Brief Summary

Costs — Costs de bonis propriis — Conduct of attorney in adjournment application — Attorney's request for adjournment based on meritless joinder application and fruitless opposition to main application — Lack of respect for court and colleagues hampering administration of justice — Attorney ordered to pay costs of other parties de bonis propriis for wasted costs occasioned by adjournment.

Comprehensive Summary

Summary of Judgment

1. Introduction

The judgment concerned an application in the Western Cape High Court, Cape Town, in which Ribbon Dancer Investments CC sought, in substance, to give effect to an eviction order granted by the Wynberg Magistrates’ Court against Mohammed Shahaan Moosa, despite an appeal noted by Moosa. The application was framed as one for execution pending appeal in terms of section 18(3) of the Superior Courts Act 10 of 2013, and is referred to in the judgment as the “main application”.

The litigation unfolded against a broader insolvency and property-transfer background. Moosa had been sequestrated, trustees administered his insolvent estate, and the property he occupied was sold and transferred to Ribbon Dancer Investments CC. After transfer, eviction proceedings were instituted in the magistrates’ court and culminated in an eviction order. Moosa thereafter instructed his attorney, Mr Verton Moodley, to note an appeal against the eviction order, which then triggered the applicant’s section 18(3) approach.

Procedurally, the main application was first set down on the urgent roll on 15 December 2022, where it was adjourned by agreement to 25 January 2023. On 25 January 2023, Moosa sought a postponement, premised on an intended joinder application (and an intended application to set aside the sale of the property). The postponement was granted, and the presiding judge directed that Moodley be given notice to show cause why a de bonis propriis costs order should not be granted in respect of wasted costs occasioned by the adjournment. When the matter later reconvened, the joinder application was withdrawn and opposition to the main application was conceded as fruitless. The judgment therefore focused principally on costs, including whether Moodley should be mulcted in costs personally for the wasted costs of the adjournment and whether Moosa’s overall conduct warranted punitive costs.

2. Material Facts

The court accepted as background facts that Moosa became subject to judgment debt enforcement and insolvency proceedings over time. A creditor obtained default judgment against him in April 2019; sequestration proceedings commenced in June 2020; after a failed settlement attempt, Moosa’s estate was finally sequestrated on 17 March 2021.

During the administration of the insolvent estate, Ribbon Dancer Investments CC offered to purchase the immovable property occupied by Moosa. Moosa attempted to interdict transfer, but that interdict was later set aside, and the property was transferred into the applicant’s name on 6 December 2021. Moosa refused to vacate notwithstanding demand, resulting in eviction proceedings being instituted in the Wynberg Magistrates’ Court on 23 February 2022. An eviction order was granted on 25 August 2022.

After the eviction order, Moodley (who had placed himself on record for Moosa after pleadings had closed) sent the judgment to Moosa and only on 9 September 2022 received instructions to note an appeal. The appeal was noted and reasons were requested in November 2022. On 9 December 2022, the applicant launched the main application for immediate execution in terms of section 18(3) of the Superior Courts Act, directed at execution of the eviction order notwithstanding the appeal.

The chronology relevant to the costs enquiry centred on the events surrounding 25 January 2023. The application was set down for that date by agreement (after the 15 December 2022 postponement). On 24 January 2023 at 16h48, Moodley caused an unissued version of a joinder application to be served by email on the other parties, supported by an unsigned draft affidavit. The notice of motion purported to require the proposed respondents to indicate an intention to oppose within three hours of service and to file answering affidavits within ten hours thereafter, with the matter to be heard at 10h00 on 25 January 2023.

The court recorded as uncontested (and relied upon) that Moodley did not alert the proposed respondents beforehand to expect an urgent joinder application; did not otherwise ensure they were aware of the email timeously; did not answer or return telephone calls on the morning of 25 January 2023; did not attend court and did not arrange for another attorney to attend; did not brief counsel timeously (or at all in anticipation of the 10h00 hearing); and did not communicate that the joinder would be enrolled simultaneously with the main application before the High Court. These factual features were treated as materially relevant to whether his conduct warranted personal costs.

