The court considered an appeal against the judgment of the lower the court in in that the lower court erred in law by handing down the judgment in favour of the respondents.
The appellants argued that 1) the court had failed to acknowledge estoppel as part of the law of Lesotho. 2) that the learned judge erred in not finding that the respondent was precluded from seeking the relief by virtue of estoppel and 3) that the court had no power to make the order of costs.
On the question of whether the court was empowered to make a costs order, since it was not legislatively empowered to do so, the court held that despite the express powers in statute, the court had the capacity to make such order for reasons to do with justice.
On the withdrawal of the appeal, the court held that any party which wishes to withdraw an appeal must do so unequivocally. A litigant cannot unilaterally impose conditions on a case withdrawal to which an opponent and the court are enjoined.
The appeal was struck off the roll with costs.
C. OF A. (CIV) NO. 25/1996
IN THE LESOTHO COURT OP APPEAL
In the matter of:
SWISSBOURGH DIAMOND MINES (PTY) LTD FIRST APPELLANT RAMPAI DIAMONDS (PTY) LIMITED SECOND APPELLANT
AND
THE COMMISSIONER OF MINES AND
GEOLOGY N.O. FIRST RESPONDENT
THE ATTORNEY GENERAL SECOND RESPONDENT
THE CHAIRMAN OF THE MINING BOARD THIRD RESPONDENT
THE REGISTRAR OF DEEDS FOURTH RESPONDENT
LESOTHO HIGHLANDS DEVELOPMENT AUTHORITYFIFTH RESPONDENT
Held at:MASERU
CORAM
STEYN, A.P.
KOTZE, J.A.
LEON. J.A.
JUDGMENT
STEYN A.P.:
On the 3rd of May, 1996, the learned Chief Justice
2
granted the following order on an application the Appellants had brought before the High Court:
"The interlocutory application is dismissed. The Applicant shall pay (the) costs of this application on attorney and client scale, Such costs shall include the costs of two Counsel."
On the 14th of May the Appellants filed the following notice of appeal:
"Be pleased to take notice that the abovenamed Appellants, who were the Respondents in the High Court of Lesotho in the counter
application brought by the Fifth Respondent under case No. CIV/APN/394/91, being dissatisfied with the whole of the order of the
said High Court given by the Chief Justice His Lordship Mr. J L Kheola on 3 May 1996, in terms of which he dismissed with costs the Appellants' contention that the Fifth Respondent is precluded from raising the issue that the Rampai lease is null and void ab initio and of no force and effect by reason of the operation of the doctrine of issue estoppel, hereby appeal against the whole of the said order
3
to the Court of Appeal of Lesotho on the grounds set out in the annexure hereto headed "Grounds of Appeal".
The Appellants reserve their rights to deliver further grounds of appeal within the time period set out in Rule 3 of the aforesaid
Court of Appeal."
The grounds of appeal referred to in the notice read as follows:
"That the learned Judge erred in not holding that the doctrine of issue estoppel forms part of the law of Lesotho.
That the learned Judge erred in hot finding that the Fifth Respondent was precluded, by virtue of the doctrine of issue estoppel, from seeking the relief claimed in its counter application in CIV/APN/394/91.
That the learned Judge erred in awarding costs against the Appellants on the attorney and client
4
scale or at all."
The next relevant event in this aspect of the many faceted litigation between Appellants, Respondent and other parties whom the Appellant has cited in proceeding)? before this Court, is a letter which Appellants' attorney writes to the Registrar of the Court of Appeal. It is dated the 30th May, 1996, and I cite it in full. It reads as follows:
" We acknowledge receipt of Court of Appeal Circular No.6 of 1996 under reference REG/CA/6 dated 22 May 1996.
You are aware that the hearing of oral evidence is proceeded with in the High Court of Lesotho before the Honourable Chief Justice, His Lordship Mr J L Kheola, following the dismissal of the preliminary point raised on behalf of our clients. At this stage dates have been agreed for the continuance of the hearing of oral evidence during August and September 1996.
It is quite clear that no reasons for the decision, which is the subject of the above
5
mentioned appeal, will be available prior to the proposed date of hearing for the
appeal. In addition, the reasons for judgment by the Court of Appeal of Lesotho in respect of the striking down of the Revocation Order under case number C. of A. (Civ) No, 38 of 1994 are not yet available.
