Mathee and Others v Sesele and Others (A117/08) [2009] ZAFSHC 63 (25 May 2009)

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[2009] ZAFSHC 63
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Mathee and Others v Sesele and Others (A117/08) [2009] ZAFSHC 63 (25 May 2009)

FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : A117/08
In
the matter between
WILLEM
MATHEE
and 7 Others
APPLICANTS
And
KHOTSO
SESELE
and 5 Others
RESPONDENTS
____________________________________________________
CORAM
:
C J MUSI, J et VAN ZYL, J
DELIVERED
ON
: 25
May 2009
_________________________________________________
[1]
On
9
th
March 2009 I made the following order:
“
1. The application is dismissed
2. The
applicants’ attorney, Mr Samuels, is ordered to pay
the
first respondents’ costs de
bonis
propriis
.
Mr Samuels is
granted leave to file written representation if he so wish, on or
before 23 March 2009 at 16H00 as to why he should
not pay the costs
referred to above .
3. The applicants’
attorney, Mr Samuels, shall not be entitled to recover any costs in
respect of this application from the applicants”.
[2] Mr Samuels submitted
his representations on 23 March
2009.
In the representations Mr Samuels makes two submissions as to why he
should not pay the costs de
bonis
propriis
.
Firstly, because the papers were drafted by counsel, and secondly
that paragraph 3 of the order is sufficient punishment.
[3] In
his affidavit he states
that he briefed counsel, Ms S. Mohamed, to draft the papers. He sent
all the annexures to counsel, at her request. The annexures
were
attached to the papers by counsel.
[4] He
also
approached another counsel, Mr Bodasing, for advice on whether he
should amend the application.
[5] He
notice
d
that the first respondent raised the issue of non-joinder in his
answering affidavit. He alerted counsel to this. She however
advised
him that she had read the papers, conducted research and was of the
view that it was not necessary to join other parties.
[6] He
submitted that he acted
bona
fide
and reasonably as he was guided by counsel. He also submitted that
paragraph 3 of the order is sufficient punishment.
[7]
He
submitted that it was because of counsel’s muddled thinking that
irrelevant and unnecessary information was placed before us.
He
endeavoured to get Ms Mohamed’s comment to no avail. She undertook
to assist him with the drafting of the representations
but he could
subsequently not get hold of her. She did not respond to his letters.
It is clear from Mr Samuels’ submissions that
he relied heavily on
counsel’s guidance in this matter. It must however be stated that
there is a limit to the extent to which
an attorney can hide behind
counsel for work that is patently below the required standard.
[8] An
attorney who briefs counsel may not abdicate his/her responsibility
towards his/her clients. It remains the task of the attorney
to
ensure that the interest of the client are sufficiently protected and
advanced in the prosecution of the client’s case. If
the attorney
for whatever reason doubts counsel’s skill or judgment it is
incumbent on that attorney to take the necessary steps
in order to
protect the interest of the client and to avoid mistakes, which may
unduly escalate costs.
[9] Although
Mr Samuels’ conduct
,
in this matter, falls short of that which is expected of an attorney
- where the papers drafted by counsel are glaringly in disarray
- I
am of the opinion that his explanation is, under the circumstances,
acceptable. He acted
bona
fide.
His conduct is not what one could classify as negligence of a serious
degree. See
Waar
v Louw
1977(3)
SA 297(0) at 304 E to H.
[10] Another
factor
which counts in his favour is the fact that he is already punished by
virtue of paragraph 3 of the order.
[11] Mr
Samuels requested us to order that counsel should not recover any
fees from him and that the fees already paid to her in
connection
wit
h
this matter should be refunded. Ms Mohamed did not appear before us.
We did not give her an opportunity to be heard or to make

representations. All that we have in relation to her conduct is what
is contained in Mr Samuels’ affidavit. It would be unfair
to make
an order against her.
[12]
Paragraph
two of the order mentioned in paragraph one of this judgment should
therefore be deleted. It follows that the applicants
as the
unsuccessful litigants should be ordered to pay the first
respondent’s costs jointly and severally.
[13] The order in
paragraph one above is varied as follows:
(a) The
application is dismissed.
(b) The
applicants are ordered to pay the first respondent’s costs, jointly
and severally the one paying the other to be absolved.
(c)
The
applicants’ attorney, Mr Samuels, shall not be entitled to recover
any fees in respect of this application from the applicants.
It
follows that any fees paid to him in relation to this matter must be
refunded.
____________________
C J MUSI, J
I concur
_________________
C VAN ZYL, J
/AR