Thipe v Mogwe N.O. and Another (Civil Appeal No. 7 of 1995) [1996] BWCA 20 (2 February 1996)

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Thipe v Mogwe N.O. and Another (Civil Appeal No. 7 of 1995) [1996] BWCA 20 (2 February 1996)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
CIVIL APPEAL NO. 7 or 1995 HIGH COURT MISCA 11 OF 1995
In the matter between:
BABUSENG THIPE obo KEVIN THIPE Appellant
and
ARCHIBALD HOGWE (in his capacity as
Chairman of Maru-a-Pula School Council) 1st Respondent
MALCOLM MACKENZIE (in his capacity as
the Principal of Maru-a-Pula School) 2nd Respondent
MR. ATTORNEY T. JOINA FOR THE APPELLANT
MRS ATTORNEY S. HARDISTY FOR THE RESPONDENTS
JUDGMENT
CORAM: AMISSAH J.P WYLIE J.A. STEYN J.A.
STgYN J.A.
Appellant brought an application in the High Court by way
of Notice of Motion. It concerned the education of a minor and
was heard by Nganunu J as a matter of urgency. The relief
claimed in the notice of motion was the following:

"2. That a rule nisi do hereby issue calling upon the Respondents to show cause on the 24th February 1995 or soon thereafter as the Court may direct why:

2.1 the decision of the Second Respondent in

dismissing the Applicant from Maruapula School cannot be declared unlawful, wrongful and without just cause.

2.2

the decision of the Second Respondent in dismissing the Applicant from Maruapula School cannot be set aside.

2.3

the Applicant cannot be reinstated with immediate effect.

3. That order 2.3 above should operate as an interim order.
4. Costs of suit to be borne by the First and Second Respondents."
The application was dismissed with costs. An appeal was
noted by the Appellant in the following:

"1. The Learned Judge erred in holding that the Applicant was given a fair hearing.

1.1

The decision of the Second Respondent was wrongful and contrary to rules of natural justice.

1.2

The second Respondent did not confront the Applicant with evidence that was against him.
1.3

There was no formal hearing.

2. The Learned Judge erred in holding that it was clear that the torn note was given to a Form Representative.

2.1 The Learned Judge made a decision on a point of fact which could not be resolved by the Affidavits.

2.2 The Learned Judge made a finding on a matter he was not called to decide upon.

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2.3 The Learned Judge erred and misdirected himself on this point of fact.

The Learned Judge erred in finding that in expelling Kevin the Principal (Second Respondent) followed a proper procedure.

3.1

The Principal expelled Kevin before consulting the Chairperson of the Maru-a-Pula School Council.

3.2

The Principal only consulted the Chairman of the School Council after he has already expelled Kevin.

The Learned Judge erred in holding that in his situation there was no need to have a formal hearing in that Mr Mackenzie in his Answering Affidavit did not disclose any special situation.
4.1     The Learned Judge therefore erred in deciding that the case of DE VERTEULL vs KNAGGS 1918 AC 557 was applicable.
4.2     The Learned Judge therefore erred in so far as he distinguished the case of STUDENT REPRESENTATIVE COUNCIL vs UNIVERSITY OF BOTSWANA AND OTHERS C.A 1/89.
The Learned Judge erred in so far as he found that despite the fact that the parents of Kevin, a minor, were not present when a serious decision against him was taken.
5.1     As a minor, the Honourable Court must have consider that there can be no fair hearing when the parents or a guardian is present, particularly considering the mood or behaviour of the Principal.
5.2     The Learned Judge failed to protect the interest of a minor despite the fact that the Honourable Court is an upper guardian

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of minors.
5.3 The Learned Judge erred in finding that
the atmosphere under which the minor child Kevin was forced to write letters of explanation was conducive for a fair hearing.
6.       The Learned Judge erred in dismissing the
Application and ordering costs against the
Applicant alone.
6.1     The Respondent has raised points in limine which were not successful and therefore should have been dismissed with costs.
6.2     Points in limine, are a special case and if a party is not successful he should be ordered ordinarily to pay costs unless an explanation to the contrary is given.
6.3     In the light of the judgment of the Honourable Judge, an Order apportioning costs would have been the most appropriate.
7.       The Learned Judge erred in law and fact          "
After the appeal was noted and before the merits of the
appeal could be adjudicated upon, Respondents gave notice of a
preliminary objection in terms of Appeal Court Rule 2.3 and
applied to strike out the appeal.
This notice reads as follows:

