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Keothepile v Keothepile and Another (Civil Appeal No.5 of 201) [2002] BWCA 22 (2 July 2002)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Civil Appeal No. 5 of 2001 High Court MC 63 of 1999
In the matter between:
PRINCE MOLATLHEGI KEOTHEPILE     Appellant
and
1" Respondent 2nd Respondent
MAVIS KEOTHEPILE HAROLD KACHAJE
Mr. G. G. Komboni for the Appellant Ms. M. T. Garekwe for the Respondent

JUDGMENT
Coram:   LORD WEIR, J.A.
SIR JOHN BLOFELD, J.A. DIBOTELO, A.J.A
SIR 1QHN BLOFELD, J.A.:
Prince Keothepile, herein referred to as "the husband", married Mavis Keothepile herein referred to as "the wife" on 8 Aprl 1982 in community of property. They have one child, Tefo, who was over 18 years at the time of their divorce. The decree nisi was pronounced on 9 August 1999. At that hearing, a consent settlement agreement dated 30 July 1999 was made the order of the court apart from paragraph (6) headed "outstanding issues". That settlement dealt with the

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majority of the matrimonial property. I set out the portion of that agreement that is relevant to this appeal.
(5)      IMMOVABLE PROPERTY
5.1      Lot 7964, Tsholofelo is to be valued and sold and the
proceeds used as follows:
the proceeds shall be used to clear the bank's mortgage bond.
the proceeds shall be divided equally between the parties.
5.2      Lot 50775, undeveloped plot at Phakalane is to be valued, the
Plaintiff (the wife) shall pay the defendant (the husband) Vi of
the value price.
(6)      OUTSTANDING ISSUES
Business, (this refers to T.Boys Bar)
Lot 7964 was mortgaged. The mortgage was paid monthly by the husband.
On 18 November 1999, the wife's attorneys wrote to the husband's attorneys telling them that Mr. Harold Kachaje, the 2nd Respondent in this appeal herein referred to as the purchaser had made an offer to buy Lot 7964 for P350,000.00.
The husband had obtained a valuation from Roscoe Bonna Valuers dated 11 August 1999 which put an open market value of P260,000.00 and a forced value of P222,000.00 on Lot 7964. A further value of Plot 7964 was made by Willie Kathiruma Associates (Pty) Ltd. on 10 November 1999 giving an open market value of P240,000.00 and a forced sale value of P290,000.00.

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Willie Kathiruma were instructed by the husband's attorneys, Komboni and Associates. They had advised Willie Khathiruma on 21 October 1999 that "our client would be comfortable with the valuation ranging from P 170,000.00 to P200,000.00. In December 1999 the husband's attorneys wrote to the wife's attorneys offering on his behalf to buy Lot 7964 for P240,00.00. The wife refused to sell the property to the husband unless he paid the same price offered by the purchaser, namely P3 50,000.00. The disagreement between the parties about Lot 7964 continued for some months. The wife eventually brought an application to the High Court for an order that Lot 7964 be sold to the purchaser for P350,000.00. On 29 May 2000, Aboagye, J so ordered. In that order, he dealt with costs and a minor matter relating to property Lot 50775 which is not relevant to this appeal.
In the meantime, on 29 November 1999, Phakalane Estate had valued Lot 50775 at P44,380.00. This valuation was accepted by the wife and has never thereafter been in dispute between the parties.
1 now return to Plot 7964. On 30 May 2000 the wife's attorneys wrote to the purchaser accepting the offer of P3 50,000.00 for the property. They did not send a copy of this letter to the husband's attorneys. On 22 June 2000, the wife's attorneys wrote to the husband's attorneys informing them that they had

