Mydale International Marketing (Private) Limited v Dr. Rob Kelly and Hammer & Tongues (Private) Limited and Stanbic Bank of Zimbabwe (Private) Limited

The applicant, Mydale International Marketing (Private) Limited, brought an application represented by Mr F.M. Katsande, who deposed to the founding affidavit. At the hearing, the first and second respondents raised a preliminary point that the applicant was not properly represented. They relied on an order by Bere J in HC 2470/13 dated 24 April 2013, which interdicted Mr Peter Valentine (first respondent in that matter) and Mr Francis Katsande (second respondent in that matter) from holding themselves out as representatives of Mydale International Marketing. Mr Katsande conceded he was not representing the applicant despite having deposed to the founding affidavit. Another legal practitioner, Mr Stansilous, purported to represent the applicant through his client Peter Valentine, who had been found to be in contempt of Bere J's order.

• Whether the applicant was properly represented before the court
• Whether legal practitioners should be ordered to pay costs de bonis propriis (from their own pocket) for acting in contempt of a court order and without proper authority
• Whether the application should be dismissed for lack of proper representation

1. Applicant not represented. Application be and is hereby dismissed. 2. Mr F.M. Katsande and S. Mutema (Mr Stansilous) to pay costs de bonis propriis.

Where legal practitioners purport to represent a party in contempt of an existing court order interdicting them or their clients from doing so, and where they have no authority to represent that party, the application may be dismissed for lack of proper representation. Legal practitioners who ought to know they lack authority but persist in representing a party may be personally liable for costs de bonis propriis as a punitive measure, particularly where their conduct has put the opposing party to unnecessary expense.

The court noted that Mr Katsande, being a senior practitioner, ought to have known he had no authority to represent the applicant. Similarly, Mr Stansilous ought to have known his client was in contempt of court. The court observed that the respondents had been put to unnecessary costs of coming to court twice and filing heads of argument, which justified the punitive costs order. The court cited Passmore Matanhire v BP Shell Marketing Services (Private) Limited SC-113/04 as authority for the proposition that costs de bonis propriis may be ordered in appropriate circumstances.

This case demonstrates the Zimbabwean High Court's willingness to impose punitive costs orders (de bonis propriis) against legal practitioners who act in contempt of court orders or without proper authority to represent clients. It reinforces the principle that legal practitioners have a duty to ensure they have proper authority before purporting to represent parties, and that failure to do so may result in personal liability for costs. The case also illustrates that applications may be dismissed on the preliminary basis that the applicant is not properly represented before the court.