Francis Munetsi Katsande v Welt Hunger Hilfe and Taurai Manyanga

### Preamble
1
HH396-13
HC 8046/12
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FRANCIS MUNETSI KATSANDE

versus

WELT HUINGER HILFE

And

TAURAI MANYANGA

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 30 October and 6 November, 2013

Civil Trial

M.E. Motsi, for the plaintiff

J.Samukange, for the 1st defendant

In default,  2nd defendant

MATHONSI J:   The plaintiff is a legal practitioner and senior partner at the law firm of F.M. Katsande & Partners of Harare who has sued the first defendant a non-governmental organisation, also of Harare and its employee, the second defendant for payment of the sum of $32 286.00 in respect of legal fees levied against the defendants by the plaintiff for legal services rendered.

In his declaration, the plaintiff averred that following a road traffic accident which occurred on 16 July 2011 at the 104 km peg along the Gokwe – Kwekwe road involving the first defendant who was driving a Toyota Cruiser motor vehicle registration number ABK 2116 belonging to the first defendant during the course and scope of his employment by the first defendant, one Wilton Ncube lost his life. The second defendant was arraigned before a magistrate at Gokwe Magistrates’ Court on a charge of culpable homicide.

The plaintiff averred in paragraphs 7 to 10 of his declaration that:

“7.	Between November 2011 and March 2012, plaintiff rendered professional legal representation, defending the 2nd defendant and vicariously the 1st defendant, in particular articulating submissions which protected both defendants’ civil rights and liberties in that the verdict demonstrated that the degree of fault attributable to the 2nd defendant was of a smaller proportion to that of the other motorist involved.

8.	The court’s verdict will substantially reduce any financial liability which may arise from the events surrounding the collision involving the 1st defendant’s motor vehicle.

9.	The fair and reasonable charges for the legal services rendered by the plaintiff were calculated and fixed at US$32 286.00 which amount despite demand defendants refuse or neglect to pay”

The plaintiff then craves for judgment against both defendants jointly and severally the paying the other to be absolved in the sum of US$32 286 00 together with prescribed interest and costs of suit. It is significant to note that nowhere in that pleading did the plaintiff allege the existence of a contract for legal services between himself and the first defendant and that the plaintiff’s claim is premised upon the doctrine of vicarious liability.

I must point out that the second defendant has since filed a consent to judgment in the amount claimed and for that reason, judgment will be entered against him by consent. The second defendant has opposed the claim and in its plea averred that the plaintiff was not instructed by itself to act on behalf of the second defendant. At no time did it enlist the services of the plaintiff as it was not facing criminal prosecution  and did not require the services of the plaintiff at all.

In his replication, the plaintiff stated that he provided professional services “at the instance and request of the 1st defendant” and that the “1st defendant’s liability to plaintiff is vicarious”. At the pre trial conference the parties identified the issues for trial as:

Whether the first defendant instructed the plaintiff to represent Taurai Manyanga, the second defendant in his criminal prosecution on a charge of culpable homicide at Gokwe Magistrates Court.

Whether the first defendant is vicariously liable to the plaintiff for the legal services rendered to the second defendant.

If so, the quantum of that liability.

The plaintiff gave evidence to the effect that sometime in September 2011 the second defendant, a person he had not met prior to that, fixed an appointment to see him at his offices and instructed him to represent him at his criminal trial at Gokwe Magistrates Court on a charge of culpable homicide. The second defendant told the plaintiff that he was an employee of the first defendant and that the latter would pay his fees. They did not agree on a fee in advance, neither did he request a deposit but he agreed to take up the case because he trusted the second defendant’s word.

The plaintiff went on to say that at no time did he speak to Vimbai Dhliwayo, whom he understood to be the first defendant’s executive who had been tasked with handling the case. Indeed he stated that he never spoke to any official of the first defendant regarding his engagement as counsel for the second defendant but assumed that the first defendant would simply settle whatever bill he sent out at the conclusion of the criminal trial. He was badly disappointed when, upon rendering his bill to the first defendant, the first defendant refused to pay.

Under cross examination, by counsel for the first defendant, the plaintiff testified that when he first interviewed the second defendant, he was anxious to know how he would settle his account but was told by the second defendant that he had been given an assurance that the first defendant would settle the account on presentation and that it was not necessary for him to demand a deposit. This was all subject to the rider that the fees would have to be reasonable.

Asked as to how he had come to issue summons for payment of a bill which had not been taxed, the plaintiff stated that the bill will be taxed in due course. He could not explain how this would be possible when he was already seeking an order for payment before taxation had taken place.

When asked at what stage the contract for legal services was concluded with the first defendant, the plaintiff mad the startling remark that the first defendant’s liability is vicarious for work that he performed for  the second defendant, and that his was a delictual claim because “the fees that he charged were reasonably foreseeable, the nexus being the contract of employment” between the first and second defendants.

