IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, MTHATHA
CASE NO: CA121/2024
In the matter between:
SPORTSCENE MTHATHA Appellant
And
NONDUMISO MYATAZA Respondent
___________________________________________________________________
JUDGMENT: COSTS DE BONIS PROPRIIS AND FEES FORFITURE
LOWE J:
Introduction
1. This matter came before me as a Full Bench Appeal on 29 April 2025 in the
above-mentioned court.
2. Due to the events set out below, the matter was postponed , appellant
tendering respondent’s costs wasted in the appeal and it being so ordered .
The scale of those costs and as to whether the costs should be de bonis
propriis, and whether any legal practitioner should forf eit their fee , were
reserved for determination.
3. Appellant’s counsel, Ms. Westerdale, indicated that in respect of the above she
would wish to lead evidence relevant. This I declined, suggesting that if
appellant so wished, affi davits could be filed deal ing with the costs issues both
de bonis propriis and whether or not any practitioner should forfeit their costs
relevant to those wasted in the appeal , which suggestion Ms. Westerdale
accepted.
4. In due course, and on 8 May 2025 appellant’s attorneys, Joubert Galpin Searle,
represented by N. Boshoff in this matter, filed an affidavit (under the hand of N.
Boshoff), dealing with various issues to which I will refer to more fully hereafter.
In respect of res pondent, her counsel Mr. Hobbs, indicated that it was unlikely
that affidavits would be filed for respondent, but was given the entitlement to do
so, he indicating that he wished to make no fu rther submissions relevant to the
costs issues raised.
5. The reasons for the appeal being removed from the roll and postponed, were
dealt with in a full ex tempore judgment. I will, nevertheless, shortly summarise
the issues relevant thereto. It should immediately be said that this was most
unfortunate, as three appeal Judges, in a Full Bench appeal, had hours of their
time wasted in attempting to prepare for the argument, in the face of an
inadequately prepared record, and further the appeal taking a place on the roll,
forcing out other deserving matters in circumstances when it should not have
been set down at all, the record being inadequate, alternatively when it should
have been timeously removed or corrected.
The background to this judgment on costs
6. Generally, the practitioners representing appellant failed to apparently
understand their duty to this court, and their client . The attorney has chosen to
file a myopic affidavit attempting to justify her and counsel’s position, instead of
stepping back to see the wood for the trees . This constituted a vain attempt to
save their fee entitlement, and to avoid costs de bonis propriis. This of itself is
disturbing in a situation in which not one word is said in the affidavit, about their
client’s interests, as to costs, let alone the wasted , precious, judicial time of no
less than three judges of as much as a full day each. This judgment is ,
regrettably, a further waste of judicial time and effort. The entire issue, and the
attorney’s self-serving affidavit is worthy of str icture in all the circumstances of
this matter.
7. It must be said that one might have expected appellant’s attorneys, guided by
counsel, to have reflected on the matter, and having explained the position in
the affidavit, to have appreciated that their client w as, whatever else may be
said, certainly not to blame for the deficiencies in the record , and that at the
very least an undertaking given that no fee would be charged in the matter
relevant to the hearing, nor would the client be asked to pay respondent’s costs
as tendered.
8. In summary, this appeal came before us with a considerable record, five
volumes in length, the fifth volume being a thin volume containing a number of
important documents relevant to the appeal.
9. The cause of action in the matter arose in respect of respondent’s claim that
she had slipped and fallen on a wet matt situated within the unit occupied by
appellant, which matt was at the entrance of the unit relevant, with no warning
signs, plaintiff slipping and falling and sustaining severe bodily in juries to her
left leg, back and neck area arising from appellant’s negligence.
10. The court a quo found for respondent in the matter ordering that appellant pay
such damages as respondent was found to have sustained in due course, there
having been an inadequate separation order moved prior to the trial
commencing.
11. A number of witnesses were lead, several of whom referr ed to at least seven
images of the place where the slip and fall occurred taken from different angles.
This required various sets of the photographs to be utilized needing to be
separately marked by a number of the witnesses as set out above. The
inclusion of the marked images was crucial to a proper reading and
understanding of the evidence.
12. On receiving the appeal record, it became plain that the photocopies of the
photographs included in the record were entirely inadequate and could not be
usefully used. One set of better quality photographs was included in volume 5,
but were entirely unmarked, and accordingly were completely useless relevant
to an understanding of the extensive evidence (and lengthy cross-examination)
of the relevant witnesses. This fact must have been readily apparent to all
attorneys and counsel involved in the matter , but up until the morning of the
appeal this remained the position.
