C OF A
(CIV) 12/2007

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between:-

PAULINE
MAMOJAKI APPELLANT

MATSOAKELETSE

and

MASUPHA
MOLAPO KLASS RESPONDENT

HEARD :
18 OCTOBER 2007

DELIVERED
: 24 OCTOBER 2007

CORAM:

STEYN, P

GROSSKOPF, JA

MELUNSKY, JA

JUDGMENT

SUMMARY

A
decision to grant absolution from the instance at the close of a
plaintiff's case is appealable Proof of damages Requirements

outlined. Appeal upheld - Special order of costs of appeal decreed.

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STEYN, P

1. I
   refer to the parties as plaintiff (appellant) and defendant
   (respondent). This is an appeal against a decision of the High Court

   to grant an application for a decree of absolution from the instance
   at the close of the plaintiff's case.

   
   

The facts
are simple. There was a collision between a vehicle driven by the
plaintiff and one of which defendant was the driver.
Plaintiffs
vehicle was damaged. She was compensated by her insurer, who in
subrogation sued the defendant. Evidence was led both
as to how the
collision occurred and the damages sustained by the plaintiff. The
Court ruled that the plaintiff had failed to prove
her damages and
decreed "absolution from the instance". The Court made no
order as to costs. No reasons were given why
she did so.

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An appeal
was noted and grounds of appeal filed and these as well as the record
were duly served on the defendant, an attorney of
this Court. Heads
of argument were filed timeously by the plaintiff and also served on
the defendant. No such heads were ever filed
by him. He did not
appear at the roll call personally or represented by counsel. At no
stage was this Court informed that the appeal
was to be opposed until
the matter was called and the defendant announced that he intended to
do so. Despite his flagrant disregard
of the rules of this Court and
his discourteous behaviour to this institution and the prejudice
occasioned to the plaintiff, we
granted him an opportunity to address
us.

2. He
   did not support the judgment of the High Court but took the point
   that the matter was not appealable. Of this contention he
   had also
   given no notice to the Court or to the plaintiff. This conduct
   compounds the gross failure of the defendant, who alleges
   he is an
   experienced officer of the

   
   

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Court, to
observe the fundamental professional and ethical responsibilities of
his office: i.e. to conduct proceedings in such a
manner that he
assists the Court to adjudicate matters fairly and upon a properly
presented set of facts and submissions.

3. It
   is clear that a decree of absolution like the decision to uphold an
   exception is appealable. See in this regard Herbstein and
   van
   Winsen: The Civil Practice of the Supreme Court of South Africa
   (Fourth Ed) 684. The learned authors say the following op.
   cit.

   
   

"The Court may grant judgment outright in favour of either
party, or it may give absolution from the instance or, what in
effect
amounts to the same thing, dismiss the action."

See also
Bulford v Bob White's Service Station (Pty) Ltd. 1973 (1) SA 188 (RA)
and Claude Neon Lights S.A. Ltd v Daniel 1976 (4)
SA 403 where an
appeal against an order for absolution from the instance was upheld.
Clearly the order

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decreeing
absolution has a final or definitive effect on the proceedings before
the Court. The fact, as the defendant correctly
pointed out, that the
order as framed might not debar the plaintiff from starting fresh
proceedings, is irrelevant. The fact of
the matter is that the action
as instituted by the plaintiff was brought to an end. The prejudice
suffered by such a litigant is
substantial. Not only would she be
obliged to pay her own costs of the aborted proceedings, but would
also, if she wished to pursue
her claim, be compelled to incur the
costs of a fresh action. The impact of the delay which may have
resulted, e.g. in evidence
being forfeited should also not be
underestimated. See in this regard SA Scottish Finance Corporation
Ltd v Smit 1966 (3) S.A.
629 (T) at 634 [C] to [D]. It follows that
this belated attempt by the defendant to rescue, what he conceded was
an insupportable
decision, could not avail him.

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4. Although
   the decision of the court a quo was not supported, it is advisable
   to state briefly what the evidence was and why the
   defendant's
   decision not to support it was correct.

   
   

5. The
   issue was whether the evidence led by the plaintiff was sufficient
   to sustain her claim for damages amounting to M28,188.45.
   She called
   in this context an assessor, one J.A. Taylor an expert witness with
   some 6-7 years experience as such. He is also
   someone who himself
   had owned and ran a panel-beating shop. It was his task as an
   assessor to determine whether the repairs of
   the damage quoted
   constituted a true reflection of the damages sustained in the
   accident. He received the final quotation which
   was in the region of
   M29,000 - 30,000. He double checked the price quoted for the parts
   by the panel-beaters with the suppliers
   and he adjusted the quoted
   price down to M22,608.15. However he discovered during an inspection
   of the vehicle that the main
   shaft had in fact been damaged in the
   collision.

   
   

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The cost
of this repair was M5,580.30 which had not been included in the
original quote. He then testified that repairing the vehicle
would be
the sum of the two above amounts - i.e. M28,l 88.45 and that this
represented the reasonable cost of such repairs.

