HIGH COURT OF LESOTHO
RAMAINOANE 1st Applicant
COMMUNICATIONS(PTY)LTD 2nd Applicant
SELLO 1st Respondent
MASTER(M.MONYAKANE) 2nd Respondent
LEMENA 3rd Respondent
by the Hon Mr Justice ML Lehohla on the 12th day of June, 2000.
May, 2000 Mr Khauoe the attorney for applicants approached this Court
on an application moved ex parte seeking an order couched in the
the Rule Nisi be issued and returnable on the date to be determined
by this Honourable Court calling upon the Respondents to show cause
if any why;
Warrant of Execution issued in these proceedings shall not be
stayed pending the outcome of this application;
ruling of the Second Respondent shall not (sic) reviewed and set
aside as irregular and unfair;
execution of Judgment (sic) be stayed pending the outcome of appeal
noted (sic) C of a (CIV) No.4/2000;
First Respondent/Plaintiff in the main action shall not be ordered
to pay cost (sic) of this application in the event of opposition;
Applicants/Defendants in the main action shall not be granted such
further and/or alternative relief.
prayer l(a) be made an immediate interim order pending the outcome of
founding papers which constitute evidence in the main consist of Mr
Khauoe 's sworn affidavit supported by the supporting affidavits of
one W.J. Phakisi and of one 'Malipuo Thamae.
significance in this regard is that neither of the applicants has
filed any founding papers as evidence.
filed their evidence at the replying stage in response to weaknesses
and irregularities properly pointed out by the first respondent in
his answering affidavit.
to say the Court having perused the papers filed on behalf of the
applicants and sensing the unfairness of an attempt to obtain a rule
nisi without notice to the respondents, a move that indeed is
contrary to the Court of Appeal Rules in regard to applications for
stay of execution, ordered that before any Rule could be issued the
papers be served on the respondents and the matter be fixed for
hearing on basis of the purported urgency on 9th June, 2000.
It has to
be appreciated that even though the Court declined to grant an
interim order the application was given preference on the roll to the
disadvantage of all other matters which had been filed timeously and
which by rights should have had their place on the roll undisturbed.
The hearing on 31-05-2000 was done despite that the purported urgency
was not prefaced by a prayer as required by the Rules that forms and
periods of service be dispensed with. Perhaps it was taken for
granted by the applicants' attorney that this would be done as a
matter of course.
founding affidavit Mr Khauoe deposes that he is attorney, admitted to
practise in this Court as K.T. Khauoe and Co.. Further that on 31st
January 2000 his office noted an appeal in this matter to which the
number C of A (CIV) 4/2000 was allocated.
deposes further that "the record is still being prepared and it
was not on the roll in the last session of the Court of appeal".
expresses his hope and belief that the matter will be heard in the
significant that at this stage of his averments the deponent does not
say who is preparing the record of proceedings to the Court of
proceeded thence to relate the story of how it came about that his
office failed to be represented before the Taxing Master when the
bill of costs got to be dealt with and the allocatur signed in favour
of the 1st Respondent.
paragraph 13 he seeks to justify why he thought better of proceeding
in terms of Rule 49 and instead adopted the procedure laid down in
Rule 50. In brief he indicates that Rule 49 could not apply because
it presupposes that a review on taxation would be in respect of items
objected to during taxation. Thus because of absence of the
representative from his side then the procedure under Rule 49 would
therefore not apply. The only viable alternative being adoption of
the procedure set
Rule 50. He stresses that due to potential prejudice to his clients,
in his view was the only remedy.
deponent reposes reliance on the Notice of Appeal and avers that the
Applicants "have prospects of success on appeal regard being had
to grounds given". Reference was made to a copy of Notice of
appeal annexed and marked "KTK 4" in paragraph
be appreciated that even though more than ninety percent of the
averments in this proceeding relate to the grievance directed to the
matter of taxation the writ of Execution that is very relevant to the
question of stay was not attached to the founding papers when the
matter was first filed and perused by the Court. It had to take the
Court's effort to indicate that it would be impossible to have a
complete view of the matter before it without such a document.
