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LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C OF A (CIV) NO: 59/2024
CIV/APN/0024/2023
In the matter between:
PASTOR MAPHETHANG MOHANOE APPELLANT
AND
EXECUTIVE COUNCIL OF A.F.M OF LESOTHO 1STRESPONDENT
WORKERS COUNCIL OF A.F.M OF LESOTHO 2NDRESPONDENT
APOSTOLIC FAITH MISSION OF LESOTHO 3RDRESPONDENT
PASTOR TELANG LETSEKA 4THRESPONDENT
PASTOR ASAELE MAKHABANE 5THRESPONDENT
PASTOR BONGA MZINI 6THRESPONDENT
PASTOR QOALANE LECHESA 7THRESPONDENT
PASTOR POELLO MOHAPI 8THRESPONDENT
PASTOR JOSEPH RALITAU 9THRESPONDENT
PASTOR MPHOLO TLHOELI 10THRESPONDENT
PASTOR RATEBELLO PULE 11THRESPONDENT
PASTOR RABELE MAHASE 12THRESPONDENT
CORAM: DAMASEB AJA
CHINHENGO AJA
MATHABA AJA
HEARD: 11 APRIL 2025
DELIVERED: 02 MAY 2025
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FLYNOTE
Civil Procedure – Appeal – Lapsed appeal – Rules of Court of Appeal 2006, rules 4, 5(1), 5(3) and 15(3) – Application for declarator and condonation – Misconceived application – Duty of legal practitioners – Costs de bonis propriis.
This was an appeal from a decision of the High Court declining jurisdiction over internal disputes within the Apostolic Faith Mission of Lesotho, on the grounds that internal dispute resolution mechanisms had not been exhausted. The appeal was timeously noted but the record of proceedings was not filed within the three-month period prescribed by rule 5(1) of the Court of Appeal Rules 2006. Despite being alerted by opposing counsel in January 2025 that the appeal had lapsed in terms of rule 5(3), counsel for the appellant failed to seek reinstatement and instead, barely two days before the hearing, brought an application for a declarator that the appeal had been filed within time, or in the alternative, for condonation of the late filing of the appeal.
The Court held that the appeal had indeed lapsed automatically by operation of rule 5(3) due to failure to lodge the record within the prescribed period. The application for a declarator and condonation was therefore fatally misconceived, not only because the real issue was the late filing of the record and not the notice of appeal, but also because the application did not include a prayer for reinstatement of the lapsed appeal. Furthermore, the appellant’s counsel had been put on notice of the lapse, had ample opportunity to regularise the position, and failed to act with diligence. The Court held that the persistent non-compliance with the Rules, the cavalier approach adopted by counsel, and the dishonest attempt to shift blame to opposing counsel, justified a punitive costs order.
The application was accordingly dismissed. The appeal was struck off the roll. The appellant was ordered to pay the respondents’ costs, with fifty percent of such costs to be paid de bonis propriis by the appellant’s counsel. The Court reaffirmed the need for legal practitioners to acquaint themselves with and comply with the mandatory rules of court, cautioning that continued disregard of such obligations threatens the integrity of the appellate process and the administration of justice.
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JUDGMENT
MATHABA AJA
Introduction
[1] This matter was enrolled as an appeal. However, on 9 April 2025, barely two days before the appeal was heard, Counsel for appellant filed a notice of motion seeking the following relief:
“(a) A declarator that the Appellant had filed Appeal within time frames stipulated by the Rules of this Court.
ALTERNATIVELY:
(b) That the Honourable Court be pleased to condone the late filing of the Appellants Appeal and all ensuing processes.
(c) Further and/or alternative relief.”
[2] The application is opposed and the Court agreed with the parties that what was before it was the application for a declarator, alternatively for condonation. It is necessary to briefly sketch the events forming the background to the appeal and how it came about that the appellant launched the application.
Background
[3] The appeal is against an order of the High Court (Makara J) made on 16 September 2024. The appellant who is represented by Advocate Fusi Sehapiwas a losing party. The respondents were represented by Advocate Takane Maqakachane.
