Tseko Moletsane & Ano. V Standard Lesotho Bank (C of A (CIV) 08/2025) [2025] LSCA 7 (2 May 2025)

IN THE COURT OF APPEAL OF LESOTHO LESOTHO HELD AT MASERU C of A (CIV) NO. 08/2025 CIV/T/0570/2023 In the matter between TSEKO GILBERT MOLETSANE 1ST APPELLANT TEBOHO NEFTALLY MOKOTSO 2ND APPELLANT and STANDARD LESOTHO BANK RESPONDENT CORAM: MOSITO P CHINHENGO AJA MATHABA AJA HEARD: 23 APRIL 2025 DELIVERED: 02 MAY 2025 FLYNOTE Civil Procedure – Taxation of Costs – Scope of Costs Order – Interlocutory Applications – Discretion of Taxing Master – Review of Taxation – Rule 49 of the High Court Rules 1980 – Principles Governing Interference with Taxing Master’s Decision – Improper Inclusion of Irrelevant Costs – Attorney- and-Client Costs – Remittal to Different Taxing Master. The appeal arose from the High Court's decision to set aside a taxation of costs on the basis that the taxing master had improperly included items unrelated to the interlocutory application for which costs had been awarded. The dispute stemmed from a Rule 30 application brought by the respondent bank, which was dismissed with costs on an attorney-and-client scale. The appellants' bill of costs, however, included items pertaining to the main action and procedural steps unconnected with the interlocutory application. The respondent sought review under Rule 49(1) of the High Court Rules 1980. The High Court held that the taxation had been fatally flawed in principle and remitted it for fresh taxation before a different taxing master. Held, per Mosito P (Chinhengo AJA and Mathaba AJA concurring), (1) that the discretion of the taxing master, while respected, is not immune from judicial oversight and may be set aside where exercised on a wrong principle; (2) that the bill of costs should have been confined to items relating solely to the interlocutory application; (3) that the inclusion of broader litigation costs constituted a fundamental misdirection vitiating the taxation; and (4) that the High Court was correct to remit the matter for de novo taxation before another taxing master. Appeal dismissed with costs. JUDGMENT MOSITO P Background [1] This appeal concerns the scope of the taxing master's discretion in taxing a bill of costs pursuant to an order awarding costs in respect of an interlocutory application. The case originated in the High Court (Commercial Division) under CCT/0113/2023. [2] The respondent entered an appearance to defend and subsequently sought further particulars. Due to procedural lapses, the appellants requested a default judgment. The respondent responded with an interlocutory application under Rule 30 to set aside an alleged irregular step. That interlocutory application was dismissed with costs on an attorney-and-client scale. The appellants then prepared and taxed a bill of costs, including items extending beyond the interlocutory application, such as instructions to sue, consultations relating to the merits of the main claim, and other procedural steps unrelated to the Rule 30 proceedings. [3] During taxation, the respondent (costs debtor) raised grievances, albeit not formally objecting to each item during the session itself. The taxing master upheld most items and taxed the bill. Dissatisfied, the respondent requested the taxing master to state a case for a judge's decision under Rule 49(1). The High Court, after receiving the taxing master’s report and hearing the parties, found that the taxation improperly covered the entire litigation rather than being confined to costs arising out of the Rule 30 application. Consequently, Kopo J set aside the taxation and remitted the matter for fresh taxation before a different taxing master. Facts [4] The facts giving rise to the action from which this appeal stems are largely peripheral to its determination. By summons issued in the High Court (Commercial Division), the appellants, Tseko Gilbert Moletsane and Teboho Neftally Mokotso, sought from the respondent, Standard Lesotho Bank, repayment of M326,069.00, together with interest at twelve per cent per annum from 29 December 2022, and costs of suit, alleging that the respondent had wrongfully impounded the said amount. [5] The respondent entered an appearance to defend and engaged in interlocutory processes, including a request for further particulars. Arising from procedural disputes, the respondent applied under Rule 30 of the High Court Rules 1980 to set aside the appellants’ request for default judgment as an irregular step. That application was dismissed, and costs on the scale between attorney and client were awarded against the present respondent. Issues [6] The following issues arise for determination in this appeal: (a) Whether the High Court erred in interfering with the taxing master’s discretion; (b) Whether, in light of Rule 49(1), the appellant (as costs debtor) had sufficiently complied with the procedural requirements to challenge the taxation; (c) Whether the taxation