As required in terms of your circular we are instructed to advise you, as we hereby do, that our clients request that the appeal, and if necessary, the application for leave to appeal be removed from the current roll and postponed for hearing during the first session of the Court of Appeal in January 1997.
We should be grateful if you would advise the Honourable President and the other Honourable Judges of the Court of Appeal accordingly."
It seems to me to be clear from the contents of this letter that Appellant is alleging that because the reasons for judgment by the Chief Just ice will not be available, this is the motivation for seeking the relief sought. For good measure the fact that this Court has not given its
6
reasons for striking down the revocation order which purported to expropriate Appellant's property without compensation is introduced as an additional reason for an application that the appeal should be removed from the roll and postponed for hearing,
Early in June 1996 two things happened. Appellants settle a document under heading "Withdrawal of Appeal Pending Outcome of Trial" which is filed with the Registrar and also served on the Respondent on the 5th of June. The notice reads as follows:
"TAKE NOTICE that the abovenamed Appellants hereby withdraw the appeal launched by way of Notice of Appeal dated 14 May 1996 and the Application for Leave to Appeal, but expressly reserve their right to appeal, if necessary, at a later stage and after the conclusion of the presently part-heard trial, against the order of the High Court given by the Honourable Chief Justice His Lordship Mr J L Kheola on 3 May 1996, in terms of which he dismissed with costs the Appellant's contention that the Fifth Respondent is precluded from raising the issue that the
7
Rampai lease is null and void ab initio and of no force and effect by reason of the operation of the doctrine of issue estoppel."
On the previous day and upon receipt of a copy of the letter of the 30th of May cited above. Respondents' attorneys write to the Registrar to protest against the attempt by Appellant unilaterally, to seek to withdraw the appeal. For the sake of completeness I cite the letter in full. It reads as follows:
"Dear Madam
re:CONDITIONAL APPLICATION FOR LEAVE TO APPEAL AND APPEAL: SWISSBOROURGH DIAMOND MINES (PTY) LIMITED AND ANOTHER vs LHDA AND OTHERS: C OF A (CIV) NO.25/96: APPLICANTS' REQUEST FOR REMOVAL FROM THE ROLL
We have received a copy of the letter to you from Messrs. S A Redelinghuys & Company dated 30 May 1996 requesting that the
above appeal and, if necessary, the application for leave to appeal (which appear on the Roll for hearing on 25 June 1996) be removed from the Roll. We are writing to object to such procedure for the reasons set out below and shall be grateful if this letter could be brought to the attention of the Honourable President of the Court of Appeal
While it has, since this appeal was noted, been the attitude of our client (LHDA) that there is no reasonable prospect of success with the appeal, it has been recognised that the preliminary point taken, if decided in
8
favour of Applicants, would dispose of the entire case. For that reason the Application for leave to appeal (or the appeal itself, if the Honourable Court of Appeal were to hold, as Applicants argue, that the High Court's order was final and that they have a right to appeal) was opposed only on the merits. That the appeal may finally dispose of the dispute between the parties is the very reason put forward by applicants themselves for hearing it at this stage, even although proceedings before the Court a quo are far from complete. (The position is that the hearing began on 20 May 1995 and continued for only three days whereafter it was adjourned to dates in August and September 1996). We respectfully draw the following extracts from Applicants' own papers to the notice of the Honourable Court of Appeal:
2.1 From the Affidavit supporting Applicants' application for leave to appeal of Mr. Van Zyl, dated 13 May 1996:
2.1.1. "6.6 Unless rectified on appeal,
there will be a very lengthy and expensive trial..."
2.1.2. "8.1 Applicants respectfully
submit that the Order appealed against was a final one, for ever refusing the Applicants the right to avoid an unnecessary and
expensive trial".
2.1.3. "8.3If the finding was wrong, as
Applicants respectfully submit to be the case, it would be cold comfort for the Applicants to be content with a right of appeal on that issue (issue estoppel) only after the entire trial has been concluded".
9
2.1.4. "9.4 This forces the Applicants to
suffer the very prejudice (namely the costs, delays and inconvenience inherent in the full trial) which was sought to be avoided by the separation of issues",
2.1.5. "11.13 Based on the above facts, it
is no exaggeration to submit that this trial, if it continues, may last for months and will be very costly".
