Monyepao v Ledwaba and Others (No. 2)

This is a follow-up judgment dealing with a provisional costs order made in the main merits judgment of this appeal. The Supreme Court of Appeal had previously issued a provisional order regarding costs associated with a defective record filed in the appeal. The record comprised 544 pages, of which only 147 pages were relevant. The large majority consisted of irrelevant documents such as transcripts of argument in the application for leave to appeal, practice notes, and heads of argument from the court below. The appellant's attorney had been responsible for filing the defective record. The provisional order stated that no fees or disbursements could be levied by attorneys and correspondent attorneys in respect of the irrelevant portions of the record. Parties were given ten days to make representations as to why the order should not be made final. Only the first respondent made representations; the appellant filed none.

• Whether attorneys and correspondent attorneys should be entitled to charge fees (on a party and party or attorney and client basis) for perusal of irrelevant portions of the record
• Whether the provisional order denying such fees should be made final
• Whether the first respondent's attorney should be entitled to charge his client for perusing the defective record when the fault lay with the appellant's attorney

Paragraph 3.1 of the order granted on 27 May 2020 was made final. This meant that no fee or disbursement could be levied, whether on a party and party basis or on an attorney and client basis, by the attorneys and correspondent attorneys of the parties in respect of any part of the record except for pages 1 to 125, the judgment of the court of first instance (eight pages) and the judgment of the full court (14 pages).

Attorneys and correspondent attorneys are not entitled to charge fees or disbursements (whether on a party and party or attorney and client basis) for perusing irrelevant portions of a record that ought to have been recognized as irrelevant by competent legal practitioners. An attorney who files a defective record containing largely irrelevant material has failed in their professional obligation to familiarise themselves with the court rules and cannot charge for work related to those irrelevant portions. Similarly, an opposing attorney who would have been able to identify irrelevant documents at a glance cannot charge their client or the opposing party for perusing such irrelevant material. If such an attorney nevertheless perused the irrelevant documents, they wasted their own time; if they did not peruse them because they correctly identified them as irrelevant, there is no basis for charging a fee. Clients and estates should not bear the costs of attorneys' failure to comply with procedural requirements or to exercise reasonable professional judgment in identifying irrelevant material.

The court noted that the first respondent's attorney would have been able to see "at a glance" that the disallowed documents were irrelevant, particularly given that he had been involved in the matter from soon after its inception in the court of first instance. This observation about the attorney's familiarity with the matter, while supporting the decision, was not strictly necessary for it. The court also made the general observation that if an attorney peruses irrelevant documents despite being able to identify them as such, he "has only himself to blame" - a statement reflecting judicial attitude toward professional competence but not strictly forming part of the binding principle.

This case is significant in South African civil procedure law as it establishes important principles regarding costs and professional responsibility in respect of defective records. It demonstrates the court's willingness to control costs by refusing to allow attorneys to charge for work related to irrelevant portions of records, regardless of which side filed the defective record. The judgment emphasizes attorneys' professional obligations to familiarise themselves with court rules and to exercise judgment in identifying irrelevant material. It protects clients and estates from bearing the costs of attorneys' failures to comply with procedural requirements or to exercise reasonable professional judgment. The case also illustrates the court's approach to making provisional orders with opportunities for representations before finalizing them.