was irregular in including costs unrelated to the interlocutory application; (d) Whether the remittal of the taxation for de novo hearing before a different taxing master was justified. The law [7] The function of taxation in civil procedure is deeply embedded in the administration of justice. It ensures that costs, whether awarded to a successful litigant or borne by the unsuccessful party, are both reasonable and necessary, and that the quantum of such costs does not constitute a penalty but a fair indemnity. In Lesotho, as elsewhere in the common law world, the taxation of a bill of costs is entrusted in the first instance to the taxing master — an officer of the court endowed with specialist expertise. Rule 49 of the High Court Rules 1980 governs the process by which a judge may review the decision of the taxing master. [8] At its core, Rule 49 enshrines three fundamental propositions: First, the right of a dissatisfied party to seek a judicial review of taxation; second, the procedure for prosecuting such a review; and thirdly, the discretion of the judge or court in resolving the matter, including the question of costs. Each of these dimensions warrants careful and intensive analysis. [9] The first limb of Rule 49(1) confers upon any dissatisfied party a right to challenge the taxing master’s ruling "as to any item or part of an item which was objected to or disallowed mero motu" (on the taxing master’s own motion). This right is conditioned upon promptness: the aggrieved party must act within fourteen days of the allocatur — that is, the certificate issued by the taxing master recording the outcome of taxation. [10] It is well-settled in the jurisprudence that the role of a taxing master, while administrative, carries quasi-judicial attributes, especially in contentious matters. The discretion of a taxing officer is not unfettered; it must be exercised judicially and accordingly is subject to judicial supervision. The review of taxation lies where the taxing master’s discretion has been exercised improperly or on a wrong principle. The function of taxation must be performed with an eye both to the indemnity principle and fairness between the parties. If the taxing master errs materially — whether by allowing an impermissible item or disallowing a permissible one — judicial correction is necessary and proper. Thus, Rule 49(1) operates to vindicate the principle that the taxation process is not immune from scrutiny; the judge remains the ultimate guardian of fairness in costs. [11] The second component of Rule 49 sets out a structured and punctilious procedure that must be meticulously followed: The taxing master must state a case setting out each contested item, the grounds of objection, and the master’s findings of fact. Each party may submit written contentions within ten days, including new grounds not advanced at the taxation itself, provided they relate to previously objected to or mero motu disallowed items. The taxing master must prepare and serve a report, and the parties may submit further contentions within seven days. Thereafter, the matter is placed before a judge, who may determine it on the papers or, if he or she deems fit, after an oral hearing in chambers or court. [12] The procedural emphasis is on case stated, contentions, and reporting, ensuring a complete and fair record. This approach's rigour resonates with the principles of the critical importance of a complete, well-documented record for proper review of costs’ decisions. Thus, taxation reviews must proceed upon a structured record, ensuring the appellate tribunal understands the precise basis of the taxing master’s decision. Any departures from procedural regularity in taxation undermine the judicial process's fairness. [13] The requirement that the objector must meet a de minimis threshold of R10 unless the taxing master otherwise consents is a salutary provision. It prevents the machinery of review from being invoked for trivial disputes — an echo of the principle that the machinery of justice must not be clogged with petty and unimportant disputes. [14] Once the matter reaches a judge under Rule 49(2), the judge is granted a wide discretion under Rule 49(3) both as to: the method of decision-making (on papers, with oral argument, or in open court), and the award of costs in relation to the review. [15] It is trite that costs follow the event unless there is a good reason otherwise. In the context of a taxation review, costs awards must balance the principle of indemnity with the need to discourage unnecessary or frivolous challenges. Costs’ decisions must reflect who has won and consider conduct and proportionality. A party who unnecessarily burdens the judicial process with an unmeritorious review of taxation must bear the consequences in costs. Cost orders should reflect the realities of the litigation process and be employed to protect the judicial process from misuse. Thus, Rule 