C OF A (CIV)NO. 15/99
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:
LESOTHO BRAKE & CLUTCH APPELLANT
SACHS SA (PTY) LTD RESPONDENT
Held at Maseru
CORAM: Steyn P
When this matter was called at 9.30 on the 10th instant, it was struck from the roll with costs. This order was made because in the Court's view there were serious breaches of the Rules of the Court of Appeal and because the appeal was entirely without merit. We indicated to counsel that we thought it may be a case that justified an award of costs de bonis propriis and we afforded him an opportunity to prepare argument as to why such an order for costs should not be made.
The matter then stood over until 2.15 p.m. on the 1 lth April. Mr. Mphalane, appellant's attorney who practises under the firm name of N. Mphalane & Co., filed heads of argument and proceeded to address us.
In a preamble to his written argument counsel contended that -
"This a matter (sic) in which the court is already convinced that the appeal has been handled so badly that it calls for costs de bonis proprus"
He goes on to submit that:
"The issue of costs de bonis propriis is raised by the court mero motu, under such circumstances it becomes extremely difficult to convince the court otherwise to move from its stand."
Counsel concludes his preamble by saying:
'The only approach which one can adopt is to show some mitigating factors which will shift the court from the stand already taken."
1 will deal with the rest of counsel's submission below.
We questioned Mr. Mphalane concerning the meaning of this preamble. He very rapidly retreated from ascribing the literal meaning to the words he used. He said he meant no more than to suggest that the court had expressed a prima facte view and should not be held to have alleged that the court's mind was made up and that it could not be persuaded otherwise than to grant a costs order de bonis proprus. Indeed he retracted any suggestion that he intended to ascribe such a state of mind to the court.
In order to determine what an appropriate costs order should be, I set out the facts.
On the 2nd of June 1998 the Respondent issued a summons out of the High Court in which it claimed:
Payment of an amount of R54,814-39;
Interest thereon at the rate of 15-5% a tempore morae (the rate was subsequently amended to 18.5%);
Costs of suit.
On the same day a declaration (of which only one page is filed of record) was issued from which it would appear that the claim was in respect of a balance due and owing for goods sold and delivered during October to December 1997.
Notice of an appearance to defend was filed on Appellant's behalf on the 16th of June 1998 by his attorneys N. Mphalane and Company.
A request for further particulars was filed on the 24 of June 1998, but as far as I can ascertain from the record filed, never answered.
On the 3rd of July 1998 a notice of application for summary judgment was filed and served on Appellant's attorneys. The notice stated that the application would be made on 3 August 1998. The notice contained an affidavit by the financial manager of the Respondent in which he alleges inter alia that there is no bona fide defence to the action and that the notice of intention to defend was filed for the purpose of delay. Summary judgment, it is common cause, was granted on August 4, 1998.
It is alleged in an affidavit filed approximately a year later - i.e. on the 5th of
August 1999 - that summary judgment was granted erroneously, because it was granted on the 4th of August 1998 and not on the 3rd of August. Despite the terms of the notice served on appellant, the application did not appear on the roll of cases to be heard by the High Court as published for the 3rd of August.
Two matters are to be noted at this point. The first is that nowhere in the affidavit of the Appellant filed on the 5th of August 1999 in which condonation for the late noting of its appeal is sought (i.e. a year after summary judgment was granted) is it alleged that either the appellant or his legal representative had appeared in court on the 3rd of August 1998 to oppose the application or had in any other way responded to the notice served.
Secondly, at no stage was any evidence adduced, whether by affidavit or otherwise, stating what appellant's defence was and denying that appellant's appearance was entered merely for the purpose of delay. Certainly in the summary judgment proceedings no affidavit was ever filed in opposition to the summary judgment application.
Therefore while the Court does not know for what reason the matter was not on the roll for the 3rd of August and how it came to be heard only on the following day, Appellant was clearly not prejudiced by what had occurred.
The first response to the granting of summary judgment occurred 12 months later when the affidavit in which condonation for late noting of an appeal already referred to was filed. This application is directed at the Court of Appeal and was filed with the Registrar of this Court.