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commenced transfer and asking them to advise the husband "as we are going to need him to sign the transfer document..."
On 5 July 2000, the husband's attorneys wrote to the wife's attorneys saying "in view of the fact that the client is now willing to buy the property at P3 50,000.00 and as such there would be no need to sell it to a third party, we suggest that you tell Mr. Kachaje (the purchaser) to suspend the processing of his loan before he incurs too many costs." This letter received an immediate reply by the wife's attorneys which explained how far matters had already proceeded with the purchaser and expressed doubt about the purchaser agreeing to withdraw from the purchase. The letter also explained their own concern about costs already incurred by them in relation to this property. On 25 July 2000, the husband's attorneys replied saying "our client has instructed us to obtain from you the amount of the same costs to enable him consider payment thereof."
Then on 9 August 2000, her husband filed a Notice of Motion applying for further relief as follows:
" 1. That the order of this Honourable Court made on the 29* May 2000 ordering the sale of Lot 7964, Gaborone to be sold to the 2nd Respondent (the purchaser) for P3 50,000.00 be Rescinded and set aside;
2. That Lot 7964, Gaborone which is registered in the name of the Applicant (the husband), be sold to the Applicant (the husband) for its open market value and

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the proceeds thereof disbursed in terms of paragraph 3 below;
That the Applicant (the husband) pay to the 1" Respondent (the wife) as her half share of her interest in Lot 7964, Gaborone, half of the net of the purchase price after deduction of all necessary costs and expenses to be incurred by the }oint estate herein;
That any and all steps taken by the 1st Respondent (the wife) and/or her attorneys to transfer Lot 7964, Gaborone to the 2nd Respondent (the purchaser) be stayed permanently;
That the 1" Respondent (the wife) pay to the Applicant (the husband) the amount of P22,190.00 being half of the value of Plot No. 50775 Gaborone, such payment being in terms of the order of this Honourable Court dated 9th August 1999;
That 1 * Respondent (the wife) forthwith hand over to the Applicant (the husband) motor vehicle Toyota Hilux registered under No. B 391 ABD together with its trailer to enable the Applicant (the husband) to sell the same and thereafter pay half of the proceeds of the same sale to the 1st Respondent (the wife), such sale being in terms of the order of this Honourable Court dated 9* August 1999;
That 1" Respondent (the wife) pay to the Applicant (the husband) the amount of P2,500.00 per month reckoned from February 2000 to date of payment the same amount being rental for Lot 7964, Gaborone which property the 1" Respondent (the wife) should have vacated on the 7th February 2000 and handed over the same to the Applicant (the husband) for the purposes of leasing it;
That all mortgage payments being P544.64 per month paid by the Applicant (the husband) to Standard Chartered Bank in respert of Lot 7964,Gaborone from August 1999 to date of sale of Lot 7964, Gaborone be paid to Applicant (the husband) from the proceeds of

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the same sale;
 9.      That Applicant (the husband)hands over all the books of the parties' business known at T Boy's Bar to Herbert Mtonga of Rebatho Holdings and Business Services for the purposes of processing the same and preparing the balance sheet and books of account of the same business;
10.    
Directing the 1" Respondent (the wife) to pay the costs of this application;
11.    
Directing the 2nd Respondent (the purchaser) to pay the costs of this application in the event that he opposes the same."
On the same day, the husband swore his Founding Affidavit at paragraph 14, he
stated:
"When the I * Respondent (the wife) aforesaid application came to Court, there was some communication breakdown with my attorney, Mr. Komboni, in relation to what order I would be comfortable with. I had intended to indicate to my attorney that I would be prepared to buy the property at P3 50,000.00 and that the court should make an order along those lines. It would appear, however, that my attorney thought that I said I did not mind if the property is sold for P3 50,000.00 to any buyer. Due to this communication breakdown, my attorney allowed the order to the effect that the property be sold to the 2nd Respondent (the purchaser) for P3 50,00.00 to be made. This order was made on the 29th May 2000."
Mr. Komboni swore an affidavit confirming the contents of the founding affidavit as far as they related to his involvement in this matter. The matter came before the Court a quo and on 19 January 2001, the Court made the following orders: " 1. The application seeking that judgment of this Court

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made on the 29th May 2000 be rescinded fails;
Lot 7964 is to be sold as contemplated by the Order
of the 29* May 2000;
The 1" Respondent (the wife) is hereby granted the authority to sign all such documentation and do all such acts as shall be necessary to effect the transfer of Lot 7964 to Harold Kachaje (the purchaser);
The Applicant (the wife) is at liberty to advertise, the parties' Toyota Hilux, bearing registration B391 ABD together with the trailer for sale. Such advertisement to include, but not to be limited to, the affixing of a 'for sale7 sticker on the said items. The 1" Respondent (the wife) to make the vehicle available for inspection by the Applicant (the husband) and potential purchasers;