2.2. And from the Heads of Argument filed on behalf of Applicants:
2.2.1. "2.2 It is respectfully submitted
that , if the order was interlocutory, there are good grounds for allowing an appeal on the single legal issue raised in limine,
thereby avoiding an unnecessary lengthy and costly trial. "
3. 3.1 LHDA 'S response to the application was to deny that there was a reasonable prospect of success and ask that the application for leave to appeal be turned down on the grounds that it would not succeed on the merits. But it was conceded that there was benefit in a final ruling on the point in limine if that could be accomplished without delaying the further hearing of the matter and, as it had transpired that could be accomplished, (having regard to the date on which the matter was to the date on which the matter was to be heard) it did not oppose the application on other grounds than that the point in limine was without merit.
3.2 Clearly, if LHDA errs in its view of the law and the point taken is good, it will suffer the self-same prejudice as that outlined by
10
Applicants in the excepts quoted in par. 2 above.
4. 4.1 There has been no consultation by Applicants
with LHDA concerning their sudden and surprising about-face on the hearing before the Court of Appeal.
4.2 In Applicants' letter to yourself, it is said that the reasons for the ruling of the Court a quo will not be available by the time the appeal is heard, nor will those of the Court of Appeal itself in striking" down the Revocation Order. However, this has been know to both sides throughout. (The Honourable Chief Justice, when a date for resumption of the hearing of the main application was discussed in Chambers on 8 May 1996, was told by Applicants' attorney that an appeal was to be lodged and made it clear that his reasons would not be available for several months.
4.3 In any event, it is LHDA's view that neither the reasons of the Court of Appeal nor those of the Court a quo are necessary for adjudication of the matter, nor was it suggested in the application for leave to appeal or the applicants' Heads of Argument that such reasons are necessary for adjudication of the application (or of the appeal).
4.4 It is respectfully submitted that having put Respondents to the trouble and expense of preparing fully for the appeal, including the presentation of written Heads of Argument, Applicants will not be allowed unilaterally to remove the matter from the Court of Appeal's Roll at this juncture.
Respondent respectfully requests the Honourable Court Appeal of Appeal to hear the matter on the date enrol led and, if necessary, to provide a ruling on the point in the absence of Applicants."
11
The dispute was referred to me and the Registrar was instructed to advise the parties that the appeal has to be "unconditionally and properly" withdrawn. If not, it would be heard during the current session of the Court of Appeal.
On the 18th of June a fresh notice of withdrawal of Appeal is filed by the Appellant. It does not contain any condition and reads as follows:
"TAKE NOTICE that the abovenamed Appellants hereby withdraw the appeal launched by way of Notice of Appeal dated 14 May 1996 and the Application for Leave to Appeal against the order of the High Court given by the Honourable Chief Justice His Lordship Mr J L Kheola on 3 May 1996, in terms of which he dismissed with costs the Appellant's contention that the Filth Respondent is precluded from raising the issue that the Rampai lease is null and void ab initio and of no force and effect by reason of the operation of the doctrine of issue estoppel."
The notice contains no offer to pay the costs occasioned by the abortive appeal process.
12
When the matter was called Mr. Edeling who appeared for the Appellants submitted that the appeal had been withdrawn, that there was nothing before the Court and that in any event the Court had no authority to make any costs order because the Rules of Court did not empower it to do so.
The Appeal Court is a creature of statute. The relevant Act is the Court of Appeal Act No.10 of 1978. In respect of Civil Appeals the relevant provisions deal with the rights of litigants to appeal to the Court of Appeal and authorise an appeal:
"(a) from ail final judgments of the High Court" and
(b) by leave of the Court from an interlocutory order, an order made ex parte or an order as to costs only."
The Court of Appeal Rules in Rule 3 lay down the procedural guidelines with which an Appellant has to comply in order to bring his appeal before the Court. Nowhere in the Act or in the Rules do we find any provisions which prescribe what the powers of the Court are, neither were we referred to any enactment which deals with the powers of the Court in the event of any appellant either purporting to
13
withdraw or in fact withdrawing an appeal.