6. The
   credibility and reliability of this witness was not in issue at the
   time the application for absolution was made. The sole
   issue before
   the Court was the sufficiency of the evidence and whether it
   satisfied the standard of proof required in terms of
   the test laid
   down in our law. Case law in the RSA has defined the duty of an
   evaluation by a court when the plaintiff has closed
   his case and an
   application for a decree of absolution has been made as follows:

   
   

"When absolution from the instance is sought at the close of the
plaintiff's case, the test to be applied is not whether the
evidence
led by the plaintiff established what would finally be required to be
established, but whether there is evidence upon
which a Court,
applying its mind reasonably to such evidence, could or might (not
should or ought to) find for the plaintiff "

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See the
Claude Neon Lights case cited above.

7. The
   trial judge had great difficulty to appreciate the meaning of the
   test. Whatever her concerns may have been, she could not
   have a
   clearer case where a plaintiff had established by acceptable
   testimony what the amount of the damages was sustained in
   the
   accident. However, she says the following in her reasoning:

   
   

"According to the evidence given by an Assessor, Mr, Taylor, he
had received an initial quotation from panel beaters reflecting
an
amount ofM29,751.18. On assessing the damage he had changed the
quotation to M22,608.J5. Plaintiff has therefore not shown in

evidence why she is claiming the M28,188.45 from the defendant when
that amount had been reduced to M22,608.15 by Assessor. She
also has
not shown what that excess fee is She has also failed to produce
evidence that was available, being evidence from repair
yard which
was responsible to repair the car".

8. It
   would seem that the Court has laboured under a multiple of
   misconceptions: i.e.
   

   
   

8(1) That a party claiming Ml,000 but proving a loss of M900 should
receive nothing.

8(2) That

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because
evidence from some source that repaired the car was not tendered, she
could not find in plaintiffs favour. Taylor's evidence
was clear and
precise proof of what the plaintiff's loss was if she herself would
have had to repair the car. Indeed, conventionally
the Courts require
a plaintiff to prove damages by evidence establishing what it would
cost to repair and restore the vehicle to
its pre-collision condition
provided that it does not exceed its diminution in value. See: In
this regard the authorities cited
below under paragraph 10(3).

9. The
   fact that the insurer brought the action under subrogation caused
   the court a quo to make a third error. It says:

   
   

"Plaintiff has also failed to show why she is claiming from the
defendant yet the insurance company had paid. If it was the
insurance
claiming from the defendant, that would be something but now that it
has been the plaintiff claiming where insurance
has paid the Court
considers that defendant was justified in applying for absolution
from the instance relying on the authority
of Hersman v Shapiro &
Co supra ".

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10. In
    summary the trial Court misdirected itself in at least the following
    respects

    
    

10.1. In coming to the conclusion that because the plaintiff proved
to have suffered damages in a lesser amount than that claimed,
she
was not entitled to any relief.

10.2. That because the panel-beater who effected or was to have
effected the repairs was not called, no damages could be awarded
-
and

10.3. That a Court could not hold that damages could be proved other
than by testimony that the repairs had actually been effected.
As
indicated above, the Court failed to appreciate that an owner's
measure of damages in a claim for relief arising from a damage
to a
vehicle is its diminution in value. This can be determined by proving
both its pre-collision and post collision value or

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by
tendering acceptable evidence of the costs of repairing it. See:
Cooper Delictual Liability in Motor Law 261. See also Scrooby
v
Engelbrecht 1940 TPD 100 at p. 102 and Heath v Le Grange 1974 (2) SA
262 (C) at 266 – 267

10.4. That the Court failed to note that the excess fee, being the
contractual obligation of the plaintiff to her insurer in respect
of
her loss had already been included in the total amount claimed; and

10.5. That consequent upon an informal subrogation of the right of
action, the insurer who is liable for the payment of the loss
might
on subrogation sue the third party who caused the damage in the name
of the insurer. (See Gordon and Getz - The Law of South
African
Insurance 4th Ed. 262).

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10.6. That in any event the plaintiffs compensation received from the
insurer is res inter alios acta and a collateral benefit
in so far as
her claim against the defendant is concerned (See, e.g. Botha v
Rondalia Versckerings Maatskappy van SA Bpk 1978 (1)
SA 996 (T) at
999(H)-1000 (C).

11. The
    appeal accordingly succeeds and the Order of the High Court is set
    aside. In its place the following order is decreed. "Application

    is dismissed with costs." The matter is referred back to the
    High Court to hear the matter and adjudicate upon it after
    hearing
    such further evidence as may be adduced.

