Civil practice: Application for review of this court’s judgment –mistake attributed to this court and raised by applicant- application struck off due to non-appearance of both applicants and her counsel.
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU
C OF A (CIV) 38/2018
In the matter between:
MAMOHATO MOLAPO APPLICANT
THE EXECUTOR- ESTATE OF THE LATE
KHOMO MOLAPO 1ST RESPONDENT
MASTER OF THE HIGH COURT 2ND RESPONDENT
ATTORNEY- GENERAL 3RD RESPONDENT
CORAM: DR K.E. MOSITO P
DR J.W. VAN DER WESTHUIZEN, AJA
N.T. MTSHIYA, AJA
HEARD: 21 APRIL 2021
DELIVERED: 14 MAY 2021
Explanation for ruling
 This is a matter where an application for a review of this court’s own judgment delivered on 29 May 2020 was made. The matter was enrolled for hearing during the last session. However, when the matter was called on 13 October 2020, Advocate P.L. Mohapi, for the applicant informed the Court that he had just filed an application for late filing of heads. The Court, including the respondents, had not yet received the application. Mr E.M Sello, for the 1st respondent, opposed both the application for condonation (because it had not yet been served on him) and the application for review. He said that he had not been served with any papers. He also said the record was incomplete as he was yet to file an answering affidavit.
 Mr Mohapi attributed the failure to comply with the rules of this court to the bad relationship between him and the respondent’s counsel, namely Mr Sello. He said they were not on talking terms and hence no progress was being made in the matter. Mr. Sello denied the allegations of the existence of bad relations between him and Mr. Mohapi.
 Faced with the issue of an incomplete record and the admission from both parties that the matter would not proceed, the court was inclined to have the matter struck off the roll with both counsel being ordered to pay costs de bonis propriis. To that end, both counsel were asked to file submissions to show cause why an order of costs de bonis propriis should not be made against them. Both counsel complied and filed submission on 16 October 2020. In the main, they were both apologizing for their conduct.
 In order to make progress, the court then postponed the matter to this session (i.e. April 2021). This was done to enable the parties to prepare a complete record. A complete record was indeed prepared and the matter was then set down for hearing on 21 April 2021.
 When the matter was called on 21 April 2021, both the applicant and her counsel did not appear. The Registrar and counsel for the 1st respondent confirmed that counsel for the applicant was aware of the set down date. Counsel for the 1st respondent then applied for the matter to be struck off the roll with an order of costs de bonis propriis.
 If indeed it turns out to be correct that counsel for the applicant was aware of the set down date, like counsel for the 1st respondent, this court is not pleased with the conduct of counsel for the applicant. However, given the apology earlier referred to, and the fact that the record was indeed attended to as had been ordered by the court, I find that to be a mitigatary factor relating to the conduct of counsel for the applicant. Added to that, the court does not know what exactly prevented counsel from attending court on 21 April 2021. I therefore think it would be unsafe to order punitive costs in the circumstances. That being the case the matter shall be struck off the roll with costs on an ordinary scale.
 I accordingly order as follows:
ACTING JUSTICE OF APPEAL
DR K.E. MOSITO
PRESIDENT OF THE COURT OF APPEAL
DR J. W. VAN DER WESTHUIZEN
FOR APPLICANT: ADV MOHAPI
FOR 1ST RESPONDENT: MR. E.M SELLO
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