C OF A (CIV) NO. 19 OF 1999
IN THE LESOTHO COURT OF APPEAL
In the matter between
NCHAKHA MPHALANE First Appellant
ELENA DUROW Second Appellant
and
LEHLOHONOLO PHORI Respondent
Held at Maseru
CORAM: L. van den Heever JA
Gauntlett JA
Ramodibedi JA
JUDGMENT
This appeal concerns a matter that has rather an unhappy history behind it. It is a needless dispute that has degenerated into an endless ding dong affair between the parties as they shuttle between the High Court and this Court. There is no doubt that only lawyers stand to benefit financially from such endless and, I might say, senseless litigation.
I proceed then to give a brief resume of the essential facts. In certain case No. CIV/T/599/97 of the High Court the Second Appellant sued the Respondent for goods sold and delivered. Monapathi J granted default judgment which he
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subsequently altered mero motu to summary judgment in the absence of the parties to the litigation. In due course the Respondent appealed against the latter decision of summary judgment and applied for stay of execution pending appeal. The result of this application was an order by Monapathi J in the following terms:-
"(1) Applicant to pay M10 970.00 which he acknowledged he owed.
Applicant pays with effect from February 1998 a sum of M2 000.00 to be placed in trust with creditor's lawyers until heard in June.
All property attached to be returned to the debtor (Appellant) at the place they were taken.
Deputy Sheriff to present before the Registrar a bill of costs within 30 days.
Record of proceedings for the Court of Appeal to be prepared before the end of March 1998 failing which execution will proceed.
Costs of this application are awarded to the Respondent" (the Respondent in this appeal).
It is not really disputed that the Respondent paid to the First Appellant, who is an attorney acting for the Second Appellant, the sums of money as ordered by Monapathi J.
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On appeal to this Court Monapathi J's above-mentioned order drew criticism from my Brother Browde in the following terms:-
"Apart from the fact that paragraph 2 of the above order is incomprehensible it also escapes me how the learned judge, in an application for a stay of execution, came to make an order which had nothing whatever to do with the relief sought by the Appellant in his application for a stay nor with the prayer of the respondent which simply asked that the application be dismissed with costs. The order issued by Monapathi J is, therefore, completely irregular and falls to be set aside."
In the result the Respondent's appeal was upheld with costs and the order by Monapathi J altered to read :-
'The application for summary judgment is dismissed with costs."
Having succeeded to have the order of Monapathi J set aside by this Court the Respondent then sued the Appellants for repayment of the monies he had paid in terms of the order of the court a quo. It proves convenient to quote the Respondent's prayers in the Notice of Motion in full. They read as follows:
"1. Payment of a total sum of M10-000, held in trust by 1st Defendant by reason of Judgment of this Honourable Court in C1V/T/599/97.
Interest thereon at the rate of 18% from 1st August 1998 after
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date of Judgment to date of payment following on the Judgment in C OF A (CIV) 4/98 delivered on 31/07/98.
Payment of a total sum of M10-970 paid at 1st Defendant for transmission to 2nd Defendant in CIV/T/599/97 this amount to be paid by the Defendants jointly and severally, the one paying the other to be absolved.
Interest thereon at the rate of 18% from 1st August 1998 to date of payment.
Costs of suit.
Further and/or alternative relief."
In due course the Respondent applied for summary judgment on the ground that the Appellants had no bona fide defence and that their appearance to defend was made solely for the purposes of delay. Both Appellants opposed the application for summary judgment on the ground that they intended raising a counter claim based on an acknowledgement of debt relating to the original claim of goods sold and delivered as fully set out above. Hence the Appellants contended that they had a bona fide defence and that there was a "pending case" before the High Court. In this regard it seems clear that the Appellants are referring to the aforesaid case No. CIV/T/599/97 in which summary judgment was set aside by this Court. There can be no doubt therefore, and this is common cause, that that case is still pending.
After hearing arguments in the application for summary judgment Monapathi
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J "dismissed the opposition to the application for summary judgment with costs." This is how the Learned judge put it in his own words in his judgment:-
"I concluded that there were no facts proved or to be proved that would establish a bona fide defence in favour of the Defendants.
I dismissed the opposition to the application for summary judgment with costs."
With respect this was regrettably an entirely unsatisfactory way to put it. The real issue was whether or not summary judgment should be granted and not whether opposition thereto should be dismissed. Failure by the court a quo to specifically refuse or grant summary
judgment as requested in the application is a fatal omission in the circumstances of this case. The result is then obvious namely that the court a quo has not said the last word and summary judgment that was sought was never granted after all. That being so the crisp point which arises for decision in this appeal is whether or not the Appellants were entitled to appeal to this Court notwithstanding The fact that summary judgment had not been granted against them as a matter of fact. On the contrary the "order" of the court a quo literally left the application for summary judgment hanging in the air.
Section 16 of the Court of Appeal Act 1978 provides for the right of appeal in the following terms:-
"16. (1) An appeal shall lie to the Court -
from all final judgments of the High Court;
by leave of the Court from an interlocutory order, an order made ex parte or an order as to costs only.
