IN THE COURT OF APPEAL OF LESOTHO

 

Held at Maseru                               C of A (CIV) NO. 56/2013

 

In the matter between:

 

EMILE SEALA                                                 APPELLANT

 

and:

               

BETHUELE PITORI SETAI                   FIRST RESPONDENT MATSELISO MOSHOESHOE                                                 CHADZINGWA                                             SECOND RESPONDENT

 

CORAM   :       Thring, J.A.

                        Louw, A.J.A.

                        Cleaver, A.J.A.

 

Heard     :      4 April,2014

Delivered:     17 April, 2014

 

 

SUMMARY

Costs de bonispropriis – Legal practitioners against whom order sought not given notice thereof, and not before court – Order refused.

 

JUDGMENT

THRING, J.A.

 

 

[1]    When this matter was called in this Court on 4 April, 2014    the appellant, represented by Ms Lephatsa, withdrew it and        tendered the costs of the appeal.  Only one aspect remains for    decision, and that is her contention that, in the     circumstances of this case, this Court should order that the    costs be borne de bonispropriis by the attorneys and counsel who previously represented the appellant in these proceedings, but who are no longer doing so.

 

[2]    The gravamen of the appellant’s complaint against these        practitioners is that:

 

        (a)    Having noted an appeal to the Court a quofrom a                    decision of a magistrates court, they failed to apply in            terms of High Court Rule 52(1) for a date of hearing of          the appeal, so that it lapsed;

 

        (b)    They brought the present appeal to this Court against            an order to that effect made by the Court a quowithout                having applied for the necessary leave to do so, and                     without delivering heads of argument; and

 

 

 

 

        (c)    They failed to advise the appellant properly on the                  merits of his case.

 

 

[3]    The attorneys and counsel concerned have not been given     notice of the appellants’ intention to seek an order against         them, and they are not before this Court.

 

 

[4]    It would be quite improper, in my view, for this Court to make        an order of the kind sought by the appellant without his     erstwhile  attorneys and counsel first being given notice of     his intention to do so, and without them being afforded an    opportunity to be heard.  But neither of these things has happened, and they         are not before the court.Ms.Lephatsa      referred us to the decision of this Court in Mahlakeng and Others v Southern Sky (Pty) Ltd and Others, 2000-2004 LAC 742,where costs were ordered de bonispropriis against        counsel, but the position there was entirely different from the   present case : in that case counsel concerned, who was still         appearing in the appeal, was given prior notice of the     possibility of costs being awarded against him de bonis       propriis, and he delivered heads of argument and made     submissions to the Court on the point.  It would be a gross        negation of the fundamental principle of audialterampartem   if we were to make such an order in the present case without         notice to those who would be most directly affected by the      order.

 

 

[5]    It is accordingly noted that the appeal has been withdrawn.  The appellant is ordered to bear the costs of the appeal.

 

 

__________________

W.G. THRING

Justice of Appeal

 

I agree:

________________

                                        W.J. LOUW

Acting Justice of Appeal

 

I agree:

________________

R.B. CLEAVER

Acting Justice of Appeal

 

 

 

For appellant   :  Ms L.M.A. Lephatsa     

For respondent        :  Q. Letsika