Sportscene Mthatha v Nondumiso Myataza

The matter arose from a personal injury claim in which the respondent slipped and fell on a wet mat at the appellant’s store, allegedly due to the appellant’s negligence. The magistrates’ court found in favour of the respondent. The appellant noted an appeal to a Full Bench of the Eastern Cape High Court. When the appeal was called, the appeal record was found to be materially defective, particularly due to inadequately reproduced and unmarked photographic exhibits that were crucial to understanding the evidence. Numerous additional defects existed in the record, including incorrect pagination and inclusion of irrelevant material. As a result, the appeal could not proceed and was postponed, with the appellant tendering wasted costs. The court reserved the question whether such costs should be awarded de bonis propriis against the appellant’s legal practitioners and whether practitioners’ fees should be forfeited.

The appellant’s attorneys were ordered to pay all wasted costs of the appeal on a de bonis propriis basis and were prohibited from charging the appellant any fees or disbursements relating to the wasted appeal. The appellant’s counsel was not ordered to pay costs de bonis propriis but was deprived of significant portions of her fees and all travel and accommodation disbursements. Portions of the respondent’s counsel’s and attorney’s fees were also disallowed as specified in the order. The appeal itself was postponed.

The judgment provides a detailed and authoritative restatement of South African law on costs de bonis propriis and the forfeiture of legal fees, emphasising the professional duties of attorneys and counsel in appellate proceedings. It underscores that personal circumstances do not excuse neglect of professional obligations, highlights the duty to protect clients from costs caused by practitioners’ failures, and reinforces the importance of properly prepared appeal records, heads of argument, and practice notes.