C OF A
COURT OF APPEAL OF LESOTHO
KOTELO t/a VVM KOTELO & CO APPELLANT
MONYANE 1st RESPONDENT
PHOOFOLO t/a EH PHOOFOLO & CO 2nd RESPONDENT
and 4 APRIL 2007
Procedure - pleadings - claim for legal costs - no allegation in
declaration that costs were taxed - exception taken. Proper
by means of special plea and not by exception - in case of exception
not permissible to have regard to facts or documents
which is attacked. Improper joinder of second respondent. Appeal
allowed, exception dismissed, no order as to
cost in either Court on
grounds stated in judgment.
appellant was the plaintiff in the High Court and the first and
second respondents were the first and second defendants
What is in issue in this appeal is whether Majara J in the court a
quo was correct in upholding an exception to the
appellant and the second respondent both practice as attorneys in the
Courts of Lesotho. The essential averments in the
declaration may be
summarized as follows:
first respondent had engaged the second respondent to represent him
in an action which he intended to institute against the
of Lesotho Bank Ltd ("the liquidator").
first respondent also instructed the appellant to assist the second
respondent in carrying out his aforesaid mandate.
there is no express averment to this effect, it is implicit that the
appellant accepted the said instruction as, according
declaration, she rendered certain legal services to and for the
benefit of the first respondent at times when the second
was unavailable or had otherwise failed to carry out his mandate.
services rendered by the appellant consisted in causing the summons
against the liquidator to be issued, briefing counsel
for the trial and performing "all the functions of attorney"
for the first respondent in connection with the litigation.
5.1 of the declaration reads:-
"The prosecution of the case included assisting Advocate
Jeffreys as junior counsel and disbursing funds on behalf of first
defendant in the amount of M53 146.00 ....
calculated as follows:
As Junior Counsel - 2/3 of Advocate Jeffreys' fees M48 100.00
Alternatively, as fees for plaintiffs professional services M48
Two thirds of (necessary) expenses incurred (that is 2/3 of M7 600)
being M5 046"
appellant alleges further that she performed her mandate until it
was terminated on 30 May 2005; that counsel was remunerated
for his services; and that it was an implied term of the
instructions given to appellant that she, too, would be entitled
be paid for her services and be compensated for the disbursements
made on behalf of the first respondent.
Relying on those allegations the appellant claimed payment of M48
100, M5 046, interest on the said amounts and costs jointly
severally from both respondents.
notice of exception is based on the alleged lack of jurisdiction of
the High Court to entertain the appellant's claim. Jurisdiction
claimed to be absent on three grounds, viz that -
action was instituted contrary to the provisions of section 6 of the
High Court Act 1978;
registrar had not taxed a bill of costs in respect of the amount
appellant ought to have proceeded in terms of section 4 (b) of the
Law Society Act, 1983.
Majara J upheld the exception on the basis of ground (ii) above. She
said the following:
".....although taxation is not a prerequisite to a demand for
payment for professional services rendered, where a client insists
that the demanded bill be taxed first, the position is that the Court
cannot allow the action to proceed ...."
the matter came before this Court, we raised the question of the
joinder of the second respondent which appears to us to
as no facts were alleged to entitle the appellant to any relief
contractual nexus for the second respondent's alleged liability to
pay the appellant's fees has been alleged, nor is it averred
incurred legal responsibility to pay the appellant on any other
ground. Counsel for the appellant was unable to advance
in support of the joinder of the second respondent but counsel for
the respondents submitted that as the joinder was
appeal should be dismissed on that ground alone. He added that as
question was one of law, we were entitled to take
the point mero
motu. In my view this imperfection in the declaration is not a factor
which should have any bearing on the outcome
of the appeal, save in
so far as the question of costs is concerned. Nor is it appropriate
that we should make any order in this
regard. The matter has been
drawn to the appellant's attention and she is entitled to apply to
amend the declaration, if so advised.
revert to the question that is before us. The learned judge a quo was
correct in holding that taxation is not a prerequisite
institution of an action for payment of legal costs. The corollary is
that if a client insists upon taxation, the action
until a bill has been taxed. All of this is apparent from Benson and
Another v Walters and Others 1984 (1) SA 73
(A) at 84 B and Chapman
Dyer Miles & Moorhead Inc v Highmark Investment Holdings CC and
Others 1998 (3) SA 608 (D) at 610 E.
was, however, wrong for the learned judge to hold, in effect, that
the matter in dispute should be determined by means of
understandable that she reached that conclusion as counsel for the
plaintiff in the Court a quo did not raise this point and
be satisfied that the defendant had adopted the correct procedure.
she erred in deciding the matter in respondents' favour on the basis
of facts not contained in the declaration. I firstly
deal with the
latter aspect which, too, was not argued before her. It is a
well-established principle that in ruling on an exception
a court may
have regard only to the facts appearing in the pleading that is
attacked and not to outside allegations, whether contained
documents or in counsel's submissions.
principle is so clear that I can do no better than quote from Erasmus
and Others: "Superior Court Practice" (current
B1 - 151 where the learned authors say:
"....where an exception is taken, the court must look at the
pleading excepted to as it stands: no facts outside those stated
the pleading can be brought into issue and no reference can be made
to any other document."
seemed to have been of the view that she could and should have regard
to an alleged demand for taxation and an apparent
refusal to consent
thereto. She did not state what source or sources she relied upon for
accepting those allegations. They are
not contained in the
declaration and should therefore not have been taken into account.
is more, however, is that a client who insists on taxation should
raise this defence by means of a special plea and not
This, too, was decided in Benson's case (supra) at 85 D, overruling
earlier decisions, relied upon by the respondents'
counsel, to the
effect that an exception was an appropriate procedure is this type of
case. More recently, in Chapman Dyer Miles
& Moorhead Inc v
Highmark Investment Holdings CC and Others (supra), the legal
position was concisely and correctly stated
at 610 F as follows:
"A client who insists on taxation of a bill of costs should
raise this defence, which is of dilatory nature, by a special
difference between an exception and a dilatory plea is not merely
technical, for the latter may introduce fresh matter which
to be proved by evidence and the former may not (see Erasmus and
Others op cit at Bl-151).
follows from the aforegoing that the appeal should be upheld and the
exception dismissed. However, this is not a case where
should follow the result, either in this Court or in the Court a quo.
There are two reasons for this. Firstly the declaration
on the grounds already stated in par  above. This was not disputed
by the appellant's counsel and it is obvious
that an amendment will
be required to remedy the defect. The second reason is that the
points upon which the exception succeeds
were raised for the first
time on appeal to this Court. Had the matters been raised in the
Court a quo it is probable that the
litigation would have taken a
different course. It is
unfortunate that pleadings in a matter which commenced by a summons
issued in December 2005 are now nowhere near to being closed.
remains to state that the other grounds raised in the notice of
exception were quite correctly not pursued on appeal.
following orders are made:-
appeal is allowed;
order of the High Court is set aside and is replaced with the
exception is dismissed;
is no order as to costs".
respondents are given leave to file whatever further pleadings they
deem necessary within 21 days;
is no order as to the costs of the appeal.
OF THE COURT OF APPEAL
Appellant : T. Thabane
Respondent : L.A. Molati
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
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