Brief Summary

Costs — Costs de bonis propriis — Application for costs order against attorney — Applicant sought to hold attorney liable for costs incurred due to alleged negligence and misconduct in representing her in a property dispute — Court found that the attorney's conduct amounted to serious negligence and ill-advised litigation, justifying a costs order de bonis propriis — Court emphasized the importance of ethical conduct by legal practitioners and the need to maintain public trust in the legal profession.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings concerned a costs inquiry culminating in a costs order de bonis propriis against a legal practitioner, following the withdrawal of an underlying motion application that the court regarded as lacking prospects of success. The judgment was delivered in the High Court of South Africa, Free State Division, Bloemfontein, by Opperman J, with the hearing on 5 May 2022 and the order and reasons issued on 13 May 2022.

The principal parties in the withdrawn application were Dintikile Georgina Letsi (the applicant) and Mathamane Elisa Mepha (the first respondent). The present costs proceedings focused on the conduct of the applicant’s erstwhile attorney, Tsela Joseph Kgoelenya, who was cited and called upon to show cause why he should not personally bear costs. The judgment also contemplated the role of the Legal Practice Council (Free State Provincial Office) through a referral directed by the court.

Procedurally, the matter reached the court on a rule nisi issued on 11 February 2022, after the applicant—represented by new counsel—withdrew the application, and the court required Mr Kgoelenya to provide reasons why a personal costs order should not follow. The rule nisi further foreshadowed a referral of Mr Kgoelenya’s conduct to the Legal Practice Council, and provided time periods for affidavits to be filed. The applicant tendered the remainder of the agreed or taxed party-and-party costs, leaving the question of personal liability for costs to be determined.

The general subject-matter of the withdrawn dispute related to an attempted challenge to the registration and control of immovable property and aspects of deceased estate administration, arising from the applicant’s prior marriage in community of property to the deceased and subsequent developments after their divorce and the deceased’s later marriage to the first respondent. However, the judgment’s core focus was not the merits of those substantive claims, but rather the propriety of the litigation and the ethical and professional conduct of the attorney who pursued it.

2. Material Facts

The court relied on a chronology showing that the litigation was initiated in a procedurally irregular manner. A notice of motion was issued on 7 January 2021, and a notice of set down bearing the same date reflected that the matter would be heard on 11 February 2021. The court characterised it as “litigiously bizarre” that the application was effectively set down simultaneously with its issue, and without waiting for relevant time periods to expire.

The relief sought in the motion included a declaration that the applicant owned a 50% undivided share in specified immovable property, an order setting aside registration of the property in the first respondent’s name, an order recalling and cancelling a letter of authority issued in favour of the first respondent in the deceased estate, and a costs order against any opposing respondents. The litigation was rooted in the following background: the applicant had been married to the deceased in community of property and divorced in 1999, with a division of the joint estate ordered but allegedly not implemented. The deceased died on 3 July 2020 after later marrying the first respondent on 25 January 2000. A letter of authority was issued on 26 August 2020 authorising the first respondent to administer the estate.

A central factual dispute in the underlying application (not decided on its merits in this judgment) concerned whether the relevant immovable property could ever have formed part of the joint estate of the deceased’s earlier marriage to the applicant. The first respondent’s version was that the property was acquired by her and the deceased during November 2008 from the municipality, and therefore post-dated the 1999 divorce. The court treated the applicant’s substantive case as lacking prospects and observed that the veracity of the claim appeared doubtful, particularly given the chronology.

Material to the costs inquiry were multiple procedural missteps and delays attributable, on the court’s assessment, to Mr Kgoelenya. The first respondent filed a notice of intention to oppose around 5 February 2021. The application as served reportedly bore no case number, requiring enquiries to obtain the number. The court accepted that, had Mr Kgoelenya followed ordinary practice and waited until 5 February 2021 before setting the matter down, it would not have appeared on the unopposed roll on 11 February 2021, and the wasted costs would not have arisen.

Thereafter, the matter was repeatedly enrolled on inappropriate rolls and removed or postponed. The applicant was told the matter was postponed to 1 April 2021, but that date fell during recess when opposed matters were not heard, and the matter was removed. It was then set down for 6 May 2021 on the unopposed motion roll, notwithstanding that it had been opposed since February 2021, and it was again removed. The first respondent’s opposing affidavit was filed on 15 March 2021. The applicant was later informed the matter would be on the roll of 3 June 2021, allegedly enrolled on 20 May 2021 without a Master’s report being available, but the matter did not appear as indicated and was said to have been removed by Mr Kgoelenya.