"BE PLEASED TO TAKE NOTICE that application will be made to the above Honourable Court for an Order in the following terms:-

(a) that Applicant's Appeal be struck out; alternatively,
(b) that Applicant"s Appeal be struck out by virtue

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of preliminary objection, details of which are set out below;

(c)

that the Appellant be ordered to pay the costs of this application and the wasted costs of the Appeal, alternatively, that Attorney T. Joina, further alternatively, the firm of Attorneys known as Joina & Associates, be ordered to pay such costs de bonis propriis;
(d)

further and/or alternative relief.

BE PLEASED TO TAKE NOTICE FURTHER that the grounds of the preliminary objections are:-

The Notice of Appeal, dated 10th March 1995, is defective in that it does not comply with Rule 12 (1), 12 (2) or 12 (3) of the Court of Appeal Rules;

Appellant has not complied with its obligations under Rules 16, 18, 19 and 20 of the Court of Appeal Rules, in that the Appellant did not see fit to attend the meeting called by the Registrar to settle the Appeal Record or to pay the security for costs, and has not made payment of the security for costs by either of the two dates set by the Registrar, or at all.

BE PLEASED TO TAKE NOTICE FURTHER that the Affidavit of Robin Brian Camp attached hereto will be used in support of this application/objection."

This notice of preliminary objection" was dated the 29th of November 1995, and it, together with the affidavit of Mr. Camp referred to therein and the annexures, was served on Appellant's Attorney on the 5th of December 1995. (The person who signified receipt thereof entered a date of 5th of November, but this is clearly an error and should have read the 5th of December 1995.)

Notice of Opposition to this application was filed - dated 9th of January and we proceeded to hear argument thereon from the parties' Counsel on Monday 22nd of January. Before I deal with these I would add that a document dated the 11th January 1996 received by the Registrar on the 11th January 1996 and headed "Amended Notice and Grounds of Appeal" found its way into the papers before us, purporting to emanate from the Appellant's attorney.

Finally an affidavit by one 'KEAKETSWE THIPE' and headed "Answering Affidavit" was also filed. Although the affidavit is undated, it was filed on the same day as the "Amended Notice and Grounds of Appeal" referred to above and a "Notice of Opposition" to the "Notice of Preliminary Objection" by the Respondents. Both these latter notices are dated the 9th of January and although allegedly filed on the 1st of January according to the date stamp, must have been filed after the 9th and probably on January 10, 1996.

For the purposes of ruling on the "Notice of Preliminary Objection" (herein after referred to as "the objection"), I intend to confine myself to an evaluation of the contents of paragraphs 2 and 3 of the objection cited above.

THE first question is therefore, did the prosecution of the appeal require Appellant to lodge a power of attorney, it being common cause that no such authority had either been obtained or filed? The only power of attorney is one signed by "Babuseng Thipe" in which he appoints the attorneys in this matter described as "Joina & Associates" as "my true and lawful Attorney and Agent in my name, place and stead, to appear before the above-named Honourable Court or whereever else may be necessary

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'and then and there to institute action against Defendant for :" "TO INSTITUTE ACTION AGAINST THE RESPONDENTS." The "above-named Honourable Court" referred to was the High
Court.

What now follows and which precedes the signature of the

client is the following extraordinary paragraph - best described
I believe as gibberish.

"To pay all fees of Counsel and Witnesses, to make all
payments whatsoever which may be necessary and
desirable for the proper conduct of the case; to
W proceed to the final end and determination thereof;

and generally for effecting the purposes aforesaid, to do or cause to be done whatsoever shall be requisite as fully and effectually, to all intents and purposes, as I might or could do if personally present and acting therein; hereby ratifying, allowing and confirming, and promising and agreeing to ratify, allow and confirm all whatsoever my said Attorney and Agent shall lawfully do or cause to be done in or about the premises by virtue of these presents."