Apparently the deponent thought that because such a document might
have been lying somewhere in the Court's file it didn't quite matter
that the Applicants' papers were thus incomplete. Amazingly this
argument was persisted in in another leg of arguments which arose
later even in the face of My Learned Sister Guni J's judgment in
CIV/APN/135/95 Mohlomi vs Sun International of Lesotho (unreported)
when dealing with
of Rule 50. More of that later; save that I shudder and demur at
....the implicit suggestion contained in the attitude that indexing
and paginating of the record consisting of papers to be filed in
civil applications for ease of reference, convenience of the Court
and promotion of efficiency are of no consequence if this attitude is
allowed to prevail. Otherwise how could papers jumbled up among bits
and batches of documents filed previously be thought to be at hand
when no effort is made to ensure that they accompany newly filed
records? I boggle therefore at the insinuation that the Court is left
to its devices to hunt for what has not been made part of the papers
newly placed before it.
answering affidavit Moeketsi Sello the 1st Respondent who was the
Plaintiff in the main action deposes that having read and understood
Mr Khauoe's founding affidavit as well as the supporting affidavits
made mention of earlier in this judgment, reacts by saying that on
the date of hearing, his Counsel shall be instructed to raise in
limine the following factors :
"A. LACK OF AUTHORITY
application purports to be brought by Candi Ramainoane and CR
Communications(Pty)Ltd. Both applicants have not filed any
affidavits in support of the prayers purportedly sought on their
behalf. No explanation has been proffered as to why these applicants
have not filed any affidavits.
applicant is an artificial person. No proof of authority has been
placed before the Honourable Court that this applicant resolved to
bring these proceedings.
founding affidavit has been deposed to by Mr Khauoe. Nowhere in his
founding affidavit does he allege let alone prove that he has been
authorised to make this affidavit and/or to bring these proceedings
on behalf of the applicants. He therefore has no authority to bring
the proceedings on behalf of the applicants. There is no indication
let alone proof that this application is being brought by the
applicants. On this ground alone, the application ought to be
B. NON-COMPLIANCE WITH THE RULES
applicants have approached the Court ex parte for an order inter
alia of stay of execution pending appeal to the Court of appeal.
This is in stark violation of Rule 6 of the Court of appeal Rules
1980. Again on this ground alone, the application ought to be
appeal in respect of which the order is being sought, was noted on
31st January, 2000. Up to now some four and half months later, no
record of proceedings has been filed with the Registrar nor served
on the Respondent. This is in stark violation of Rule 3(7) of the
Court of Appeal Rules. In the premises there is no appeal pending as
the purported appeal cannot be enrolled. Thus the application is
being brought merely to frustrate execution of the judgment of this
Honourable Court. Again on this ground alone, the application ought
to be dismissed.
applicant is out of time not only in respect of the lodging of the
record but also in respect of security for respondent's costs of the
appeal in terms of Rule 7(9) of the Court of appeal Rules.
in his founding affidavit has Mr Khauoe shown what prospects of
success the applicants have on appeal. He has
contended himself with a bare and unsubstantiated allegation that
"the applicants herein have prospects of success on appeal
regard being had to the grounds given".
