Application to declare appeal lapsed in terms of Rule 52 of High Court Rules lodged but not heard when presiding judge heard counsel for respondent not properly before him and invited respondent to file application for re-instatement of lapsed appeal; Judge making other orders on the face of them irregular and without foundation on the pleadings and record of proceedings and without giving reasons therefor; Appellant appealing against order on grounds properly for review; appeal dismissed in exercise of court’s power to supervise inferior courts and directing applications pending in High Court be heard in shortest possible time
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU
C OF A (CIV) No. 11/2017
In the matter between:-
PHIRI NKOE APPELLANT
NTHABISENG LITABE 1ST RESPONDENT
THE MESSENGER OF COURT 2ND RESPONDENT
CORAM: CHINHENGO AJA
HEARD: 20 November 2018
DELIVERED: 7 November 2018
“It is ordered that-
1. Advocate Khumalo is given leave to file an application for reinstatement of his legal representation in this matter.
2. The respondent file an application for reinstatement of an appeal by 14th December 2016.
3. The matter is adjourned to the 14th December 2016.”
History of litigation
“This matter comes as an appeal against the order of the Court a quo, given without reasons for the order. In view of the need for finality and in the interests of justice, this Court uses its discretion, treating the matter as an appeal. (See in General Billiton Aluminium t/a Hillside and Others; CCT 72/09 ; ZACC 3 for the discretion of Courts to dispense with the rules of Court where necessary).
“1. Respondent/defendant is hereby interdicted and restrained from putting up a structure on applicant’s land situated at Mapeleng, Maseru Urban Area pending finalisation of ejectment proceedings pending in this Honourable Court in the matter between Phiri Nkoe v Nthabiseng Litabe CC 447/07;
2. Respondent/defendant is hereby interdicted and restrained from damaging and/or disposing of applicant/plaintiff’s building materials or any property that is within the site of the Applicant at Mapeleng Maseru Urban pending the finalisation of the ejectment proceedings between the parties in CC 447/07.
3. Respondent/defendant is ordered to pay costs on attorney and client scale.”
The above matter refers.
The main object of contempt proceedings is to ensure compliance, as we understand it. In this matter client relinquished occupation of the site in favour of your client and as such there has been compliance already. Consequently an imprisonment would not be in line with the spirit of the main principle behind civil contempt. We therefore would suggest that the respondent be warned and that the matter be closed.”
“Consequently the court orders that within 30 days from today and by the 23rd May 2016 respondent to have completely vacated the site in question with all her agents or people answerable to her and to destroy the building structure she made thereon for the applicant to assume possession and control of the same. If she fails to do so she shall be imprisoned for (3) three years or pay a fine of M15 000.00. Costs are on the ordinary scale.”
“I was only surprised when around July I was handed my file that I passed on to my present counsel of record. Upon perusal of the file and advice of my present counsel I realised that the appeal has lapsed.”
“I must also state that this matter is very urgent in that the respondent (appellant) has appeared before court showing that he is very desirous of pursuing his application for declaration of the lapsed appeal in his favour.”
Grounds of appeal
“1… by ordering that the 1st respondent’s withdrawn counsel to make an application for the reinstatement of the lapsed appeal without entertaining the already filed application in terms of Rule 52 of the High Court Rules;
2… by giving audience to Advocate Khumalo alone in the morning hours of the 12th December 2016 when he had withdrawn as counsel of record from the matter without formal re-appointment, while the matter was set down the same day at 02:30 pm;
3… by directing the withdrawn counsel for the 1st respondent to apply for reinstatement of an appeal when there is no formal application for leave to file the application for re-instatement. Which at, it was already out of time;
4… by not entertaining the application in terms of Rule 52 of the High Court Rules the effect of which is to dismiss the lapsed appeal and instead ordering the 1st respondent to apply for the reinstatement of the lapsed appeal of the 1st respondent, instead ordered 1st respondent to file an application for re-instatement of the lapsed appeal;
5… by failing to peruse and study the record before hearing on numerous dates set for hearing to find that indeed the appeal had lapsed and the 1st respondent failed to file opposing papers;
6… by failing to study the record and find that 1st respondent has no prospects of success on appeal and as a result the intended application for re-instatement stands to be dismissed;
7… by failing to entertain counsel for applicant on the 12th December 2016 at 2:30 pm in the application in terms of Rule 52 and adjourned the Court and ordered the presence of the already withdrawn counsel for respondent to represent the 1st respondent.”
Are grounds of appeal properly so?
“The judgment entered against the appellants may more accurately be described as an order.It was not based on evidence, whether verbal or by affidavit but was by consent of the parties who were represented by counsel at the hearing.Consequently there are no reasons for the judgment, which can be challenged on appeal and an appeal is therefor not a competent procedure.In Rule 45 of the High Court rules provision is made for rescission of a judgment erroneously granted but the appellants chose not to follow that route.
1. The appeal is dismissed and the Order of the High Court handed down on 12 December 2016 is set aside.
2. The applications by the appellant and the 1st respondent pending in the High Court under Case No CIV/APN/262/16 shall be heard and determined in the shortest possible time and as a matter of priority.
3. There is no order as to costs.
ACTING JUSTICE OF APPEAL
For Appellant : Adv Maseko
For Respondents : No Appearance
 1989 (3) SA 944 (D)
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