The applicant's counsel also made an
application for costs to be granted on an attorney-client scale.In opposing the application, the
first respondent submitted that as he was not employed he could not afford such
high costs….,.The applicant's counsel submitted
that the conduct of the first respondent warranted punitive costs for the
following three reasons:Firstly, in ...
The applicant's counsel also made an
application for costs to be granted on an attorney-client scale.
In opposing the application, the
first respondent submitted that as he was not employed he could not afford such
high costs….,.
The applicant's counsel submitted
that the conduct of the first respondent warranted punitive costs for the
following three reasons:
Firstly, in the notice of opposition,
he had lied that after the applicant's property had been attached by the second
respondent on 13 March 2014, the applicant had taken no action at all until 27
March 2014 when it then filed this urgent chamber application. He denied that
the applicant had tried to engage him with a view to settle the matter
amicably. He only admitted to this fact after the applicant had produced the
letter that he (first respondent) had written indicating that he was not
willing to settle. This is the letter which is dated 18 March 2014. The first
respondent was at a loss for words to explain why he had lied in his affidavit
on this issue.
Secondly, the first respondent had
vehemently denied, in his notice of opposition, that the applicant had filed an
application for rescission of the default judgment at the Labour Court and that
the application had actually been heard on 25 March 2014 and that what was only
outstanding was the determination. Again, the first respondent could not
explain why he had made such misleading averments in his affidavit.
On 1 April 2014, when the urgent
chamber application was heard, the determination on the application for
rescission of the default judgment had been made. The applicant had attached
the judgment to the answering affidavit. Despite the existence of the judgment,
the first respondent maintained that no application for rescission of judgment
had been made at the Labour Court. He even disputed that he had personally
appeared before the Labour Court for the hearing. This prompted his counsel to
ask for a postponement to 8 April 2014 to enable him to verify with the Labour Court
if the judgment was authentic. Mr Nyandoro
even suggested that both parties should prepare heads of argument for the
hearing on 8 April 2014.
Thirdly, on 8 April 2014, the first
respondent's counsel, having verified the authenticity of the Labour Court
judgment, he did not bother to attend the hearing despite the fact that the
postponement of the hearing to that date had been at his behest. Instead of
attending the hearing, he sent his client with a letter addressed to my
assistant. In that letter, there is no explanation why the legal practitioner
could not avail himself or why another legal practitioner from his law firm
could not come in his place, moreso considering that at the initial hearing, on
1 April 2014, he had come with a Mr Nyambuya.
I found the conduct of Mr Nyandoro deplorable and highly
contemptuous. He disregarded attending a hearing which he had specifically
asked for. He did not even have the courtesy to liaise with the applicant's
counsel about the verification he had made. The failure to communicate caused
the applicant to incur further costs as they prepared heads of argument as had
been proposed by him.
The first respondent could not
explain why his counsel had chosen to give him a letter instead of attending
the hearing or sending another legal practitioner in his place.
The first respondent could not
satisfactorily explain why he and his legal practitioner had given false
information in the notice of opposition that the applicant had not made an
application for rescission of the default judgment in the Labour Court. Again,
he could not explain why they persisted with that averment at the hearing, even
in light of the judgment of the Labour Court. They persisted to the extent of
asking for a postponement in order for them to verify its authenticity and to
prepare heads of argument.
I hold the view that the conduct of
the first respondent and his legal practitioner was highly reprehensible. The
first respondent presented false evidence in his affidavit and at the hearing.
His conduct was deliberate and it is obvious that he had an ulterior motive. He
wanted to proceed with the removal and sale of the applicant's property which
had been attached when he fully knew that an application for rescission of
judgment had already been made and heard. What is also conspicuous from a
reading of the Labour Court judgment is that the first respondent appeared in
person for the hearing of the application for rescission of the default
judgment on 25 March 2014. Justice L KUDYA even states in that judgment that
the parties appeared before her and made oral submissions
I was also taken aback by Mr Nyandoro's request, in his letter,
wherein upon being satisfied that the Labour Court judgment was authentic, he
indicated that the applicant was supposed to withdraw its urgent application
for stay of execution. I would have thought that he ought to have indicated
that the first respondent was now withdrawing his notice of opposition to the
applicant's application since the writ of execution that had been issued in his
favour no longer had a leg to stand on.
To register my disapproval and
displeasure of both the first respondent and his legal practitioner's conduct
throughout the proceedings, I granted the applicant's request for punitive
costs. Litigants and their legal representatives ought to be candid with the
courts. Deliberately making untruthful statements in affidavits should never be
condoned….,.
It is for the above reasons that I granted a
final order for stay of execution and costs on a legal practitioner and client
scale.