It was contended on Respondent's behalf that although the

Rules of the Court of Appeal do not specifically demand the
filing of a power of attorney to prosecute or defend an appeal,
such a written authorisation was necessary. The use of the
W words in the power of attorney "and to proceed to the final end
and determination thereof" are sufficient for prosecuting or
defending the case before the Court dealing with it, and for the
noting of an appeal therefrom but not for the prosecution of the
appeal itself. Counsel further contended that in any event,
whatever the position might be in the absence of a challenge,
once an attorney's mandate to prosecute an appeal is challenged,
he/she must be required to prove that written authorisation has
in fact occurred. In this regard it is clear that Appellant's
attorney was placed on notice as early as April 28 1995, that
Respondents were challenging his mandate to prosecute the appeal,

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and on the 1st of May 1995 was advised by Respondents of their view that Appellant's attorney "had no mandate to prosecute the appeal and that this point would be taken by way of preliminary objection."

Annexed to the objection is a letter from Respondents attorneys dated 28th April 1995. In it Mr. Joina is advised that "you have no Power of Attorney to appeal on behalf of your client. Please note that we intend challenging your right to act on behalf of the Appellant."

Despite these early intimations, despite the fact that the point is taken very directly and specifically in Respondent's "Objection" and is supported in the heads of argument by the contentions outlined above, Appellant's attorney fails to furnish the Court with any proof of a mandate to prosecute the appeal.

In a decision in the South African Court of Appeal it was held that the words "and to proceed to the final end and determination thereof ...sufficiently authorised the noting of the appeal to this Court" (This is a reference to the South African Court of Appeal). See in this regard PRETORIA CITY COUNCIL v MEERULT INVESTMENTS LTD 1962 (1) S.A. 321 AT 326 F.

The learned Judge of Appeal (OGILVIE THOMPSON J.A., as he then was) goes on at paragraph G to say the following:

"These last cited words do not, however, authorise the prosecution of an appeal to this Court." (own emphasis). After citing the decision in D. AND D.H. FRASER LTD v. WALLER 1916 A.D. 494 in support of this view the Court goes on to say the following:

"As Voet 3.3.18 (translation Gane vol. 1 p. 533) puts it, even though an attorney be admitted in both Courts, he must

nevertheless be equipped with a new mandate to conduct the case on appeal, unless it appears right from the beginning a mandate was also give to make and to prosecute the appeal."

It should be noted that in the case just cited, it is recorded by the learned Judge that; "The Rules do not require the filing of a power of attorney to prosecute or defend an appeal in this Court" The Court concludes by ruling that-

".... the only effective means of resisting a possible challenge of authority, is for the attorney to obtain a special mandate to prosecute or defend the appeal in all cases where the original power of attorney upon which the litigation in the Court below was conducted does not itself cover the situation."

Mr. Joina contended that it was the practice in this
jurisdiction not to obtain such a power where an appeal is
prosecuted or defended. If that is so, it is a flawed practice.
It is manifestly improper for an attorney to proceed with an
appeal and incur the costs thereof without his client's
unequivocal written authorisation to do so. See in this regard
also the decision in HOME V. CHURCH 1914 TPD 611 and particularly
the comments of Gregerowski J. at 621 where he says:

"When the appeal has to be heard in the Superior Court the further power to employ Counsel and prosecute the appeal has to be filed."

Inasmuch therefore as current practice may differ from the ruling outlined above, it should be brought into conformity with what is stated above. The Registrar has been advised that the terms of this ruling should be communicated to practitioners in this jurisdiction in such manner as he deems appropriate.

It is not strictly necessary therefore to deal in detail with the contentions raised by Respondents concerning the failure

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of the appellant to comply with the Registrar's ruling concerning the provision of security before prosecuting the appeal.
However, in view of the fact that the conduct of the attorney concerned may well be relevant as to the order for costs we have been asked to make, I proceed to record in brief the fact? of this aspect of the matter.
The provisions of the various rules applicable to the
computation and fixing and depositing of security for costs and
the sanction prescribed for non-compliance have been well
summarised in argument before us. It reads as follows:

"In terms of Rule 18 of the Court of Appeal Rules, the Appellant shall within such time as the Registrar of the Court below directs, pay the fees prescribed for preparing the Record calculated at the full costs of one copy for the Appellant and one fifth of the costs for each of the five copies for the use of the Court.