The plaintiff also called the second defendant as his witness. This witness could not add any value to the plaintiff’s case only succeeding to say that when the legal practitioner  who had been secured for him by the first defendant in Gokwe had failed to take up the case, the first defendant’s Project Manager, Dr Thomas Heyland had given him the blank cheque to secure a lawyer of his choice and that the employer was going to pay that lawyer.

At the close of the plaintiff’s case, Mr Samukange for the first defendant made an application for absolution from the instance arguing that the plaintiff had not made out a prima facie case for which the first defendant could be called upon to answer.

What the court must have regard to where an application for absolution is made at the close of the plaintiff’s case has been stated in a line of cases: Gascoyne v Paul and Hunter 1817 TPD 170; Bailey NO v Trinity Engineering (Pvt) Ltd and Ors HH 181/02; Quintessence Co-ordinators (Pty) Ltd v Government of the Republic of Transkei 1993 (3) SA 184 (TK) 185 B – D; Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor. 1998 (2) ZLR 547 (H) 552 G – H ; 553 A. In Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 RLR 1 at 5 D BEADLE CJ said;

“The test, therefore, boils down to this: Is there sufficient evidence on which a court, might make a reasonable mistake  and give judgment for the plaintiff? What is a reasonable mistake in any case must always be a question of fact, and cannot be defined with any greater exactitude than by saying that it is the sort of mistake a reasonable court might make – a definition which helps not at all.”

GUBBAY CJ stated it conversely in United Air Charterers (Pvt) Ltd v Jarman 1994(2) ZLR 341 (S) 343 B – C where he said:

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for him. See Supreme Service Station (1969)(Pty) Ltd v Fox & Goodridge (Pvt) Ltd 1971 RLR 1 (A) at 5D – E, Lourenco v Raja Laundry (Pvt) Ltd 1984 (2) ZLR 151 (S) at 158 B – E”

In the present case, the plaintiff relies on vicarious liability in seeking a payment of his legal fees from the first defendant. This is extremely strange indeed and constitutes a claim as outlandish as it is unheard of in our legal system.

Now, vicarious liability is a concept of our law of delict and not contract. In our law of delict, an employer is liable for delicts of his employee committed in the course of their duty or service unless if, in committing the delict, the employee was pursuing his own interests, what is roundly referred to as being on a frolic of his own; Gwande v Matonhodze & Anor. HH 123/12.

In Mkhize v Martins 1914 AD 382 at 390, the principle of vicarious liability was stated very succinctly as:

“We may, for practical purposes, adopt the principle that a master is answerable for the torts of his servant committed in the course of his employment, bearing in mind that an act done by a servant solely for his own interest and purposes, and outside his authority, is not done in the course of employment, even though it may have been done during his employment”

See also Feldman (Pty) Ltd v Mall 1945 AD 733 at 736; First Class Enterprises (Pvt) Ltd v Muchingami & Ors HH 49/13; P.Q.R. Boberg, The Law of Delict Vol 1 Juta & Co Ltd p 327.

I have stated that vicarious liability is not concept of contract law which the plaintiff has deployed in seeking to hold the first defendant liable for his legal fees for services, rendered to the first defendant’s employee. I say this because the plaintiff does not even begin to prove a delict. It is therefore amazing that the plaintiff, a whole lawyer seeking to be paid for legal services, would allege vicarious liability in a contractual relationship. The touchstone for any legal practitioner is that he must be capable of being trusted to the ends of the earth. As stated by Sir Thomas Bingham;

“That is the beginning and the end of professionalism. It is as correct a statement now as it was in the past.”

Even if the plaintiff’s claim was based on contract, his opprobrious litigation against the first defendant would still take that deep shade from the fact that privity of contract is the cornerstone of our law of contract. That concept was stated by the learned author R.H. Christie, in Business Law in Zimbabwe, 2nd ed, Juta & Co Ltd at p 75 as follows:

“A person who is not a party to a contract cannot be held liable or claim on it because, as it is usually expressed, he is not privy to the contract: PTC Pension Fund v Standard Charted Merchant Bank Zimbabwe Ltd 1993 (1)(ZLR) 55. The doctrine of privity of contract is, however, sufficiently elastic to encompass the rules of agency, under which a principal becomes a party to a contract made on his behalf by his agent. But the appointment by the agent of a sub-agent does not, in the absence of agreement to the contrary, create privity of contract between the subagent and the principal: Karoolias v Sulam 1975 (1) RLR 320, 1975 SA 873.