The 1st Respondent (the wife) is at liberty to remain in occupation of Lot 7964 pending the conclusion of its sale in terms of paragraph 2 above;
The mortgage charges from the date of the divorce to the date of the sale of Lot 7964 to be a charge against the joint estate. Applicant (the husband) to be reimbursed for such payments as he has made in respect thereof from the purchase price of the said Lot 7964;
Within 30 days of the handing down of this Order, the parties to appoint a third party, other than Matthew Rimbi, to be mandated with the task of valuing the business run and managed by the 1" Respondent (the wife) under the name and style of T Boy's Bar;
In the event that the parties fail to agree on a valuer as ordered in paragraph 7 above, a panel of valuers shall be appointed as follows: each party shall appoint one person and the two persons so appointed shall in turn appoint a third person;
Each party to surrender to the valuer or valuers appointed in terms of paragraph 7 or 8 above all such

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documents in their possession which they reasonably expect to be relevant to the valuation;
10.    
The cost of the valuation of the business T Boy's Bar to be a charge on the joint estate and to be paid from the proceeds of the sale of Lot 7964;
 11.    
The costs of the rescission application, together with the costs of all aspects of the case flowing therefrom, to the respondents (the wife and the purchaser), at a scale of attorney and client;
 12.     Ninety percent of the costs of the rest of the application to the 1" Respondent (the wife) at the ordinary scale.
The husband's attorneys filed their Notice of Appeal against the wife and the purchaser (the two respondents) on 28 February 2000. The grounds of appeal covered many but not all of the issues raised in the court a quo. Subsequently, Mr. Komboni on the 8* of January 2002 sent the Court his Heads of Argument, but it was not until Ms. Garekwe filed her Heads of Argument in respect of both respondents that certain important information was disclosed to this Court. The first matter was that Plot 7964 had been sold to the purchaser on 23 April 2001. The second matter was that following that sale, the husband had been paid his half share of the proceeds. The third matter was that in July 2000, the husband had been reimbursed in full for the mortgage charges he had made in respect of Plot 7964. The fourth matter was the disclosure that on 6 December 2001, the husband's attorneys had issued a Writ of Execution to attach goods belonging to the wife to the value of P22,190.00 together with interest at the rate of 10% per

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annum as from 1 January 2000 under the order of the Court dated 9 August 1999. Ms. Garekwe also disclosed that on the 14th December 2001, a Notice of Attachment in Execution was issued by the Deputy Sheriff noting that he had that day seized "and laid under judicial attachment" a number of articles belonging to the wife. The relevant Court documents were attached to her Heads of Argument.
As a result of this additional information, when this appeal was heard, some parts of the appeal were not pursued.
I now turn to deal individually with Mr. Komboni's submissions.
Mr. Komboni's first submission was that the court a quo should have granted the husband an order that the wife pay him P22,190.00 being his half share in Plot 50775. He submitted that the consent order of 9 August 1999 did not state that the wife could wait until Plot 7964 had been sold before she paid that sum to the husband and that in any event Plot 7964 had now been sold, but this last issue was never considered by the court a quo as Lot 7964 has not then been sold. The court a quo stated that there was no suggestion that the wife had any funds that did not form part of the joint estate, and that as the parties were married in community of property, it could reasonably be assumed that the funds would be raised post divorce. The judgment continued by saying that the wife's case that she should target her share of the purchase price of Plot 7964 was reasonable and logical. The