In the interim a writ of execution was issued dated the 7th of August 1998. In correspondence attached to be condonation application it would appear that appellant's attorneys, on the spurious ground that judgment had been granted on the wrong day, sought to negotiate a settlement. Not all the correspondence between the parties is annexed. However, it is clear that by the 21st of April 1999 all the overtures for a settlement had explicitly been rejected by Respondent. Respondent's attorneys made it clear that they required payment "of the full capital amount including interest and costs" and that the writ, "will be executed accordingly."
On the 21 st of May 1999 an attempt was made by appellant's attorneys to secure a joint approach to the Judge to rectify the matter, on the ground that judgment had been granted erroneously. This overture was rejected. Respondent's attorneys stated in a letter dated 14th June 1999 that as far back as 1lth November 1998 it was made clear that execution would be stayed only until such time as the actual amount owing was ascertained. (Appellant had admitted in the correspondence that it owed respondent M32,890.) In their letter dated 14 June 1999 Respondent's attorneys confirmed that unless the full amount owing was paid, the writ would be executed.
1 now deal with the subsequent events.
The averment is made in the condonation application that the appellant has a bona fide defence "which is clearly laid out in annexure L.B.C. herein". L.B.C. is the correspondence referred to above as well as a court roll for the 4th August 1998 which is completely illegible, but which I will assume does not reflect that the summary judgment application in casu was included in it. How this can be said
to constitute a bona fide defence is difficult to comprehend. No other evidence is presented in support of appellant's contention that he has any defence to respondent's claims.
The application for condonation of the late noting of the appeal -I repeat that it was filed 12 months after summary judgment was granted - was not sought from the High Court but was directed to this Court. The heading makes this quite clear. Despite this fact, Mr. Mphalane submits in his heads of argument that "the only inadvertence" for which he could be held accountable is his "error of judgment" for "the application to note an appeal out of time which is not addressed to this honourable Court but to the court a quo."
A session of the Court of Appeal was held during the first two weeks of October 1999. No explanation has been given as to why this matter was not enrolled for hearing at that session. No further papers were filed. The matter was then enrolled - without any record of the proceedings in the High Court - for hearing at this session (April 2000) - 9 months after the appellant had filed his application for condonation and his grounds of appeal. (Rule 3(7) prescribes that an appeal must be enrolled within three months of the noting of an appeal.)
The last relevant procedural step is that the appellant's heads of argument are filed late (on the 17th of March 2000 for a session commencing on the 5th of April). The explanation for the delay is that appellant did not have the funds to finance the appeal. The fees (M3,000) were, according to appellant, only deposited with Mr. Mphalane on the 14th of March 2000.
From the above recital of the facts the following is beyond dispute:
The appeal against the granting of summary judgment was without any merit.
On the 6th of August 1999, one year after the granting of summary judgment, a notice of appeal was filed in the High Court accompanied by an application for condonation of the late filing of the notice directed at this Court (six weeks is the period prescribed).
No acceptable explanation is advanced for the delay.
No case is made out that appellant has prospects of success in the appeal.
The appeal is enrolled 4 months out of the time prescribed by the Rules.
No explanation is furnished for such delay and no application for condonation is made.
The record is incomplete in material respects despite the certification by Mr. Mphalane. One of the copies actually has 10 pages missing.
Heads of argument from Appellant are filed late and a fee of M3,000 is extracted for the prosecution of an appeal which is not only 20 months out of time but is indisputably without any merit whatsoever.
1 have already referred to Mr. Mphalane's argument in which he incorrectly states that his only "inadvertence" was an "error of judgment" in not filing his application for condonation for the late filing of his notice of appeal in the High Court and not in this Court.
In contrast the above record of the undisputed facts demonstrates how lamentably this officer of the court has failed to properly protect his client's interests
and to comply with the Rules of Court directed at the expeditious and equitable determination of disputes.
There is a further matter to which I must refer. In argument before us and on two separate occasions Mr. Mphalane stated that the first he or his client knew of the application for summary judgment was when the writ of execution was served. This statement was demonstrably untrue. The record shows that the application for summary judgment was served on Messrs. N. Mphalane & Co. on the 3rd of July 1998 - a month before the application was to be heard.