    
    

12. The
    matter of the appropriate costs order on appeal now requires to be
    considered. I have outlined above the manner in which the
    defendant
    has acted in his conduct of this appeal. At the hearing I requested
    him to depose to an affidavit as to the circumstances
    which resulted
    in the

    
    

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procedural
irregularities such as a failure to respond to the challenges posed
to him by the noting and service of the notice of
appeal, the filing
and service on him of heads of argument, the failure to appear at the
roll call or to notify the Court and the
plaintiff of his intention
to oppose the appeal and on what grounds he intended to do so. Had he
done so by filing brief heads
both the Court and the plaintiff would
have known well in advance that the judgment of the High Court was
not being supported and
that only a legal argument as to the
appealability of the matter would be in issue. I also subsequently -
via the Registrar - requested
him to submit reasons to us why we
should not order him to pay the costs of appeal on the scale as
between attorney and client.
He has now submitted an affidavit which
I cite in full. It reads as follows:

I
the undersigned

Masupha
Molapo Klass

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Do hereby
make oath and say that I am the Respondent in the above matter and
the facts contained in this affidavit are to my knowledge
true and
correct.

I was
served with the Notice of Appeal on the 25' of June 2007 and
instructed Advocate Fantsi" (sic) for opinion on merits
of the
appeal, to draw heads and to argue appeal. The said instructions were
verbal.

Both the
record of proceedings and the heads of argument were dispatched to
Advocate Fantsi" (sic) chambers at Leribe so as
to prepare for
the appeal.

When I
met Advocate Fantsi Two weeks ago he told me that the record was
brought to his attention when he received the heads of argument
early
October 2007 and as a result he has not been able to the necessary
(sic) heads of argument in time.

Mr.
Fantsi is officer of this court and the man of integrity and I had no
reason to doubt his explanation.

I thought
it was too late file (sic) the heads of argument and I tendered my
apology to the Honourable and I still beck (sic) apology
for not
filing the heads as required by the rules.

DEPONENT"

13. It
    is immediately obvious that the affidavit fails to furnish a
    satisfactory explanation for this practitioner's conduct. He says
    he
    briefed his counsel on the 25th of June "for opinion on merits
    of the appeal, to draw heads and to argue appeal".
    He then says
    that two weeks ago (i.e. on the 5th of October, some three and half
    months having elapsed) he "met" his

    
    

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counsel
who informed him that he could not let him have the heads in time.

14. . It
    is inconceivable that any lawyer would have allowed such a lengthy
    period to elapse, especially with the session due to commence
    in
    early October, without enquiring as to whether he had prospects of
    success, what these were, what arguments were to be advanced
    and
    ensuring that the Court and his opponent were advised that the
    appeal was to be opposed. It should be noted that voluminous
    heads
    of argument were served on the appellant a full 4 weeks before the
    date of the hearing of the appeal. His statement that
    when he heard
    "2 weeks ago" that his heads had not been prepared "it
    was too late (to) file the heads'' is no
    explanation at all. As
    noted above and despite our request to do so, Mr. Klass has also
    failed to make submissions concerning
    the appropriate costs order we
    should make in the event of upholding the appeal.

    
    

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15. In
    these circumstances and to signify our disapproval of the
    unacceptable, discourteous and inconsiderate behaviour of this

    practitioner we consider making an order that he should pay the
    costs of appeal and that he should do so on the scale as between

    attorney and client. It should be noted in this regard that he made
    an application for absolution from the instance which was
    without
    any merit. This is demonstrated by the fact that he was unable to
    support the judgment granting such order on appeal.
    That this would
    be an appropriate order in the circumstances referred to above is in
    accordance with the decisions of our courts.
    See in this regard
    Erasmus, Superior Court Practice Al-66-67. See also Webb and Others
    v Botha 1980 (3) 666 (N); Lemore v African
    Mutual Credit Association
    and Ano. 1961 (SA) 195 (C) at p.199 and Nel v Waterberg etc 1946 AD
    597. At p.607 Tindall JA of this
    judgment and in dealing with the
    considerations that could prompt such an award, says that the court
    could make such an order
    "to mark its disapproval of

    
    

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the
losing party's conduct." However the learned judge adds that
"something more underlies it than the mere punishment
of the
losing party." He then summarises the approach to be adopted by
the Court in the following terms:

"The true explanation of awards of attorney and client costs not
expressly authorised by Statute seems to be that, by reason
of
special considerations arising either from the circumstances which
give rise to the action or from the conduct of the losing
party, the
court in a particular case considers it just, by means of such an
order, to ensure more effectually than it can do by
means of a
judgment for party and party costs that the successful party will not
be out of pocket in respect of the expense caused
to him by the
litigation.

16. Applying
    this test we conclude that the appropriate costs order we should
    make is the following: The respondent (defendant in
    the court below)
    is to pay the costs of appeal on a scale as between attorney and
    client.

    
    

J H STEYN

PRESIDENT

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I agree:

F H GROSSKOPF

JUDGE OF APPEAL

I agree:

L. MELUNSKY

JUDGE OF APPEAL

FOR
APPELLANT : ADV. HORN

FOR
RESPONDENT: MR. KLASS