Court of Appeal

FLYNOTE
Civil Procedure — Application for rescission of default judgment — Condonation for late filing — Requirements for rescission at common law — Reasonable explanation and bona fide defence — Negligence of legal representatives — Discretion of the court — Finality in litigation — Delay and prejudice — Whether High Court’s discretion judicially exercised.

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Practice and Procedure — Condonation — Late Filing of Record — Audi Alteram Partem — Court of Appeal Rules, 2006, Rules 5 and 15 — Duty to Serve Timeously — Procedural Fairness — Costs.

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Civil Procedure – Appealability – Lapse of appeal – Default judgment – Ejectment – Jurisdiction of Subordinate Court –
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Title to land – Construction of statutes – Interpretation of procedural rules – Rescission of default judgments – Harmonisation of statutory schemes.

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Arbitration – Interim interdict – Jurisdiction of court notwithstanding arbitration clause – Independent guarantee – Fraud exception – Arbitration Act 1980, ss 4 and 22 – Relationship between guarantee and main contract – Interlocutory relief pending arbitration – Misrepresentation as ground for interdict

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Postponement of hearing – Death of counsel – Staff shortage in Attorney General’s office – Replacement counsel unable to
prepare due to pre-engagement in criminal trial – Application to postpone appeal – Concession on costs – Whether costs order suffices to cure prejudice.

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Public Service – Administrative Law – Rationality – Grading of civil service posts – Whether decision not to upgrade appellant from Grade I to Grade J under Circular No. 7 of 2013 irrational – Whether appellant functioned as Head of Department notwithstanding formal designation – Judicial review – Applicability of rationality standard in constitutional context

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Voluntary associations Law — Audi alteram partem — Suspension and termination of membership from a police staff association — Whether the refusal to grant an oral hearing violated the duty of fairness — Whether show-cause procedure sufficient where serious reputational harm results — Whether decision taken by a properly constituted body with requisite quorum — Procedural and substantive irrationality — Review and setting aside of decision.

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Immigration – Naturalisation – Delay in conferral of citizenship – Legitimate expectation – Mandamus – Ministerial discretion – Judicial deference – Whether High Court usurped Minister’s statutory function – Lesotho Citizenship Order 1971, ss 9(2), 12(2), 14, 16(1)

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Civil Procedure – Leave to appeal – Section 17 of the Court of Appeal Act 1978 – Whether leave to appeal required from decision of High Court in review matters – Distinction between appellate and original jurisdiction – Decision in Ntoetsi Tau-Tona v Maphoka Ramoea overruled – Application for leave struck off roll – No order as to costs.

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Administrative law – Public service – Rationality – Regrading under Circular No. 7 of 2013 – Whether exclusion of officers performing substantially similar duties to regraded counterparts was rational – Distinction between unreasonableness and irrationality – Constitutional imperative of lawful, fair, and rational administrative action – Whether High Court erred in refusing relief and costs.

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Review application – Failure to annex judgment sought to be impugned – Application procedurally defective and legally unintelligible – Right to fair hearing under section 12 of the Constitution – Motion proceedings require intelligibility and coherence – Affidavit must disclose cause of action and attach impugned decision – Withdrawal of defective application – No order as to costs.

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Land Law—Unjust enrichment—Bona fide possessor—Compensation for improvements—Measure of enrichment—Retention of rental income—Set-off—Discretion of the court—Limits of discretion—Condonation—Whether late appeal permissible.

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Public Service – Termination of Fixed-term Contracts – Arbitration Clause – Jurisdiction of the High Court – Interim Interdicts – Arbitration Act 1980 (Lesotho), ss 4, 22

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Criminal law—Murder—Self-defence—Constructive intent—Sentencing discretion—Appeal against conviction and sentence—Whether appellant acted in private defence—Whether sentence of 18 years’ imprisonment excessive.

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Spoliation – Standing – Deregistered company – Access to land – Whether value of despoiled property limits jurisdiction of subordinate court – Whether individual director had standing to sue in personal capacity – Whether refusal of leave to appeal was correct

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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.

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Civil Procedure – Postponement of Appeal – Consent Order – Non-joinder of Proper Parties – Capacity to Sue – Necessity for Clarification of Record – Scrambled Proceedings – Discretion of Appellate Court.

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Civil Procedure – Condonation – Appeal – Functus officio – Execution – Whether High Court may set aside writ of execution inconsistent with its original judgment – Application to amend writ – Delay in lodging appeal – Reasonableness of explanation – Prospects of success – In duplum rule – Legal finality.

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Civil Procedure – Appeal – Reinstatement of appeal – Application defective – Rule 4(3) of the Court of Appeal Rules – Absence of fresh grounds of appeal consistent with certified points of law – Withdrawal of application without tendering costs – Whether costs should follow the withdrawal – Whether the first respondent is entitled to wasted costs

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Delict—Vicarious liability—Police misconduct—Unprovoked assault by police officer—Plaintiff assaulted in public by officer in uniform driving police van—Whether Commissioner of Police vicariously liable for tortious acts of unidentified officer—Whether sufficient prima facie case made—Relevance of failure to cross-examine—Deviation cases and
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"close connection" test—Absolution from the instance—Whether justified.

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Appeal – Labour law – Application for leave to appeal – Labour Appeal Court having granted appellant full relief sought – Whether remittal to DDPR justified – No reasonable
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prospects of success shown – Application dismissed with costs.

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Judgment — Interpretation of Court Orders — Functus Officio — Judicial finality practice — Final judgment — Whether Court may alter or clarify judgment after it has been delivered — Principle of functus officio — Whether clarification amounted to alteration of substance.

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Police – Malicious arrest – Claim for damages – Special plea of prescription – Police Service Act 1998, s 77 – Whether High Court entitled to determine prescription without hearing oral evidence – Failure to adduce evidence on interruption of prescription – Whether remittal appropriate – Use of “torture” in absence of supporting evidence.

Land law—Jurisdiction—Whether dispute falls within statutory jurisdiction of the Land Court—Meaning of “concerning land” under section 73 of the Land Act 2010—Characterisation of claims sounding in contract or delict as opposed to vindicatory actions—Claim based on familial arrangement concerning proceeds of sale of land—Proper forum for adjudication.

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Customary Law – Succession – Jurisdiction – Declaration of customary heir – Whether prior family arbitration under section 14(4) of the Laws of Lerotholi is a jurisdictional precondition – Distinction between questions of status and property disputes – Misinterpretation of section 14(4) – High Court's constitutional authority to declare heirship

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Civil Procedure – Leave to appeal – Interlocutory order – Amendment of pleadings – Piecemeal appeals – Withdrawal of application – Costs.

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Constitutional and Administrative Law — Employment Law — Public Service — Termination by Notice — Clause 4 “No Fault” Termination Clause — Whether Audi Alteram Partem Applicable — Whether Termination Implied Misconduct — Jurisdictional Overreach in Granting Relief Not Sought — Freedom of Contract — Sanctity of Contract

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Company Law – De Facto Directorship – Validity of Round Robin Resolution – Procedural Standing – Security for Costs – Appeal Procedure – Judicial Discipline – Companies Act 2011 (Lesotho), ss 56, 58 – Court of Appeal Rules 2006, Rule
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8(1) and Rule 15 – Effect of Non-notification of Directors – Majority and Dissenting Opinions.