C. OF A
(CIV) NO. 12 OF 1990
COURT OF APPEAL OF LESOTHO
is the Plaintiff in an action instituted by way of summons in the
HighCourt for the ejectment of the Respondent. Notice of an
appearance to defendwas given, but Defendant was barred from
pleading after his attorneys withdrew. Notice of set down was served
and in default of
appearance judgement was entered for Appellant as
claimed. Respondent then proceeded
by way of
notice of motion to seek to secure a "rescission of judgement
interms of Rule 27".
application was apparently heard and granted on the 17th of May 1990.
Isay apparently because the record in this matter is incomplete
in materialrespects. There is neither an order nor a judgement in
the papers that make upthe record in this matter. This despite
the fact that the Registrar of the HighCourt certified on
25.7.1991 that "the attached is a checked, certifified
andcorrect copy of the proceedings in this application".
been given access to the original record in the matter. This record
alsocontains no information concerning the proceedings which we
must assumefrom the notice of set down and of appeal took place
on the 17th of May 1990.There is no entry reflecting any order,
neither have any reasons been given forany order that the Court a
quo may have made.
determine what occurred at the hearing we have to have regard to the
noticeof appeal filed on June 18, 1990 which reads as follows:
"Kindly take notice that the above-mentioned Appellant who was
Plaintiff in the High Court of Lesotho in CIV/T/266/88 being
dissatisfied with the whole judgement of the said High Court given by
the Honourable Mr Justice B K Molai dated 17th day of May,
hereby appeal to the Court of Appeal of Lesotho on the grounds
contained in the Annexure hereto.
Appellant reserves the right to deliver further grounds of appeal
upon receipt of the written judgement in CIV/T/266/88 within
period set out in rule 3 of the aforesaid Court of Appeal."
record in this matter was filed some 10 months later. (The date
reflectedon the record is July 25 1991.) In an application for
condonation of this latefiling of the record Appellant says the
"I have been advised by my attorneys of record, and verily
believesame to be true that in terms of Rule 3(7) of the Rules of
thisHonourable Court I was supposed to have prepared or caused to
beprepared and filed, a record of proceedings before the
expiration ofthree (3) months after lodging the appeal, a fact
which I was notaware of then.
I have further been advised by my counsel, Advocate Nathane
andverily believe same to be true, that he also genuinely
overlooked theaforesaid Rule; and that it was only brought to his
attention by hiscolleagues, after the roll of this Honourable
Court had already beenissued. I wish to refer this Honourable
Court to his affidavit in thisregard."
allegation that it was his legal advisor's oversight is confirmed by
MrNathane in an affidavit attached to the Notice.
Respondent's behalf it was argued in limine that the "order"
rescinding thedefault judgement was interlocutory in the "simple"
sense of that term and notappealable. See South Cape Corporation
(Pty) Ltd v. Engineering Management
(Pty) Ltd 1977 (3) S.A. 534 (A).
response Counsel for the Appellant contended from the Bar that the
Courtin its reasons for judgement made certain findings that had
a definitive bearingon the status of the Respondent and his
rights to the property concerned bynature of inheritance. The
findings of the Court, he concluded, were of such anature as to
debar the Appellant from contesting these averments in the
unable to assess the merits of this contention in the absence of
ajudgement. We would be prepared to assume for the purposes of
theconsideration of this appeal that an order granting a
rescission of the defaultjudgement was given. However, we are in
no position to adjudicate upon thecontention advanced by Counsel
for the Appellant that by virtue of someparticularly definitive
finding in the judgement of the Court - a finding whichwould
allegedly be binding on the parties in any further proceedings - this
caseis to be distinguished from the normal rule that simple
interlocutory proceedingsare not appealable without the leave of
the Court a quo. It is common cause thatno such leave has been
sought or granted.
been held that the rescission of a default judgement in contrast to
arefusal to rescind is interlocutory in the simple sense referred
to above. See inthis regard Ranchod v. Lalloo 1942 T.P.D. 211 and
Gatebe v. Gatebe 1928O.P.D. 145.
principle when deciding that an order appealed is interlocutory,
regardshould be had solely to the terms of the order. See Gatebe
vs. Gatebe (above)
with approval in Botha v. Muir 1952 SA (2) 358 (E) at page 361.
Seehowever the qualification concerning this approach mentioned
by Reynolds J.at 361 A-D.
It is my
view that in these circumstances and on the record as prepared
andcertified, Appellant has failed to establish that he has a
reasonable prospect ofsuccess in this appeal. It follows that the
application for the condonation of thelate filing of the record
must fail and the appeal be struck from the roll withcosts.
matter does not however end there. Whilst it is debatable whether
thereasons for judgement of the presiding Judge could have
converted a simpleinterlocutory matter into a definitive one, the
Court has been denied theopportunity to assess the cogency of
this argument by the conduct of a numberof parties. The
carelessness of the relevant official in the Registrar's office
whokept the record of the proceedings to fail to record the order
of the Court on theoriginal record of the proceedings is
self-evident. Moreover to certify the recordin the terms cited
above reflects a serious lack of diligence.
in this and in other cases before us complained bitterly from the
Barabout the delays in the delivery of judgements and their
transcription. Indeedit is clear from appeals that served before
us that these concerns are valid. Seein this regard Mossollane
and other v. Commissioner of Police and Another C.of A (CIV) no.
11 of 1989. However, the profession itself must shoulder partof
the blame. Should a record be incomplete or should the late filing of
therecord be attributable to delays in the delivery or
transcription of judgements,evidence in an acceptable form should
be placed before us to outline these
Only evidence attested on oath by the practitioner
concernedoutlining the steps he had taken to secure satisfaction
and identifying the causesfor the delay will enable either this
Court or the Court of the first instance toact appropriately.
judgement in Letsie v. Rex C of A (CRI) 3 of 1991 Ackermann
J.A.points to the fact that the statement that "justice
delayed is justice denied" is noempty maxim. I agree with
him. The law and those who enforce and practiseit face a very
real danger of a loss of confidence if undue delays become therule
rather than the rare exception. Whilst there may be structural
reasons foradministrative delays, these can be identified and
eliminated. However, thereis no justification for a judicial
officer either not delivering reasons forjudgement at all or
delaying these unduly, especially in simple matters of thekind
that came before us on appeal.
that this judgement will convey a clear message. The Court
officials,the practitioners and the Bench are the foundation
stones on which a respectedsystem of justice is built. Should
they be seen to fail to deliver products -in theform of orders
and judgements - efficiently and without tardiness, confidencewill
wane and respect diminish. This team - practitioners, officialsand
the judges - needs to meet to appraise the situation and to ensure
thatcollectively they take steps to clean the Augean stables of
appeal is struck from the roll with costs.
G P C
at Maseru on 19th day of February 1992
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