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[4] The appellant is a pastor in the third respondent, Apostolic Faith Mission of Lesotho, (“the church”). On 25 June 2022 the church had an elective conference for its executive council. The election results were disputed in respect of some of the portfolios. As a result, there was a rerun for the contested portfolios on 30 July 2022. Still, that did not help. The dispute degenerated into a feud within the church.
[5] On 26 November 2022 the general conference of the church dissolved the executive committee that was elected on 30 July 2022 and appointed the interim executive committee. The general conference further resolved to call for fresh elections on 28 January 2023. The interim executive committee was charged with the responsibility to prepare for the elections.
[6] The appellant approached the court a quo impugning the decisions to dissolve the executive committee; to appoint the interim executive committee; and to call for fresh elections. Following arguments, the learned Judge made an order on 16 September 2024 declining jurisdiction over the matter pending exhaustion of internal dispute resolution avenues within the church.
[7] Dissatisfied with the order, the appellant noted an appeal to this Court and filed several grounds in support thereof on 17 September 2024. For present purposes, it is not necessary to itemise the grounds of appeal safe to say that the kernel thereof is that the court a quo erred and misdirected itself in declining jurisdiction.
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[8] Contrary to rule 5(1) of the Court of Appeal Rules 2006, (the Rules), the appellant did not file the record of proceedings of the court a quo within three months after noting of the appeal. Advocate Maqakachane informed Advocate Sehapi in January 2025 that the appeal had lapsed. Nonetheless the record was only filed on 25 February 2025.
[9] Advocate Sehapi did not recognise Advocate Maqakachane’s view that the appeal had lapsed. The pith and marrow of his argument being that the appeal was timeously filed, hence it could not have lapsed when it was already before this Court. He contended that rule 5(1) and (3) were not applicable. Given his view that the appeal had not lapsed, it can safely be concluded that Advocate Sehapi filed the instant application out of abundance of caution.
[10] The respondents are strenuously opposing the application on the ground that it is misconceived absent an application for reinstatement of the lapsed appeal and strongly argued that the application must be dismissed with costs de bonis propriis.
Legal issues
[11] The legal issues that are implicated in this judgment are three. The first issue is whether the appeal is lapsed and if the application is misconceived absent application for reinstatement of the lapsed appeal. Should it be found that the application is not misconceived, then the second issue comes to life and that is whether the appellant has made a case for condonation. The third
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issue is whether the conduct of the appellant’s counsel calls for censure.
The legal position
[12] Rule 4 and 5 of the Rules outline procedural steps to be followed on appeals. Rule 4 governs noting of appeals while rule 5 dictates the period and the manner for filing of the record. There is no disputation that the appeal was timeously noted following the impugned order. Therefore, both prayers in the notice of motion, the main and the alternative, are misconceived. The less said about them the better. Henceforth, there will be no further reference to rule 4 in this judgment.
[13] In terms of rule 5(1), the appellant should have lodged the record within three months after noting the appeal. Thus, the record in this appeal should have been filed latest by 17 December 2024. Instead, it was filed two months after the period of three months. In terms of rule 5(3), the appeal lapses if the appellant fails to lodge the record within the prescribed period or within the extended period.
[12] Plainly, the argument that the appeal had lapsed by virtue of rule 5(3) is unassailable. Worse still, the parties had not agreed to extend the period within which to file the record in terms of rule 5(2). Counsel for appellant conceded, correctly so in my view, that the record was filed out of time.
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[13] In Yu Quang v. Hata Butle (Pty) Ltd and Others1 where the record was not filed and the time for doing so had lapsed, this Court said that there was no appeal before it. The appeal suffered the same fate in Hoohlo v. Hoohlo and Others.2 Similarly, in Zainab Moosa and Others v. Lesotho Revenue Authority3, this Court, having found that the appeal had lapsed due to late filing of the record said the following: -
“[23] The appeal had lapsed. Lapse is defined by the concise Oxford English Dictionary Tenth Edition as:
“In law the termination of a right or privilege through disuse or failure to follow appropriate procedures”.
