Court of Appeal - 2022

Appeal from a judgment of a subordinate court to the High Court, and a further appeal to the Court of Appeal without the necessary leave in terms of sec 17 of the Court of Appeal Act, 1978. Its provisions are peremptory and in the absence of compliance, appeal struck from the roll.

SUMMARY Civil procedure – Application for stay of execution – Requirements for - application for leave to appeal and stay of execution - The order of the Labour Appeal Court is stayed pending the final determination of the appeal - Application for leave to appeal to be proceeded with before Court of Appeal comprising a panel of at least three judges - Costs of application to be costs in the appeal.

SUMMARY Administrative Law – Mootness– unreasonableness as ground for review –Appeal not to be disposed off on account of mootness as costs issue still potentially remain to be considered in the appeal– No factual basis for the finding of unreasonableness in casu – Appeal dismissed with costs – Judgment of the High Court confirmed.

Summary Police Association and some police officers suing Commissioner of Police in no less than four related applications for promoting certain police officers to senior ranks allegedly on his own without involvement of Police Appointments and Promotions Board, as well as suing the promoted officers, to set aside promotions as unlawful and contrary to law; After initially filing notices of intention to oppose, Attorney General withdrawing such notices believing defendants had no case; Presiding Judge consolidating the cases and at hearing raising mero motu the lack of standing of private legal practitioner engaged by Commissioner of Police and promoted officers after withdrawal of Attorney General and after hearing argument thereon finding such practitioner not entitled to represent them under the aegis of Attorney General’s office but not deciding whether such representation in defendants’ individual capacity not permissible in the circumstances; Having found against representation by private legal practitioner, presiding Judge proceeding to determine merits of applications without hearing the parties; On appeal Held – presiding judge not having decided whether or not representation by private legal practitioner was altogether not permissible on the facts of the case, declining to decide the issue and leaving it to the High Court to do so on remittal of the cases; Held further that presiding judge fell into error in determining merits without hearing the parties, and accordingly judgments and orders of High Court set aside and cases remitted to be heard and determined by another Judge, subject to him or her giving directions to ensure any outstanding pleadings are filed and litigation proceeds in the ordinary way.

SUMMARY During criminal proceedings preceding the actual trial of accused most of who have been in custody for about four years, thereby giving cause for the trial to commence and proceed with reasonable speed and in light of several postponements, presiding judge, the Honourable Chief Justice conducting an inquiry in terms of s 12(4)(b) and (c) of the Speedy Court Trials Act 2002 (No. 9 of 2002)and finding lead prosecution counsel guilty of transgressions under said section and excluding him from further appearing in case; Crown, through Director of Public Prosecutions, being aggrieved by the conduct of the proceedings to that stage and by the exclusion of lead counsel filing for recusal of presiding judge; Presiding judge declining to recuse himself and Director of Public Prosecutions appealing against decision excluding lead prosecution counsel and decision declining recusal; On appeal: Held presiding judge erred in applying provisions of Speedy Court Trials Act and excluding lead prosecution counsel; Held further on facts and circumstances of case before him, presiding judge should have recused himself; Also raised on appeal - that the trial of the accused be assigned to a foreign judge consequent upon earlier decision of Government and Judicial Service Commission that trial of accused and others in high-profile and sensitive cases be assigned to foreign judges appointed for that purpose; Appeal Court, noting that a number of such cases have already been assigned to local judges, declines to order that case be allocated only to a foreign judge and leaves decision to relevant authorities as to which judge to preside; Appeal by Director of Public Prosecutions upheld on basis presiding judge erred in decision under Speedy Court Trials Act and in refusing to recuse himself, and directing that matter be placed before another judge, foreign or local, as may be decided

SUMMARY: Application for leave to appeal -- leave granted -- appeal upheld -- matter remitted for completion to the Leribe District Land Court for completion.

Summary: The High Court, exercising its ordinary civil division, declined to hear matter on the basis that it was commercial in nature and that court therefore lacked jurisdiction. The court relied on Rule 10 1(c) and (m) of the High Court Commercial Court Rules, governing commercial matters. Held that the Commercial Court is a court created as a division of the High Court of Lesotho and is not a court separate from the High Court. Therefore, the High Court had jurisdiction.

SUMMARY Ownership - Movable property - Competing claims - Of purchaser motor vehicle and Executrix of Estate - Purchaser of vehicle through bank - Executrix of Estate of deceased estate claiming ownership relying on hearsay evidence of statements by deceased and supporting affidavits that deceased had told the deponents that she had bought the motor vehicle purchaser - Executrix of Estate failing to establish ownership as it had relied on hearsay and circumstantial evidence. Circumstantial evidence - The rules of induction specially applicable to circumstantial evidence discussed and applied – Appeal dismissed with costs.

SUMMARY Application for condonation- Eight (8) years delay in noting an appeal- the delay and frailty of the reasons for the delay unprecedentedly long and outlandish respectively- interrogation of the merits or prospects of success not desirable- Application dismissed and appeal struck from the roll with costs.

SUMMARY: The appellants who were appointed on contract in the Lesotho public service in terms of a written contract agreed to refer any dispute arising from the implementation or execution of the employment contract to binding arbitration in terms of the provisions of the Public Service Act 2005 as amended. When the Crown determined that the contracts had terminated, they approached the High Court to seek declaratory and review relief instead of asking the court under s 4 of the Arbitration Act 12 of 1980 to not bind them to the arbitration agreement. The High Court declined jurisdiction because the appellants were bound by the agreement to refer the dispute to arbitration. Appeal against the High Court’s judgment dismissed, with costs.

SUMMARY Section 16 I1) of the Court of Appeal Act 1978, application for leave to appeal against an order of the High Court in interlocutory proceedings. High Court having granted interlocutory order against objection matter was re judicata, there was non-joinder and non-compliance with rule 8(19) of the High Court rules. On appeal court sets out circumstances in which it will grant leave to appeal against an interlocutory order.

SUMMARY Application for condonation to file answering affidavit- Judge rejecting the application – Judge making an order in default – The discretion should be exercised judiciously – The credibility of the explanation should be interrogated before rejecting the application.