A further enrolment occurred for 16 September 2021, again on the unopposed roll despite opposition and an opposing affidavit having been filed months earlier. The matter was postponed to the opposed motion roll on 11 November 2021. The applicant’s replying affidavit was due by 28 October 2021, but she was contacted only on 2 November 2021 to sign it.

On 11 November 2021, Mr Kgoelenya was not in court, and the matter was postponed again. On 3 February 2022, he was again absent when the matter was called. The applicant (through her daughter) was told by him that the presiding judge had contacted him and that the matter was stood down to later in the day; the court accepted that this was not true. Attempts by the registrar, the applicant’s daughter, and the opposing legal representative to contact him were unsuccessful. Evidence was placed before the court that he had been in the court building for another matter, having delivered heads of argument there before leaving.

The court further accepted that the applicant had been induced to sign a document without proper consultation and that the document contained an untrue explanation (that she had lost her phone and could not be contacted), which the applicant repudiated, stating she had consistently tried to reach Mr Kgoelenya and was available. The court treated these events as demonstrating dishonesty to the client and the court, rather than mere inadvertence.

After these occurrences, Mr Kgoelenya allegedly ignored the applicant’s communications, leading to termination of his mandate and his withdrawal as attorney of record. New counsel for the applicant then withdrew the application ethically and promptly, which the court allowed, due to the absence of prospects of success.

3. Legal Issues

The central legal question was whether the circumstances justified a costs order de bonis propriis against Mr Kgoelenya for the entire application, and whether such costs should be ordered on the punitive attorney-and-client scale. A related question was whether his conduct warranted a referral to the Legal Practice Council for investigation.

The dispute primarily concerned the application of established legal standards to the facts (a mixed question of law and fact), requiring an evaluative judgment as to whether the attorney’s conduct amounted to ill-advised and reckless litigation, egregious conduct, and negligence in a serious degree, and whether the procedural safeguards for such an order were satisfied (including the need for a request for such costs and adherence to audi alteram partem).

Although the withdrawn application involved property and estate-related relief, the judgment did not determine those substantive legal claims. The operative issues were instead the protection of the administration of justice, the court’s reliance on practitioner candour, and whether exceptional circumstances existed to depart from ordinary costs principles by imposing personal liability on a legal representative.

4. Court’s Reasoning

The court approached the matter by first setting out the controlling principles governing costs orders de bonis propriis, drawing from Erasmus: Superior Court Practice and constitutional and appellate authority. It emphasised that such costs orders are grounded in constitutional values, including fair trial and proper and effective access to courts, and serve to protect the sanctity of the administration of justice and public confidence in the legal system.

The court identified procedural prerequisites: there must be a prayer for de bonis propriis relief, the person targeted must be afforded an opportunity to be heard in compliance with audi alteram partem, and reasons must be furnished. The judgment referred to MEC for Health, Gauteng v Lushaba 2017 (1) SA 106 (CC) to underscore that an attorney against whom such an order is contemplated must at least be invited to make submissions.

On the substantive threshold, the court reaffirmed that de bonis propriis costs are unusual and reserved for exceptional circumstances, typically where the representative acted without bona fides, unreasonably, or with serious negligence. The court highlighted guidance from Multi-Links Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd 2014 (3) SA 265 (GP) that such orders may follow where a practitioner’s conduct deviates materially from the professional norm and it would be unfair to burden the client with the consequences, including where the conduct entails dishonesty, gross negligence, reckless litigation, misleading the court, or serious carelessness. The court also invoked South African Liquor Traders' Association and Others v Chairperson, Gauteng Liquor Board, and Others 2009 (1) SA 565 (CC) for the proposition that an attorney’s serious negligence can warrant such an order as a mark of judicial displeasure.

In applying these principles, the court found that the litigation history demonstrated more than technical error or a mere mistake of judgment. It regarded the application as a “non-starter” because the founding and replying papers did not disclose a cause of action, and it considered the procedural handling of the matter—particularly repeated enrolments on the unopposed roll despite opposition, enrolment during recess for opposed matters, and unexplained gaps and removals—as evidencing reckless and negligent conduct materially prejudicial to the administration of justice and to the opposing party.

The court placed weight on the harm caused to both litigants: the applicant’s trust and expectations were said to have been shattered, and the first respondent had been subjected to trauma and unnecessary costs in defending litigation that lacked prospects. The court treated these consequences as relevant to whether it was fair to allow the client to carry the costs consequences of her former attorney’s conduct.

