A L MILLAR & SONS (PVT) LTD V CHIKWETE

A L MILLAR & SONS (PVT) LTD v CHIKWETE
1997 (1) ZLR 519 (S)

Division: Supreme Court, Harare
Judges: McNally JA, Korsah JA & Muchechetere JA
Subject Area: Civil appeal
Date: 29 May 1997
Judgment Number: S-79-97
Legal practitioner — renunciation of agency — renunciation after civil appeal set down
for hearing — duty to advise client of date of hearing
On the date on which a civil appeal had been set down for hearing, the respondent was in
default. His legal practitioners had renounced agency nine days before the date of hearing
because of the respondent’s failure to pay his bills. The registrar was advised
accordingly. A letter had, after a query by the registrar, been sent by the practitioners to
the respondent, but there was no evidence that he had received it.
Held, that while late renunciation of agency by an appellant’s legal practitioner is
forbidden unless leave is granted, there is no such restriction on a respondent’s
practitioner.
Held, further, that the major share of the blame for wasting the time of the court and the
costs of the appellant must fall on the respondent’s former legal representative. He had a
duty to his client, despite the non-payment of fees, to advise him of the date of hearing.
That was also his duty to the court. His failure to advise his client effectively sabotaged
the hearing of the appeal.
Held, further, that the appellant’s wasted costs should be borne by the respondent’s
former legal practitioner.
G S Wernberg, for the appellant
The respondent in default
S Nduna, at the request of the court
Page 520 of 1997 (1) ZLR 519 (S)
McNALLY JA: When this civil appeal was called the appellant was represented but the
respondent (Mr Chikwete) was in default.
The court noted that Nduna and Partners, legal practitioners, who had been acting for Mr
Chikwete, had renounced agency in a document lodged with the Registrar on 20 May
1997, nine days before the hearing. The court had earlier enquired, through the Registrar,
whether Nduna and Partners had advised their client of the date of hearing. The
information received was that they had not done so, but would do so at once. At the
hearing Mr Nduna showed us his file copy of a letter to his former client dated 21 May
1997, which contained the terse instruction:
“ Ensure you attend at the Supreme Court on 29 May 1997 at 9.30 am in person to
argue your case.”
We cannot be sure when that letter was posted or whether it had been received. We had
therefore no option but to postpone the matter. The question of the appellant’s wasted
costs then arose.
It seems beyond dispute that the appellant is entitled to his wasted costs. But from whom?
Mr Chikwete can to some extent be blamed because he was told that the matter had been
set down, and because he did not pay what he owed to Nduna and Partners. On the other
hand, he was not told timeously of the date of set down and so cannot be blamed for not
appearing.
From the information given to us by Mr Nduna, it is apparent that something in the
region of $1 300 was outstanding on Mr Chikwete’s account. He had been asked a
number of times to pay, and had not done so. The phrase “respondent withdrew his
instructions from us” appears to be a euphemism for “respondent has not paid us, so we
are renouncing agency.”
That is all very well, but a renunciation of agency at this late stage causes chaos in the
administration of justice. Not only is the time spent on preparing for the hearing by the
members of the court wasted, but also a slot later in the year, which could have been
allocated to another case, will have to be given to this one. When this happens frequently
the court programme is set back by several months each year.
It was for this reason (among others) that r 12A was introduced into the Supreme Court
Rules in 1991, forbidding the late renunciation of agency
Page 521 of 1997 (1) ZLR 519 (S)
unless leave is granted. But I note that r 12A speaks consistently of “an appellant’s legal
practitioner” and not of a respondent’s legal practitioner. Whether that is an oversight I
do not know. It does not seem to me that we can read in the words “or respondent’s” after
the word “appellant’s” throughout the Rule. Different considerations apply certainly in
criminal appeals. A criminal appellant may not appear in person without leave. I draw the
point to the attention of the Rules Committee. But meanwhile I do not consider we can
apply the rule in the present case.
It does seem to me that the major share of the blame for wasting the time of the court and
the costs of the appellant must fall on the respondent’s former legal representative. It was
for this reason that we invited Mr Nduna to appear and debate the question of who should
pay those wasted costs.
It seems that Mr Nduna had two problems with his client. One was that he was not paying
his account. The other was that he was apparently consulting another firm of lawyers. In
regard to this latter problem, Mr Nduna was declining, as he was entitled to do, to
surrender his file of papers to the other legal practitioner until his fees were paid.
But what he also did was to keep from his client the information that the appeal was set
down for hearing on 29 May 1997. This he was not entitled to do. He had a duty towards
his client, despite the non-payment of fees. That duty included the obligation to advise
him of the date of hearing. It was also, of course, his duty to the court. His failure to
advise his client timeously of the date of hearing effectively sabotaged the hearing of the
appeal.
I am satisfied that Mr Nduna did not appreciate the full consequences of his action.
Nonetheless, he should have realised that if his former client did not know of the date of
hearing the case could not be heard. The postponement is a direct consequence of his
failure to advise Mr Chikwete.
In the circumstances, the appeal is postponed to a date to be fixed by the Registrar. The
appellant’s wasted costs in relation to the abortive hearing on 29 May 1997 are to be
borne by the firm of Nduna and Partners.
KORSAH JA: I agree.
MUCHECHETERE JA: I agree.
Gill, Godlonton & Gerrans, appellant’s legal practitioners

A L MILLAR & SONS (PVT) LTD V CHIKWETE

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1997 (1) ZLR 519 (S)

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