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court found that the husband had stood in the way of an expeditious resolution of
this part of the case. This was a reference to the husband's refusal for many months
to allow Plot 7964 to be sold to the purchaser and his subsequent rescission
application to the Court. It is now necessary to consider the issue of the Writ of
Execution to the husband's attorneys. That Writ relies on the order of the court of
9 August 1999. The subsequent Notice of Attachment issued by the Deputy
Sheriff has also to be taken into account. Mr. Komboni submits that the husband
now wishes to abandon the Writ of Execution, but at present, it is still in existence
and some of the wife's goods are attached. The husband cannot rely on the
judgment of the court of 9 August 1999 and take steps to enforce it and at the
same time apply for relief to a court to vary that judgment. Mr. Komboni relies on
the case of De Crespigny v De Crespigny 1959 (I) S.A. 149. Holmes, J at page
150 states:
"The civil administration of justice provides machinery inter alia for the enforcement of rights. It provides, amongst other things, for litigation, judgment, and execution. As execution is a process for enforcing judgments, it seems to me axiomatic that it is only available when the claim or Ns has been judicially resolved. And it seems to me clear that a lis has not been judicially resoved if the amount payable under the judgment can only be ascertained after a further problem of law has been decided. It is not within the province of the Plaintiff to decide such problems. In such a case, failing agreement between the parties, a Plaintiff's remedy, at any rate in the supreme court, would, I think, be to apply for a definition of his rights under the judgment. Whether this should be done by way of an application for a declaratur, or in the course of applying for leave to execute, I need not decide".

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Mr. Komboni submits that this case is on all fours with that case, but in that case the value had yet to be assessed, whereas in this case the value of Plot 50775 was known and agreed by the parties since November 1999. Further, that case is of no assistance to Mr. Komboni as he has already taken proceedings relying on the August 1999 order. He cannot take proceedings relying on that order and at the same time take other proceedings to vary that order. In my view, this is fatal to this submission. I also find that the court a quo made proper findings on this matter and that there was ample evidence to support them.
Mr. Komboni next submits that, even though the husband has now been reimbursed for all the mortgage charges he has made in respect of Plot 7964, there is nevertheless a breach of the 9 August 1999 agreement. But, the relevant part of that agreement was superseded by the order of the court a quo which set out that the husband be reimbursed from the proceeds of sale of Plot 7964. Mr. Komboni accepts that the husband has been fully reimbursed and accepts that this matter is now academic. But he submits that, at the time of the Notice of Appeal, it was appropriate to appeal this part of the order of the court a quo as the sale had not yet taken place. I find little merit in appealing this order of the court a quo in the first place as there was no clear evidence before that court that the wife had any assets from which she could make that payment until Plot 7964 had been

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sold. But once it had been sold, I would have expected this ground of appeal to have been abandoned. Instead, it is still treated as a live issue in Mr. Komboni's Heads of Argument of 8 January 2002. Mr. Komboni submits that the only relevance of this matter is in relation to any order for costs that this Court may make about this appeal. He further submits that nothing turns upon the failure to abandon that ground of appeal. I consider that there was no merit in including this ground of appeal in the first place, or in failing to abandon it thereafter, and that both are matters to be taken into account against the Appellant when considering the question of the costs of this appeal.
The next two submissions are linked. Mr. Komboni submits that the order that the wife be at liberty to remain in occupation of Plot 7964 till it was sold was against the weight of the evidence and further that she should have been required to pay rent to him during the time that she remained in occupation before the sale of the property.
The submission of Mr. Komboni is that the wife should pay rent from 7 February 2000, being two months from 7th December 1999, till 23 April 2001 being the date of the completion of sale of Plot 7964.

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Mr. Komboni relies on parts of a letter of the 14th of December 1999 written by
him to the wife's attorneys. This letter refers to a meeting between the parties that
took place on 7 December 1999. That letter states:
"We further confirm that it would be better to have
your client (the wife) vacate the house and the same
house be leased so that it can pay for itself and any
extra money would be pooled into the estate. We
confirm that it was agreed that your client shall
move out of the house within two months
reckoned from 7th December 1999  "
Mr. Komboni further relies upon part of the husband's Founding Affidavit of 9
August 2000 where after reiterating what is set out in the letter of 14th December
1999, he says:
"It was further agreed that she (the wife) will pay for the months that she will remain in the property."
"I was to lease the property at a rental of P2,500.00
per month        I had already obtained a tenant."
The wife in her Opposing Affidavit of 20 August 2000 deals with the relevant
passages in the husband's Founding Affidavit and the matters set out in the letter of
14 December 1999. She states:
"It is true that I had indicated to the Applicant (the husband) I would move out of the matrimonial home, such that the same will be rented out, but on condition that I have
alternative accommodation        This was just
a private arrangement between me and the Applicant (the husband) and not part of the Settlement Agreement formed on 9 August 1999."