Khauoe has not in his founding affidavit, found it necessary to deal
with the question of balance of convenience. He has completely
ignored this aspect of the applicants' case. The onus is on the
applicants in this regard and it has not been discharged.
application purports to be a review of the second Respondent's
ruling. In this regard the application has been brought in stark
violation of Rules 49 and 50 of the High Court. Again on this ground
alone the application ought to be dismissed.
response to all the above Mr Khauoe in his replying affidavit says :
"IN LIMINE : As the points herein are but point (sic) of law,
they will be argued", and astonishingly contends himself with
intimating that "However I wish to point out that they are in
law of no value". Emphasis supplied by me.
interests of saving time the Court solicited both Counsel's
concurrence in disposing of the matter in limine and without
necessarily going into the merits unless anything special would
warrant such a move.
being nothing special to warrant hearing arguments on merit if the
matter could be briefly dealt with in limine the Courtaccordingly
heard Mr Phafane 's points
tabled in his well-prepared heads of arguments. Mr Khauoe responded
to these arguments but unfortunately he had not filed any heads of
arguments at all in this application as a whole. The Court
accordingly intimated that his heads if filed any time during the
weekend they would be welcome. He however phoned the following day to
express his regrets that due to pressures mounting on his free time
he would advise the Court that whatever arguments he had advanced the
previous day would be all he would stand by.
I may in
passing just point out that in C of A (CIV) 13/98 Lesotho University
Teachers & Others vs National University of Lesotho was endorsed
the attitude by the Court of Appeal; of this Court relying on the
authority of CIV/APN/475/96 'Mabataung Moletsane vs David Mohapi
Moletsane (unreported) at p. 12 delivered by Ramodibedi J who
indicated that in applications of this nature if the Court is to owe
any assistance to Counsel at all it is obligatory that they file
written heads of arguments. In CIV/APN/23/97 Lesotho University
Teachers & Others vs National University of Lesotho the Court
found itself in the unenviable position of having to inflict penalty
de bonis propriis on counsel who had not heeded the strong admonition
given by Ramodibedi J with respect to failure by Counsel to be of
assistance to the Court by way of filing prepared heads of arguments.
emphasise this point because the respondent's counsel is the one who
has lesser time than the applicants' counsel to comply with this
requirement. Thus where the respondent's counsel out of sense of duty
to the Court has filed his heads no excuse can suffice for the
applicants' counsel's failure so to do.
this form of unwholesome laxity to Court business was not enough, and
notwithstanding that the respondent's counsel being aware of the
pressure that the Court Order for set down of this matter on 9th June
imposed on him had very plausibly and timeously served his client's
answering papers on the applicants' counsel on 6-6-2000 leaving more
than a whole two days within which the applicants were to reply,
nonetheless their replying affidavits were received neither by him
nor by the Court until when the hearing was already in progress on
9th June, 2000. This is absolutely unacceptable. Nohow in the
circumstances would counsel for the respondent have been able to
address points raised therein in his heads of arguments or even
supplementary heads were he to be in favour of doing so.
argument Mr Phafane indicated that where a company such as the second
Applicant commences or opposes proceedings by way of a petition or
affidavit, it must appear that the person making the affidavit on
behalf of the Artificial person is
authorised to do so. I agree.
Watermeyer J in Mall (Cape) Pty Ltd vs Merino Ko-operasie Bpk
347 at 351 paragraph G uses the exact words employed by the Learned
Counsel and goes on to refer to Lurie Brothers Ltd vs Arcache 1927
NPD 139 and other cases mentioned in Herbstein and Van Winsen, Civil
Practice of the Superior Courts in South Africa at pp 37, 38. The
Learned Judge butresses his view with which I am in respectful
agreement by saying :
"This seems to me to be a salutary rule and one which should
apply also to notice of motion proceedings where the applicant is an
artificial person. In such cases some evidence should be placed
before the Court to show that the applicant has duly resolved to
institute the proceedings and that the proceedings are instituted at
its instance. Unlike the case of an individual, the mere signature of
the notice of motion by an attorney and the fact that the proceedings
purport to be brought in the name of the applicant are in my view
insufficient. The best evidence that the proceedings have been
properly authorised would be provided by an affidavit made by an
official of the company annexing a copy of the
resolution....................................Where as in the present
case, the respondent has offered no evidence at all to suggest that
the applicant is not properly before the Court, then I consider that
a minimum of evidence will be required from the applicant".
to reason that where as in the present proceeding the respondent has
challenged the propriety of the applicants being before the Court
more than a mere
of evidence is required. But as it is, not even the minimum has been
placed before Court. On this ground alone it seems to me that the
application for stay ought to be dismissed.
