IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/APN/100/2011
In the matter between:
TEKETETEKETE RAMALESHOANE Applicant/Respondent
SEKOATI MAKHELE Respondent/Applicant
In application for award of wasted costs
Delivered by the Hon. Mr Justice T. E. Monapathi
On the 21st Day of July 2011
1. The argument between Mr. Ms Ramafole (Ramaleshoane) for Applicant (Makhele) and Mr Masasa for Respondent was about the wasted costs of the 26th May 2011. The matter had been postponed thereto from the 17th July 2011 on roll call.
2. The history or background of the matter is that after Makhele’s appeal was dismissed before the Judicial Commissioner Court he appealed and sought for a certificate under the section 28 (3) of the Central and Local Courts Proclamation 62 of 1958 (as amended) for leave to lodge an appeal with the High Court. The grounds of appeal had been dated the 29th September 2009.
3. It was common cause that while the Judicial Commissioner granted Makhele leave to appeal on the 8th February 2010, he did not comply with the conditions in the certificate. These stipulated amongst others that he must pay listed costs for preparation of record including appeal fee of M50.00. The costs to be paid totalled a sum of M155.00
4. Makhele ignored the provisions of the Judicial Commissioner’s certificate to the extent that only a year after the issue of the certificate that he applied before the High Court to pay up the appeal fee. In my view, admittedly, that is where the problem starts. This court allowed Makhele to pay up the fees and proceed with his appeal. Matters of whether there were other fees outstanding and whether the order was regularly sought will be a matter of the application for rescission which was filed by Ramaleshoane on the 19th April 2011 What is perhaps important is that this court then on the 15th March 2011 ordered that the matter be postponed to the next roll call of the court of the 17th May 2011. Makhele was to serve Ramaleshoane with the order and set down for that date of the roll call. This he failed to do hence the dispute that has resulted.
5. What confusion could have occurred was the admitted flaw, from Makhele’s Counsel’s fault, in not serving the opposite party with the notice and the court order of the 15th March 2011 the other side was consequently not aware of the matter on roll call of 17th May 2011. This is the order which was served on Respondent/Applicant’s chief while it was well known that the party was represented by Miss Ramafole. Again Mr Masasa would not explain this unfortunate step. Indeed they say there was no such on the notice board or on the internet. This is conceded by the Counsel for Makhele. This failure to serve as a foresaid is perhaps what fueled the present dispute. It was later revealed that there was a rescission application filed against this court order allowing Makhele to pay up appeal fees and then to process of his appeal.
6. What irks Ramaleshoane’s Counsel more is that the court went on to appoint the 26th May 2011 for hearing of their application for rescission when the matter was not ripe for hearing. It is because they felt they still had the right and liberty to file a replying affidavit in terms of the rules. Ms Ramafole came to appear because she came to know a notice of set down for the 26th May 2011, which she thought was irregular because it concerned the intended rescission. That, this Mr Masasa had not disclosed to the court. If counsel had done so it is contended that the court would not have appointed that date for hearing. That this primarily was because Mr Masasa would have had no right to promote the hearing of the rescission application, more particularly when pleadings had not been closed. I agreed with respect.
7. What irked Ms Ramafole further is that there was no urgency and there had not been any dispensation of the rules. Not only that. When the court appointed the date of the 17th May 2011 for the matter to appear on the roll call that date was intended so that the appeal proper or rather the hearing could be arranged. This I repeat was conceded. To me this is the real source of whatever become wasted on 26th August 2011. Not the application for rescission which the counsel for the other side chose not to make the court aware of. See Schoeman v Thompson 1927 ND 282 at 283 where Drury J said:
“It is the duty of Counsel to inform the court of any matter which is material to the granting of an application, and of which Counsel is aware”.
In addition Eric Morris in his Technique in Litigation, 2nd Edition, at page 38 has said:
“The court will always accept and act on the assurances of Counsel in any matter heard in court and, in order to deserve this trust, Counsel must act with the utmost of faith towards the court”.
If the court had been aware of the rescission application it could not have asked for fixing of a date of hearing of the appeal.The matter of application for condonation for late filing of appeal fees had been challenged by Ramaleshoane. Hence the application for rescission.
8. Ms Ramafole for Respondent/Applicant says the wasted result on the 26th May 2011 was surely and solely caused by the other side. She said this was so far the following reasons. Mr Masasa had urged the court to hear the matter as if by default, while fully aware that the matter was opposed on all quarters. Secondly, as a real cause for confusion, he had not served the other side with the set down and order of 17th May 2011. There is in my opinion, therefore no doubt that on every account Mr Masasa’s client was the cause of wasted costs. He must accordingly pay those costs.
9. Respondent/Applicant argues that the cause of the wasted day was that the Applicant/Respondent had set down his application to strike out on the 26th May 2011. By consent the application was no longer pursued. In any event I would have ruled that that day was appointed by the court have not been apprised of the other factors which, had it known, it would have been persuaded not to appoint the date. In other words the source of the problem is surely that of not having apprised the other side of the roll call of the 17th May 2011. Otherwise there is no other viable explanation.
10. That the 26th May 2011 was a wasted day is apparent because the court realized that after all, the matter should not have been set down for hearing. A postponement that, in the circumstances, was found necessary at the instance of or through the conduct of Mr Masasa’s client if not Counsel herself occurred. This is therefore constent with the usual rule that the party at whose instance a postponement is obtained must be made to pay wasted costs. See Civil Practive of South Africa Superior Courts, 2nd Edition, page 417. In my view, the Applicant/Respondent (Mr Masasa’s client) should pay the wasted costs.
T. E. Monapathi
For Applicant/Respondent : Mr. Masasa
For Respondent/Applicant : Ms Ramafole
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