13. Put simply, despite every effort made to understand the evidence, in preparing
for the appeal, the absence of marked images made it difficult , and certainly
unreliable, to gain a proper understanding of the evidence, both in chief and in
cross-examination.
14. The thrust of appellant’s heads of argument , 16 pages and in 31 paragraphs in
length, was that the judge a quo had erred in his assessment of the evidence,
the probabilities and credibility of respondent and her witnesses, also those of
appellant, and in finding for respondent, on the basis of respondent’s witnesses
which he preferred to appellant’s witnesses . T his made a full understanding
and analysis of the record entirely crucial to a proper and just hearing of the
appeal.
15. A summary of the difficult ies with the record, goes beyo nd the images, and is
as follows:
16.1 Only one set of images, which were properly discernible but unmarked,
was filed when the re should have been several sets of images , duly
marked by the respective witnesses, paginated and referred to in the
record and heads of argument;
16.2 The record itself, incorporated irrelevant pages and photocopies of, for
example, various x-ray images irrelevant to the appeal;
16.3 The appeal record referred , in cross -examination, to the pleadings in
various respects, the page numbering in the r ecord not mat ching the
page numbering in the appeal record which had not been renumbered,
and the numbers should have been corrected in this regard;
16.4 There w ere crucial reference s to the appellant’s witness Ms.
Gonzalves, who completed an incident and injury report which was
contained in volume 5 , pages 395 – 396, but which was referred to in
the record by the original numbering in the bundles, making the
assessment and reading of the evidence more difficult than it should
have been.
16. All in all the above constituted an entirely inadequate record for the purposes of
the appeal and made it impossible for the appeal judges to fully and properly
prepare for argument in what was a hotly contested matter and which was not
without its difficulties. This required a most careful assessment of the mutually
destructive version s, moreover in the light of a short and in some respects ,
unhelpful judgment a quo.
17. How this was not rectified before the appeal record was filed escape s me
entirely. This has at no time been satisfactorily explained.
18. Appellant’s counsel, and the attorney were both involved at the trial stage . It
must have been immediately more than clear to appellant’s legal team , well
before the heads of argument were filed , let alone the practice note, that the
record had not been adequately prepared. It ought to have been immediately
corrected, before being lodged , or immediately when this was discovered, and
not left to the morning of the trial when appellant’s counsel attempted to hand in
a set of marked images, way too little too late.
19. Appellant’s counsel in fact had a set of the photographs with her, when being
introduced to the judges at the commencement of the morning , and whilst she
mentioned same, I suggested she deal with this in open court. When the
matter was called, appellant’s counsel attempted to hand the marked images to
the court, which I declined to accept seeking an explanation as to why this had
been left to this late stage, and pointing out to both counsel that the inadequate
preparation of the record didn’t end there and extended to other issues, making
it impossible to prepare such as to ensure just and equitable determination of
the issues on appeal. I raised the question of costs, and as to whether these
should be de bonis propriis and as to whether any practitioner should forfeit
their fee.
20. Appellant’s c ounsel was unable to take the matter any further in this regard,
seeking that the matter stand down so that she could take an instruction.
21. On the matter being recalled, appellant’s counsel indicated that agreement had
been reached that appellant would tender the costs wasted having regard to
the fact that the appeal must clearly be struck from the roll or postponed. I
pointed out that I had directed that the court must be addressed as to why the
costs should not be ordered on a de bonis propriis scale, and as to why the
practitioners should not, to one extent or another, be prevented from raising a
fee in the matter. Appellant’s counsel indicated that she would wish to lead
evidence relevant to costs , upon which , as I have said , I indicated that this
would not be appropriate viva voce but that they could file affidavits if they so
wished, which invitation counsel readily accepted.
22. In due course and on 8 May 2025 , appellant’s attorney filed an affidavit. This
affidavit dealt with the issue of costs de bonis propriis and as to whether any
practitioner should be deprived of their cost in the matter relating to both
attorney and counsel. Respondent’s attorneys (unsurprisingly) have elected
not to file any affidavits.