Khauoe reposed his faith on Moosa and Cassim NNO vs Community
Development Board 1990(3) SA 175 for the view he advanced in the
instant case that ratification by way of annexing a resolution to a
replying affidavit would suffice to remedy the irregularity objected
to by the 1st respondent. I asked him if in Moosa for that to be done
there was no leave sought of court to condone the said ratification
and he told me there was none. But I have since had a look at Moosa
and since discovered that the resolution so accepted in that case was
an amendment to the founding affidavit and not as in the instant case
a document filed with the replying affidavit as a matter of course.
Moreover in Moosa the second leg relied on for the locus standi was
the delegated authority given to the Board by the Minister. In the
instant case there is no such a parallel. In any event I am of the
view that for a ratification that is resorted to after objection by
the respondent leave of court should be sought.
Phafane relying on R.T. Morrison(Pty)Ltd vs Belle 1981(1) LLR 206
that the deponent to the founding affidavit in the instant matter has
failed to place before court a properly worded resolution indicating
that the 2nd applicant actually resolved to institute these
particular proceedings as opposed to the different proceedings which
were brought by way of action that led to the trial. In Morrison
there was in fact a resolution but it was of a general character and
there was lack of proof that proceedings were at the instance of the
artificial person. Learned Counsel accordingly submitted lack of a
properly worded resolution in the instant matter is fatal. I agree.
the instant matter the resolution attached to the replying affidavit
does not seem to relate even to the instant proceedings but to the
proceedings on appeal.
Communications Pty Ltd
APPEAL IN CIV/T/19/97
: 1. That the company should note an appeal
2. That C R Ramainoane is given power of attorney to nominate and
chose(sic) the lawyer to prosecute the
3. That C R Ramainoane is given power to delegate his powers in this
DATED at Calton Centre Maseru this 25th Day of January 1999(sic)
Signed : Secretary/Director
Pretoria City Council vs Meerlust Investments Ltd 1962( 1) SA 321 at
325 Ogilvie Thompson said –
"Since an artificial person, unlike an individual, can only
function through its agents, and can only take decisions by the
passing of resolutions in the manner prescribed by its constitution
less reason exists to assume, from the mere fact that proceedings
have been brought in its name, that those proceedings have in fact
been authorised by the artificial person concerned."
I am in
respectful agreement with this statement.
circumspection made by Mr Phafane for his submission that whereas in
urgent applications an allegation of authority may in a proper case
suffice has immediate relevance to the remarks of Mahomed J A in
Central Bank of Lesotho vs Hae Phoofolo LAC 1985-1989) 253 at 259
'There is no invariable rule which requires a juristic person to file
a formal resolution, manifesting the authority of a particular person
to represent it in any legal proceedings, if the existence of such
authority appears from other facts..............".
Mr Phafane was quick to indicate that it is of pivotal importance to
note that in the instant case no such allegation of authority has
been made in respect of both the first and second applicants. I
indeed have observed that the resolution in the instant matter is of
no relevance to these proceedings. It does not say that the present
proceedings be instituted even though filed at the replying stage. On
the question of ratification therefore it is significant that the
resolution filed and annexed to the replying affidavit makes no
reference to the instant matter of application for review of taxation
and application for stay of execution before this Court. There is no
indication either that the 1st applicant authorised the deponent in
these proceedings. The deponent himself has given no evidence that he
has been authorised by the 1st applicant. He only contends himself
with saying he has a power of attorney to represent the applicants.
But the power of attorney which related to proceedings in the trial
is not evidence as envisaged in applications of the instant nature.