49(3) confers on the judge the ultimate power to fashion a costs order that serves both justice between the parties and the efficient administration of the court’s business. [16] In sum, Rule 49 of the High Court Rules 1980 exemplifies a careful and sophisticated procedural framework for reviewing the taxation of costs. It is animated by enduring common law principles: the need for fairness in quantifying costs; the subjection of administrative acts to judicial oversight; the insistence on prompt, structured, and non-trivial challenges; and the importance of judicial discretion in doing justice in the round. [17] It is a trite principle of law that the discretion of the taxing master in taxation matters must be respected and that courts will interfere only where it is shown that the taxing master exercised his discretion improperly, unreasonably, or on wrong principles. A well-established judicial quotation supporting precisely that principle comes from Visser v Gubb1, where Diemont J stated: "There is a well-recognised principle that a court will not readily interfere with the discretion of the taxing master. It will only do so when it is quite clear that the taxing master was wrong. The court must be satisfied that the taxing master’s ruling was founded on a wrong principle or that he exercised his discretion improperly." [18] This principle forcefully expressed in Visser v Gubb (supra), has consistently been followed in Lesotho, notably in Everistus R Sekhonyana & Ors v The Attorney General & Ors2 and Moshebi and Others v Select Management Services3. As Diemont J emphasised in Visser v Gubb (supra), the court "will only do so when it is quite clear that the taxing master was wrong" and must be satisfied that the taxing master's decision "was founded on a wrong principle or that he exercised his discretion improperly." In Re Eastwood (Deceased)4, Megarry J observed: 1 Visser v Gubb 1981 (3) SA 753 (C) at 754H–755A. 2 Everistus R Sekhonyana & Ors v The Attorney General & Ors (1995-1996) LLR-LB 290 3 Moshebi and Others v Select Management Services LAC (2013-2014) 264. 4 Re Eastwood (Deceased) [1975] 1 WLR 1093 (Ch) at 1098G–H. "It is not for the court to interfere with the taxing master's discretion merely because the court would itself have awarded a different sum. The court must be satisfied that the taxing master has gone wholly wrong in the exercise of his discretion, either by applying wrong principles or by taking into account irrelevant matters or failing to take account of relevant ones." [19] This is a classical and often-cited authority in English costs law, setting the standard for when interference is appropriate. [20] Rule 49(1) allows a dissatisfied party to require the taxing master to state a case for a judge's decision. However, it stipulates that only objections raised during the taxation or items disallowed mero motu by the taxing master may form the subject of such review. Thus, only objections raised during the taxation or items disallowed mero motu may be the subject of a review under rules similar to Rule 49(1), and failure to object at the proper time may preclude later challenge unless exceptional grounds exist. This principle comes from D'Oliviera v Trustees, Marais' Estate5, where the Cape Supreme Court stated: "If a party fails to take objection to an item at the proper time, he cannot afterwards raise the objection except upon proof of exceptional circumstances. Taxation must be final and cannot be made the subject of endless dispute." [21] This case has been foundational in South African taxation law and is often cited for the principle that objections must be made at the appropriate stage — a principle that fits directly with the structure of Rule 49(1). [22] It is a fundamental principle that a costs order must be construed according to the scope of the proceedings to which it 5 D'Oliviera v Trustees, Marais' Estate 1912 CPD 331 at 333–334. relates. Where costs are awarded with respect to an interlocutory application, the bill of costs must be confined to the work reasonably necessary for the conduct of that application. Inclusion of items relating to the main action, or steps unrelated to the interlocutory matter, is impermissible. Thus, where costs are awarded in relation to an interlocutory matter, the bill must be confined to work relating reasonably to that interlocutory application — a highly pertinent judicial statement is from Re Allsebrook; Allsebrook v Allsebrook6, where Harman J observed: "Where costs are ordered in respect of particular proceedings, the items claimed must be strictly limited to those which were reasonably incurred for the purposes of those proceedings and not for the litigation generally." [23] This clearly supports the rule that costs must correlate to the proceeding in respect of which they are awarded, and that inclusion of unrelated items is impermissible. [24] Also, the court must not lightly substitute its own view for that of the taxing master. The correct standard is whether the taxation was so materially wrong or exercised on improper grounds as to vitiate the decision. The burden lies on the challenger. This principle comes from Ocean Commodities Inc and Others v Standard Bank of SA Ltd and Others7. The court must be satisfied that the taxing master has gone wholly wrong; it is not enough that the judge would have come to a different view.8 Against this detailed exposition of the governing legal principles, I now turn to 6 Re Allsebrook; Allsebrook v Allsebrook [1950] 2 All ER 924 (Ch) at 926. 