Mr. Mphalane submitted that the court would not "make an order lights (sic)" and that an error of judgment would not be sufficient to order costs to be paid by an attorney de bonis propriis. Indeed, it is correct that good reasons must exist for making such an order. See Khan v Mzovuyo 1991 (3) S.A. 47 (TK.) at 48 (D-G). In its judgment op.cit. the court cites with approval the summary of the law as set out in Vermaak's Executor v Vermaak's Heirs 1909 T.S. 679 at 691 which reads as follows:
'The whole question was very carefully considered by this Court in Potgieter's case (1908 TS 982), and a general rule was formulated to the effect that in order to justify a personal order for costs against a litigant occupying a fiduciary capacity his conduct in connection with the litigation in question must have been mala fide, negligent or unreasonable."
In this Court an unexplained delay in prosecuting an appeal was described as "undoubtedly a serious matter." (See Kaleem v. Hlajoane C of A 29/1996 delivered on the10th of August 1998). The case is distinguishable in as much as there were other serious allegations of impropriety which weighed with the Court in making the
special costs order. However, Leon JA who delivered the judgment of the Court refers to the serious nature of the failure to prosecute appeals diligently and in accordance with the rules. Undue delays ensue and these considerations had on more than one occasion been stressed by the court. That was in July 1998. Since then and at every subsequent session this Court has stressed the need for compliance with the Rules, particularly those that were promulgated with the objective of avoiding undue delays in the judicial process.
Regrettably these pronouncements appear to have had little impact. We have therefore warned practitioners that we would in appropriate cases make special orders as to costs.
The question is, is this such a case? The test as formulated in Vermaak's case above and endorsed by Hancke J in the Khan case (supra) obliges us to determine whether, in the conduct of the litigation, the legal representative was negligent or unreasonable.
In Herbstein & van Weisen's Civil Practice of the Supreme Court of South Africa. 4th Ed. at p.731-732 the learned authors say the following:
'The court will in appropriate circumstances award costs de bonis propriis against an attorney. Webb & others v Botha is an extreme case, in which the attorney obstructed the interests of justice, occasioned unnecessary costs to be incurred by all the parties to the appeal and delayed the final determination of the action to such an extent that prejudice to the parties might well result. More recently a legal practitioner was ordered to pay costs de bonis propriis where he had acted in an irresponsible and grossly negligent or reckless manner, misleading the court and causing prejudice to the other party. An order to pay wasted costs de bonis propriis was made against a
plaintiff's attorney where his conduct was unreasonable and negligent, and his handling of his client's case was slack and apparently characterised by lack of concern." (Emphasis supplied.)
We have set out above the worst aspects of the matter in which the proceedings were conducted by Mr. Mphalane. For none of them - except one which he erroneously described as an error of judgment, he has offered no explanation at all for any of the following:
His failure to file a proper record.
His failure to timeously file such defective record as he did.
His failure to explain the delay of 7 months in doing so .
His failure to note the appeal timeously - it was noted one year late.
His failure to explain such delay satisfactorily.
His misleading and untruthful statements to the Court referred to above.
Pursuing the matter on appeal when in fact no defence had been presented in the court below and no reasons had been advanced why a defence, if there was one, was not advanced in the court below.
As a result of his gross negligence and flagrant disregard of the Rules and the principles of good practice, a matter in which summary judgment was granted as long ago as the 4th of August 1998, was delayed until today. Finality is a key objective of litigation. Mr. Mphalane has through slack and incompetent handling of this litigation caused undue and unnecessary delays thus precluding the achievement of this objective. His conduct seen as a whole, obliges us to decree that he personally should pay the costs of this appeal. It is ordered accordingly.
We also direct that a copy of this judgment should be served on the appellant in the person of its managing director Mr. Morgan Moledi so that he is made aware that the obligation to pay the costs of this appeal is that of Mr. Mphalane and not that of the appellant company.
I agree Signed:
JUDGE OF APPEAL
I agree Signed:
JUDGE OF APPEAL
Delivered on the 13th day of April 2000.
For Appellant: Mr. Mphalane