Appeal against costs – Appellant not challenging substantive orders but only orders of costs without obtaining leave first – Such not permissible – Appeal struck off the roll.
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C OF A (CIV) NO.: 73/2018
In the matter between:
LESOTHO MILLENIUM DEVELOPMENT
PRESSED IN TIME (PTY) LTD 1ST RESPONDENT
THE PYRAMID (PTY) LTD 2ND RESPONDENT
CORAM: DAMASEB AJA
HEARD: 22 OCTOBER 2019
DELIVERED: 1 NOVEMBER 2019
The appeal is struck off the roll.
PT Damaseb AJA
The review application
“(b) That the decision (or intent) of [LDMA] to award the Tender for the Provision of Linen and Laundry Services for 10 Health Centres and Mokhotlong district to [Pyramid] be reviewed, corrected and set aside for being irregular and in violation of the …Tender Specifications.
c) That [Pressed In Time] be declared the lawful victor for the same Tender; alternatively: the process be ordered to start de novo before a different Evaluation Team.
d) Cost of suit against any Respondent that might oppose this application.”
“1. Application for review succeeds with costs.
2. Prayer 2 (c) is granted only in the alternative.
3. 2nd Respondent [Pyramid] is awarded costs.”
“1.The Learned Judge in the Court a quo erred and/or misdirected herself in awarding costs to the Second Respondent herein, which was a Co- Respondent with the Appellant in the Court a quo. From the written Order of Court and verbal ruling of the Court a quo, there is no basis and/or justification for granting such costs Order in favour of the Second Respondent.
2. The learned Judge in the Court a quo erred and misdirected herself by disregarding her judicial discretion of traversing the point in limine relating to locus standi of [Pressed In Time], which point would determine whether the proper parties were before the Court. The Court a quo consequently granted costs to the First Respondent, which on the pleadings did not have any legal standing in Court.
3. The Learned Judge in the Court a quo erred and/or misdirected herself by failing to evaluate the merits of the case and assessing whether the case was not a fit one for an order that each party should bear its own costs taking into account the fact that no gross irregularities were identified by the Court a quo to have been committed by [LDMA] hence the Court a quo adopted what it termed the middle ground approach by ordering a re-evaluation.
4. Alternatively, the Court a quo ought to have awarded a certain percentage of the costs to the First Respondent herein since it did not attain substantial success in the case, that is, provided the Court a quo would have found it to have the necessary legal standing to sue.”
“ (a) The application for the review succeeds with costs.
(b) Prayer 2(c) is granted only in the alternative.
(c) The 2nd Respondent is awarded costs only to the extent of the abandoned portion of prayer 2(c) (in the main application).”
“ On the point in limine of the applicant’s locus standi, even though the respondents felt very strongly about it, I decided in the interest of justice to accept that the deponent in the founding affidavit was the one who had appeared before the tender panel on behalf of the applicant and because the issues raised in the main application were important, this matter was then decided on the merits in the main application and not on the points in limine, which points would not have necessarily been dispositive of the matter.”
“(1) An appeal shall lie to the Court-
“ In my opinion the words ‘final judgment’ in section 16(1)(a) of the Court of Appeal Act refer to orders and not reasons given by the court in the course of making interlocutory orders, ex parte orders or costs orders.
 It is a well-established principle in our law that appeals cannot be noted against the reasons for the judgment but only against the substantive order made by a Court.
ACTING JUSTICE OF APPEAL
DR P MUSONDA
M H CHINHENGO
For the Appellants: Adv. S Shale
For the 1st Respondent: Adv. S Tsabeha
 In terms of s .. of the Companies Act 18 of 2011.
 This para (c) has obviously been revised if one has regard to para (c) of the initial order. But nothing turns on that for the purpose of the present appeal as no issue has been made by LDMA on appeal.
 (C of A (CIV) No. 7/2015)  LSCA 18 (29 April 2016).
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