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The right of appeal given by subsection (1) shall apply only to judgments given in the exercise of the original jurisdiction of the High Court."
As to what the terms "final judgment" and "interlocutory order1' entail the leading case of Pretoria Garrison Institutes v Danish Variety Products (Pty) Ltd. 1948 (!) SA 839 A.D. is very instructive. There the Appellate Division laid down the principle to be applied in determining whether a preparatory or procedural order is purely interlocutory namely that such an order is purely
interlocutory, unless it is such as to "dispose of any issue or any portion of the issue in the main action or suit or unless it irreparably anticipates or precludes some of the relief which would or might have been given at the hearing."
On this test it seems to me that the order of the court a quo dismissing the Appellants' opposition to summary judgment was merely a preparatory or procedural exercise before deciding the real issue whether or not to grant summary judgment. In view of the discretion vested in the court a quo in terms of Rule 45(1 )(c) of the High Court Rules it was incumbent on the court to decide whether in the light of its dismissal of the Appellants' opposition, the case was a proper one for summary judgment. In my view it is only if the court a quo had decided this issue in the affirmative that there would have been a final judgment and not otherwise.
I should point out for that matter that the Respondent's summons itself was so bad and lacking in essential detail that it disclosed no cause of action. In my view there is no way the court a quo could have granted summary judgment on the papers as they stood. Nor can this Court alter Monapathi J's order dismissing Appellants' opposition to summary judgment to one granting summary judgment on
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these unsatisfactory papers where there is no cause of action disclosed in Respondent's claim.
Weighing all of the aforegoing considerations it follows that the Appellants had no right of appeal in the instant matter in the absence of any summary judgment having been granted against them. Since they have admittedly not obtained leave of this Court in their purported appeal it stands to reason that they are not properly before the Court. On this ground alone the appeal falls to be struck off the roll and in view of the conclusion at which I have arrived in this matter it is strictly unnecessary to consider other issues raised by the Appellants such as whether their opposition to summary judgment disclosed a bona fide defence.
Before I close this judgment I would like to add a few observations on a point which did distress me during the argument. It is this. Despite the fact that Monapathi J's order fully set out above was set aside by this Court the Appellants have effectively applied self help by holding on to the funds in question and disguising it as a 'lien". Now the first Appellant in particular being an attorney of this Court must realise that he is playing a dangerous and risky game by hanging on to Respondent's funds. This is so because this Court had set aside the order of the court a quo in terms of which the Respondent had made payments to the First Appellant and in trust pending appeal and not pending finalisation of "the case". It follows that the first Appellant's mandate to keep the funds in question by way of trust expired as soon as the aforesaid order of the court a quo was
set aside. Put differently once that order fell away, the appellants had no right to retain the monies paid in compliance therein. It cannot be otherwise.
In fairness to Mr. Mphalane for the Appellants, when the concerns set out
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above were pointed out to him he very fairly and properly abandoned the Appellants' claim to a lien. He promptly tendered on behalf of the Appellants repayment of the monies in question and agreed that this should be made an order of court. 1 should state further that Mr. Monyako for the Respondent duly accepted the tender in question. This will no doubt clear the way for the parties to contest the outstanding original claim and, I might add, on an equal footing.
There is again the question of interest. It seems just and fair to order the second Appellant to pay interest on the amount she received namely Ml0,970.00 at the legal rate with effect from the date of the judgment of this Court in C of A (CIV) No.4 of 1998 namely the 31st day of July, 1998.
The record of proceedings in this matter reveals a sad misunderstanding, on the part of those involved, about court procedure and the purpose of the rules of court which are always intended to expedite proceedings and to get a fair decision in their dispute. It cannot be too strongly emphasised that legal practitioners who rush to court at the drop of a hat and without so much as thought do a disservice not only to their clients but also to the court. This Court sounds a warning therefore that in appropriate cases it will in future not hesitate to award costs de bonis proprus against legal practitioners who do not live up to the expectations of what is - or should be - an honourable service profession.
To sum up then. The appeal is struck off the roll with costs.
In terms of the agreement between the parties referred to above, the following order is made:
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by consent the First Appellant is ordered to pay to the Respondent forthwith the sum of Ml0,000-00 held by the First Appellant in trust following Monapathi J's order in CIV/T/599/97.
The Second Appellant is ordered to pay to the Respondent forthwith the sum of Ml 0,970.00 which the latter paid to her in accordance with the order of Monapathi J in CIV/T/599/97.
The Second Appellant shall pay interest at the prevailing legal rate(s) on the aforesaid sum of Ml 0,970.00 with effect from the judgment of the Court in C of A (CIV) No. 4 of 1998 namely the 31st day of July, 1998 to date of payment.
Signed:
M.M. Ramodibedi
JUDGE OF APPEAL
I agree Signed:
L. van den Heever
J.J. Gauntlett
Delivered at Maseru on this 13th day of April 2000.
For Appellants: Mr. Mphalane
For Respondents: Mr. Monyako
