CIV/APN/82/01
IN THE HIGH COURT OF LESOTHO
In the matter between :
MABUSETSA MAKHARILELE 1st APPLICANT
MAFEREKA T SUKULU 2nd APPLICANT
MOTLATSI MOKEBE 3rd APPLICANT
MAKALO LENKA 4™ APPLICANT
MOTAMOLANE MATIEA 5th APPLICANT
AND
NATIONAL EXECUTIVE COMMITTEE -
LESOTHO CONGRESS FOR DEMOCRACY 1st RESPONDENT
THE NATIONAL CONFERENCE - LCD 2nd RESPONDENT
LESAO LEHOHLA 3rd RESPONDENT
LESOTHO CONGRESS FOR DEMOCRACY 4th RESPONDENT
MOHLOMI MOENO 5th RESPONDENT
JUDGMENT
DELIVERED BY THE HONOURABLE MRS. JUSTICE K J.GUNI ON THE 5th MARCH, 2004
[1]
The bill of costs in this matter was taxed over a number of days. On the first occasion when the taxing master commenced to tax the bill of costs in question both the applicants and the respondents were represented before the taxing master. Certain objections were taken in respect of a number of items as shown in the taxing master's report.
[2] REQUEST FOR REVIEW
Within the stipulated period in terms of rule (49(1) High Court Rules) (Legal Notice No. 9 of 1980), the respondent dissatisfied with the ruling of the taxing master on the items objected to at the taxation, required the taxing master to state a case for the decision of the judge. The taxing master has placed before me, her stated case together with the written contentions submitted by the parties, for my decision.
[3] FACTS
It appears that there were two applications before this court between the parties. By order of court the two applications were consolidated
and a single judgment was made for both applicants. In the result the following order was made:-
The Applicants' application is dismissed with costs.
The Respondents' counter application is granted with costs to be paid by the Applicants jointly and severally, the one paying the others to be absolved.
Costs awarded to the Respondents in terms of this order shall include the costs consequent upon the employment of two counsel.
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[4]
The order of costs as it stands is not at the primitive scale. The scale applicable is the ordinary one. It is a general rule, that a successful litigant is entitled to his or her costs. SACKVILLE WEST V NOURSE AND ANOTHER 1925 AD 516. This general rule is always followed even if the loser was in no way culpable and was fully justified in bringing or defending, the proceedings, as long as the costs are reasonably and actually incurred SACKVILLE WEST V NOURSE AND ANOTHER (Supra). There are exceptional circumstances where the court in its discretion may deny the successful litigants his or her costs. In some instances the court may award costs at the scale of party and party and including costs incurred by party who obtained assistance of two counsel.
[5] In our present case two counsel were employed by the Respondents. The court ordered that the Respondents be identified in respect of the costs they incurred by the employment of two counsel. The need to engage two counsel is not questioned. According to rule (55 (4) High Court Rules) (Legal Notice No.9 of 1980) fees of only one advocate, shall be allowed unless the court directs otherwise. In terms of this rule (55 (6) of High Court Rules)(Supra) "where the court awards the costs of two advocates in any matter, the fees allowed for the junior advocate on a party and party basis shall not exceed one half of the fees allowed for the senior advocate". Quite clearly, there must be a brief for each counsel. The claim for fees of counsel
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must be broken down to indicate the time spent by counsel in court if it is being claimed for appearance for each counsel. The fees claimed in a conclomorate form, as in item 87 should not be allowed. If the claim is allowed in that form otherwise there could be duplication. It is not the taxing master's roll to indicate how much is being claimed for Junior Counsel and how much is for Senior Counsel.
In this circumstances the matter is remitted back to the taxing master to redo the taxation exercise - bearing in mind the requirements set out in rule (55 of High Court Rules) (Supra).
K.J. GUNI
JUDGE.
For Applicants : Mr. T. Maieane
For Respondents : Mr. M. Ntlhoki
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