THE HIGH COURT OF SWAZILAND
Case No. 2207/94
the matter between:
COMMERCIAL AND ALLIED WORKERS
THE APPLICANT Mr. L.R. Mamba
THE RESPONDENT Mr. Dunseith
Dunseith asks for costs to be awarded in favour of Mr. Vilakati
against Mr. Mango de bonis propiis and on the attorney and client
scale. He applied formally for such orders at the hearing; Mr.
Vilakati had also indicated the intention to do so in his answering
basis for the application, as it was first put, was twofold. It was
contended that the union itself should not have to bear the expenses
of an unauthorised application - hence the appropriateness of an
order against Mr. Mango personally. It was also contended that in
procuring a rule nisi with interim effect, Mr. Mango had been less
frank with the court and had indeed concealed relevant facts
wilfully, so that an order for costs on the higher scale was
were agreed that, in principle, a court may in an appropriate case
order costs de bonis propiis on an attorney and client scale: see
Webb and Others v. Botha 1980 (3) SA 666, cited by Mr. Dunseith.
are special orders, however, and will not be made readily.
principle governing costs de bonis propiis applies only where a
person acts or litigates in a representative capacity. The basic
notion behind the award is "material departure from the
responsibility of office", including absence of locus standi:
A.C. Villiers, Law of Costs (Second Edition), at pages 162 and 163.
is also said that in the case of a person acting in a fiduciary
capacity there must be good reasons for the order, such as improper
or unreasonable conduct: see Vermaak's Executor v. Vermaak's Heirs
1909 T.S. 679. This includes negligence (or at least serious
negligence) in the conduct of litigation but errors of judgment are
not sufficient reason. The fairness or unfairness of proceedings
brought honestly should not be scrutinised too closely, and the
reasonableness of the representative's conduct should be judged by
the point of view of a man of ordinary ability and not that of a
trained lawyer: see Herbstein and Van Winsen, The Civil Practice of
the Superior Courts in South Africa (Third Edition), at page 495.
point of the order is to protect the representative's principal, not
the opposing party. Mr. Vilakati is however a member of the union. It
was also his case that he is chairman of its interim committee. In my
view he has sufficient standing to seek such an order.
factual allegations on which Mr. Dunseith sought the orders were set
out in paragraph 7.3 - 7.16 in Mr. Vilakati's answering affidavit.
However, only two really require consideration.
the way in which the founding affidavit was expressed, it did as a
matter of fact give a misleading impression. In paragraph 1, Mr.
Mango stated that he was the secretary-general of the union and that
he was duly authorised by the national executive committee to make
the affidavit. There was also a clear implication that he was
authorised to conduct the litigation on behalf of the union: he
annexed to the affidavit the resolution of the committee purporting
to invest him with that power, and of course that is what he
proceeded to do.
other thing that he did was to annex a copy of the constitution. On
its face, this does each of the following things. It provides
separately for general meetings and delegates' congresses. It
provides for the election of office-holders at quadrennial delegates'
congresses. It provides (inter alia) for the offices of president and
secretary-general. It provides for a national executive committee,
which includes such officers, and it sets out the functions and
powers of that committee.
for the statements in paragraph 1 to which I have referred, and the
annexed resolution and constitution, the founding affidavit does not
seek to demonstrate the authority of the executive committee, or Mr.
Mango's authority to conduct the proceedings.
that respect, viewed objectively, the founding affidavit was
misleading. There was undoubtedly an implication that Mr. Mango and
the other members of the executive committee had been appointed and
were holding office in accordance with the union's constitution. That
was untrue. In fact, Mr. Mango's subsequent replying affidavit was
also incorrect in this respect. In it, in paragraphs 6.2.2 and 6.2.3,
he asserted that a quadrennial congress was held in April 1991, at
which he was re-elected and the other members of the executive
committee were elected. But it is evident, from the minutes and from
his letter to the Commissioner of Labour that he himself annexed to
that affidavit, that the purported elections in 1991 had been held in
an annual general meeting and, further, that Mr. Mango was aware of
consequence of the founding affidavit, Mr. Mango procured a rule nisi
with interim effect at very short notice to Mr. Vilakati. The
effectively, was given no time in which to respond at that stage.