It follows the right to appeal was terminated and needed to be revived before an application for condonation can be entertained. I see force in Advocate Mofilikoane’s argument, that the application for condonation is misconceived.”
Analysis
[14] It bears repeating that the appeal in this matter has undoubtedly lapsed. Consequently, the application for a declarator and condonation is misconceived in the absence of an application for reinstatement of the lapsed appeal. Curiously, the prayers in the notice of motion relate to failure to file the appeal timeously, whereas it is axiomatic that the appeal was noted on time but lapsed due to failure to file the record on time.
[15] Besides, even if the words “ensuing processes” in the alternative prayer were intended to include late filing of the record, non-observance of the Rules has been so flagrant and gross in this
1 Yu Quang v. Hata Butle (Pty) Ltd and Others (C of A (CIV) 28 of 2019 [2020] LSCA 32 (30 October 2020).
2 Hoohlo v. Hoohlo and Others (C of A) (CIV) 11 of 2014) [2014] LSCA 36 (24 October 2014).
3 Zainab Moosa and Others v. Lesotho Revenue Authority (C of A (CIV) 2 of 2014) [2015] LSCA 36 (6 November 2015).
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matter such that the application for condonation was bound to fail, whatever the prospects of success might be. Though the prospect of success is an important consideration, it is not decisive4.
[16] Advocate Sehapi was made aware as early as January 2025 that the appeal had lapsed but stuck to his view that it had not lapsed. He complains that Advocate Maqakachane’s letters of 11 and 22 January 2025 did not disclose the rule in support of the contention that the appeal had lapsed. This complaint is utterly unfounded and unfair to Advocate Maqakachane. It was up to Advocate Sehapi to familiarise himself with the Rules.
[17] On the conspectus of evidence before us, Advocate Sehapi was dishonest in his founding affidavit when he asserted that Advocate Maqakachane only pinpointed rule 5(1) and (3) after he was served with the appellant’s heads of argument. The heads of argument were served on 10 March 2025 when Advocate Sehapi was already aware that the contention that the appeal had lapsed was based on rule 5(1) and (3).
[18] It is beyond disputation that the issue of the lapsed appeal was discussed with specific reference to rule 5(1) and (3) on 19 February 2025 when the parties appeared before the High Court in relation to a spoliation application. No replying affidavit has been filed to gainsay the evidence emerging from the answering affidavit to this effect. I have no name for the document that was filed in response to the answering affidavit. It certainly is not an
4 Darries v. Sheriff, Magistrate’s Court Wynberg and Another (1998) 3 SCA 34 at 41.
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affidavit and does not even purport to be one. It has no identifiable deponent, nor has it been commissioned.
[19] It is not rocket science to appreciate that Advocate Sehapi is shifting the blame because of his lack of diligence. He dismissed the warning that the appeal had lapsed without any careful consideration and ignored the cherished principle of law that an application for condonation must be made as soon as a party requiring it realises that it has not complied with the Rules.
[20] Advocate Sehapi knew as early as January 2025 that the appeal had lapsed. He was informed of the rule in support of that contention in precise terms in February 2025. He did not redress the situation. He ignored the deputy registrar’s circular of 5 February 2025 which required records that were filed out of time to be accompanied by applications for condonation.
[21] Even worse, the misguided application for condonation was filed barely two days before the date of hearing of the appeal contrary to rule 15(3) which requires an application for condonation to be delivered not less than seven days before the date of hearing. There is no plausible explanation for the persistent non-observance of the Rules.
[22] I have already exercised my mind and found that the application is misconceived for two reasons. First, there is no application for reinstatement of the lapsed appeal. Second, the appellant is seeking condonation for late filing of the appeal whereas that is not the issue. The issue is that the record was filed out of time. Even if the application related to failure to file the
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record on time, non-compliance with the Rules has been so flagrant and gross that the application for condonation was bound to fail. In the view I take of this matter, it is not necessary to deal in detail with all the requirements of a condonation application in circumstances where the misconceived application for condonation does not even encapsulate application for reinstatement of the lapsed appeal.