Moosa did not file a confirmatory affidavit supporting the postponement application. When the matter later resumed, new counsel appeared for Moosa and conceded that there was little merit in the joinder application; it was withdrawn. It was also conceded that opposition to the main application was fruitless and no argument was advanced against the relief sought by the applicant. The remaining live dispute for decision was therefore the appropriate costs consequences, including whether Moodley’s conduct justified a personal costs order and whether Moosa’s conduct justified punitive costs.

3. Legal Issues

The central question determined by the court was a costs question, specifically whether the circumstances justified an order that Mr Verton Moodley pay the wasted costs occasioned by the adjournment of 25 January 2023 de bonis propriis, or whether costs should instead (or additionally) be visited upon Moosa, including on a punitive scale.

This enquiry required the court to apply established legal standards governing when a legal practitioner may be held personally liable for costs. The dispute was thus primarily concerned with the application of law to facts, namely whether Moodley’s procedural conduct and manner of litigating crossed the threshold for personal liability, and whether Moosa’s conduct warranted a punitive costs order. It also involved an evaluative judgment in the exercise of the court’s discretion on costs.

A further issue disposed of in the order was the status of Moosa’s notice of appeal against the magistrates’ court eviction order, which the applicant sought to have declared a nullity (an amendment to the notice of motion that, in context, became unopposed).

4. Court’s Reasoning

The court approached the matter on the footing that, once the joinder application had been withdrawn and opposition to the main application had been conceded as fruitless, the substantive merits had largely fallen away and the primary question was the proper costs response to the litigation conduct displayed.

In addressing personal costs, the court first reiterated that an attorney must advance the client’s interests, even where that may harm an opponent, but this duty is qualified by the requirement that the attorney act properly. The court relied on Road Accident Fund v Shabangu and Another 2005 (1) SA 265 (SCA) and the passage quoted from Ross v Caunter [1980] 1 CH 297, emphasising that the duty to the client is paramount only subject to the conduct being proper.

The court then set out the general standard that a de bonis propriis costs order against a legal representative is reserved for exceptional circumstances and typically involves a substantial deviation from the standards expected of legal practitioners. In this regard it referred to Multi-Links Telecommunications v Africa Prepaid Services Nigeria Ltd; Telkom SA Soc Limited and Another v Blue Label Telecoms Limited and others [2013] 4 All SA 346 (GNP), which lists types of practitioner misconduct that commonly justify personal costs, including obstruction of justice, irresponsible or grossly negligent conduct, reckless litigation, misleading the court, gross incompetence, and lack of care.

However, the court also stressed that the discretion to award costs de bonis propriis is not confined to only the most egregious categories of misconduct. It referred to Rautenbach v Symington 1995 (4) SA 583 (O) for the proposition that special circumstances may justify such an order. The court further invoked Khan v Mzovoyo Investments (Pty) Ltd 1991 (3) SA 47 (TK) as an example where personal costs were awarded due to an attorney’s slack and unconcerned handling of a client’s case being found unreasonable. In addition, the court cited Motshegoa v Motshegoa and Another (995/98) [2000] ZANWHC 6 (11 May 2000) for the warning that there is a line between pursuing a client’s case and abusing process, with personal consequences for practitioners who cross it.

Applying these principles to the facts found material, the court rejected Moodley’s attempt to characterise himself as merely acting on instructions. Although Moosa was responsible for instructing an ill-conceived joinder application aimed at delaying eviction, the court held that Moodley, as a legal practitioner and officer of the court, retained responsibility for the manner in which he processed and pursued the joinder and the postponement. The court considered that many of the problematic procedural features could not fairly be attributed to the client, including the timing and manner of service, the unrealistic time periods stipulated in the notice of motion, and the failure to communicate properly with opponents and the court.

