CIV/A/3/91

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

LEHLATSIPA
MASUPHA APPELLANT

V

JOANG
KHETHISA RESPONDENT

Before
the Honourable Chief Justice Mr. Justice B.P. Cullinan on the 14th
day of December, 1993.

For the
Appellant : Miss M. Tau

For the
Respondent : No Appearance

JUDGMENT

Cases
referred to:

1. Fupp
   v Gibbon (1913) AD 354;

   
   

2. Levben
   Products (Pvt) Ltd. v Alexander Films (SA) (Pty)

   
   

Ltd. (1957) 4 SA 225 (S.R.).;

3. Mathaba
   & Ore. v Lephema & Ors. CIV/APNS/182 TO 206 & 208 to
   210/1993 (1/9/93), Unreported;

   
   

4. Nel
   v Waterberg Landbouwers Ko-operatieve Vereeniging

   
   

(1946) A.D. 597.

This is
an appeal from the Subordinate Court of the First Class for the Berea
District. On 24th November, 1993 I allowed the appeal,
for reasons
which now follow.

The
appellant is Chief of Thaba Phats'oa Ha Nkhahle. On the 20th January,
1990 the respondent, the District Secretary for the particular

District, refused to hand over to the appellant his

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Government
salary cheque, in the amount of M459.88, for that month, on the
ground that the appellant had "allegedly refused
or neglected to
serve" a particular member of the public. The appellant denied
this. The respondent referred him to the Principal
Chief who
instructed that the cheque be released to the appellant. Nonetheless
the respondent on 6th February, 1990 once again
refused to hand over
the cheque.

The
appellant instructed a firm of Attornies. They addressed a letter in
the matter to the respondent, dated 13th February, 1990.
The
appellant's founding affidavit thereafter reads at paras. 7 and 8
thereof:

"7. On the 14th February, 1990 I went to the respondent's office
with the letter from my attorneys and while I was outside
the office
of the Respondent, the Respondent saw me and called me to come into
his office which I did. I put the letter from my
attorneys on the
Respondent's desk and before reading it the Respondent called his
clerk and told her to open the safe in the office
and give me my
cheque. He then proceeded to read the letter but before he had even
finished reading it, he instructed the clerk
to put the cheque back
in the safe as I had now instructed attorneys.

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8. I aver further that the Respondent has no right in law to embark
on the course of action he has taken of depriving me of my
salary for
any reason whatsoever. I aver further that the Respondent is actuated
by malice as indicated in paragraph 7 for he had
already instructed
that I should be given the cheque indicating that he had no reasons
for withholding the cheque."

Ultimately
the appellant filed a notice of motion in the Subordinate Court for
the Berea District, seeking a rule nisi, calling
upon the respondent
to show cause as to why he should not be ordered inter alia to
release the pay cheque to the appellant and
in particular to

"pay the costs of this application on an attorney and client
scale."

A rule nisi duly issued ex parte. The respondent did not file any
notice of intention to oppose and did not attend court on the
return
date. On that date the learned Magistrate ordered

"Rule confirmed with exception of costs as defendant did not
intend to oppose the application."

The
appellant appeals against the order as to costs. The respondent did
not attend the hearing of the appeal.

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Miss Tau
for the appellant submits that the general rule is that costs follow
the event, whether or not a judgment is on the merits
after a
hearing, or is simply, as in the present case, by way of default of
appearance. I agree. If of course a defendant or respondent
does not
appear, that will serve to reduce the amount of the plaintiff's or
applicant's costs, but will not alter the aspect of
liability.
Invariably a summons or notice of motion will contain a prayer for
costs and where judgment is granted by way of default
of appearance,
invariably judgment, being not contested, is granted as prayed, that
is, with costs.

Where a
defendant fails to appear he, in effect, consents to judgment, that
is, in all its aspects, including costs. Further, in
failing to
appear, he, in effect, admits not only to liability but also to the
fact that by his failure to meet his legal liability
he has compelled
the plaintiff to come to court, and thus incur costs, in seeking to
enforce such liability.

Costs are
a matter for the discretion of the Court. But it is trite that such
discretion must be exercised judicially, on the facts
before the
Court, and on correct principles (see Fupp v Gibbon (1) at p.363).
Indeed, it has been held that a Court should not
depart from the
general rule without good grounds (see Levben Products (Pvt) Ltd v
Alexander Films (SA) (Pty) Ltd. (2) per Murray
C.J. at p.227. In the
present case, the factor to which the learned Magistrate referred
quite obviously affected the quantum of
costs, but I do not see how
it could affect the

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issue of
liability therefor. In particular, having been compelled by the
respondent's actions to come to court, the appellant became
involved
in costs which exceeded the value of the claim itself, an aspect to
which the learned Magistrate made no reference. It
was most unjust
therefore that the appellant should have been condemned in costs. I
consider that the learned Magistrate erred
in principle and further,
that the exercise of his discretion displayed no consideration of the
facts before the Court.

As to the
costs of this appeal, to achieve justice, the appellant has been
forced to come to this Court. I do not see that the appellant
should
bear those costs either.

It will
be seen that the appellant prayed for costs on the attorney and
client scale in the court below. The Court had occasion
to consider
the aspect of costs on the higher scale in the case Mathaba &
Ors. v Lephema & Ors. (3) at pp. 93/94. In that
case (at p.93)
the Court relied upon the following dicta of Tindall J.A. in Nel__v
Waterberg Landbouwers_Ko-operatieve Vereeniging
(4) at p.607, in
reference to an order on the higher scale:

" In some cases it has been said that the court makes the order
to mark its disapproval of the losing party's conduct. This

terminology suggests that an award of attorney and client costs is a
form of punishment. But the treatment of such an award simply
as
punishment does not supply

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a complete explanation of! the grounds on which the practice rests;
something more underlies it than the mere punishment of the
losing
party. On the other hand, the order cannot be justified merely as a
form of compensation for damages suffered..... 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."

It will
be seen that Tindall J.A. there referred to "special
considerations arising from the circumstances which give rise
to the
action". It seems to me, in view of the small claim involved,
that such "special considerations" are present
in this
case. The appellant was, as I have said, obliged to come to court and
become involved in costs in excess of the amount
of the claim. As I
see it, unless the Court makes the order on the higher scale, it
cannot "ensure ... that the successful
party will not be out of
pocket in respect of the expense caused to him by the litigation".

In all
the circumstances the appeal is allowed and the order of the learned
Magistrate as to costs is set aside. I substitute there
for an order
that the appellant be granted costs in the Court below, and also in
this Court, on the attorney and client scale.

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Delivered
at Maseru this 14th day of December, 1993.

B.P.
CULLINAN

CHIEF
JUSTICE