final judgment and not otherwise.
point out for that matter that the Respondent's summons itself was so
bad and lacking in essential detail that it disclosed
no cause of
action. In my view there is no way the court a quo could have granted
summary judgment on the papers as they stood.
Nor can this Court
alter Monapathi J's order dismissing Appellants' opposition to
summary judgment to one granting summary judgment
unsatisfactory papers where there is no cause of action disclosed in
all of the aforegoing considerations it follows that the Appellants
had no right of appeal in the instant matter in the
absence of any
summary judgment having been granted against them. Since they have
admittedly not obtained leave of this Court in
their purported appeal
it stands to reason that they are not properly before the Court. On
this ground alone the appeal falls to
be struck off the roll and in
view of the conclusion at which I have arrived in this matter it is
strictly unnecessary to consider
other issues raised by the
Appellants such as whether their opposition to summary judgment
disclosed a bona fide defence.
close this judgment I would like to add a few observations on a point
which did distress me during the argument. It is
this. Despite the
fact that Monapathi J's order fully set out above was set aside by
this Court the Appellants have effectively
applied self help by
holding on to the funds in question and disguising it as a 'lien".
Now the first Appellant in particular
being an attorney of this Court
must realise that he is playing a dangerous and risky game by hanging
on to Respondent's funds.
This is so because this Court had set aside
the order of the court a quo in terms of which the Respondent had
made payments to
the First Appellant and in trust pending appeal and
not pending finalisation of "the case". It follows that the
Appellant's mandate to keep the funds in question by way of
trust expired as soon as the aforesaid order of the court a quo was
set aside. Put differently once that order fell away, the appellants
had no right to retain the monies paid in compliance therein.
cannot be otherwise.
fairness to Mr. Mphalane for the Appellants, when the concerns set
were pointed out to him he very fairly and properly abandoned the
Appellants' claim to a lien. He promptly tendered on behalf
Appellants repayment of the monies in question and agreed that this
should be made an order of court. 1 should state further
Monyako for the Respondent duly accepted the tender in question. This
will no doubt clear the way for the parties to contest
outstanding original claim and, I might add, on an equal footing.
again the question of interest. It seems just and fair to order the
second Appellant to pay interest on the amount she
Ml0,970.00 at the legal rate with effect from the date of the
judgment of this Court in C of A (CIV) No.4 of 1998
namely the 31st
day of July, 1998.
record of proceedings in this matter reveals a sad misunderstanding,
on the part of those involved, about court procedure and
of the rules of court which are always intended to expedite
proceedings and to get a fair decision in their dispute.
It cannot be
too strongly emphasised that legal practitioners who rush to court at
the drop of a hat and without so much as thought
do a disservice not
only to their clients but also to the court. This Court sounds a
warning therefore that in appropriate cases
it will in future not
hesitate to award costs de bonis proprus against legal practitioners
who do not live up to the expectations
of what is - or should be - an
honourable service profession.
To sum up
then. The appeal is struck off the roll with costs.
of the agreement between the parties referred to above, the following
order is made:
consent the First Appellant is ordered to pay to the Respondent
forthwith the sum of Ml0,000-00 held by the First Appellant
following Monapathi J's order in CIV/T/599/97.
Second Appellant is ordered to pay to the Respondent forthwith the
sum of Ml 0,970.00 which the latter paid to her in accordance
the order of Monapathi J in CIV/T/599/97.
Second Appellant shall pay interest at the prevailing legal rate(s)
on the aforesaid sum of Ml 0,970.00 with effect from the
the Court in C of A (CIV) No. 4 of 1998 namely the 31st day of
July, 1998 to date of payment.
at Maseru on this 13th day of April 2000.
Appellants: Mr. Mphalane
Respondents: Mr. Monyako
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