The affidavit
23. The appellant’s attorney’s affidavit is seven pages in length with 21 paragraphs.
24. The crux of the affidavit is as follows:
24.1 Plaintiff’s attorney s, Joubert Galpin Searle of Gqeberha were
represented in the matter by attorney Boshoff;
24.2 The affidavit was filed to address the issue of de bonis propriis costs
and “further why any legal practitioner should not be deprived of their
costs”;
24.3 The appeal was set down for hearing on 29 April 2025
24.4 Appellant’s heads of argument were due by no later than 4 April 2025 (I
note however that those heads in fact being prepared on 31 March
2025, under counsel’s name as per the heads of argument and filed of
record on 3 April 2025);
24.5 Appellant’s attorneys filed a practice note (presumably prepared by
counsel) on the same date;
24.6 On 2 April 2025 “ and during the preparation of the appellant’s he ads of
argument” appellant’s counsel had alerted the attorney to the fact that
the photograph ic exhibits, contained in volume 5 , were incorrect and
were unmarked and “… the court would require photographs marked by
the respective witnesses.”;
24.7 At the same time appellant’s attorney was advised (surprisingly), to
contact respondent’s attorneys as to the best way forward to have the
correct exhibits placed before the court (this is difficult to understand as
surely the appellant’s attorneys and counsel were best placed to decide
this for themselves);
24.8 “The heads of argument and practice note were prepared on the basis
that the correct exhibits would be supplemented timeously .” –
something about which I will say more in due course;
24.9 The attorney had, on 3 April 2025 , advised appellant’s counsel that “ …
I would attend to have the correct exhibits placed in the record”;
24.10 On Saturday 5 April 2025, unexpectedly, the attorney concerned had
received a message that her mother was gravely ill and admitted to
hospital in Cape Town with pancreatic cancer of which the attorney had
been unaware;
24.11 A harrowing seri es of events had occurred thereafter , the attorney
being away from her offices from 5 April 2025 to , presumably, the week
commencing 15 April 2025;
24.12 On the 15 April 2025 the attorney concerned received further bad news
concerning her mother’s condition who subsequently passed away on 3
May 2025;
24.13 On 15 April 2025 appellant’s counsel had messaged appellant’s
attorney asking whether the photographs had been attended to , which
she did not reply;
24.14 On 23 April 2025 appellant’s attorney had phoned respondent’s
attorney, relevant to the photographs, who was not available , and had
tried again on 24 April 2025, they connecting later , respondent’s
attorney saying that the photographs would be in the court file
(whatever this may mean);
24.15 On 28 April 2025 , and at the airport on the way to Mthatha , appellant’s
counsel had enquired as to whether the record had been “ fixed” by
correct marked photographs having been presented, appellant’s
attorney saying she had packed marked photographic exhibits and
requested that they attempt to hand them in at the hearing;
24.16 The attorney accepts that the preparation of the reco rd was her
responsibility “However any failure on my part to remedy this situation
was not a result of any intended negligence 1 or wrongdoing on my
part.”;
24.17 She confirmed that appellant’s counsel had , on more than one
occasion, advised her that the record needed to be corrected;
24.18 This was not a matter of such a nature that warranted a costs order de
bonis propriis, she accepting however that it was her error but that she
had every intention of rectifying the reco rd timeously but had been
diverted due her mother’s illness and her “… mental state at the time.”
25. It must immediately be said that appellant’s attorney ’s unfortunate and sad loss
and what she went through at this time , is deserving of the most sympathetic
consideration and there can be no doubt that this was shocking and immensely
challenging.
26. However, that is not the end of the matter by any means for appellant’s attorney
or counsel.
27. Most regrettably, the affidavit is , inexplicably silent as to the position of her
client in this regard and subject to considerable criticism as appears below:
27.1 Appellant’s counsel’s heads are dated 31 March 2025, and appellant’s
attorney says that she was informed on 2 April 2025 during preparation
of those heads, (which had in fact apparently already been finalised two
days earlier ), that the photograph ic exhibits were incorrect and
unmarked, the crucial issue of dates being unexplained;
27.2 Appellant’s attorney had on 3 April 2025 advised counsel that she
would attend to having the correct exhibits placed in the record but is
silent as to what she did , having made that decision on 2 April 2025,
1 Which of itself is a misnoma, as negligence is not an “ intended” concept and requires no element of
intention.