I deal first of all with the proposition that the Court is not authorised to make costs orders because it is not legislatively empowered to do so by the Rules of Court. Whilst Courts are creatures of statute, their powers are to do justice between parties and would of necessity include the power to make orders for costs. Indeed it does so regularly. It has power to amend orders for costs made by the Court a quo and did so in previous litigation in which the parties presently before us were involved. Moreover it has the power to grant attorney and client costs and has done- so from time to time. An example of such an exercise of discretion is to be found in a decision of this Court in William Lepota v, Ivan Hyland C. of A. (Civ) No. 22 of 1985.
I have no doubt therefore that no explicit legislative empowerment of the Court of Appeal is required in order for it to make such costs orders as it deems necessary to do justice between litigants.
I come to deal next with the validity of the arguments concerning the withdrawal of the Appellant's appeal. It would seem to me to be obvious that a party who wishes to
14
withdraw an appeal should do so unequivocally. Should he append a condition to his withdrawal the other party would, unless he was prepared to accede to such conditionality and the Court were prepared to sanction it, be entitled to resist the withdrawal having any effect. Counsel did not cite any authority for his submission that a withdrawal of the kind reflected in the original notice of appeal was procedurally proper. I am not surprised at this, because the proposition is clearly untenable i.e. that a litigant can unilaterally seek to impose conditions upon its withdrawal of any litigation on which it has joined issue with its opponent and with which the Court is seized. Respondent was therefore entitled upon receipt of the "conditional withdrawal" of the appeal to resist the attempt to defer a decision on the merits of the appeal to a future date in the guise of a qualified notice of withdrawal.
The proposition advanced by Counsel that pursuant to the unconditional notice of withdrawal of the appeal there is nothing before the Court to consider requires to be dealt with. There are two major problems facing him in regard to this contention. In the first place Appellants failed in their second notice to tender any payment of wasted costs. It meant that, certainly until the day of the hearing of the
15
appeal, no such tender, either in the notice of withdrawal or otherwise, had been made. A letter was handed in by Counsel at the hearing dated the 25th of June but only received by Respondent on the day of the hearing, in which Appellants conceded that they "should be responsible for the costs occasioned by the appeal and the application for leave to appeal" However, Mr. Edeling contended that the Court had no Jurisdiction to make any costs orders, because "there was nothing before it" as a result of the second notice of withdrawal.
In my view neither the notice of withdrawal nor the acceptance by Appellants that they "should be responsible for the costs"
aforesaid, in any way deprives the Court of its power to make such order of costs as it deems appropriate.
I interpose to say that it should be noted that in the same letter Appellants' attempt in a different form to reserve their rights "to argue the issue estoppel point as a ground for a possible future appeal..." (As can be seen from the grounds of appeal the "issue estoppel point" is apart from the issue of costs - the very matter to have been adjudicated upon in the appeal noted by them).
16
However, later in the same letter Appellants attorneys advance the contention that:
"Despite our clients' initial unhappiness about the interlocutory prder by the Honourable Chief Justice to the effect that the trial should proceed, they now accept such position and no longer appeal against the order to that effect".
Be that as it may, I am satisfied certainly on the facts of this case, that appellants could not deprive this Court of its right to make an enforceable order of costs which was duly executable by the Respondents. A statement in a letter handed in at the hearing that "our clients accept that they should be responsible for the costs of appeal and the application for leave to appeal" falls short of a tender to pay the wasted costs occasioned by the appeal in all its permutations.
However, there is another reason why the Court of Appeal should resist the contention that "there was nothing before it".
