C OF A
(CIV) 15/2006

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between:-

VVM
KOTELO t/a VVM KOTELO & CO APPELLANT

and

NKOPANE
MONYANE 1st RESPONDENT

EH.
PHOOFOLO t/a EH PHOOFOLO & CO 2nd RESPONDENT

27 MARCH
and 4 APRIL 2007

CORAM:

STEYN, P

MELUNSKY,
JA

PEETE,JA

SUMMARY

Civil
Procedure - pleadings - claim for legal costs - no allegation in
declaration that costs were taxed - exception taken. Proper
procedure
by means of special plea and not by exception - in case of exception
not permissible to have regard to facts or documents
outside pleading
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.

2

[1] The
appellant was the plaintiff in the High Court and the first and
second respondents were the first and second defendants
respectively.
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's
declaration.

[2] 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:

1. The
   first respondent had engaged the second respondent to represent him
   in an action which he intended to institute against the
   liquidator
   of Lesotho Bank Ltd ("the liquidator").

   
   

2. The
   first respondent also instructed the appellant to assist the second
   respondent in carrying out his aforesaid mandate.

   
   

3. Although
   there is no express averment to this effect, it is implicit that the
   appellant accepted the said instruction as, according
   to the
   declaration, she rendered certain legal services to and for the
   benefit of the first respondent at times when the second
   respondent
   was unavailable or had otherwise failed to carry out his mandate.

   
   

4. The
   services rendered by the appellant consisted in causing the summons
   against the liquidator to be issued, briefing counsel

   
   

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for the trial and performing "all the functions of attorney"
for the first respondent in connection with the litigation.

5. Paragraph
   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
100.00

Two thirds of (necessary) expenses incurred (that is 2/3 of M7 600)
being M5 046"

5. The
   appellant alleges further that she performed her mandate until it
   was terminated on 30 May 2005; that counsel was remunerated
   in full
   for his services; and that it was an implied term of the
   instructions given to appellant that she, too, would be entitled
   to
   be paid for her services and be compensated for the disbursements
   made on behalf of the first respondent.

   
   

[3]
Relying on those allegations the appellant claimed payment of M48
100, M5 046, interest on the said amounts and costs jointly
and
severally from both respondents.

4

[4] The
notice of exception is based on the alleged lack of jurisdiction of
the High Court to entertain the appellant's claim. Jurisdiction
was
claimed to be absent on three grounds, viz that -

1. The
   action was instituted contrary to the provisions of section 6 of the
   High Court Act 1978;

   
   

2. The
   registrar had not taxed a bill of costs in respect of the amount
   claimed; and

   
   

3. The
   appellant ought to have proceeded in terms of section 4 (b) of the
   Law Society Act, 1983.

   
   

[5]
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 ...."

[6] When
the matter came before this Court, we raised the question of the
joinder of the second respondent which appears to us to
be irregular
as no facts were alleged to entitle the appellant to any relief
against him.

5

No
contractual nexus for the second respondent's alleged liability to
pay the appellant's fees has been alleged, nor is it averred
that he
incurred legal responsibility to pay the appellant on any other
ground. Counsel for the appellant was unable to advance
any argument
in support of the joinder of the second respondent but counsel for
the respondents submitted that as the joinder was
improper, the
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.

[7] I
revert to the question that is before us. The learned judge a quo was
correct in holding that taxation is not a prerequisite
for the
institution of an action for payment of legal costs. The corollary is
that if a client insists upon taxation, the action
cannot proceed
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.

[8] It
was, however, wrong for the learned judge to hold, in effect, that
the matter in dispute should be determined by means of
an exception.

6

It is
understandable that she reached that conclusion as counsel for the
plaintiff in the Court a quo did not raise this point and
appeared to
be satisfied that the defendant had adopted the correct procedure.

Furthermore
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
in other
documents or in counsel's submissions.

This
principle is so clear that I can do no better than quote from Erasmus
and Others: "Superior Court Practice" (current
edition) at
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
in
the pleading can be brought into issue and no reference can be made
to any other document."

Majara J
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.

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[9] What
is more, however, is that a client who insists on taxation should
raise this defence by means of a special plea and not
by exception.
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
plea".

The
difference between an exception and a dilatory plea is not merely
technical, for the latter may introduce fresh matter which
requires
to be proved by evidence and the former may not (see Erasmus and
Others op cit at Bl-151).

[10] It
follows from the aforegoing that the appeal should be upheld and the
exception dismissed. However, this is not a case where
the costs
should follow the result, either in this Court or in the Court a quo.
There are two reasons for this. Firstly the declaration
was defective
on the grounds already stated in par [6] 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

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most
unfortunate that pleadings in a matter which commenced by a summons
issued in December 2005 are now nowhere near to being closed.
It only
remains to state that the other grounds raised in the notice of
exception were quite correctly not pursued on appeal.

[11] The
following orders are made:-

1. The
   appeal is allowed;

   
   

2. The
   order of the High Court is set aside and is replaced with the
   following:

   
   

1. The
   exception is dismissed;
   

   
   

2. There
   is no order as to costs".

   
   

3. The
   respondents are given leave to file whatever further pleadings they
   deem necessary within 21 days;

   
   

4. There
   is no order as to the costs of the appeal.

   
   

LS.
MELUNSKY

USTICE OF
APPEAL

I agree

J.H.
STEYN

PRESIDENT
OF THE COURT OF APPEAL

I agree

S.N.
PEETE

JUSTICE
OF APPEAL

For the
Appellant : T. Thabane

For the
Respondent : L.A. Molati