prior to Saturday 5 April 2025 , at a time when she was unaware of her
mother’s illness;
27.3 It is further glaringly apparent from the affidavit, that appellant’s
attorney took no steps, whatsoever, to pass the file onto a colleague at
a substantial firm of attorneys, or give instructions to her secretary to do
so, or to have counsel briefed to guide appellant’s attorneys in the
proper preparation of the record , nor is there an explanation as to why
this was not done;
27.4 There is further, entirely absent, a single word relevant to the fact that
the debacle that ensued was by no means in any way connected with
appellant itself, the client, and as to why the client should be
responsible for bearing the wasted costs occasioned by the attorney’s
conduct;
27.5 There is no explanation as to why on 23 April 2025 when appellant’s
attorney was again dealing with the matter, on her own evidence, that
she did not attend to the placing of the record in proper order, and why
this was only attempted on 28 April 2025;
27.6 There is no explanation in any event, as to why the attorney concerned
did not check the record appropriately before 2 April 2025 , when it was
originally prepared and filed , and see to it that it was in proper order in
obvious respects relevant to the photographs and renumbering;
27.7 There is no explanation as to why the other issues , which I have
pointed out above relevant to the inadequacy of the record , had not
been attended to prior to this time;
27.8 There is no indication whatsoever as to why the practice note, filed on 3
April 2025, reflected only that “The record contains a complete copy of
the proceedings as s erved before the court a quo .” (which is in any
event a misleading assertion);
27.9 There is no indication as to why appellant’s counsel who was, or should
have been, fully aware of the deficiencies referred to above , and had
discussed the image difficulties with her attorney, had not included this
discussed the image difficulties with her attorney, had not included this
issue in detail in her heads of argument , let alone the practice note,
(which I assume was prepared by counsel ), although signed by the
attorneys concerned.
28. It is, to say the least, disturbing that the practice note, filed on 3 April 2025, did
not refer to these deficiencies at a time when both counsel and the attorney
were aware of the difficult ies referred to and the fact that the record was most
certainly not as it was before the magistrate, and was in other respects
inadequately prepared as referred to above. Similarly, it was to be expected of
appellant’s counsel, when preparing her heads , to draw attention fully to the
deficiencies in the record and the lack of marked images, with an undertaking
that these would be placed in order forthwith, to enable a proper understanding
of the matter, and that if necessary the heads would be supplemented in this
regard, the record corrected , the images as marked provided, the irrelevant
pages being removed and the numbering corrected.2
29. Not a word was said in the heads of argument or practice note of both appellant
and respondent in this regard, and it is extremely difficult to understand on what
basis this was so, having regard to the duty of attorney and counsel to the court
in preparation of these most important documents, the fundamental basis of
argument in the appeal. This remains entirely unexplained.
30. All of these above matters are relevant to the costs decision that needs to be
made in this matter, and which is reflected in the order following.
Counsel’s heads of argument
2 Had this been done, respondent’s legal team would have been further alerted hereto, also factor in the
preparation of heads and then would surely have dealt with this in the respondent’s heads and practice note.
31. It would be as well to remind those seized with the drafting of heads of
argument that these have been authoritatively said to be important for the
administration of justice. They are not to be taken lightly in any circumstances,
as was set out in S v Ntuli 3, a matter referred to with approval in Feni v
Gxothiwe4 and Geza v Standard Trust Ltd5 where Marcus AJ stated that:
“Heads of argument serve a critical purpose. They ought to articulate
the best argument available to the appellant. They ought to engage fairly
with the evidence and to advance submissions in relation thereto. They
ought to deal with the case law. Where this is not done and the work is left
to the Judges, justice cannot be seen to be done. Accordingly, it is
essential that those who have the privilege of appearing in the Superior
Courts do their duty scrupulously in this regard.”
32. In this regard those drafting heads of argument would do well to frequently read
the article by Harms, then Deputy president of the Supreme Court of Appeal
“Heads of argument in courts of appeal ”, as published in “The Advocate”6,
where the view was expressed that before counsel sits down to dictate, type or
write they should refresh their memory by reading the rules of court and
practice directives then take time to think about the case the point they wish to
make and to ponder the value of their submissions.
33. The point was made that the value of heads of argument is not measured in
kilograms or in reams, counsel to take time and more effort to be brief , concise
and to the point. Heads of argument are quite different from written argument,
something which is frequently overlooked.
3 2003 (4) SA 258 (W)
4 2014 (1) SA 594 (ECG) at 596C – D.
