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LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C of A (CIV)/12/2025
LC/APN/0003/2023
In the matter between –
JERINAH GOOLAM ESSANEY APPELLANT
and
ABRAHAM JOSEPH 1ST RESPONDENT
ESMAH ESSANEY 2ND RESPONDENT
NORDEEN LOVIS GOOLAM 3RD RESPONDENT
BREY SEMPE GOOLAM 4TH RESPONSENT
MASERU CITY COUNCIL 5TH RESPONDENT
LAND ADMINISTRATION AUTHORITY 6TH RESPONDENT
CHIEF OF MAPELENG HA MABOTE 7TH RESPONDENT
CORAM: MUSONDA, AJA
CHINHENGO, AJA
VAN DER WESTHUIZEN, AJA
HEARD: 22 APRIL 2025
DELIVERED: 2 MAY 2025
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FLYNOTE
Appeal — Condonation — Costs — Appeal struck off — Appropriate scale of costs — Late withdrawal of appeal — Breach of Court Rules — Punitive costs — Attorney and client scale.
The appellant sought condonation for the late noting of an appeal arising from a family inheritance dispute. Condonation and the appeal were opposed by several respondents, who raised significant procedural defects, including issues with the High Court record. At the hearing, appellant’s counsel withdrew the condonation application and conceded that the appeal should be struck from the roll, tendering costs in the process. Respondents contended for punitive costs on the attorney and own client scale, citing substantial delays, procedural breaches, and unnecessary litigation expense. The Court acknowledged the appellant’s counsel’s candour and effort in not prolonging proceedings, but held that respondents were nevertheless entitled to a punitive costs order given the waste of time and resources occasioned by the appellant’s conduct. However, the Court declined to award costs on the most punitive scale of attorney and own client, noting the absence of contempt or authority justifying such severity.
Held: Appeal struck off the roll with costs on the scale of attorney and client.
JUDGMENT
J VAN DER WESTHUIZEN AJA:
Introduction
[1] The appropriate scale of a cost order is the only issue dealt with in this judgment.
[2] The appellant approached this Court with an appeal against a judgment of the High Court by Mahase J on a family dispute regarding inheritance. The judgment followed on a referral to oral evidence in motion proceedings, due to factual disputes.
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This Court
[3] Condonation was sought for the late noting of the appeal, The condonation application and the appeal were opposed by the first and second respondents, as well as the fourth respondent. Counsel for the respondents pointed out a range of problems with the record, especially with the reconstruction of the evidence, from the High Court judge’s notes.
[4] At the commencement of the hearing counsel for the appellant mentioned that he did not want to waste the Court’s time. Therefore, he withdrew the condonation application. He furthermore submitted that the appeal should be struck from the roll. After having solved the problems with the record, which he undertook to attempt together with counsel for the respondents, reinstatement of the appeal could be applied for.
[5] In response to a question from the Bench, counsel agreed that if the appeal were struck off, the condonation application would automatically fall away.
[6] On behalf of the appellant, counsel tendered to pay the costs. In his heads of argument on behalf of the first and second respondents counsel submitted that the appeal be struck off the roll, with costs on attorney and own client scale. Counsel for the appellant requested “leniency” in this regard.
[7] Counsel for the first and second respondents, as well as the fourth, vehemently opposed the appellant’s request and insisted on punitive costs on the scale proposed in the written heads. They pointed out numerous breaches of the Rules, the time that had lapsed and the costs that their clients had incurred in the
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preparation of their opposition to the condonation application, as well as the appeal itself. They submitted that the appeal should have been withdrawn in time to save costs and energy spent on preparation, as well as the presence of legal representatives in court. The appellant’s position could also have been indicated at the roll call on 7 October 2025, more than two weeks before this hearing. The appellant’s conduct did not warrant leniency, according to counsel for the fourth respondent.
[8] The mentioning of “leniency” reminds on of the words of Holmes JA (in S v Rabie 1975 ZASCA), that have become part of the law regarding sentencing in criminal trials. After considering all relevant factors, punishment must be “blended with a measure of mercy”. Besides the debate around the meaning, place and relevance of mercy in dispensing justice, one may of course be of the view that there is always room for mercy and leniency in our harsh world. In this matter counsel for the appellant came across as sincere, modest and forthright in his submission that the appeal should be struck off. He did assist by preventing that this Court’s time be wasted by long arguments based on possible legal loopholes.
[9] However, this is not a criminal matter. The respondents spent energy, time and money on their opposition. The purpose of a punitive cost order is not only to show a court’s displeasure with sloppy litigation and disregard for Court Rules, but also to prevent a party from being out-of-pocket as a result of an opponent’s sloppiness and breach of the Rules.
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[10] It is trite that the ordinary costs order, when costs follow the result, is on the “party and party” scale; and that punitive costs could be ordered on the scale of “attorney and client”, or on the highest scale of “attorney and own client”. The last-mentioned is asked for by the respondents.
[11] The appellant’s conduct and the respondents’ wasted resources clearly warrant a punitive cost order. Counsel for the respondents did not and - on request - could not present to this Court any authority on the kind of circumstances and degree of displeasure that justify the highest level of punitive costs. The appellant’s neglect does not seem to amount to contempt of court. I am not persuaded that attorney and own client costs are warranted.
Order
[12] In view of the above –
the appeal is struck off the roll, with costs on the scale of attorney and client.
_____________________________
J VAN DER WESTHUIZEN
ACTING JUDGE OF APPEAL
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I agree:
_________________________
P MUSONDA
ACTING JUDGE OF APPEAL
I agree:
__________________________
M CHINHENGO
ACTING JUDGE OF APPEAL
For the appellant: Adv SL MALABULABU
For the 1st and 2nd respondents: Attorney MJ RAMPAI
For the 4th respondent: Adv B MOSHOESHOE