The Respondent had in its heads of argument dated 22nd
17
May, 1996, - i.e. before any notice of withdrawal had been filed - and in an answering affidavit dated 31st May, 1996, given notice that they would be applying to this Court for an order that should the appeal be dismissed, costs on the scale between attorney and client should be decreed, Should this Court be of the opinion that such a special order as to the costs may well be appropriate, I am of the opinion that in a proper case, it could direct that the matter should remain enrolled so that the propriety of such an order could be argued and adjudicated upon. Moreover, and again in a proper case and probably only in highly exceptional circumstances, the Court could mero motu direct that the parties should be advised that it wished to have an appeal already enrolled and set down for hearing argued on the question of. the propriety of a special order for costs whether on the. scale, of attorney and client or de bonis propriis. Such an order will usually only be made "when notice (formal or otherwise) has been given of an intention to seek such an order". Per Ackermann JA in Khaketla v. Malahleha C of A (Civ) No. 18 of 1991 (Lesotho). In this regard the situation is in my view analogous to that which obtains in a criminal appeal. See in this regard R v. (trundling 1955 (2) SA 269(A) at 272 where Schreiner J.A. said:
18
"... the appellant cannot withdraw a criminal appeal that he has noted, not only once it has been called in Court, but also once he has been notified, either by the Crown or by the Registrar of the Court that will be hearing the appeal, that the issue of the increase of the sentence will be raised at the hearing of the appeal".
See also R. v. Kluyts and Another 1951 (1) S.A. 474 (CS), S. Hougaard 1972(2) 70 (c); 5. v. Mabhongo 1969 (3) S.A. 388 (N) and S. v. Esterhuizen 1972 (2) S.A. 76 (o).
It is my view that on reasoning similar to that advanced in these criminal cases, once either a party or the Court of Appeal has notified a litigant who has noted and presented an appeal to the Court of Appeal, that a special order for costs will be sought, such an appeal cannot be withdrawn without the leave of the Court. It follows that the question of what an appropriate costs order would be and is before us and requires to be adjudicated upon.
Mr. Viljoen for the Respondents submitted that the Court a quo granted the special costs order against the following background:
"18.1 The Honourable Chief Justice granted it
19
against the following background, of which he was aware:
Following on the Order of 27/3/95 this matter, together with Applications 198/91 and 206/91 was enrolled for hearing and came before the Chief Justice himself on 5 June 1995.
At that hearing Appellants herein sought a postponement by reason of alleged inadequate discovery and argued that case No.394/91 (the present case) should be disposed of before cases No.198/91 and 206/91 were heard.
The Honourable Court reserved judgment and on 16 June 1995 ordered that all three of the above cases should be heard together, commencing on 1 August 1995. and that Appellants should pay the costs occasioned by the postponement of the hearing.
20
The case could not proceed on 1 August 1995 because Senior Counsel for appellant at that time, Mr. Anton le Roux SC, was not available and Respondent had accepted that, in that event, mutually acceptable dates had to be found.
In correspondence placed before the Court a quo Respondent pressed for enrolment of case No.394/91 for hearing, cases 198/91 and 206/91 having become irrelevant save for costs by reason of intervening legislation expropriating Appellants' mining rights within the Rampai area, against payment of compensation. Eventually, on or about 14 December 1995, the matter was enrolled for hearing on 22 April 1996.
The papers in the application now on appeal were served on Respondent on the Friday prior to the Monday on which evidence in case No. 394/91 was to be
21
heard, that is on Friday 19 April 1996.
18.2 It is respectfully submitted that the Honourable Court a quo was justified in exercising its disoration as it did. The facts before it and a alluded to herein were clear, were known to all the parties and simply could not justify reliance on the doctrine put forward.
18.3 In the circumstances Respondent should not be burdened with any part of the costs occasioned by the untimely and unfounded contention put forward."
For the same reasons it was contended attorney and client costs were justified on appeal.
In supplementary heads of argument counsel for the Respondent contended that Appellants' conduct since the order granted by the Court a quo dismissing the application that the matter was res judicata - or that the doctrine os issue estoppel applied - reinforced the correctness of the order made and justifies an order on appeal on the same
22
scale.
In his heads of argument on behalf of Appellants dated 13th of May, 1996, Mr. Edeling submitted "that the grant of costs on the scale of attorney and client was completely unwarranted and Appellants asked that such order be set aside. "The point in limine is a bona fide one".
I am satisfied that neither in the High Court or in the Court of Appeal in any of the matters of dispute before them, was the issue whether the mining leases had been validly granted decided. Indeed it was Appellant's own case that this issue could not be decided without hearing oral evidence. The learned Chief Justice in his judgment found in relation to the issue as to whether there was statutory non-compliance which could impugn the validity of the grant of the mining leases that:
"The applicants (Appellants before us ) deny any such or other statutory non-compliance and clearly many of such issues could only be resolved by viva voce evidence."