5 Unreported ECGq case number 3234/2021 dated 14 March 2023 paragraph [31]
6 December 2009 pages 20-22
34. To this should be added that the Eastern Cape Practice Directives , originally
published on 12 September 1969 , deal expressly in Rule 8(d) with heads of
argument to be amongst other things, a concise and succinct statement of the
main points which will be argued.
35. I add that the very purpose of heads of argument is to guide the court concisely
both through the record and argument including quite clearly , issues raised
relating to the contents of the record and if applicable, its deficiencies and make
submissions in respect thereof, sadly lacking in this matter, from both counsel.
Costs de bonis propriis and the deprivation of costs relevant to legal
practitioners
36. Costs de bonis propriis , that is “ straight from the pocket ”, relate to those that
litigate in a representative capacity, and are awarded by our courts in
appropriate circumstances.
37. As I set out in Kenton-on-Sea Ratepayers v Ndlambe Municipality ,7 there
must be good reason for such an order, such as improper or unreasonable
conduct or lack of bona fides, the rationale therefor being a material departure
from the responsibility of office. This applies to unreasonable, reckless or
dishonest conduct.
38. The issue of such a cost award against both advocate and attorney were raised
in the then Transkei Supreme Court case of Congress of Judicial Leaders of
7 2017 (2) SA 86 (ECG) at 118 F – 119 B.
South Africa v Minister for Local Governement, Eastern Cape and Others
(Tk)8 to which I shall return in a moment.
39. The general rule relevant to such costs orders was referred to as long ago as
1908 in In Re: Potgiete’s Estate 9 setting out that a personal order for costs
against a litigant occupying fiduciary capacity was justified where his conduct in
connection with the litigation in question had been male fide, negligent or
unreasonable.
40. This was referred to with approval by Innes CJ in Vermaak’s Executor v
Vermaak’s heirs10 relevant to an executor paying the costs de bonis propriis.
41. This has been raised many times since and , in summary , the court will in
appropriate circumstances award costs de bonis propriis against attorneys, the
office of the state attorney, counsel, trustees, guardians, company directors,
liquidators and others as referred to in Erasmus Superior Court Practice 2 nd Ed
Van Loggenberg Vol II11.
42. As to costs orders against attorneys, this has been dealt with for more than a
hundred years in our authorities, and most recently in various Constitutional
court decisions one being South African Liquor Traders’ Association v
Chairperson, Gauteng Liquor Board12.
8 23 November 1995 Case 1685 unreported heard in Umthatha November 1995.
9 1908 TS 982
10 1909 TS 679
11 D5–31/32
12 2009 (1) SA 565 (CC) at 581F – 582G; Pheko v Ekurhuleni City 2015 (5) SA 600 (CC) at 624 paragraph [51] to
[55]; and see Commmisioner: South Africa Revenue Services v Louis Pasteur Investments Pty Ltd (in
provisional liquidation) 2022 (5) SA 179 (GP) at paragraphs [49] – [56].
43. As against attorneys, such a costs order has the effect that the attorney must
pay out of his or her own pocket such costs as a penalty for improper, or
negligent or unreasonable conduct in the litigation. Whether a person acted
negligently or unreasonably must be decided in the light of all the particular
circumstances of each and every case.13
44. In respect of counsel, costs de bonis propriis have been awarded in a number
of circumstances.14
45. Thus, generally, against both atto rneys and counsel, improper, negligent or
unreasonable conduct may be visited with a costs order de bonis propriis in
appropriate circumstances.15
46. Put differently, a court may award such costs to indicate its extreme
displeasure at the conduct of a practitioner, both attorney and counsel , for
improper, negligent or unreasonable conduct , as also addressing matter
relevant to their client whose best interests appear to have been neglected and
ignored in respect of the costs issues which I address herein.
47. This has been extended to what has been described as egregious conduct of a
matter by a practitioner which need not go so far as wilful or male fide conduct
but includes a “gross disregard for his professional responsibilities.16
13 Grobbelaar v Grobbelaar 1959 (4) SA 799 A at 725B-C.
14 Hopf v The Spar Group (Buil it division) [2007] 4 All SA 1249 (D) at 1258f – 1259f; Thundercats Investments
49 (Pty) ltd v Fenton 2009 (4) SA 138 (C) at 147A – 150A and 150I – 152E; Multi-Links Telecommunications
Ltd v Africa Prepaid Services Nigeria Ltd 2014 (3) SA 265 (GP) at 288 G – 289D; Kunene v Minsiter of Plice
(unreported SCA case number 260/2020 dated 10 June 2021) at paragraphs [48] – [49].
