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In Sportscene Mthatha v Nondumiso Myataza, the Eastern Cape Division of the High Court, Mthatha, was called upon to determine questions of costs de bonis propriis (fees being payable from a practitioner’s own pocket rather than from their clients) and fee forfeiture against legal practitioners following the collapse of a full bench appeal.
Background
The underlying dispute concerned a slip-and-fall claim in which Ms Myataza alleged that she had slipped on a wet mat at the entrance of Sportscene, sustaining severe injuries to her leg, back and neck due to Sportscene’s negligence. The court of first instance found in favour of Ms Myataza and ordered Sportscene to pay damages.
Sportscene noted an appeal, but when the matter came before a Full Bench on 29 April 2025, it became apparent that the appeal record was grossly deficient. Critical photographs, which had been referred to by various witnesses at the trial, and which were central to the evidence, were either poorly photocopied or included in the record entirely unmarked. In addition, the record contained irrelevant pages, mismatched page numbering and incorrect cross-references, making it impossible for the three appeal judges to properly prepare for argument. The appeal was postponed, with Sportscene tendering Ms Myataza’s wasted costs. The questions of the appropriate costs scale and fee forfeiture were reserved for later determination.
Sportscene’s attorney filed an affidavit, attributing the failure to rectify the record to a family tragedy, the sudden illness and subsequent passing of her mother. She explained that this had diverted her attention during the critical weeks before the hearing. However, the affidavit was silent on why the deficiencies had not been addressed before her mother's illness arose, why the matter was not handed to a colleague during her absence and most critically, why Sportscene should bear any costs for failures that were entirely of their appointed legal practitioners’ making.
Issues in dispute
The court had to consider:
- Whether the wasted costs should be awarded against Sportscene’s attorney personally, given the defects in the appeal record; and
- Whether any of the legal practitioners involved should forfeit their professional fees in respect of the appeal hearing, which could not proceed on 29 April 2025.
Court’s findings
The court expressed its displeasure at the conduct of Sportscene’s legal team. While extending sympathy for the attorney's personal loss, the court held that this did not excuse the broader pattern of neglect. The deficiencies in the record pre-dated the family emergency, no steps were taken to delegate the matter, and the practice note filed by the Sportscene’s legal team misleadingly stated that the record was complete.
The court reaffirmed the established legal principles governing personal costs orders, noting that such orders are warranted where a practitioner's conduct has been improper, negligent or unreasonable and that such orders serve to express the court's displeasure while protecting the innocent client from bearing the financial consequences of their own legal team’s failures.
Conclusion
The court held that Sportscene’s attorney must pay the wasted costs personally and forfeit her own fees and disbursements related to the appeal. Sportscene’s counsel was not subjected to a personal costs order, but portions of Sportscene’s counsel’s fees were disallowed due to the failure to draw the record’s deficiencies to the court’s attention in their heads of argument and practice note.
Similarly, Ms Myataza’s legal team did not escape scrutiny either. Portions of Ms Myataza’s counsel's and attorney's fees were also disallowed for their failure to draw the record's deficiencies to the court's attention in their own heads of argument and practice note.
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