Indeed power of attorney entitles the legal practitioner to represent
his client in pursuing or defending a legal case. That should not be
understood to mean he is thereby entitled to give evidence on his
client's behalf in application proceedings without stating in
evidence or production of a resolution the authority his principal
has granted him. There is a vast difference therefore between a power
resolution including the requirement that in evidence it should be
borne out that
witness has authority to represent the other. Unfortunately it seems
this distinction is incomprehensible to the applicants' deponent.
therefore Mr Phafane 's submission that the affidavit filed in
support of the present application has to be thrown out as having
been deposed to by an uninvited witness. Pretoria City Council above
is the authority to rely on for this proposition.
leg of Mr Phafane's argument extended to his attack on the
applicants' indifference to the requirement to observe and comply
with Rules of Court.
submitted that this application has been brought in violation of Rule
6 of the Court of appeals Rules 1980.
particular Rule reads in subsections (1) (2) and (3) as follows :
to the provisions of the sub-rules infra the noting of an appeal
does not operate as a stay of execution of the judgment appealed
appellant may at any time after he notes an appeal, apply to the
judge of the High Court whose decision is appealed from for leave to
application referred to in sub-rule (2) herein shall be brought by
notice of motion, supported by affidavit, delivered to the
respondent and filed by (sic) the Registrar not less than seven days
before the date set down for hearing the application".
the word by located before the phrase the Registrar immediately above
was meant to read with).
violation of the last mentioned sub-rule above the applicants had to
be ordered to go and serve the respondent because they had sought to
obtain an order for stay ex parte and without notice to the other
I may go
further and observe that in the papers as they stood ex parte there
was not even mention of an undertaking to give security for payment
of the respondent's costs.
have formed the view that the 1st respondent's quarrel with the
applicants' non-compliance with Rule 6 of Court of Appeal Rules 1980,
and arguments raised in support of the 1st respondent's queries
constitute an impregnable garrison of daunting robustness against the
applicants' vain counter-attacks.
objection was in respect of the applicants' non-compliance with Rule
the Court of Appeal Rules 1980. That Rule reads :
"In every appeal the appellant shall, not later than three
months after notice of appeal has been filed................ file
with the Registrar five copies of the record of the proceedings of
the High Court and two copies of such record on each respondent".
while conceding that no record of proceedings has been filed
maintains that the applicants are not to blame and that it would be
unfair to penalise them for something that is beyond their control.
Indeed consistent with this view is his own reply in a sworn
5 AT 5.3)
"I aver further that because the preparation of record is not in
the hands of the applicant but of the Registrar, and appellant cannot
in any way be punished for the failure of the Registrar of High Court
who is also the Registrar of Court of Appeal".
seeking thus to lay the blame at the door of the Registrar for
failure to prepare the record - a duty that in terms of clear reading
of the relevant Rule is peremptorily placed on the appellants'
shoulders - Mr Khauoe rings a familiar note rung by Mr Pheko in a
case of uncanny similarity to the instant one, where as in the
case counsel for appellant was steadfastly advancing an argument that
reading of the rules, in practice, the rule was not being observed.
in point is C of A(CIV) 20 of 1987 'Maphillimon Motlalentoa vs
Monyane Monyane and Anor, (unreported).
crucial aspect of that case to be decided by the Superior Courts had
originated in the Judicial Commissioner's Court. The appellant was
maintaining that there was an appeal "pending" in the High
Court while the respondents were of a contrary view.
JA as he then was outlined the facts as follows :
"The learned judge in the Court a quo held that there was no
appeal pending in the High Court because of a failure by the
appellant's husband to comply with the requirements of 52(1) of the
High Court Rules which reads as follows :
'52(l)(a) when an appeal has been noted from a judgment or order of a
subordinate court the appellant may within four weeks after noting
the appeal apply in writing to the Registrar for a date of hearing.
must be given to all other parties interested in the judgment
appealed against that such application......has
Mr Pheko who appeared for the appellant conceded that Rule 52( 1) was
indeed of application to the appeal.............and that the
requirements of this Rule had not been complied with. He contended,
however, that there had been a practice which had been operative for
many years in terms of which a prospective appellant who had obtained
leave to appeal from a Judicial Commissioner pursuant to the
provisions of section 28(3)(b) of the Central and Local Courts
Proclamation No.62 of 1958, simply took no further steps to prosecute
the appeal until he received further notification of the matter from
Mr Pheko did not attempt to argue that an adherence to this practice
could be a substitute for proper compliance with the express
requirements of Rule 52(1).................................
