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[2020] ZASCA 71
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Monyepao v Ledwaba and Others (1368/18) [2020] ZASCA 71 (19 June 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
no: 1368/18
In
the matter between:
MATSATSI
DINAH TINY
MONYEPAO APPELLANT
and
MOKGAETJI
MARIA
LEDWABA FIRST
RESPONDENT
MASTER
OF THE HIGH COURT, POLOKWANE SECOND
RESPONDENT
ELMARIE
BIERMAN THIRD
RESPONDENT
MATUBA
MAPONYA FOURTH
RESPONDENT
Neutral
citation:
Monyepao v Ledwaba and Others (No. 2)
(Case no
1368/18)
[2020] ZASCA 71
(19 June 2020)
Coram:
PETSE DP and SALDULKER, PLASKET and NICHOLLS JJA and KOEN AJA
Heard
:
No hearing. Disposed of after parties were given an opportunity to
make written representations.
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the
Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 09h45 on 19 June 2020.
Summary:
Costs – most of record consisting of irrelevant documents –
neither party entitled to charge a party and party or attorney
and
client fee in relation to perusal of irrelevant portions –
provisional order to this effect made final.
ORDER
On
appeal from:
Limpopo Division of the High Court, Polokwane
(Nair AJ, Makgoba JP and Phatudi J concurring, sitting as court of
appeal):
Paragraph
3.1 of the order granted on 27 May 2020 is made final.
JUDGMENT
Plasket
JA (Petse DP, Saldulker and Nicholls JJA and Koen AJA concurring)
[1]
In the judgment dealing with the merits of this appeal, we made a
provisional order concerning the costs associated with the
record.
That order read as follows:
‘
3.1 It is
provisionally ordered that no fee or disbursement may be levied,
whether on a party and party basis or on an attorney
and client
basis, by the attorneys and correspondent attorneys of the parties in
respect of any part of the record except for pages
1 to 125, the
judgment of the court of first instance (eight pages) and the
judgment of the full court (14 pages).
3.2 The parties are
granted leave to make representations on affidavit, within ten days
of the date of this order, as to why the
order in paragraph 3.1 above
should not be a final order. If no such representations are received
within the time stipulated above,
it shall thereafter become a final
order.’
[2]
The order was made because the large majority of the record was
irrelevant and should not have been before us. Indeed, of the
544
pages that comprised the record, only 147 pages were relevant. Most
of the record comprised of such documents as a transcript
of the
argument in the application for leave to appeal in the court of first
instance, practice notes and heads of argument in
the court below.
They clearly had nothing to do with the appeal. During the course of
my judgment, at para [9], I said:
‘
As most of the
record is obviously irrelevant, and ought to have been recognised as
such by the legal representatives of both sides,
I can see no reason
why any legal representative on either side should be entitled to
charge anyone, be it their clients or their
opposition, in relation
to the irrelevant portions of the record. At the end of this
judgment, I shall make a provisional order
to that effect, and give
the parties an opportunity to make any representations they may wish
to before the order may become final.’
[3]
The parties were given ten days to file representations. The first
respondent has done so, but the appellant has not. It is
now
necessary to decide whether the provisional order should be made
final.
[4]
In respect of the appellant, as no representations have been made,
there is no reason why a final order should not be made.
The
appellant’s attorney was responsible for the filing of the
defective record. He ought to have familiarised himself with
what the
rules of this court require and, by filing so defective a record,
clearly did not do so. There is no reason why the provisional
order
should not be made final as against the appellant’s attorney
and his correspondent.
[5]
The first respondent argued, in a nutshell, that the fault lay with
the appellant’s attorney, that her attorney ought
to be able to
charge her a fee for perusing the whole of the defective record, and
that it would be unfair to deny him the right
to charge her this
perusal fee: he had to peruse the defective parts of the record to
prepare properly for the appeal.
[6]
While it is so that the fault lay primarily with the appellant’s
attorney, I do not believe that it is unfair to deny
the first
respondent’s attorney the costs of perusing the irrelevant
parts of the record. He would, without any doubt, have
been able to
see at a glance that the disallowed documents were irrelevant. He
would have concluded from this that their perusal
was unnecessary.
This is all the more so having regard to the fact that the first
respondent’s attorney had been involved
in the matter from soon
after its inception in the court of first instance.
[7]
If the first respondent’s attorney, despite this, perused the
irrelevant documents, he wasted his time and has only himself
to
blame. I can see no reason why his client, or the deceased estate
from which the costs of the appeal will be paid, should foot
the
bill. If he did not peruse the documents because he correctly
identified them as irrelevant, there is no basis for charging
a fee.
In either case, the first respondent’s attorney and his
correspondent are not entitled to charge for perusing the
irrelevant
documents.
[8]
In the result, I conclude that paragraph 3.1 of the order we issued
should also be made final as against the first respondent’s
attorney and correspondent.
[9]
I make the following order.
Paragraph
3.1 of the order granted on 27 May 2020 is made final.
____________________
C
Plasket
Judge
of Appeal
APPEARANCES
For
the appellant: N L Skibi
Instructed
by:
Legal
Aid South Africa, Johannesburg
Legal
Aid South Africa, Bloemfontein
For
the first respondent: M Maponya
Instructed
by:
Matuba
Maponya Attorneys, Polokwane
E
G Cooper Majiedt Inc, Bloemfontein