Brief Summary

Costs — Punitive costs — Award of punitive costs against attorneys for late appearance at roll call — Attorneys failed to comply with case management directives and Practice Directive regarding court start times — Conduct deemed to show gross disregard for professional responsibilities — Court exercised discretion to impose costs on attorney and client scale to ensure fairness to the opposing party.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerned reasons furnished by the Mpumalanga Division of the High Court (Mbombela) for punitive personal costs orders previously made against legal practitioners in two separate civil matters. The proceedings were not a determination of the merits of the underlying delictual claims, but an exercise of the court’s costs discretion in response to conduct that occurred on the trial roll call date.

The parties in the underlying actions were, in case number 1530/2017, Erick Hlulimpi Magagula as plaintiff against the Minister of Police as defendant, and in case number 2362/2017, Levy Manzini as plaintiff against the Minister of Police as defendant. The judgment focused on the conduct of the legal representatives involved, including Mr Labe (for the Magagula plaintiff) and Adv M M Kgare together with her instructing and correspondent attorneys (for the Minister of Police in the Manzini matter).

Procedurally, both matters had been subject to case management proceedings in 2018, during which the trial date of 5 August 2019 was set and the commencement time for roll call (08h45) was recorded in the case management documentation. On 5 August 2019, when the matters were called for allocation, the relevant legal representatives arrived late, after allocation had closed. The court on that day made punitive costs orders against the practitioners personally. The present judgment, delivered by Legodi JP, provides the court’s reasons for those costs orders (with the hearing on 5 August 2019 and reasons handed down on 13 August 2019).

The general subject-matter of the underlying dispute included civil claims against the police (the Manzini matter was expressly recorded as a claim for unlawful arrest and detention), but the judgment itself addressed court process, compliance with directives, and the appropriateness of de bonis propriis punitive costs for non-compliance and lateness on the day of trial roll call.

2. Material Facts

Two matters were enrolled for trial on 5 August 2019, and the roll call in this Division was recorded (in the case management form) to commence at 08h45 for purposes of allocation of matters to judges on the trial roll. The court treated this recorded commencement time, and the roll call practice in the Division, as material to the costs enquiry.

In the Magagula matter, the plaintiff’s attorney, Mr Labe, did not appear when the case was called for allocation at roll call and only arrived later, at about 10h00. His explanation was that he believed court would start at 10h00. The court relied on the fact that Mr Labe had personally attended the relevant case management proceedings on 19 October 2018 and was therefore present when it was recorded that roll call would commence at 08h45. The court also relied on the fact that a Practice Directive issued on 24 July 2019 reinforced that roll call starts exactly at 08h45, and that Mr Labe acknowledged having a copy of the directive but stated that he had not read it. The defendant’s witnesses were in attendance, ready to proceed.

In the Manzini matter, Adv M M Kgare and her instructing and correspondent attorneys (for the defendant) similarly arrived late, long after the matter was called and after allocation had closed. Because of their absence, the matter was to proceed as a request for default judgment, and the plaintiff was ready with witnesses for that purpose. The explanation advanced was again that they understood courts to start at 10h00. The court relied on the fact that Adv Kgare had appeared at the case management proceedings (recorded as 1 September 2018 in the judgment) and had participated in the completion of the case management document that recorded the 08h45 roll call commencement time. The court also relied on her completion of details in the case management form, and the court’s view that she did not properly acquaint herself with what was recorded in that document, including the express warning that completion of pre-trial minutes should not be treated as routine.

The court treated as material the established practice in the Division that roll call occurs in stages, beginning with allocation, and thereafter addressing settlements and postponements on the day of trial, including a summary enquiry into costs arising from late settlements and postponements, as contemplated in the case management documentation. The court also relied on the recorded warnings in the case management form that late settlement or postponement on the day of trial may attract punitive costs, including payment out of one’s own pocket by the persons responsible.

The court regarded the lateness and non-compliance as disrupting the court’s trial roll administration, wasting time on a day when the roll call court still had to deal with settlements, postponements, and “defaulters”, and as conduct that could cause the opposing party (and, in many instances, the public purse) to be unfairly burdened with costs.

3. Legal Issues

The central legal questions were whether, in the circumstances described, it was appropriate to grant punitive costs orders, including de bonis propriis costs orders against legal representatives in their personal capacities, and whether such costs should be on an attorney-and-client scale and payable personally.

The dispute before the court was primarily one of application of legal principles to largely common-cause procedural facts, namely the recorded roll call commencement time and the practitioners’ late arrival and explanations. It further involved an element of value judgment and discretion, because the award of costs (including whether to mark the court’s displeasure by ordering personal punitive costs) is a matter in respect of which the court exercises a true discretion, and the court had to assess objectively the gravity of the impugned conduct.

A further issue was the extent to which the court should enforce compliance with case management directives, practice directives, and rules of court, including whether failure to comply amounted to a failure “to a material degree” to promote the effective disposal of litigation in terms of the applicable rule.

4. Court’s Reasoning

The court located its approach within established costs principles endorsed by the Constitutional Court, including that a personal costs order may be granted on a punitive scale, and that punitive costs mechanisms exist to counteract reprehensible litigation conduct. It emphasised that ordinary party-and-party costs are theoretically aimed at ensuring the successful party is not out of pocket, but that in practice such costs often do not cover expenses incurred, and that attorney-and-client costs may be warranted where it would be unfair to expect a party to bear costs occasioned by the litigation.

The court relied on the principle that awarding costs is an exercise of a true discretion, and that the Constitutional Court has granted de bonis propriis costs against individuals in their personal capacities where conduct shows a gross disregard for professional responsibility and where the individual acted inappropriately and egregiously. The court stated that the assessment of the gravity of such conduct is objective and lies within the court’s discretion.