In terms of Rule 19 of the Court of Appeal Rules the Appellant shall within such time as the Registrar of the Court shall fix, deposit such sum as shall be determined by such Registrar, or give security therefor by Bond with one or more sureties to the satisfaction of such Registrar for the due prosecution of the Appeal and for the payment of any costs which may be ordered to be paid by the Appellant.

In terms of Rule 2 0 of the Court of Appeal Rules if the Appellant fails to comply with any of the requirements of Rules 18 or 19, the Registrar of the Court below shall so inform the Respondent and the Registrar, and the Court may thereupon order that the Appeal be dismissed with or without costs.

The Registrar of the Court below, provided that notice has been duly served on each of the parties, may proceed to settle the Appeal Court Record, fix the amount to be deposited by the Appellant to cover the estimated costs of making up and forwarding the Record of Appeal, and fix the amount to be deposited by the Appellant or secured by Bond for the Respondent's costs of the Appeal whether or not any of the parties attend.

Rule 16 of the Court of Appeal Rules."
After due notice to the parties the Registrar held a
meeting, which Mr. Joina failed to attend, and fixed security in

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an amount of P10,000.00. Up to and including the date of the hearing, Appellant has failed to comply with the Registrar's ruling. Neither has there been any attempt to set aside his decision or to challenge it procedurally before this or any other Court. Mr. Joina's non-attendance was, according to him, attributable to illness, a fact which Respondents saw fit to challenge. Mr. Joina has failed to respond to this challenge in any way. He has failed to make an affidavit confirming the facts alleged in the letter. Neither has he explained why he did not seek through some medium, such as a telephone call or other communication, to secure a postponement or to take some other appropriate step seeking redress. Had he done so he might have been able to participate in the process prescribed by the rules or secure a setting aside of the award of security and, in so doing, would have protected his client's interest. He has given no explanation for his failure to do any of these things.

As recorded above, a belated attempt was made to file an affidavit by Appellant's wife to explain why she has been unable to comply with the Registrar's order. However, not only was this affidavit not properly tendered, but there is nothing to indicate that the Appellant, who is dominus litis, associates himself with its contents or has authorised her to depose to it on his behalf.

There has been a clear non-compliance with the rules referred to above and on this ground also the appeal should be struck from the roll.

That is not the end of the matter.

Respondent has requested the Court to grant an Order that Mr. Joina, or Joina & Associates, the firm of attorneys who represented the Appellant throughout these proceedings, should

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pay the costs of the appeal de bonis propriis. One would have thought that such a claim would have startled even the most supine practitioner into action. It had no effect on Mr. Joina. He proceeded to pursue the appeal as if there was no threat of a personal liability for costs at issue. He has furnished no explanation for his gross negligence as evidenced by the dismal tale recounted above. Whilst conceding that he was negligent on various counts, he advanced two reasons why the Court should not order him or his firm liable personally for the costs incurred. The first contention was that the Court should grant him an opportunity to rectify his non-compliance with the rules, because he was acting for a minor whose interest the court should protect. In the second place, he urged upon us the submission that his negligence was not so gross as to justify the unusual and punitive order sought.

Let us examine the second proposition first. The Court finds that he has failed to comply with the Rules of Court or has exhibited a high degree of professional incompetence in the following respects.
1.

He filed his notice of appeal out of time.
2. He purported to file an amended notice of appeal, purporting to do so as of right, some 9 months after the appeal was noted and some 3 days before the commencement of this session of the Court of Appeal.

He fails to obtain a mandate from his client to prosecute the appeal, despite the fact that he was challenged by the Respondent that he was not authorised to do so, 9 months before the hearing of the appeal.

He fails to attend the meeting called by the Registrar to determine the quantum of the security to be provided for the costs of the appeal.
5.

He fails to render an acceptable explanation

for his non-compliance, even when challenged and invited to do so.