Roman-Dutch law, unlike English law and the old Roman law, recognises a further extension of the doctrine of privity of contract, by accepting the validity of what is variously known as a contract for the benefit of a third party, a stipulatio alteri or ius quaesitum tertio.”

The plaintiff does not to suggest that there was a contract for legal services between himself and the first defendant, basing his claim as he does on vicarious liability a doctrine as alien to contract law as water is to oil. In addition, the plaintiff has not even suggested that the second defendant acted as an agent of the first defendant. Therefore I make a finding that the first defendant did not instruct the plaintiff to represent the second defendant in his criminal trial and as such there was no contract between the plaintiff and the first defendant. I also make a finding that the first defendant is not vicariously liable to the plaintiff for the legal services rendered to the second defendant. It cannot possibly be.

Having come to that conclusion the question of the quantum of damages, I note that the plaintiff has amended his claim upwards to $32 286, resolves itself in favour of the first defendant. I must state however that it is inappropriate for a legal practitioner to sue out a summons for legal fees, a bill of which has not been taxed.

It is a fact that legal practitioners charge fees in accordance with a tariff of fees set by their regulating authority, the Law Society of Zimbabwe, which tariff has regards to, inter alia, the nature of the service to be rendered and the seniority of the legal practitioner involved. Therefore a client is entitled to challenge the fee charged following the dictates of the Law Society of Zimbabwe tariff. In order to defeat such a challenge, the legal practitioner is generally required to tax his bill through the taxing officer. Where the bill has not been taxed, it remains open to challenge and the client is not obliged to pay merely because of the self-serving “say-so” of the legal practitioner.

In Mheresi v McNaught Wickwar 1997 (2) ZLR 386 (S) 387 H,  388 A – E Mc NALLY JA made the following important pronouncement , which although made in the context of a summary judgment application, is applicable to this case;

“It is true that the client paid some of the bills, which set out the charges in such a way that he could have calculated that he was being charge at a rate of $420 per hour. But it does not seem to me that that alone, in the circumstances, is enough to establish a tacit agreement.

And, as I say, if it is to be held that he must be deemed to have agreed to a reasonable fee, was $420 per hour a reasonable fee? That is at least debatable; It may be a matter of evidence. Not, I would think, a matter to be disposed of by summary judgment. There is, moreover, a more fundamental problem. The public should be aware, or should be made aware, that any client dissatisfied with his lawyer’s charges may insist that the lawyer tax his bill. Of course, if the fee has been agreed in advance, the lawyer may sue for his fee without taxation. But in other cases taxation is necessary to prove the reasonableness of the amount charged, if this is disputed by the client ……………….. The Registrar of the High Court is a taxing officer and the matter is dealt with in the Rules of the High Court, Order 38, specifically r 308(1). The law on the subject has been dealt with in this court in Mxumalo & Ors v Guni 1987 (2) ZLR 1 (S).

Lay clients are usually unaware of this right, and it is the duty of a legal practitioner, if a dispute over fees arises, to advise the client of his right to take up the dispute with the taxing master. It will of course cost the client something to have the bill taxed. Nonetheless, it is a useful right. It is generally undesirable that the court should usurp the functions of the taxing master by making decisions as to the reasonableness of fees, except of course when the matter comes from the taxing master by way of review. See Cilliers Law of Costs, 2nd ed para 13.11. This case therefore should have been referred to the taxing master before summons was issued. I conclude therefore, both on the merits and on the general principle,  that summary judgment should not have been granted in this case.”

Nothing more needs to be said in this case because it is common cause that the parties did not agree in advance on the fee, the applicant does not even begin to allege that the fee is reasonable, and the bill was not taxed by the taxing master before summons was issued. It is regrettable that the second defendant consented to judgment, for he could have also contested the untaxed bill.

It remains for me to deal with the issue of costs. In my view, the level of lack of understanding exhibited by the plaintiff, who is a senior lawyer running his own legal practice in Harare, is lamentable indeed. His persistence with a claim not based on any recognisable principle of law, through pre trial conference to a full trial and right up to the wire, is legendary. In the process he has succeeded in wasting the court’s time when he should have known better and in putting the first defendant unnecessarily out of pocket. There can be no better way of registering the court’s displeasure at such abuse than an order for costs on a punitive scale, for it is the only soothing balm which is at the court’s disposal.

In the result, I make the following order, that;

By consent judgment with costs be and is hereby entered against the second defendant in the sum of US$32 286.00 together with interest at the rate of 5%  per annum from the date of summons to date of payment .

In respect of the plaintiff’s claim against the first defendant, absolution from the instance is hereby granted.

The plaintiff shall bear the first defendant’s costs on the scale of legal practitioner and client.

F.M. Katsande & Partners, plaintiff’s legal practitioners

Venturas & Samkange, 1st defendant’s legal practitioners