15 Pheko (supra) [51]; South African Legal Liquor Traders Association (supra) page 7, para [54].
16 Pheko (CC) (supra) [54].
48. In Pheko (CC) (supra)17 the court said that at the very least an attorney had an
obligation to notify the Registrar (in that matter ) of the client’s change of
address and that the failure to notify the Registrar in this regard constituted
gross negligence on his part.
49. The Constitutional Court in support hereof referred to Machumela v Santam
Insurance Company Ltd18 where an attorney “… cost the applicant money for
not having obeyed the rules of court ”. The Constitutional Court added
emphasis suggesting that this had been gros sly negligent and expressed its
displeasure at what was described as the gross negligence , particularly, of an
officer of the court.
50. Further, it is not unprecedented that costs orders de bonis propriis may also be
made on an attorney and client basis.19
51. It is also competent for a court, in appropriate circumstances, to simply disallow
a practitioner charging a fee for a particular matter in the face of a gross
disregard for professional responsibilities and obligations.
Conclusion relevant to applicant’s attorney and counsel
52. In this matter, the fact that the appeal could not proceed, having regard to the
deficiencies in the record , was due to the inadequate attention to the detail of
the photographs to be included in the record by the attorney concerned, for
which there is no explanation whatsoever forthcoming relevant to the period
17 At paragraph [54].
18 1977 (1) SA 660 (A)
19 Public Protector v South African Reserve Bank 2019 (6) SA 323 (CC) at 320B; Kunene (supra) paragraph [48]
– [49].
prior to 5 April 2025, and thereafter as to why the matter was not passed on to
another attorney, nor what happened , in this regard, between her return to
office on 23 April 2025 to 28 April 2025 save for two misguided phone calls . It
is unclear when the attorney concerned prepared the marked photographs
which she had with her when travelling to Mthatha , the day prior to the appeal,
and as to why these were not made available earlier, even on her own version.
53. There is further no explanation as to why that attorney did not, much earlier, but
at least on 25 April 2025, alert the Full Bench Judges as to the difficulty in the
matter.
54. There is also no indication as to why another attorney in the firm did not attend
to the matter, or why counsel was not appropriately briefed to guide an attorney
relevant to the correction of the record.
55. This all on its own, and despite my deep sympathy for the attorney’s loss, does
not provide any basis for escaping the consequences of this debacle.
56. There is absolutely no reason at all why appellant itself should b ear those
costs, due to the events described above , which were through no fault of its
own in any way at all. The fact that this appears not to have been appreciated
by the attorney concerned, guided by counsel, exacerbates the situation . It is
in this regard that the affidavit is myopic , not a word being said apparently in
complete disregard of the entitlement and rights of their own client.
57. Turning to counsel’s responsibilities in this regard . Counsel’s first duty is to the
court. A Full Bench appeal is a matter of considerable consequence taking up
three Judges’ time and taking up a place on an already full roll and in the face
of other appeals waiting their turn to be heard as soon as possible in the pub lic
interest. It was counsel’s duty in preparing their heads of argument, knowing
(or should have known) that the record was not in proper order, and in material
respects to draw deficiencies to the Judges attention in their heads in detail, but
about which not a word is said. The same is applicable to the practice note s
which were misleading.
58. It is difficult to understand why this was not drawn to the court’s attention, there
being no explanation herefor e in the affidavit beyond suggesting that the
appellant’s heads (and presumably practice note) were prepared on the basis
that the correct exhibits would be included timeously. If that were the case, this
should have been clearly set out in both the practice note and the heads which
remained silent and were misleading in this regard. On a reading of the
practice note and the heads the Judges concerned were accordingly not alerted
to this serious difficulty.
59. This all warrants a finding relevant to costs expressing the court’s displeasure
as to the conduct of both the appellant’s attorney and counsel concerned, and
their neglect as set out above.
60. This is more than sufficient to justify a costs order de bonis propriis , both to
express this displeasure, to reflect the unfortunate consequences hereof, and in
circumstances in which the appellant itself should not be mulcted with such
costs.
