LUGY'S Ivestment Group V Fantastic Clothing (PTY) LTD (C of A (CIV) No 10/2024) [2024] LSCA 15 (1 November 2024)

LESOTHO

IN THE COURT OF APPEAL OF LESOTHO

 

HELD AT MASERU                 

C OF A (CIV) NO.10/2024

 

In the matter between:

                                       

LUGY’S INVESTMENT GROUP                          APPELLANT

 

AND

 

FANTASTIC CLOTHING (PTY) LTD                  RESPONDENT

 

 

CORAM:          Damaseb, AJA

Musonda, AJA

Chinhengo, AJA

 

HEARD:           8 October 2024

DELIVERED:   1 nOVEMBER 2024

 

 

SUMMARY

Application for leave to appeal – Non-compliance with the Rule 3 (8) (a) of the Rules of the Court of Appeal – Appeal is struck.

 

 

 

 

 

 

 

JUDGMENT

P T Damaseb AJA

Introduction

1. We have before us an opposed application for leave to appeal against an order of the High Court granting rescission.

 

2. The applicant, Luqy’s Group, obtained default judgement against the 1^st respondent, Fantastic Clothing, before Mahase ACJ (as she then was).

 

3. In the wake of the default judgment, two rescission applications were brought separately by Fantastic Clothing and the Director of Public Prosecutions (DPP). Fantastic Clothing sought rescission of a default judgment obtained by Luqy’s Group Investment (Pty) Ltd (Lugy’s Group), relating to a dispute over the delivery of fabric valued at M1, 330,000.

 

4. The DPP sought to intervene after goods attached under the writ of execution were alleged to be exhibits in a pending criminal case. The DPP argued that the goods, including fabric rolls, were involved in a theft case being prosecuted in the Leribe Magistrate’s Court against a director of the applicant.

 

5. Mokhesi J identified the following issues for determination:

 

 

1. Whether the service of the summons in the Fantastic Application was irregular, warranting rescission of the default judgment.

 

2. Whether the DPP had the legal standing (locus standi) to intervene in the civil matter and whether the goods attached were indeed exhibits in a criminal case.

 

3. Whether good cause existed for the rescission applications, particularly whether the applicants provided reasonable explanations for their defaults and whether they had bona fide defenses with prospects of success.

 

6. Fantastic Clothing’s application for rescission of judgment succeeded whereas that of the DPP was dismissed for reasons that are not necessary to traverse here.

 

7. Mokhesi J held that although the explanation given by Fantastic Clothing for its default was weak, its defence had some prospects of success.
8. In the result, Mokhesi J granted Fantastic Clothing’s rescission application with costs. Conversely, the DPP’s application was dismissed with costs, largely due to procedural deficiencies and lack of evidence.

 

9. Luqy’s Group, aggrieved by the order of rescission, appealed against that order without seeking or obtaining leave and when that was pointed out to by Fantastic Clothing, it changed tact and applied for the present leave to appeal without withdrawing the incompetent appeal.

 

10. On 7 March 2024, Lugy’s Group filed a notice of motion supported by affidavit seeking the following main relief:

 

‘(a) The applicant be granted leave to appeal the decision of His Lordship Mokhesi J in CCT/0376/2020 handed down on the 26^th of February 2024’.

 

11. A supporting affidavit accompanied the notice of motion deposed to by Lugy’s Group director. The affidavit includes several annexures including grounds of appeal; the entire record of proceedings a quo with all the annexures and to documents filed in those proceedings. All told, it consists of three volumes and runs into 260 pages. As it happens, the judgment of the court against which leave is sought only appears from page 239 of the record.

 

12. When the matter was called before us, we asked the applicant’s counsel to address us on whether the appeal before us was competent in view of what are clear breaches and non-compliances with the Rules of this Court governing applications for leave to appeal.

 

13. The following provisions were brought to the attention of Adv Makara representing the applicant:

 

1.  Contrary to Rule 3 (8) (a), the application was accompanied by the record, including a record of the ill-fated appeal;

 

2.  The affidavit deals ad nauseam with extraneous matters which were relevant in another application in which the applicant had sought a Mareva interdict against Fantastic Clothing - but certainly irrelevant to the present application.

 

14. It is becoming a matter of very serious concern that practitioners do no acquaint themselves with the rules of this Court engage in practices which frustrate rather than promote speedy dispatch of the business of this Court. The time has come for this Court to put a stop to these practices.

 

15. Because of non-compliance with the rules, what is supposed to be a straightforward application for leave to appeal with a very economical record, the Court was burdened with a prolix record such that it was confusing just what was before us.

 

16. The judges of this Court work under enormous pressure given the number of cases (40 this term) enrolled to be heard over a period of two weeks. To burden them to read irrelevant material is therefore intolerable.

 

17. Advocate Makara for Luqy’s Group urged us to ignore the irrelevant material and, as he put it, to focus on that which is material. Therein is the problem: Judges do not pick and choose what to read when a record has been placed before them. They assume that there is a reason why a litigant has presented to them what they did.

 

18. The application for leave to appeal was filed of record on 14 March 2024. Had counsel acquainted himself with the Courts’ rules, he would have noticed the non-compliance that I set out earlier in this judgment and then ask us to ignore that which is extraneous. Our duty is to assume that what has been placed before us is considered important by the responsible party. Where that is to our inconvenience all we can do is to deprecate it and make an order that, hopefully, sends the message that it should not happen again and that those who do not heed the warning do so at their own peril.

 

 

19. The appeal before us was therefore incompetent and the most appropriate order in the circumstances is to strike it from the roll.

 

20. The respondents in this matter have to assume their share of blame. They filed voluminous papers of one or the other kind out of time and had to apply for condonation such that what was supposed to be a simple application for leave to appeal required this court - had it proceeded to consider the merits - to adjudicate applications for condonation. The respondents should therefore not be rewarded with an order of costs.

 

Order

21. In the result, I make the following order:

The application for leave to appeal is struck off the roll with no order as to costs.

_____________________________

P T DAMASEB

ACTING JUSTICE OF APPEAL

 

I agree:    

_____________________________

P. Musonda

ACTING JUSTICE OF APPEAL

I agree:    

_____________________________

M. Chinhengo

ACTING JUSTICE OF APPEAL

 

For the Appellant:                   ADV M.M MAKARA  

For the 1^ST Respondent:          MR M. RASEKOAI

For the 4^TH Respondent:          ADV. C.J LEPUTHING