Mr Pheko......................... argued that in the instant case it
(judicial discretion) was not judicially exercised. I do not agree.
There were weighty grounds in support of the conclusion arrived at by
the Court a quo..............".
As in the
above-cited case where a point was made that provisions of Rule 52(1)
are clear and peremptory, the provisions of Rule 3(7) in the instant
case are equally so. While those of 52(1) at the time were said to
have been in existence for 7 years, the ones in the instant case have
been in existence for almost 20 years to-date. In both the
above-cited case and the instant one the appellant/s were
by experienced counsel, a further point of similarity is that the
notice of motion contained no prayer for condonation. While in the
above-cited case the application for condonation was not made by the
prospective appellant aggrieved by the judgment........but by his
wife, in the instant case evidence has been proffered by an uninvited
witness. In both these cases no averments were made with regard to
the crucial question of balance of convenience. Needless to state
just as in the above-cited case the High Court and Court of Appeal
ruled that there was no appeal pending I feel obliged for similar
reasons to rule that in the instant case there is no appeal pending
and therefore that this application be dismissed on that ground
alone. Otherwise it would be absurd to say ditto to the argument that
an adherence to a practice that is patently wrong should serve in
place of proper compliance with the express requirements of Rule 3(7)
of the Court of appeal Rules 1980. While straining to persuade the
Court that it would be unfair to depart from this practice he alluded
to Mr Khauoe conceded the existence of the Rule in question. When
asked what would happen if an applicant who has not paid for
preparation of his or her appeal and decides to abandon it despite
the Registrar having gone into the trouble of completing the record,
Mr Khauoe said as officers of the Court the attorneys are supposed to
be faithful and keep their word to the Registrar.
virtue of that Utopian view in my opinion is off-set by the real
danger of the Registrar being left with an egg on her face. For were
there no such danger the words appearing in CIV/APN/336/88 'Makoetle
Koetle vs Benjamin Sello (unreported) at p.3 would not have been
printed to the following effect:
"I make a distinction between the instant case and that of
Montseng Letsoela vs Michael Nkhope CIV/APN/140/87 (unreported)
because in the latter case the Attorney had gone out of his way to
deceive his client by saying that the appeal had been noted when he
knew fully well that none had been".
Thus I am
of the firm view that the practice advocated by Mr Khauoe is at
variance with clear and express provisions of Rule 3(7). It would be
imprudent therefore to follow it in the face of that law.
Phafane argued further that Rule 3(9) of the Court of appeal Rules
1980 has not been complied with.
"If the judgment appealed from in a civil matter has not been
carried into execution by the respondent, the appellant shall, before
lodging with the Registrar copies of the record, enter into security
to the satisfaction of the Registrar for the respondent's costs of
observe that this Rule has not been complied with. The risk for such
failure falls on
Phafane having ascertained from Mr Khauoe that the application for
review is solely on the basis of Rule 50 and no longer 49 of the High
Court Rules indicated that this Rule too has been violated.