Thereafter he was obliged to defend proceedings in which on the very
point, Mr. Mango was unable to establish his authority and that of
the real position had been disclosed at the time when the rule nisi
was granted, I do not consider that the court could properly have
granted interim relief to the applicant on so urgent a basis. On the
information before it, the court was being asked to grant urgent
relief to a duly elected executive committee of a union against
interference by an interloper, but that was not the truth of the
preparation and swearing of an affidavit are serious matters in which
a high degree of care - even punctiliousness - must be exercised. A
decision to institute legal proceedings is itself an important step
which is to be considered with care (especially where the person
initiating the action is acting as a representative or agent: see
Ashley v. South African Prudential Ltd 1929 T.P.D. 283 at page 285
per Tindall J.) Mr. Mamba submitted the application was not brought
ex parte. He is correct, but for the reasons which I explained in
Makhowe Investments (Pty) Limited v. Usutu Pulp Company Ltd (Civil
Case No. 1961/94), I am of the view that the rule nisi with interim
effect was obtained here effectively on an ex parte basis so that the
strict rules of disclosure governing such applications were in
principle applicable. In any event of course, every person who is
involved in the conduct of litigation has a positive duty not to
mislead the court wilfully. Failure to disclose a fact that might be
material does not mean necessarily that a person has tried
deliberately to mislead the court, but the duty not to do so - not to
wilfully mislead the court - exists both in ex parte and inter partes
proceedings. A breach of that duty may have, amongst other things,
repercussions in costs.
are nevertheless two reasons why in the present case I do not impute
to Mr. Mango any calculated intention to deceive the court. In the
first place, in the way in which the application for special
for costs was eventually argued, this feature of the case was not
pressed. I think that is determinative. This is a civil dispute. The
orders sought are exceptional, and it is not for the court of its own
initiative to be assiduous in seeking to uphold such a claim.
any case, I do not think myself that it is right to do so. Mr. Mango
is a layman. The other real question which arises on the issue of
costs is whether the letter of 29th November 1994 which was written
by Mr. Vilakati to him, and was admittedly received by him, should
have been disclosed in his founding affidavit. It may have been safer
to annex it, but I do not consider that it can be said at all that he
was wrong not to have done so. That letter in fact militates in his
favour, and in favour of his executive committee. It is perhaps an
indication that there was trouble within the union, and that
indication is reinforced by the way in which Mr. Mango dealt with the
letter eventually in his replying affidavit. He said - I take his
statement at face value - that he and his colleagues "rightfully"
and "contemptuously" ignored it. There may also be
something of an indication of trouble in the fact that the letter was
written on 29th November, the interim committee was elected on 4th
December, and Mr. Mango's committee resolved on 6th December to act
to restrain Mr. Vilakati "and/or his organisation".
cannot be said, however, that the letter of 29th November put Mr.
Mango or his committee on notice that the validity of their
appointments was being challenged. To the contrary, the tenor of the
letter is such as to accept the legitimacy of the committee. All that
is really intimated, at most, is that they may be required to give an
account of their stewardship.
Dunseith acknowledged (rightly in my view) that there is no evidence
that the decision taken in general meeting on 4th December to replace
the executive committee by the "interim committee" was ever
conveyed to Mr. Mango and his colleagues.
has not been shown that Mr. Mango and his colleagues had any reason
(other than their failure to have careful regard to the requirements
of the constitution) for believing that they were not duly appointed.
the evidence before me - as indicated by the letter of 29th November
- there is reason for thinking they were not then regarded as former
officer-holders who were intent on "holding over". The
terms of the minutes of the general meeting held on 4th December (a
copy of which was annexed in the answering affidavit) also indicated
this, because one of the decisions taken at that meeting was to
"suspend" the executive committee.
I have found on the merits that they were not validly holding their
offices, I do think that it cannot be said properly that they are
shown to have acted, calculatedly, without any semblance of authority
at all. The evidence does not establish that they were challenged as
to their authority before December 1994. While I do consider, for the
reasons that I have already given, that in the way in which the
founding affidavit was couched there was a very clear implication
that Mr. Mango and his colleagues were holding office in accordance
with the constitution, that conclusion does depend on an inference
and I do think that it requires a degree of reflection to identify
remaining question in my mind is whether Mr. Mango and his
colleagues, while not acting dishonestly, were nevertheless in the
way in which they wrongly assumed authority to bring their
application sufficiently negligent to justify the special orders
was at first inclined to think that those orders should be granted,
but, after hearing Mr. Mamba, my conclusion is that it would not be
right to make either of them. I do think that Mr. Mango and his
colleagues acted without due authority, but they had already held
over in office for more than three years and, by the time they
brought this application, the "interim committee" had not
done anything itself by way of legal action to restrain them. In the
circumstances, the application for special orders is declined. The
costs will be on the
party and party basis, against the union itself in favour of Mr.