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I observe that in the court a quo, the husband claimed the full rental of P2,500.00 from the wife. In this court, he recognises that, if successful, he is only entitled to half this rental.
The court a quo dealt with this matter briefly. It said at page 20 of the judgment:
"It is my view that no one aspect of this case should be seen in isolation. At the time of the divorce, the parties contemplated division of their joint property in terms of an agreement that was made an order of the court. This agreement contemplated a sale of the matrimonial home. The matrimonial home was not sold immediately and (the wife) continued to occupy the property. It is unclear why the husband would be entitled to the equivalent of the full rental for the property when he was only part the owner of the property and when it was his misconceived application that continues to delay the sale of the property. It can be reasonably expected that from the proceeds of the sale of certain properties including Plot 7964, the parties would start new households elsewhere. The continued occupancy of Lot
7964 by (the wife)       is linked to the delay in concluding
the sale of Lot 7964. For these reasons this prayer fails."
It can be seen that the court a quo did not deal directly with the matters now raised by Mr. Komboni in this Court. It is therefore appropriate for this Court to consider them.
Ms. Garekwe submitted that the letter of 14 December 1999 was not signed by both parties and was therefore not a concluded agreement. But that letter was confirmation of an alleged oral agreement by the parties of 7 December 1999 and

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would not be expected to bear both parties' signatures. Ms. Garekwe next submits that the meeting of 7 December 1999 should be considered in the context of the proposed sale of Lot 7964 in the near future. She draws attention to her letter of 9th September 1999 where she, on the wife's behalf, made it clear that the wife was prepared to move out when the sale had been made. She submits that this indicates that she was not prepared to move out before then. She also emphasised that the wife's affidavit stated that she would only move out on condition that she found alternative accommodation.
Mr. Komboni in reply submitted that, in this affidavit, the wife did not deal with all the points raised by the husband in his affidavit relating to this matter and that the court should conclude that as the remaining points were not traversed by the wife, they should be taken as being agreed. There is some force in this submission but it is not conclusive. The Court has to consider the whole of the relevant evidence even if it is incomplete. Some of the husband's evidence relating to this submission was also incomplete. The husband stated in his affidavit that he had a firm tenant. I interpret this to mean a firm tenant who was prepared to pay P2,500.00 per month rent, but there is no affidavit from that tenant nor is his identity disclosed. That does not mean that that evidence should necessarily be rejected but it means that the evidence is incomplete. Once again, the court has to do its best on such evidence as has been provided. I conclude that the meeting of 7 December 1999 taken in conjunction with the history of this matter indicates that there was

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agreement about the wife moving out of the matrimonial home, but 1 am unable to come to the conclusion that this agreement was unconditional. As Ms. Garekwe submits, it seems to me wholly unlikely that the wife would have agreed to move unless she had money to pay for somewhere to go. There was no evidence that she had sufficient resources to be able to do this until Plot 7964 had been sold. Mr. Komboni faces a further difficulty about his submission relating to this agreement. Taking his case at the highest, this agreement does not show that there was ever an agreement that if the wife failed to move out she should pay rent to the husband. I find no basis in law for the proposition now put forward by Mr. Komboni that she should pay rent to the husband for her continued occupation. Having considered the submission made by Mr. Komboni, I am of the view that the court a quo rightly found that the wife should remain in occupation of Plot 7964 until it was sold and that she should not have been required to pay rent to the husband. So these submissions fail.
I turn to the next submission which relates to a business called T Boys Bar. This is a business that was set up by the parties during the marriage. It still continues and the wife is still involved. Before the court a quo, there was no evidence as to its value or the extent of its business. Each party was alleging that the other party had failed to produce the necessary documents for a valuation to take place. The court a quo made orders that in default of agreement by the parties, independent valuers should be appointed and that the parties should provide their documentation to those