"(l)(a) Save where any law otherwise provides, all proceedings
to bring under review the decision or proceedings of any subordinate
or other inferior court and of any tribunal, board or officer or any
person performing judicial, quasi-judicial or administrative (duty)
shall be by way of notice of motion directed and delivered by the
party seeking to review such decision or proceedings..............to
all other parties who may be affected by the decision or
that the notice shall call upon persons to whom notice is addressed
to..........dispatch within 14 days of receipt of the notice, to the
Registrar of this court the record of such proceedings..............
and to notify applicant that he has done so...............
argued that the record is already in place before court thus implying
there is no need to comply with the terms of the Rule as laid down in
it. But this is in contradiction of an important decision on the
application of Rule 50. The decision is
CIV/APN/135/95 Pinkie Mohloai vs Sun International of Lesotho t/a
Casino (unreported) by Guni J who said at page 10 :
"According to Rule 50(1 )(b) the onus is on the applicant to
show the Court that he did call upon the respondent to dispatch the
said record and respondent has not heeded the call...................
There is no duty automatically placed upon the respondent, without
being asked to, to dispatch the record of the proceedings sought to
(3) is of crucial importance in that it requires that the applicant
shall furnish the Registrar with two copies and each of other parties
with one copy thereof in each case certified by the applicant as true
that I happened to lay my hands on and which must be the one that the
Court was told non-chalantly that it is already before the Court does
not bear this essential requirement. Had provisions of Rule 50 been
regarded as of any consequence this could not have been the case.
Even the urgency that was conceived in bringing this application was
not warranted. It was at best self-inflicted : the applicants having
sat back for well over 4 months of noting of the appeal and only
coming at a rush to Court for intervention when a Writ of Execution
has been or is being inflicted upon them. That smacks of lack of bona
fides and shows scant regard to the requirement of the law that
litigation must come to finality. That there is a rule that appeal to
Appeal is no stay is in part a recognition of this fact. It is clear
from this therefore that the applicants would gleefully sit back and
temporise while the judgment creditor is denied the fruit of his
victory. That should not be allowed as it says ditto to the false
virtue of delay.
light of these numerous breaches of the Rules it would be essential
to direct attention to what the Superior Courts have repeatedly been
saying in an endeavour to illustrate that when prescribed forms and
procedures are ignored causes are lost or at least that such is an
unacceptable and intolerable state of affairs.
Thabo Makenete vs Major General Lekhanya & Ors 1991 -92 LLR &LB
126 at pp 127 and 128 Ackermann J A in a searing statement of
"It has become clear during the present session that many
practitioners are displaying a lamentably lax attitude to the rules
of Court bordering on the contemptuous. The attitude evinced seems to
be that the rules are unimportant, can be disregarded at will and
that non-compliance will simply be over-looked or condonation granted
as a matter of course or right. It is time that practitioners' minds
were disabused of this much mistaken impression and the misconceived
idea that their disregard of the rules will be overlooked because of
the prejudice their clients might suffer. Clients who suffer loss
because of omissions on the part of their legal representatives may,
in appropriate circumstances, have remedies
against their advisers".
Poultry Cooperative Society vs Minister of Agriculture & 2 Ors
1993-94 LLR & LB 190 at 191 it was said :
"There may be occasions when failure to file a record timeously
is completely beyond the control of appellants or their legal
representatives. This does not excuse practitioners from seeking
condonation in the prescribed manner."
Federal Employers Insurance Co. vs Mckenzie 1969(3) 300 at 360 at 362
and 363 where Holmes J A said :
"As to the need for avoiding unnecessary delays in the
administration of justice, the person primarily
affected............is the respondent................."
it can be shown that the appellants' delay was not wholly avoidable
condonation may be granted. Otherwise it may not. In the instant case
nothing has been shown as indicating steps the applicants took to
ensure that the record is placed before relevant parties and officers
within the times prescribed.
