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IN THE COURT OF
APPEAL FOR THE REPUBLIC OF

BOTSWANA HELD AT
GABORONE

COURT
OF APPEAL CIVIL APPEAL NO. CACGB-034-12

HIGH
COURT CIVIL CASE NO. CVHFT-000313-10

DATE:
01 FEBRUARY 2013

In the matter
between:

Zazi Nabo (Pty)
Ltd…………………………………………………………..1st
Appellant

Mahomed Farooq
Ebrahim………………………………………………2nd
Appellant

And

National
Development
Bank…………………………………………….Respondent

For the first
appellant: Mr. V. Chikole Second Appellant in person

For the
respondent: Mr. Attorney B. D. Leburu (with Ms. Sere)

JUDGMENT

CORAM: KIRBY JP

FOXCROFT JA

GAONGALELWE JA

FOXCROFT JA

1. On 12 May 2011,
Letsididi J granted summary judgment in the sum claimed by the
respondent (then plaintiff] of PI,313,301.15 with
interest, further
relief and costs on the attorney and client scale. The order reflects
that it was made upon hearing the respective
attorneys for the
parties, Messrs “R. Lekorwe for the Plaintiff and T. Masuku for
the Defendants”.

2. The appellants
filed a Notice of Appeal on 24 June 2011 against the order of 12 May
2011. In essence, the grounds of appeal were
directed to the High
Court’s failure to find in favour of appellants on certain
technical objections raised, and the granting
of judgment despite the
“triable issue” raised by the appellants in the High
Court.

3. This Notice of
Appeal was filed despite the recording in the summary judgment order
that judgment was granted after hearing both
attorneys acting in the
matter, and more importantly, the handwritten notes of Letsididi J at
p.74 of the appeal recording counsel
as informing the Court that:

“I have
discussed with my colleague. By consent may order be granted except
para (d)”. There follow the words: “Ct.
(By Consent)

Order is granted in
terms of Paragraphs (a) (b) (c) and (e) of the Particulars of Claim.”

4. Mr. Chikole, a
director of the first appellant and former paralegal in the same law
firm as Mr. T. Masuku (Furusa and Company),
appeared for the first
appellant in the capacity of a director of the first appellant. No
objection was taken to this appearance.
He submitted that the
respondent had raised the issue that summary judgment had been
ordered by consent. It seemed that he had
not seen the handwritten
document referred to above reflecting the judgment by consent. Mr.
Leburu, for the respondent, provided
him with a copy of page 74 of
the record which records the judgment by consent. Mr. Chikole was
given time to consult with Mr.
Masuku and, after an adjournment for
this purpose, he informed us that Mr. Masuku’s response was
that he would need to see
the original record.

5. Mr. Chikole was
presumably referring to the Heads of Argument of the respondent when
he said that the point had been raised by
the respondent. The
respondent’s Heads of Argument filed on 4 January 2013 and
presumably served on appellants before their
Heads dated 10 January
2013 were prepared, did indeed take the point that judgment had been
taken by consent of all the parties
with the appellants being
represented by Mr. T. Masuku. Understandably the respondent
considered that the appeal was against the
consent order.

6. It was put to Mr.
Chikole that it must have come as a surprise to him when he received
respondent’s Heads a week before
the appeal that judgment had
been granted by consent. His response was that he had spoken to Mr.
Masuku about this “last
week”. All that Mr. Masuku had
said was that he would need to see the original document. It is
beyond belief that Mr. Chikole
would have made no attempt to obtain a
copy of the document referred to above (Record p.74) before coming to
court on the 17th
January. It is also highly unlikely that he would
have received the same answer from Mr. Masuku on the morning of the
hearing as
he did “last week” as he put it.

His further
complaint that his company had not been “consulted” about
any consent to judgment cannot assist the company
even if the
complaint is genuine. A properly instructed attorney’s consent
to judgment on behalf of a client is binding on
the client whether or
not specific instructions to consent to a judgment were obtained. If
an attorney were to consent to a judgment
without any authority to do
so from his client, the judgment would still stand, leaving the
client to sue his attorney for any
damages sustained. Mr. Chikole did
not deny the authority of Mr. Masuku to act for the first appellant,
claiming only that the
appellant company had not been consulted on
the matter.

7. On the merits of
the defence raised, Mr. Chikole did not dispute that money was owing
to the respondent, closing his submission
by saying that the “money
owing would probably be paid today or tomorrow”. His only
attempt at a defence to the claim
was that it had been premature.
Given that the repayment of the loan to the first appellant was to
commence a year after the drawdown
on 17 July 2008, no explanation
was provided for the fact that by September 2010, when the summons
was issued, no payment had been
made of money owing. In my view, no
bona fide defence was raised in this matter and the High Court, even
without the consent of
the parties, would have been entitled to grant
summary judgment. It is plain that what the appellants were
attempting to achieve
was a delay in repayment of money lent to the
first appellant and secured by the second appellant. In that they
have had much success.

8. In any event,
when parties consent to judgment, the order is generally
unappealable. On the face of it, the judgment by consent
given in
this matter was properly obtained. There is certainly not even a
suggestion by Mr. Chikole that consent was given by first
appellant’s
attorney dishonestly, or that fraud somehow vitiated what the record
shows happened.

9. There is
accordingly no merit in this appeal and it is dismissed with costs.
As for costs, they were awarded on the attorney
and client scale in
the High Court and I see no reason to make a different order on
appeal. The appellants have persisted in an
unsustainable defence and
in the face of a judgment by consent properly obtained against them.
Mr. Leburu moved for attorney and
own client costs in his Heads of
Argument. In my view, and it has been so held in

South Africa, there
is no generic difference between attorney and client costs, and
attorney and own client costs.

See: LAW SOCIETY OF
THE CAPE OF GOOD HOPE v. WINDVOGEL 1996 (1) SA 1171 (C) 1176;
THOROUGHBRED BREEDERS’ ASSOCIATION v. PRICE WATERHOUSE 2001 (4)
SA 551 (SCA) 596

HERBSTEIN 8B VAN
WINSEN: CIVIL PRACTICE OF THE HIGH COURTS OF SOUTH AFRICA, Fifth
Edition at 975.

10. Accordingly, the
appeal is dismissed with costs, such costs to be taxed on the
attorney and client scale.

DELIVERED IN OPEN
COURT AT GABORONE

THIS 1st DAY OF
FEBRUARY 2013.

J. G. FOXCROFT
JUSTICE OF APPEAL

I agree

I.S. KIRBY JUDGE
PRESIDENT

I agree

M. S. GAONGALELWE
JUSTICE OF APPEAL

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