CIV/APN/208/80

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

CHIEF
NKHAHLE MOHALE Applicant

V

MINISTER
OF INTERIOR 1st Respondent

CHIEF
LBSHOBORO SEEISO 2nd Respondent

LELOKO
JONATHAN 3rd Respondent

TLOKOTSI
MOTLOI 4th Respondent

POTSANE
THABO LETSIE 5th Respondent

RULING AS
TO COSTS

Delivered
by the Hon. Acting Judge Mr. J. Unterhalter on the 1st day of
December, 1982.

In this
matter a Notice of Motion dated 3rd November, 1980 together with
supporting affidavits was served upon the Respondents.
The
Solicitor-General gave notice of intention to oppose and this was
served upon the attorneys for the Applicant Messr. W.C.M.
Maqutu &
Co. The notice recorded that the Law Office was the address at which
the Respondent would accept notice and service
of all process in the
proceedings. An answering affidavit was served upon the Applicant's
attorney on the 12th December 1980 and
the replying affidavit was
apparently delivered to the Ministry of the Interior on the 5th March
1981 and sent by registered post
to the 2nd, 3rd and 4th Respondents.
According to the note on the file the matter was postponed sine die
on the 15th December,
1980. No further steps were taken in the matter
until the 18th October, 1982 when a Notice of set down signed by the
attorney for
the "Plaintiff" recorded that the matter would
be heard on the 29th November, 1982. There does

2

not
appear to have been service of this notice of set down upon the
Solicitor-General but the notice had the stamp of the Minister
of the
Interior dated 18th October 1982.

On the
29th November 1982 the matter was called and Mr. Gwentshe appeared
for the Applicant. There was no appearance for the Respondent.
I
decided that the office of the Solicitor-General should be informed
of the situation, and I requested that office to send a
representative to court on the 30th November 1982 to explain why
there was no appearance for the Respondents. On the 30th November

1982 Mr. Gwentshe again appeared for the Applicant and Mr. Mafisa as
representing the Solicitor-General for the Respondents. Mr.
Mafisa
informed the court that the office of the Solicitor-General had not
received a notice of set down and was unaware of the
fact that the
matter was to be heard on the 29th November 1982. Mr. Gwentshe was
unable to offer an explanation as to why the notice
of set down had
been delivered to the Minister of Interior and not the
Solicitor-General. The matter was adjourned until the 1st
December
1982 in order that Mr. Maqutu might appear personally before the
Court and give an explanation as to the notice of set
down not having
been delivered to the Solicitor-General.

On the
1st of December 1982 Mr. Maqutu appeared in Court and Mr. Mafisa was
present as representing the Respondents. Mr. Maqutu
was asked why, as
the matter was to be postponed to a date to be arranged with the
Registrar, as requested by the parties, the
wasted costs of the
appearances should not be paid by Mr. Maqutu de bonis propriis. He
said that in regard to the appearance on
the 29th November 1982 the
Applicant was in any event to apply for a postponement because of
certain evidence that had come to

3

hand and
which would require to be examined in another court. He conceded that
in regard to the costs wasted by the appearances
on the 30th November
1982 and the 1st December 1982 these were costs that should be paid
by him de bonis propriis and not by the
Applicant, also conceding
that such costs should be awarded in favour of the Respondents.

The Court
draws attention to the provisions of Rule 61(1) which read as follows
:

"Where
in any proceedings before the High Court-

1. Costs
   are incurred improperly or without reasonable cause; or

   
   

2. Costs
   are wasted by undue delay or by other misconduct or default;

   
   

The Court
may make an order against an attorney whom the Court considers to be
responsible whether personally or through a servant
or agent-

(i) disallowing the costs between the attorney and his client;

(ii) directing the attorney to repay his client de bonis propriis
costs which the client has been ordered to pay to other parties;
or

(iii) directing the attorney to indemnify de bonis propriis the other
parties against all costs payable by them."

In the
present matter there has been clear default by the attorney for the
Applicant. He caused the notice of set down for the hearing
of the
matter for 29th November 1982 to be served on the Minister of the
Interior instead of the Solicitor-General despite the
terms of the
notice of intention to oppose which appointed the offices of the
Solicitor-General as the address at which notice
and service of
process in the proceedings would be accepted. When the notice of set
down was returned to his office he failed to
peruse it in a
sufficiently careful manner such as would have made him aware of the
fact that there had not been proper notice
of set down.

4

As a
result of this all the consequences that have been set out above
occurred and all the costs occasioned were unnecessarily incurred.

It is of
paramount importance that the rules of Court be carefully and
conscientiously observed. Only in this way can there be an
efficient
administration of proceedings where justice is sought and only in
this way can delay be avoided and the unnecessary incurring
of costs
be obviated.

It is
necessary that practitioners should at all times be aware of their
duties as prescribed by the rules of Court and it is for
this reason,
apart from their professional obligations, that rule 61 has been
promulgated to ensure fulfilment of those obligations.

In the
present matter it is ordered that the costs wasted by appearances on
the 30th November 1982 and the 1st December 1982 are
to be paid by
the Applicant but, in terms of rule 61(1) (b)(ii) the attorney for
the Applicant is directed to repay those costs
to the Applicant de
bonis propriis. It follows that the costs of those appearances ere
also disallowed as between attorney Maqutu
and his client the
Applicant.

J.
UNTERHALTER

ACTING
JUDGE.

For the
Applicant : Mr. Maqutu

For the
Respondents : Mr. Mafisa