In an application to have the Court of Appeal revisit its own judgment, the applicant failed to show exceptional circumstances under which an apex court would exercise such jurisdiction. In addition, the application was brought 5 years after the impugned order was made with no reasonable explanation for the delay. Court held that raising an utterly meritless application asking the Court of Appeal to hold a rehearing in the circumstances that the applicant has done, is a waste of court’s valuable time and resources and merits a punitive costs order on the scale of Attorney and own client.
IN THE APPEAL COURT OF LESOTHO
HELD AT MASERU
C OF A (CIV) NO. 55/2013
In the matter between:
BEN RADIOPELO MAPATHE APPLICANT
I KUPER LESOTHO FIRST RESPONDENT
MASTER OF THE HIGH COURT SECOND RESPONDENT
ATTORNEY-GENERAL THIRD RESPONDENT
CORAM: DAMASEB AJA
HEARD: 20 MAY 2019
DELIVERED: 31 MAY 2019
DAMASEB AJA (CHINENGO AJA AND MTSHIYA AJA concurring)
‘The Court thus finds that there has been compliance with the provisions of section 24 of the Deeds Registries Act 1967 and that the sub-lease agreement was duly registered in terms of the land Act 1979.’
‘In the view which I take of this matter it is necessary to consider only [the first ground], since it is conclusive of the whole case’. (My Underlining for emphasis)
‘1. Reinstating the … appeal for the determination of the second ground of appeal;
2. Directing that same record which was filed stand as the only record for the determination of such second ground of appeal;
3. Directing the matter to be enrolled on April 2019 Session.’
‘[T]his Honourable Court has got all powers to revise its judgment specially where there is an apparent mistake committed by the Court. In conclusion I submit that this Honourable Court made a mistake by not determining the second ground of appeal…because the status quo still remains’.
‘The general principle, now well established in our law, is that, once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it. The reason is that it thereupon becomes functus officio: its jurisdiction in the case having been fully and finally exercised, its authority over the subject-matter has ceased.
There are, however, a few exceptions to that rule which are mentioned in the old authorities and have been authoritatively accepted by this Court. Thus, provided the court is approached within a reasonable time of its pronouncing the judgment or order, it may correct, alter, or supplement it in one or more of the following cases:
"The Court can, however, declare and interpret its own order or sentence, and likewise correct the wording of it, by substituting more accurate or intelligent language so long as the sense and substance of the sentence are in no way affected by such correction; for to interpret or correct is held not to be equivalent to altering or amending a definitive sentence once pronounced."
Again, this exception is inapplicable in the present proceedings since neither the T.P.D. nor this court committed any error in expressing its relevant orders; those orders reflected respectively the intention of each Court. The error related to the sense or substance of the relevant orders due to the T.P.D.'s erroneously assuming, and this Court's erroneously affirming, that the Fourth Schedule does prescribe a tariff for counsel's fees.
‘None of the aforegoing exceptions therefore applies. But the following further questions arise out of the arguments addressed to us: whether the above list of exceptions is exhaustive; whether a court, and especially this Court, being the final Court of appeal, has an inherent general discretionary power to correct any other error in its own judgment or order in appropriate circumstances, especially as to costs; and whether the present is a case in which that discretion ought to be exercised in Firestone's favour, according to the prayer in its application. Apparently this Court in Ex parte Barclays Bank, 1936 AD 481, considered that the list was not exhaustive and that a court retained a general discretionary power to alter its judgment or order, at any rate in regard to costs. For on p. 485 STRATFORD, J.A., said:
"That the alteration of its order is a matter for the exercise of the Court's discretion seems to have been the view of SOLOMON, J.A.: 'The matter is not one of principle or of substantive law, but purely one of procedure, and we are entitled to regulate the procedure of our own Courts'.
In fact, in the Barclays Bank case this Court refused to exercise the above-mentioned discretion in favour of the applicant by altering the orders as to costs made by the T.P.D. and itself. But in Pogrund v Yutar, 1968 (1) SA 395 (AD) at pp. 397D - F and 398B - C, this Court, relying on the Barclays Bank and West Rand cases, purported to exercise that discretion by subsequently altering its order of costs by directing that the tariff of maximum fees for counsel prescribed in the Rule of Court 69 (3) should not apply. However, on my reading of the judgments in the West Rand case, I think that a clear distinction was drawn between a Court's jurisdiction to correct, alter or supplement its judgment or order and the time limit within which the application for such relief has to be brought; that this Court held that the former is a question of substantive law and the latter one of procedural law; and that a court has a discretion, not in regard to the former, but only in regard to the latter. The dicta of SOLOMON, J.A., referred to above relate to the procedural and not the substantive aspect of the problem. It is indeed difficult to reconcile the idea of a court's retaining a general discretionary power to correct, alter or supplement its own judgment or order with the fundamental concept of its being functus officio when it pronounces it. True, this Court in the Estate Garlick case, supra, 1934 AD 499, did add para. (iv) to the above-mentioned list of exceptions to the general principle of the finality and immutability of a court's judgment or order (pp. 503 - 4). But in doing so it did not purport (in my respectful view) to exercise any general discretion; it seems merely to have adapted the general Roman-Dutch substantive law ex necessitate rei to meet the modern exigency caused by the practice of our courts of making orders as to costs without having heard any argument thereon. However, I need not pursue and express any final view on this inquiry; the correctness or otherwise of the approach in the Barclays Bank and Pogrund cases was not debated before us; that aspect can be left for future consideration, since, for the immediate purpose in hand, it suffices merely for me to assume without deciding in Firestone's favour that a court does retain a general discretion to correct, alter or supplement its judgment or order in appropriate cases other than those listed above. But, I should add, the assumed discretionary power is obviously one that should be very sparingly exercised, for public policy demands that the principle of finality in litigation should generally be preserved rather than eroded - interest reipublicae ut sit finis litium.’ (my underlining)
‘In a case such as the present once a court ought to be loath to exercise its discretion in favour of a party who has not been vigilant, but indeed supine or dormant, about protecting its alleged rights or redressing alleged wrongs.’
‘. . . a significant injustice has probably occurred and that there is no alternative effective remedy. The effect of reopening the appeal on other and the extent to which the complaining party is the author of his own misfortune will also be important consideration’.
‘[O]nce it has made a decision on an issue, that decision is final in that the issue is settled, based on the notion among others of the need for the finality and certainty in the context of the rule of law.’
ACTING JUSTICE OF APPEAL
M MTSHIYA AJA
For the Appellant: Adv. Metsing
For the 1ST Respondent: Adv. T . Mphaka
 C of A (CIV) No. 55/2013.
 1977(4) SA 298 (A) at 304.
 At p 308.
 At p 309.
 Schierhout v Union Government 1927 AND 94 at 98.
 (2015) ZACC 20 at para 37, Quoted with approval by this court in Lepule v Lepule and Others C of A (CIV) NO. 5/2013 at para .
 S v Likanyi 2017 (3) NR 771(SC).
 (2003) QB 528(CA) at para 55.
 C of A (CIV) NO. 06/2017, para 19.
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