Applying these principles to the Magagula matter, the court reasoned that Mr Labe had participated in case management proceedings where the 08h45 roll call commencement time was recorded, yet he arrived substantially late and advanced an explanation inconsistent with what had been recorded. The court considered it significant that the Practice Directive (effective 24 July 2019) explicitly emphasised that roll call starts “exactly” at 08h45, and that Mr Labe acknowledged possession of the directive but admitted he had not read it. The court treated failure to read and comply with applicable directives in the Division as conduct warranting censure, particularly because coming to court at or after 10h00 and seeking allocation after allocation had closed was described as unacceptable. In the court’s view, the punitive personal costs order was necessary both to ensure compliance with the court’s processes and to prevent the opposing party, who was ready and in attendance, from being out of pocket.

The court also linked the conduct to Rule 37(9)(a)(ii), which requires a court at the hearing to consider whether a special costs order is appropriate against a party or attorney who failed to a material degree to promote the effective disposal of litigation. The court held that arriving at roll call at about 10h00 or later, in the face of the case management recording and the Practice Directive, amounted to such a failure to a material degree.

In relation to the Manzini matter, the court applied the same principles and concluded that Adv Kgare and her instructing and correspondent attorneys elected to arrive late after allocation closed, which would have caused the matter to proceed in their absence as one for default judgment while the plaintiff was ready with witnesses. The court rejected the explanation that they “knew courts to start at 10h00”, reasoning that Adv Kgare had participated in case management proceedings where the 08h45 commencement was recorded and that she should have properly read and noted what she had committed herself to in the case management documentation. The court viewed her conduct as demonstrating a failure to take case management and its directives seriously, and as reflecting a lack of proper attention to the content of the case management form beyond securing a trial date.

The court further reasoned that legal practitioners are expected to acquaint themselves with changing practice directives in the divisions where they litigate. It referred to norms and standards indicating that directives and rules of court must be complied with, and considered that failure to enforce compliance would render the court’s inherent powers to regulate its own process routine and without consequences. The court also underscored that case management had become part of the court process and rules, and that practitioners whose matters are managed and set down for trial are expected to ensure compliance as trial preparation proceeds.

In making evaluative judgments, the court emphasised that the time of roll call is essential to ensure that trial-ready matters are prioritised and that defaulters (including those responsible for late settlements or postponements on the day of trial) are dealt with. The court also expressed concern about the broader systemic effect of “sloppy handling” of litigation, particularly in matters involving state departments where the public purse may ultimately bear costs, and stated that legal practitioners as officers of court are expected to assist in accelerating litigation rather than distracting from it. On this basis, the court regarded the imposition of punitive personal costs as justified to mark disapproval and to deter repetition.

5. Outcome and Relief

The court confirmed the basis for the punitive costs orders made on 5 August 2019 in both matters and provided its reasons for doing so.

In the Magagula matter (case number 1530/2017), the court’s reasons supported the order that costs be borne on a punitive scale, payable out of the practitioner’s own pocket, arising from the plaintiff’s attorney’s late arrival at roll call and non-compliance with recorded case management directions and the applicable Practice Directive.

In the Manzini matter (case number 2362/2017), the court’s reasons supported the order that punitive costs on an attorney-and-client scale be awarded against Adv M M Kgare and her instructing and correspondent attorneys, jointly and severally, with payment out of their own pocket, arising from their late arrival and failure to comply with the case management directive and Practice Directive, and to prevent prejudice to the opposing party.

The judgment was concerned with the justification for the costs consequences rather than altering the substantive relief in the underlying actions.

Cases Cited

Public Protector v South African Reserve Bank (CCT 107/18) [2019] ZACC 29 (22 July 2019).

Legislation Cited

Constitution of the Republic of South Africa, 1996, section 173.

Norms and Standards (Government Gazette No 37390, 28 February 2014), paragraph 5.2.4(viii).

Rules of Court Cited

Uniform Rules of Court, Rule 37(9)(a)(ii).

Uniform Rules of Court, Rule 30A (as amended, referenced in relation to case management).

Uniform Rules of Court, Rule 37A (as amended, referenced in relation to case management).

Held

The court held, in substance, that the late arrival of legal representatives at trial roll call, in circumstances where the roll call commencement time had been expressly recorded during case management and reinforced by a Practice Directive, constituted conduct sufficiently serious to warrant the court’s displeasure through punitive costs, including de bonis propriis liability. The court further held that such conduct amounted to a failure to a material degree to promote the effective disposal of litigation, justifying special costs consequences, and that punitive costs were necessary to ensure the attending and trial-ready opposing party was not unfairly prejudiced in costs.

LEGAL PRINCIPLES

The award of costs lies within the court’s true discretion, and a court may, in appropriate circumstances, make punitive costs orders to counteract reprehensible litigation conduct and to prevent unfairness to the party put to unnecessary expense.

A de bonis propriis costs order, including on a punitive scale, may be made against legal practitioners in their personal capacities where their conduct reflects a gross disregard for their professional responsibilities and is objectively of sufficient gravity to warrant censure.

Courts possess inherent power under section 173 of the Constitution to protect and regulate their own process in the interests of justice, which includes enforcing compliance with practice directives and case management processes.

In terms of Uniform Rule 37(9)(a)(ii), a court must consider whether a special costs order is appropriate where a party or attorney failed to a material degree to promote the effective disposal of litigation, and conduct undermining roll call allocation and trial readiness may justify such an order.

Magagula and Another v Minister of Police (LEGODI JP) [2019] ZAMPMBHC 6; 1530/20 (15 October 2019)