Appeal against rejection of spoliation order- appeal lapsed- no proper application for condonation and reinstatement of appeal- application for reinstatement of lapsed appeal-dismissed
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C OF A (CIV) 28/19
In the matter between:
YU QUANG APPELLANT
HATA BUTLE (PTY) LTD 1STRESPONDENT
COMMISIONER OF POLICE 2NDRESPONDENT
OFFICER COMMANDING ROMA POLICE 3RD RESPONDENT
ATTORNEY GENERAL 4TH RESPONDENT
CORAM: DR P. MUSONDA, AJA
M .H CHINHENGO, AJA
N .T MTSHIYA, AJA
HEARD: 19 October 2020
DELIVERED: 30 October 2020
Appeal against rejection of spoliation order- appeal lapsed- no proper application for condonation and reinstatement of appeal- application for reinstatement of lapsed appeal-dismissed.
At the commencement of the appeal hearing, Counsel for the appellant, Advocate K.D. Mabulu, informed the court that the appeal had lapsed. He then conceded that in view of the lapsed appeal, there was therefore no appeal pending before the court. He said he had a few hours before the hearing, filed a notice of motion seeking condonation.
The relief sought being:
“1. Condonation of the late filing of this application and dispensation of the normal rules and forms thereof.
2. Granting appellant leave to amend notice of motion in the application for condonation of the late filing of the record to include the prayer for reinstatement of appeal.
3. Granting postponement of the matter to the end of session in the event respondent opposing this application, to allow filing of papers.
“The rule is discharged and the application is dismissed with costs”
“The learned Judge erred and misdirected himself in law by upholding that the procedure is not suited for commercial transactions (for spoliation proceedings).
Appellant reserves his rights to file additional grounds when upon the issue of the reasons of judgement.”
Application for Condonation of lapsed Appeal.
2) “Appellant herein noted appeal against the order of the High Court sometime in May, 2019, 06.
3.1) For the purpose of brevity, I beg leave of court to refer to paragraphs 2,3 and 4 of the founding affidavit which is attached to the application for leave for condonation of the late filing of the record, in an endeavour to describe the parties herein.
3.2) It is prudent to show that the rest of the paragraphs of the founding affidavit as they stand form the basis of this application and it needs not be repeated except to include the prayer for condonation of the late filling of this application and leave to include prayer for reinstatement of appeal.
4) It is apposite to mention that the late filing of the record automatically caused the appeal to lapse and the application for condonation of the late filing of the record was intended to revive the appeal, though my mistake the prayer to reinstate the appeal was omitted.
5) It is further submitted that respondents will not suffer any prejudice if the prayer for leave to reinstate appeal and leave for condonation late filing are sought, which are canvased in the affidavit filed to the notice of motion for condonation of the late filing of the record more so when this affidavit does not introduce any new facts.
It is prudent to show that a dummy file had to be opened by respondent’s counsel for the purpose of taxing the costs at the lower court as the file was not found.
6) It is submitted that it is the discretion to condone the rules and grand condonation; leave for amendment of application which discretion is should apply judicially, making consideration of all facts circumventing the matter in totality.
7) In the event of this court finding it not prudent to deal with this application, it has a discretion to grant postponement of the appeal to the end of the roll to give the respondent opportunity to respond to the application if need be and to enable the filing of papers in the event of opposition, making consideration of the fact the judgement was only ready just a preceding the last day before the expiration of the period for filing of the record, and given the fact that it was only availed to appellant in September 2019 way out of time for filing the record, exacerbated by the pandemic disease of covid 19 which thereafter stunt the operations, justifies the allowing of filling in the event of opposition of the application for amendment.”
5 (1) “The appellant shall, in every appeal, not later than three months after notice of appeal has been filed or the certificate of the Judge of the High Court has been filed, lodge with the Registrar seven copies of the record of the proceedings of the High Court and serve a copy of such record on each respondent:
Provided that by consent of all parties portions of the record which will not affect the result of the appeal may be omitted. The Court may, However, order that the full record shall be available:
Provided further that if the same attorney represents more than one respondent, it shall suffice for one copy of the record to be served on such attorney.
5(2) The time limit for lodging of the record may be extended by written agreement of all the parties to the appeal.
5 (3) If the appellant fails to lodge the record within the prescribed period or within the extended period, the appeal shall lapse.”
“15 (1) If an appellant breaches provisions of these rules, his appeal may be struck off the roll.
15 (2) The Court shall have a discretion to condone any breach on the application of the appellant.
15 (3) Such application shall be by notice of motion delivered to the respondent and to the Registrar not less than seven days before the date of hearing.”(my own underlining)
“….They are primarily designed to regulate proceedings in this court and to ensure as far as possible the orderly, inexpensive and expeditious disposals of appeals. Consequently the rules must be interpreted and applied in a spirit which will facilitate the work of this court. It is incumbent upon practitioners to know, understand and follow the rules, most if not all of which are cast in mandatory terms.
A failure to abide by the Rules could have serious consequences for parties and practitioners alike, and practitioners ignore them at their own peril. At the same time formalism in the application of the rules should not be encouraged. Opposing parties should not seek to rely upon non-compliance with the rules injudiciously or frivolously as an expedient to cause unnecessary delay or in an attempt to thwart opponent’s legitimate rights. Thus what amount to purely technical objections should not be permitted, in the absence of prejudice, to impede the hearing of an appeal on the merits. The rules are not cast in stone. This court retains a discretion to condone a breach of its Rules (see rule 15) in order to achieve a just result. The attainment of justice is this court’s ultimate aim. Thus it has been said that rules exist for the court, not the court for rules. The discretionary power of this court must, however, not be seen as an encouragement to laxity in the observance of the rules in the hope that the court will ultimately be sympathetic. There is a limit to this courts tolerance”
In the same judgement the court went on to say:
“….It is Incumbent upon the appellants to show sufficient cause for the granting of their application. In the matter of Mosaase v R LAC (2005-2006) 206 this court quoted with apparent approval the general principles applicable when considering an application for condonation as enunciated in Melane v Santam Insurance Co.Ltd 1962 (4) SA 531 (A) at 532c-F
In deciding whether sufficient cause has been shown, the basic principle is that the court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefore, the prospects of success, and the importance of the case. Ordinarily these facts are interrelated: they are compatible with a true discretion, save of course that if they are no prospects of success, there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the respondent’s interest in finality must not be overlooked.
These principles have been consistently followed over the years in South Africa and may be taken also to apply to Lesotho.”
In saying there are no good reasons that have been given for the reinstatement of the lapsed appeal, I am, in arriving at that decision guided by the principles enunciated in the passages quoted above. Having said there are no convincing reasons as to why condonation should be granted, I have come to the conclusion that this application should be dismissed with costs.
The application for condonation for the reinstatement of the lapsed appeal is dismissed with costs.
ACTING JUSTICE OF APPEAL
DR P MUSONDA
ACTING JUSTICE OF APPEAL
FOR APPELLANT: MR K D MABULU
FOR RESPONDENTS: ADV T MPAKA
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