In seeking to set aside the Revocation Order Appellants sought in interim order "pending the final determination of
23
the matter". Indeed it is beyond any dispute that the order setting aside the revocation order was not made either by the High Court or by this Court because the leases were not proved to be invalid. Such a contention was never adjudicated upon. It was as a matter of fact never considered by either Court as justifying the setting aside of the Revocation Order. The order was struck down without any consideration of the issues raised in regard to any alleged defects such leases may have had.
This Court also granted interim relief to the Appellants. In doing so it recognized that there were factual disputes between the parties, one of which was whether or not the leases were validly granted. In granting relief pendente lite this Court said that:
"We are satisfied that Respondent's rights have been violated. There are however residual but fundamental disputes between the parties that require to be resolved. Pending their resolution .... they are prima facie entitled to have such rights as they are able to prove protected in an appropriate form. The questions are, what have they proved and if they have established rights prima facie, what form should the relief then granted take. This requires an examination of the principles upon which a Court should approach applications for an interdict pendente lite,"
24
It is my view that the application brought in the Court a quo alleging that Respondent "is precluded from raising the defence to appellants suit, that the relevant mining lease is void since it has already been determined in earlier proceedings" was without any substance whatsoever. I repeat that this matter was never considered by this Court in adjudicating upon the disputes, which were before it. This was simply never an issue to which the Court applied its mind in setting aside the Revocation Order. Insofar as the granting of interim relief was concerned, the Court was only adjudicating upon whether or not Appellant had established a prima facie case entitling it to an interdict pendente lite. Any definitive finding on this issue was to be made at the hearing of the matter. I have no doubt that all the parties to the matter were well aware of the fact that this was indeed the case.
It is therefore my view that the learned Chief Justice was fully justified to have made the order which he did in decreeing that Appellants should pay costs in the Court a quo occasioned by bringing such an application before it.
It would also in my view justify such an order in this Court on appeal. However the behaviour of the Appellant since the High Court dismissed the application on the 3rd of May 1996,
25
compounds the unacceptable - indeed reprehensible conduct of the Appellants as litigants.
It is clear that Appellants have not been candid with this Court. Counsel stated from the Bar that the reason why appellants decided to change their stance in relation to the validity of their appeal on the issue estoppel defence was that the came into the case and advised his client accordingly. It is to be noted however that he signed the heads of argument on the 13th of Hay, 1996. This is of course not the reason advanced in the correspondence cited above. The only motivation contained in the letter to the Registrar dated 30th of May was that the reasons for judgment had not yet been received.
More serious, however, has been the attempt by Appellants to manipulate the process of this Court on appeal. The attempt to note a "conditional appeal", their failure, until the morning of the trial, to make any tender of wasted costs and, when doing so, to couch it in the equivocal terms reflected in their letter handed in at the trial, all speak of an unacceptable approach to the conduct of litigation.
26
Finally, the spurious arguments raised by Counsel in contending that this Court has no power to make orders for costs because no power was conferred by statute enabling it to do so, that a litigant could conditionally withdraw an appeal and that he could do so unilaterally and without a tender of payment of wasted costs are all further examples of the reprehensible manner in which Appellants have conducted thee proceedings before this Court.
That the cumulative effect of the misconduct of a trial merits such an award is amply supported by authority in this Court. See in this regard Lepota v. Hyland (the judgment of Miller JA) and Khaketla v. Malahleha per Ackermann JA cited above. See also Myburgh Transport v. Botha 1991(3) SA 310 (NM. SC.) and Rautenbach v. Symington 1995(4) 583 (o). Indeed, there is no reason why Respondent should be caused to have to pay any costs by virtue of the manner in which Appellants have conducted the litigation and more particularly be held accountable for any costs incurred in the appeal proceedings.
It is our view that in these circumstances the appropriate order this Court should make is that the appeal is struck from the roll with costs. Such costs are to be
27
paid by Appellants - the one paying the other to be absolved on the scale as between attorney and client. Such costs are to include the costs of two Counsel.
PRESIDENT OF THE COURT OF APPEAL
I agree:
G.P.C. KOTZE
JUDGE OF APPEAL
R.N.LEON
Delivered at MASERU this 29th day of JUNE, 1996.