Mr Phafane 's submission that in the instant case there has been a
flagrant breach of the rules of Court in more than one respect and no
has been proffered.
also the statement that although this Court has inherent power to
condone non-compliance with the Rules, condonation is not just there
for the taking. Special circumstances must be placed before court in
a substantive application for such condonation to enable the court to
consider, inter alia, the degree of such non-compliance, prospects of
success, convenience of the court, the magnitude of the case, the
question of avoidance of unnecessary delay in the administration of
justice and the need for finality to litigation, as neatly put by
Ramodibedi J in Everistus R. Sekhonyana & Ors vs The
Attorney-General & Ors 1995-96 LLR & LB 290 at pp 294-6.
the learned judge having referred to Michael Mthembu vs Lesotho
Building Finance Corporation c of A (CIV) No.4 of 1984 by Schutz P
quoted with approval the extract from P.E. Bosnian Transport Works
Committee and Others vs Piet Bosman Transport Pty Ltd 1980(4) SA 794
A at 797 where Miller J said most aptly :
a case such as the present there has been a breach of Rules of Court
in more than one respect and where in addition there is no acceptable
explanation for some periods of delay and, indeed, in respect of
of delay, no explanation at all, the application should, in my
opinion, not be granted whatever the prospects". Emphasis
supplied by me.
notwithstanding the prospects a breach of the Rules warrants refusal
of a similar application to the instant one then no firmer
illustration of the need to avoid laxity with application of the Rule
can be made.
Kutloano Building Construction vs Matsoso & 2 Ors LAC (1985-1989)
Schutz P in illustrating the importance of observing prescribed
procedures and forms contained in the Rules of Court said :
"I am afraid that my decision may smack of the triumph of
formalism over substance. But forms are often important and the
requirements of the sub-rule are such".
observed on many occasions that with litigants and practitioners who
are keen to ensure that their matters are brought to Court in time
and in turn that appeal Court records are rendered ready without
delay, in a matter of two days after the Judgment in the High Court
has been delivered the record is ready for binding not at the
instance of the Registrar but of the appellants. This would tend to
give support to Mr Phafane's negative response to Mr Khauoe's
assertion that the office of the
Registrar is the one that prepares records and therefore which should
continue to do
grant counsel of a veteran's experience by saying in fact the
Registrar should keep a Calender of each appeal being noted and when
the time required for preparation of the record lapses without any
move by the appellants he/she should send the High Court file to the
President of the Court of Appeal informing him and the parties that
the file will be called at next session of the Appeal Court for
purposes of being struck off for want of prosecution.
reflected in 'Makoetle Koetle vs Benjamin Sello CIV/APN/336/88
(unreported) at page 2 where 'Maphillimon Motlalentoa above is
referred to with approval the extract of the High Court decision
endorsed by the Appeal Court in the latter decision is of such
salutary benefit that I should even at the cost of prolixity in this
judgment, cite it. The learned Judge of the High Court refused
condonation holding that there was no justification for the practice
relied upon. (This is the practice that was in violation of Rule
52(1) of the High Court Rules). He said :
"To permit the Registry and practising attorneys to become so
slack in bringing a matter as important as an appeal before this
Court is, in my
opinion, unacceptable. I am certainly not willing to condone it. The
correct procedure is simple and straight forward and the Registrar
must see to it that it is followed in future".
can and should be said in regard to the direction to be followed as
stated in Rule 3(7) of the Court of Appeal Rules 1980.
Tsie B Pekeche vs Motsoahae T. Thabane & Ors CIV/APN/259/98
(unreported) at pp 8-9 by Ramodibedi J.
to show that balance of convenience favours the stay of execution
rests on the applicants. No evidence has been adduced or attempt made
to discharge that onus. On that ground alone this application ought
to be dismissed.
respondent and his counsel have more than amply justified their
contention that this is a case where the Court should register its
displeasure at the flagrant disregard of the Rules of Court and the
unwarranted attitude that condonation thereof would be given out with
the rations. But since no specific prayer was made for costs on a
higher scale than on ordinary scale (see C of A (CIV) No. 13/98 and
CIV/APN/223/97 Lesotho University Teachers and Researchers Union vs
of Lesotho) the Court even though being at large to award costs on a
mero motu has decided in dismissing this application to award costs
on party and party scale only.
application is accordingly dismissed with costs.
Applicants : Mr Khauoe
Respondents : Mr Phafane
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law