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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT
OF BOTSWANA HELD AT LOBATSE

MAHGB-000200-12

DATE:
19 MARCH 2013

IN THE MATTER
BETWEEN:

B…….
M…… M…………. (NEB
PHIRI)……………………………………………………………………APPLICANT

AND

G………..
M………………………………………………………………………………………………1ST
RESPONDENT

(In his capacity
as Curator Bonis for ISAAC ZIBANE MANNATHOKO)

MC ENTERPRISES
(PTY)
LTD…………………………………………………………………..2ND
RESPONDENT

CHARLES
CHOLA……………………………………………………………………………………..3RD
RESPONDENT

Attorney Miss
T.B. Mooketsi for the Applicant

Attorney Mr O.
Jonas for the Respondents

RULING

TAU J.

1. By notice of
motion filed on the 17th October 2012 the Applicant made an
application in the following terms:

1. Declaring that
Lot 49805, Gaborone is and remains the joint property of the
Applicant and her ex-husband I……..
Z………
M………. who is being represented by the 1st
Respondent

2. Declaring that
the Applicant is entitled to fifty percent (50%) of open market value
of Lot 49803 Gaborone by reason of the fact
that she was married in
community of property to her ex-husband and consequently upon the
settlement agreement made an order of
court dated 18th April 2012.

3. Confirming that
the open market value of Lot 49803, Gaborone is BWP 900.000.00 (Nine
Hundred Thousand Pula) in terms of the latest
valuation report filed
of record.

4. Declaring that
the deed of sale between the 1st Respondent and 2nd Respondent is
null and void ab initio.

5. Confirming that
in terms of paragraph 2.3.1 of the settlement agreement which was
made an order of court the Applicant is entitled
to and is permitted
to purchase the property on Lot 49803, Gaborone and pay fifty percent
(50%) of the value to her ex-husband.

6. Directing and
ordering the Respondents to pay costs of this application on an
attorney and own client scale in the event they
endevour to defend
the application.

7. The facts are
common cause. The Applicant and I…….. Z…………
M………….
were married in community of
property which marriage was dissolved on the 18th April 2012. The
parties had entered into a settlement
agreement which was made an
order of court. One of the agreed terms was that the house which is
the subject matter of these proceedings

should at open
market value be sold and the parties share equally the proceeds of
sale. The Applicant discovered that the 1st Respondent
who is acting
as Curator Bonis for the ex-husband of the Applicant had sold the
house to the 2nd Respondent at a value of P750
000.00. This prompted
the present application.

8. The disputed
application was however settled by the parties on the 25th day of
February 2013 thereby disposing off the merits
of the case. In so far
as costs were concerned an argument was put before this court for its
determination.

9. The cardinal rule
is that the trial Judge has a discretion to decide the issue of costs
and this discretion should be exercised
judiciously. The court
however does not have to hear evidence in order to decide who is
liable for costs. See the case of Target
Construction (Pty) Ltd v
Daisy Loo Botswana (Pty) Ltd [2003] 2 BLR 103.

10. The general rule
is that costs follow the event i.e that the successful party or a
litigant who had substantially succeeded
in obtaining the relief
sought is entitled to the costs. There are however exception to this
rule and one such exception is that
a litigant who commences
proceedings unnecessarily or misleads another into commencing
proceedings unnecessarily may be deprived
of his costs in spite of
him being the successful party in such proceedings. Ntuane v Your
Friends (Pty) Ltd t/a Gabz FM 96.2 and
others.

11. In the case at
hand the Applicant had substantially succeeded in obtaining the
relief sought. However before coming to court
the parties attempted
to settle the matter and although the Respondents were willing to
settle the matter and refer the issue of
costs to the court for
determination the Applicant’s attorney insisted on the matter
being heard.

12. To mark the
court’s disapproval of the Plaintiff and her attorney’s
conduct, I shall order her not to be eligible
to recover her costs
albeit of having succeeded in her action.

13. On that basis
there is no order as to costs.

DELIVERED IN OPEN
COURT AT LOBATSE ON THIS 19TH MARCH 2013.

T. TAU JUDGE

Ngitami Ngitami
Law Office – Legal practitioner for the Applicant

Jonas Attorneys -
Legal practitioner for the Respondent

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