A significant part of the court’s evaluative conclusion turned on professional obligations towards other practitioners and the administration of justice. Relying on Grundler N.O. and Another v Zulu and Another (D8029/2021) [2023] ZAKZDHC 7 (20 February 2023), the court stated that practitioners must respect colleagues and must assist—at minimum not hinder—the administration of justice. It held that the explanation that Moodley received funds late or lacked timeous instructions did not detract from those obligations. On the facts, the late, procedurally irregular joinder attempt and the manner in which the adjournment was sought were found to demonstrate a lack of respect for colleagues, a measure of disrespect for the court, and interference with the administration of justice. Those considerations were held to justify a de bonis propriis order in relation to the wasted costs of the adjournment of 25 January 2023.

Turning to the remaining costs (beyond the adjournment-related wasted costs), the court evaluated the overall conduct apparent from the papers and concluded that the main application and the joinder application functioned as delaying tactics to avoid eviction. The court regarded Moosa’s conduct as vexatious in this respect and considered that it warranted a punitive costs order. The court accordingly directed that Moosa pay costs on the attorney-and-client scale, subject to the carve-out that the wasted costs of the adjournment would instead be borne personally by Moodley.

5. Outcome and Relief

The court declared that Moosa’s notice of appeal lodged in the Wynberg Magistrates’ Court under case number 3086/22 and dated 1 November 2022 was a nullity. The joinder application was dismissed.

On costs, the court ordered Moosa to pay the costs of the applicant and of the first and second respondents on an attorney and client scale, except for the wasted costs occasioned by the adjournment on 25 January 2023. Those wasted costs were ordered to be paid by Mr Verton Moodley of Verton Moodley & Associates Inc de bonis propriis.

Cases Cited

Road Accident Fund v Shabangu and Another 2005 (1) SA 265 (SCA).

Ross v Caunter [1980] 1 CH 297.

Multi-Links Telecommunications v Africa Prepaid Services Nigeria Ltd; Telkom SA Soc Limited and Another v Blue Label Telecoms Limited and others [2013] 4 All SA 346 (GNP).

Motshegoa v Motshegoa and Another (995/98) [2000] ZANWHC 6 (11 May 2000).

Rautenbach v Symington 1995 (4) SA 583 (O).

Khan v Mzovoyo Investments (Pty) Ltd 1991 (3) SA 47 (TK).

Grundler N.O. and Another v Zulu and Another (D8029/2021) [2023] ZAKZDHC 7 (20 February 2023).

Legislation Cited

Superior Courts Act 10 of 2013, section 18(3).

Rules of Court Cited

No specific rules of court were expressly cited in the judgment.

Held

The court held that the notice of appeal against the magistrates’ court eviction order was a nullity and that the joinder application was to be dismissed. It further held that Moosa’s conduct warranted costs on a punitive scale (attorney and client), but that the wasted costs occasioned by the adjournment of 25 January 2023 were attributable, in a manner justifying sanction, to the conduct of Moosa’s attorney. Those wasted costs were therefore ordered to be paid by Moodley personally de bonis propriis.

LEGAL PRINCIPLES

A legal practitioner’s duty to advance a client’s interests is paramount only to the extent that it is exercised properly, and does not excuse conduct that amounts to an abuse of process or undermines the administration of justice.

A de bonis propriis costs order against a legal representative is an exceptional remedy, generally justified where there is a substantial deviation from professional standards, including conduct that obstructs the interests of justice, is irresponsible or grossly negligent, reckless, misleading, incompetent, or displays a lack of care.

The discretion to award personal costs is not limited to only the most extreme misconduct; special circumstances may justify a de bonis propriis order where the practitioner’s handling of litigation is unreasonable and materially prejudices proper case management and fairness to other parties.

Legal practitioners, as officers of the court, owe duties of respect and professional courtesy to colleagues and must assist (or at least not hinder) the administration of justice; failures in communication, preparedness, attendance, and procedural propriety may attract personal cost consequences where they hamper the court’s functioning and unfairly burden other litigants.

Ribbon Dancer Investments CC v Moosa (21019/2022) [2023] ZAWCHC 75 (17 April 2023)