Costs
[23] Given that Advocate Sehapi was made aware that the appeal had lapsed on more than one occasion, Advocate Maqakachane insisted on attorney and client costs de bonis propriis. He forcefully argued that Advocate Sehapi’s conduct was unjustifiable and that he was grossly negligent in conducting the case.
[24] Conversely, Advocate Sehapi argued that he was handling the case pro bono and that since the dispute relates to church matters, each party should bear its own costs like it happened in the court a quo.
[25] It is trite that costs follow the event. Barring exceptional circumstances, unsuccessful party must pay legal costs to the successful party. Likewise, costs de bonis propriis are awarded in exceptional circumstances.
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[26] There is a considerable body of case law on this issue. I seek inspiration from the following passage in the matter of Makeka v. Africa Media Holdings C/O Lesotho Times and Others:5
“[19]…The kind of conduct that may attract an order of costs de bonis propriis includes any of the following – commencing or conducting proceedings that are an abuse of process; raising untenable defences for purposes of delay; repeatedly putting untenable submissions; acting in ignorance of the rules and prosecuting an appeal which has no prospects of success.”
[27] Counsel who appear in this Court have a duty to familiarise themselves with the Court of Appeal Act and this Court’s Rules.6 They owe this Court an appropriate level of professionalism, hence their negligence in a serious degree may attract punitive costs.7 Likewise, dishonesty, obstruction of the interests of justice, irresponsible and grossly negligent conduct, litigating in a reckless manner, misleading the court, gross incompetence and lack of care justify an order for costs de bonis propriis.8
[28] In my respectful view, Advocate Sehapi has earned himself a chance to be mulcted with costs. He displayed remarkable ineptitude when he was told on more than one occasion that the appeal had lapsed. I cannot help but reiterate that Advocate Sehapi was dishonest when he sought to create the impression that rule 5(1) and (3) was only mentioned after service of the
5 Makeka v. Africa Media Holdings C/O Lesotho Times and Others (C of A (CIV) 14/2022) [2022] LSCA 62 (11 November 2022).
6 Makhanya v. Pheko and Others LAC (2011-2012) 394 at 395; Christoffel Smith v. Tsepong Proprietary Limited C of A (CIV) 22 of 2020) [2021] LSCA 11 (14 May 2021).
7 South Africa Liquor Traders Association & Others v. Chairperson, Gauteng Liquor Board and Others 2009 (1) SA 565 (CC).
8 Muilti-Links Telecommunications Ltd v. Africa Prepaid Services Nigeria Ltd 2014 (3) SA 265 (GP), 289.
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appellants heads of argument. At all events, Advocate Sehapi’s argument in that regard is unsustainable.
[29] Advocate Sehapi ought to have familiarised himself with the Rules of this Court even before he noted the appeal or at least immediately he was told that the appeal had lapsed. Had he done so and considered the relevant case law, he would have realised that his argument that the appeal had not lapsed was sterile. There is a plethora of authorities emanating from this Court on this issue which are easily accessible. Besides, given the plain language of rule 5(3), it strains belief how one could have conceived the argument that once noted, an appeal does not lapse.
[30] Obviously, Advocate Sehapi acted in ignorance of the Rules even after he was told that the appeal had lapsed. He dismally failed to discharge his professional obligations towards his client and this Court. Alternatively, he is being disingenuous. He was negligent in a serious degree or dishonest. Advocate Sehapi filed the misguided application barely two days before the date of hearing of the appeal without valid excuse for his inaction. This does not only demonstrate utter disregard for the Rules of this Court, but it is devoid of professionalism and courtesy which legal practitioners must uphold and observe towards this Court.