61. In my assessment counsel’s conduct (or lack thereof) was not so egregious as
to justify a costs order de bonis propriis against her, but nevertheless, in the
circumstances, her fees should be disallowed in the respect s appearing in the
order below, to express this court’s displeasure set out in the criticisms made
above. In my view appellant’s counsel not only failed to raise this in the
practice note and heads of argument which would have alerted all to the issue,
including respondent’s legal team, but then sought to defend appellant’s legal
team’s entitlement to foist the costs upon their client, in their own inter ests,
ignoring that of the client which was i n no way complicit. The respondent’s
legal team adopted a different and thoroughly proper approach, making no
attempt to avoid the fees consequence of their omissions. This must be, and is
reflected in the order at the end of this judgment.
62. As I understand costs order s de bonis propriis , this is su ch as to require the
appellant’s attorneys to pay those costs wasted in respect of the appeal, being
respondent’s costs, as also to disentitled her from raising a fee against her
client insofar as wasted costs are concerned in respect of her own attendances,
fee, and disbursements relevant to such things as travelling and
accommodation.
63. As to counsel’s fee being disallowed, in part as to two thirds thereof; this relates
to those costs wasted , being predominantly counsel’s fee to draft the practice
note and to prepare for arguing the appeal as to half thereof as this is not
entirely wasted and her day fee and disbursements thereto for travelling and
accommodation, to the extent appearing in the order below.
Respondent’s attorneys and counsel
64. Whilst it is suggested that there was some communication between appellant’s
attorneys and respondent’s attorneys, the entire responsibility for preparation of
the record falls upon the appellant, in respect of which respondent can bare no
responsibility.
65. Nevertheless, it is plain that respondent’s attorneys were aware of the fact that
the photographs were in the record unmarked. Insofar as counsel is
concerned, as I understood his submission, he was not aware of this till a late
stage, as he relied upon the photographs that he had retained from the trial
which obviously were marked. He should of course have been so aware when
preparing his heads.
66. The only question which arises is whether respondent’s attorneys, and counsel,
ought to have any portion of their fees disallowed in all the circumstances of the
matter.
67. As I have already indicated counsel when asked whether any portion of his fee
should be disallowed, sensibly, made no further submissions having indicated
that his attention was given to the photographs which he had, but as I
understood it he did not examine the record in this regard, (which he should
have done) . Further, respondent’s practice note, being silent hereon was
unhelpful being inaccurate as to the state of the record.
68. It is also so, that on a proper examination of the record, respondent’s counsel
ought, in his heads of argument, to have drawn attention to the deficienc ies,
notwithstanding this not having been raised in the appellant’s practice note and
heads.
69. In the circumstances, a portion of respondent’s counsel’s fee should be
deducted, no fee to be charged in respect of the practice note, and one half of
counsel’s preparation and fee as also the day feen in respect of the argument
of the appeal, being disallowed.
70. Respondent’s attorney’s fee for perusing the record, attendances upon or
drafting of the practice note, and perusing counsel’s heads must similarly be
disallowed.
71. Respondent’s counsel and attorney were both based in Mthatha and therefor
did not incur traveling or accommodation expenses.
Order
72. It is accordingly ordered that:
1. Appellant’s attorneys are to pay the costs wasted in this matter, as
reflected in the main order, on a de bonis propriis basis including
respondent’s wasted costs and such as to also include those costs
referred to in paragraph 62 above;
2. Appellant’s c ounsel’s fee is disallowed as follows , the fee charged in
respect of the preparation of the practice note , two thirds of counsel’s
preparation fee relevant to the appeal hearing ; two thirds of the
appearance fee; and the costs and disbursements relevant to counsel’s
travelling and accommodation.
3. Respondent’s counsel’s fee is disallowed as follows, the fee charged in
respect of the preparation of the practice note, one half of counsel’s
preparation fee relevant to the appeal hearing, and one half of the
appearance fee.
4. Respondent’s attorney ’s fees are disallowed for perusing the record,
attendances upon or drafting of the practice note, and perusing
counsel’s heads.
_________________
M.J. LOWE
JUDGE OF THE HIGH COURT
I agree,
__________________
M.S. JOLWANA
JUDGE OF THE HIGH COURT
I agree,
___________
P. ZILWA
JUDGE OF THE HIGH COURT
Appearing on behalf of the Defendant/Applicant: Adv. Westerdale, instructed by
Ms. Boshoff from Joubert
Galpin Searle, Gqeberha.
Appearing on behalf of the Plaintiff/Respondent: Adv. Hobbs, instructed by Mr.
Le Roux from,Mthatha.
Date heard: 29 April 2025.
Date delivered: 20 May 2025.