Mathee and Others v Sesele and Others (A117/08) [2009] ZAFSHC 63 (25 May 2009)

Mathee and Others v Sesele and Others (A117/08) [2009] ZAFSHC 63 (25 May 2009)

The court found that although Mr Samuels' conduct fell short of the standard expected of an attorney, his explanation was acceptable under the circumstances. He acted bona fide and was guided by counsel, and his conduct did not amount to serious negligence. The court held that paragraph 3 of the original order, which prevents Mr Samuels from recovering any fees from the applicants, already constitutes sufficient punishment. It was inappropriate to make an order against counsel, Ms Mohamed, without giving her an opportunity to respond. Consequently, the order for costs de bonis propriis against Mr Samuels was deleted, and the applicants, as unsuccessful litigants, were ordered to pay the...

Citation
[2009] ZAFSHC 63
Parties
Applicant: Willem Mathee and 7 Others; Respondent: Khotso Sesele and 5 Others
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
25 May 2009
Case Number
A117/08
Procedural Posture
Civil Appeal / Variation of Costs Order After Representations
Outcome
The application is dismissed. The applicants are ordered to pay the first respondent's costs jointly and severally. The applicants' attorney, Mr Samuels, shall not recover any fees from the applicants and must refund any fees paid.
Judges
C J Musi, C van Zyl
Legal Topics
Costs De Bonis Propriis, Variation of Order, Attorney Responsibility, Non Joinder
Civil Procedure Costs De Bonis Propriis Variation of Order Attorney Responsibility Non Joinder

Case Brief

Summary, issues, holding and outcome

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Parties

Willem Mathee and 7 Others

Applicant

Khotso Sesele and 5 Others

Respondent

Procedural Posture

Civil Appeal / Variation of Costs Order After Representations

Legal Issues

  1. 1 Whether the applicants' attorney, Mr Samuels, should be personally liable for costs de bonis propriis.
  2. 2 Whether paragraph 3 of the original order constitutes sufficient punishment for the attorney.
  3. 3 Whether the applicants, as unsuccessful litigants, should be ordered to pay the first respondent's costs jointly and severally.

Ratio Decidendi

The court found that although Mr Samuels' conduct fell short of the standard expected of an attorney, his explanation was acceptable under the circumstances. He acted bona fide and was guided by counsel, and his conduct did not amount to serious negligence. The court held that paragraph 3 of the original order, which prevents Mr Samuels from recovering any fees from the applicants, already constitutes sufficient punishment. It was inappropriate to make an order against counsel, Ms Mohamed, without giving her an opportunity to respond. Consequently, the order for costs de bonis propriis against Mr Samuels was deleted, and the applicants, as unsuccessful litigants, were ordered to pay the...

Court Disposition

The application is dismissed. The applicants are ordered to pay the first respondent's costs jointly and severally. The applicants' attorney, Mr Samuels, shall not recover any fees from the applicants and must refund any fees paid.

Orders

  • The application is dismissed.
  • The applicants are ordered to pay the first respondent's costs, jointly and severally, the one paying the other to be absolved.