He fails to take any appropriate steps to protect his client's interests by seeking to have the order set aside or the quantum thereof reduced.

He seeks to introduce an inadmissible affidavit by a person who is not a party to the proceedings in an attempt to rectify his failure to comply with the rules concerning security for costs.

He files his heads of argument the morning of the hearing of the appeal when he had obtained notice of Respondents' objection some 6 weeks before the hearing and makes no application for condonation for the noncompliance with the rules.

He makes no effort to explain any of the above unprofessional behaviour by way of an appropriate affidavit and fails to apologise to the Court for his conduct.

An award of costs de bonis propriis is an order no Court
will make readily. Cilliers, "Law of Costs" says at paragraph
10:25 that:

"The tendency is to award costs de bonis propriis against erring attorneys only in reasonably serious cases, such as cases of dishonesty, wilfulness, or negligence in a serious degree."

Before I expand on how this approach has been commented upon by Courts in South Africa, it will be appropriate to refer to Mr. Joina's plea ad misercordiam. with reference to the fact that the appeal concerns the welfare of a minor. This is so. However, on the information before us, the young man has been accepted and has had a year of tuition at an alternative educational establishment. Moreover, we will not close the door finally on his access to this Court. We will strike the appeal from the roll rather than dismiss it.

Whilst in no way therefore wishing to encourage the parents to pursue this litigation, the appeal could be reinstated if good

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cause is shown.

What is of importance in this context however, is that the nature of the litigation should have prompted the attorney to have exercised special care that he, as an officer of the court, exercised due diligence in order to ensure that the minor's interests entrusted to his care, are properly protected. His failure to do so adds, not detracts, from the degree of his culpability.

Examples of cases in which courts have considered awarding or have awarded costs de bonis propriis against attorneys are WEBB & OTHERS v. BOTHA 1980 (3) S.A. 666 (N); WAAR v. LOUW 1977 (3) S.A. 297 (0); IMMELMAN V. LOUBSER AND ANOTHER 1974 S.A. 816 (A); MACHUMELA v. SANTAM INSURANCE CO. LTD 1977 (1) SA 660 (A) AT 664 AND KHUNUO AND OTHERS v. FIRHER AND SON 1982 (3) S.A. 354 (T) . These decisions certainly confirm that negligence of a serious degree can justify an award of costs with the resultant obligation on the attorney to pay them himself. See in particular the reasoning of M.T. Steyn J. In WAAR v. LOUW (Supra).

A most recent decision in which an award de bonis propriis was considered where there was a non-compliance with the Rules of Court, is to be found in the judgment of the Court of Appeal in South Africa in NAPIER v. TSAPERAS 1995 (2) S.A. 665 A. See in particular the reasoning of the Court at p.671 E-H.

I have no doubt that both the degree and the multiplicity of the negligent acts attributable to Mr. Joina, as well as his failure to attempt to explain his conduct, obliges this Court to order him or his firm to pay the costs of this appeal de bonis propriis. He has demonstrated a high degree of professional

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incompetence and such serious negligence that he and not his client should bear the costs of the appeal.

We have noticed with some concern the regularity with which the Rules of Court are either totally ignored or departed from by practitioners. Whilst the rules are not intended to be rigid prescriptions and have to be applied with flexibility, this is no excuse for the kind of laxity and indifference with which they are treated by some of those who practice before us. The observance of the rules promote competent service for litigant^ they are designed to ensure speedy disposal of cases and the sound administration of justice.

We do hope that this decision will convey to practitioners our view, that their casual approach to the rules may well place them in peril and that to ignore them might well expose them to similar awards in future.

The appeal is struck from the roll. Mr. Joina - or failing him the firm Joina & Associates - is ordered to pay the costs of appeal incurred by both the Appellant and the Respondent de bonis propriis.

DELIVERED IN OPEN COURT AT LOBATSE THIS 2nd DAY OF FEBRUARY 1996
J.H. STEYN JUDGE OF APPEAL

I AGREE:
A.N.E. AMISSAH JUDGE PRESIDENT

I AGREE:
LORD N. WYLIE
JUDGE OF APPEAL

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