The judgment further treated the attorney’s candour and honesty as central. Relying on constitutional-court authority emphasising the duty of full and fair disclosure, including Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29; 2019 (9) BCLR 1113 (CC); 2019 (6) SA 253 (CC), the court stressed that legal practitioners must not mislead or obfuscate and must present a full and fair account of the facts to the court. It also referred to S v Mbuyisa (2018/6) [2018] ZAGPJHC 421; 2018 (2) SACR 691 (GJ) to highlight the judiciary’s necessary reliance on the word and ethical obligations of licensed practitioners.

On the facts accepted, the court concluded that Mr Kgoelenya was the cause of repeated postponements and removals, that the administration of justice had been prejudiced, and that the litigation had been delayed and rendered embarrassing by his conduct. Importantly, the court found that he was “glaringly dishonest” to both the court and his client, and that his conduct was wilfully illegal and unethical. These findings were treated as surpassing the threshold of “negligence in a serious degree” and justified an exceptional order shifting personal liability for costs onto the practitioner.

Given the seriousness of the conduct and the need to mark the court’s displeasure and protect the integrity of the profession, the court considered it appropriate not only to grant de bonis propriis costs, but to do so on the punitive attorney-and-client scale, and to ensure professional regulatory scrutiny through a referral to the Legal Practice Council.

5. Outcome and Relief

The court made the rule nisi final in substance by granting a costs order de bonis propriis against Tsela Joseph Kgoelenya on the attorney-and-client scale for the entire application.

The court further ordered that the registrar must submit a copy of the judgment to the Director: Free State Provincial Office of the Legal Practice Council, forthwith, for investigation.

Cases Cited

MEC for Health, Gauteng v Lushaba 2017 (1) SA 106 (CC).

Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29; 2019 (9) BCLR 1113 (CC); 2019 (6) SA 253 (CC) (22 July 2019).

Multi-Links Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd 2014 (3) SA 265 (GP).

South African Liquor Traders' Association and Others v Chairperson, Gauteng Liquor Board, and Others 2009 (1) SA 565 (CC).

President of the Republic of South Africa v Public Protector 2018 (2) SA 100 (GP).

Absa Bank Ltd v Public Protector and Several Other Matters [2018] 2 All SA 1 (GP).

Gordhan v The Public Protector [2018] 2 All SA 1 (GP).

Pheko and Others v Ekurhuleni City 2015 (5) SA 600 (CC).

S v Mbuyisa (2018/6) [2018] ZAGPJHC 421; 2018 (2) SACR 691 (GJ) (21 May 2018).

Legislation Cited

Constitution of the Republic of South Africa, 1996.

Rules of Court Cited

No specific rule of court was cited in the judgment.

Held

The court held that the applicant’s erstwhile attorney’s conduct in the litigation constituted exceptional circumstances warranting a punitive personal costs order. It found that his handling of the matter caused repeated and unnecessary postponements and removals, generated wasted costs, and materially prejudiced the administration of justice. The court further found that he was dishonest to the court and his client, and that his conduct amounted to reckless litigation and serious negligence rather than a mere error of judgment.

On that basis, the court held that it would be unfair for the litigants—particularly the applicant—to bear the costs consequences of the attorney’s conduct, and that a costs order de bonis propriis, on the attorney-and-client scale, was justified for the entire application. The court also held that the seriousness of the conduct warranted referral to the professional regulator.

LEGAL PRINCIPLES

A costs order de bonis propriis is an exceptional remedy aimed at protecting the integrity of the administration of justice, safeguarding public confidence in the judicial process, and ensuring that litigants are not unfairly burdened with costs caused by their representatives’ serious misconduct or grossly negligent litigation conduct.

Before imposing such an order, the court must observe procedural fairness, including that the affected practitioner be afforded an opportunity to be heard in accordance with the audi alteram partem principle. The court must also furnish reasons for the order.

Such an order is generally justified where there is negligence in a serious degree, want of bona fides, unreasonable conduct, dishonesty, reckless litigation, misleading of the court, or other conduct so far outside professional norms that it would be unfair to expect the practitioner’s client to bear the resultant costs. The duty of practitioners to act candidly and not mislead the court is fundamental, given the judiciary’s reliance on practitioners’ ethical obligations in an adversarial system.

Where warranted by the seriousness of the misconduct, a costs order de bonis propriis may properly be granted on the punitive attorney-and-client scale, and the conduct may also justify referral to the appropriate professional regulatory body for investigation.

Letsi v Mepha and Another (42/2021) [2022] ZAFSHC 122 (13 May 2022)