[31] I pause to remark that the alarming rate at which condonation applications are filed in this Court is a red flag. It is even a matter of grave concern that some of these applications are filed when this Court is already in session. This is despite elementary law that condonation application is not a mere formality which is ‘there for the taking’. It therefore beats my
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imagination how Justices of this Court are expected to properly consider the applications and meaningfully engage with Counsel on the date of hearing. The whole purpose for which records must be filed well in advance gets defeated. The following warning from this Court in National University of Lesotho v. Thabane9 is being taken for granted.
“[4] Before proceeding I propose to make some comments concerning the Rules. They are primarily designed to regulate proceedings in this Court and to ensure as far as possible the orderly, inexpensive and expeditious disposal of appeals. Consequently the Rules must be interpreted and applied in a spirit which will facilitate the work of this Court. It is incumbent upon practitioners to know, understand and follow the Rules, most if not all of which are cast in mandatory terms. A failure to abide by the Rules could have serious consequences for parties and practitioners alike, and practitioners ignore them at their peril. At the same time formalism in the application of the Rules should not be encouraged. Opposing parties should not seek to rely upon non-compliance with the Rules injudiciously or frivolously as an expedient to cause unnecessary delay or in an attempt to thwart an opponent’s legitimate rights. Thus what amount to purely technical objections should not be permitted, in the absence of prejudice, to impede the hearing of an appeal on the merits. The Rules are not cast in stone. This Court retains a discretion to condone a breach of its Rules (see Rule 15) in order to achieve a just result. The attainment of justice is this Court’s ultimate aim. Thus it has been said that Rules exist for the court, not the court for Rules. The discretionary power of this Court must, however, not be seen as an encouragement to laxity in the observance of the Rules in the hope that the Court will ultimately be sympathetic. There is a limit to this Court’s tolerance.”
[32] Legal practitioners have been sufficiently warned in countless cases that non-compliance has consequences. It leads to chaos and compromises the quality of justice. Given these numerous warnings and considering the flagrant disregard of the Rules in casu, I consider this to be a proper case for this Court to draw a line in the sand and make good its warnings. I took into consideration Advocate Sehapi’s ardent plea for mercy on the
9 National University of Lesotho v. Thabane LAC (2007 – 2008) 476 at 480.
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ground that he was handling the case on a pro bono basis. I also considered the fact that it is his own client who has been inconvenienced the most by his conduct because her ‘appeal’ will not be proceeding. It is for these reasons that I am inclined not to award costs on an attorney and client scale. But both Advocate Sehapi and his client cannot escape without consequences as Advocate Sehapi pleaded.
Conclusion
[33] The application for a declarator and condonation is dismissed as misconceived for two reasons. The appeal had lapsed and the appellant did not seek reinstatement of the appeal. The application for condonation relates to noting of an appeal whereas the core issue is failure to file the record on time. Even if the application related to failure to file the record on time, it was bound to fail as it was not timeously made and given the flagrant non-compliance with the Rules.
[34] The appellant’s counsel approached this Court in a very cavalier fashion and treated it with utter disdain. He knew as early as January 2025 that the appeal had lapsed, only to institute the misguided application for condonation two days before the date of hearing of the appeal. There is no explanation for this deplorable conduct. Counsel was negligent in a serious degree in the conduct of this matter. He did not demonstrate the required professionalism to both his client and this Court. The enormity of his professional negligence calls for censure as set out in the order below.
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[35] It follows from the above considerations that the appeal has lapsed and falls to be struck off the roll. The following order is made: -
(i) The appeal is struck off the roll.
(ii) The application for a declarator and condonation is dismissed.
(ii) The appellant is ordered to pay the respondents’ costs.
(iii) 50% of such costs shall be paid by Advocate Fusi Sehapi de bonis propriis.
______________________________
R. MATHABA
ACTING JUSTICE OF APPEAL
I agree
_______________________________
P.T DAMASEB
ACTING JUSTICE OF APPEAL
I agree
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_____________________________
M.H. CHINHENGO
ACTING JUSTICE OF APPEAL
FOR APPELLANT: ADV. F. SEHAPI
FOR RESPONDENTS: ADV. T. MAQAKACHANE