7 Ocean Commodities Inc and Others v Standard Bank of SA Ltd and Others 1984 (3) SA 15 (A) at 20F–H. 8 Re Eastwood (Deceased) [1975] 1 WLR 1093 (Ch) at 1098H. the present appeal's particular circumstances to assess whether the court a quo’s decision withstands scrutiny. Consideration of the appeal [25] The appellants contend that the court a quo erred in setting aside the taxation and remitting the matter to a different taxing master, thereby unjustifiably interfering with the discretion properly entrusted to the taxing master. With respect, that contention cannot be sustained upon a proper application of the governing principles. [26] It is trite law that a court will not readily interfere with the discretion of the taxing master. In my view, the findings of the court a quo withstand scrutiny. As correctly identified by Kopo J, the taxation process extended well beyond the proper limits of the costs awarded in the main proceedings. [27] The costs in question related solely to the interlocutory application under Rule 30 — a narrow and discrete procedural step contesting an alleged irregularity. However, the bill as taxed improperly encompassed a wide range of activities, including the issuing of summons, consultations relating to the merits of the main claim, and procedural steps towards default judgment. This directly contravened the principle, articulated in Re Allsebrook; Allsebrook v Allsebrook (supra), that costs must be strictly confined to the proceedings for which they are awarded and must not spill over into the broader litigation. [28] Such an overreach constitutes not a mere difference of opinion, but a fundamental error going to the root of the taxation exercise. It thereby vitiates the outcome. This Court, in Moshebi and Others v Select Management Services, has similarly affirmed that where such foundational defects infect the taxation, judicial correction is not only permissible but imperative. [29] Moreover, as rightly observed in the court a quo, while Rule 49(1) requires that objections generally be raised during taxation, the core defect in this matter — namely, the wrongful inclusion of unrelated costs — was patent from the record itself. It did not depend solely on formal objections. As explained in D’Oliviera v Trustees, Marais' Estate (supra), while failure to object at taxation ordinarily precludes review, exceptional circumstances may justify intervention even absent such objections. Here, the exceptional circumstance lies in the taxing master’s wholesale departure from the scope of the costs award. [30] Given the magnitude of the defect and its structural impact upon the taxation, the court a quo acted correctly and judiciously in remitting the matter for de novo taxation before a different taxing master. It was not an act of mere substitution of judgment, but a principled exercise of judicial supervision to uphold the integrity of the taxation process, in line with the standard reaffirmed in Ocean Commodities Inc v Standard Bank of SA Ltd (supra). In the premises, the first ground of appeal is without merit and must fail. [31] In view of my conclusions on the principal ground, it is unnecessary to determine the remaining grounds of appeal, as the taxing master’s improprieties have fatally compromised the taxation process as a whole. Disposal [32] In light of the foregoing analysis, the appeal must fail. The High Court did not err in finding that the taxation was fatally tainted by the inclusion of costs unrelated to the interlocutory application, nor did it misdirect itself in ordering that the taxation be conducted afresh before a different taxing master. The first ground of appeal is accordingly dismissed. Given the findings on this dispositive ground, it is unnecessary to consider the remaining grounds of appeal, as the defects identified have fundamentally vitiated the taxation process. Order [33] The following order is made: (a) The appeal is dismissed in its entirety. (b) The appellants are ordered to pay the respondent’s costs of the appeal. _____________________________ K E MOSITO PRESIDENT OF THE COURT OF APPEAL I AGREE ________________________ M H CHINHENGO ACTING JUSTICE OF APPEAL I AGREE __________________________ R MATHABA ACTING JUSTICE OF APPEAL FOR THE APPELLANT: ADV S K RAMOCHELA FOR THE RESPONDENT: ADV T MPAKA