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valuers. Despite the fact that nine months have elapsed from the date of this judgment, nothing appears to have been done. But those orders are not appealed. The matter appealed in relation to this business is the order that the costs of the valuation should be a charge on the joint estate and paid for from the proceeds of the sale of Plot 7964. Mr. Komboni's sole submission is that the costs of valuation should be paid out of the business itself and not from the proceeds of sale. He submits that it is prejudicial to the husband for it to be paid from the proceeds of Lot 7964 as he is no longer concerned in running this business. But Mr. Komboni has not given this court any good reason to show that the court a quo was not entitled to make the order that it did or that it exercised its discretion wrongly. This order is a matter of administrative expedience and well within the discretion of the court a quo. Consequently, this submission fails.
The final submission in this appeal is against the award of attorney and client costs
to the wife relating to the rescission application. The grounds upon which such an
order may be made have been considered many times by the courts. The law is
settled. Such an order should not be awarded lightly. The principles are set out in
Nel v Waterberg Landboouwars Ko-Operative Vereeniging 1946 A.D. 597 at
607 where Tindall, J.A. says:
"The true explanation of awards of attorney and client costs not expressly authorised by Statute seems to be that, by reason of special considerations arising either from the circumstances which give rise to the action or from the conduct of the losing party, the court in a particular case

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considers it just, by means of such an order, to ensure more effectually than it can do by means of a judgment for party and party costs that the successful party will not be out of pocket in respect of the expense caused to him by the litigation."
This case and this passage in the judgment was approved by the full court in
Botswana Defence Force and the Attorney General vs. Oagile Merafhe Court of
Appeal Civil Appeal No. 13/2000
It is also good law that it is unusual to make such an order in the matrimonial suit.
See Van Winsen, The Civil Practice of the Supreme Court on South Africa 4th Ed at
page 721.
The court a quo found that the rescission application was totally ill conceived and that neither the wife nor purchaser should have to suffer from such unnecessary litigation. It described the husband's reasons for bringing this application as flimsy and weak. It further found that the application was motivated by a change of mind on the part of the husband. Mr. Komboni, in the course of his submissions on this part of the case, accepted that these were findings that the court a quo could properly make on the evidence. The finding by the court a quo of a change of mind necessarily means that the application was totally misconceived. It also means that it was not made in good faith. In these circumstances, the conduct of the husband brings this case within the relevant principles of law. It follows that the court a quo was entitled to make this order. This submission fails.

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I now turn to consider the question of the costs of this appeal. The wife and purchaser, (the two respondents) apply for attorney and client costs. They submit correctly that the appellant has not succeeded on any of his grounds of appeal and that, in any event, they were devoid of merit. They further submit that the failure by Mr. Komboni to set out the information disclosed in his Head of Argument was an aggravating factor. Mr. Komboni submits that it is not appropriate to make such an order. He submits that all his submissions were arguable and reasonable. He further submits that it was inappropriate for him to mention in his heads of argument the information referred to by Ms. Garekwe in her heads of argument. Not only were they not matters on the record, but he submits that, there is no requirement for an advocate to mention any particular matter in his heads of argument. I have considered these submissions with care. It is immaterial in, my view, how this information was the drawn to the attention of the court. It matters not if it was by letter or in the heads of argument. But I have no doubt that he was under a duty to the court to inform them of each of these matters. They were relevant to the appeal. I regard his failure to mention the Writ of Execution as the most serious omission as it affects the legal basis of the submissions relating to the payment of P22,190.00 in respect of Plot 50775. I find that Mr. Komboni compounded his original omission to mention this information by stating in his reply to Ms. Garekwe's heads of argument that the Writ of Execution and the Notice of Attachment attached to Ms. Garekwe's heads of argument should be struck off together with the paragraph in her heads referred to it. This indicates to me that

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Mr. Komboni fails to comprehend his duty to the court. If these documents had not been produced, the court would have been misled. I find his failure to mention this information to be a very serious matter and a breach of his duty to this court. I place substantial weight on this matter when deciding the question of attorney and client costs. I am of the view that Mr. Komboni's submissions relating to the continued occupation of Plot 7964 by the wife of the submissions about whether she should have paid rent for it were arguable and that it was appropriate for those matters to be appealed to this Court, but I am unable to find any merit in any of the other submissions raised by him in this appeal. Standing back from the case, and reviewing all the circumstances, I have come to the conclusion that they were so special and unusual that it is appropriate to make an order for attorney and client costs even though this is a matrimonial case, and I would so order.
Given in open Court at Lobatse this 30th day of January 2002.
SIR JOHN BLOFELD Judge of Appeal
I agree  LORD WEIR
Judge of Appeal
I agree  M. DIBOTELO
Judge of Appeal

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