CIV/APN/23/81

IN THE HIGH COURT OF LESOTHO
In the
Application of :

PEO LEBUSA Applicant

V

NTAOTE MOPHETHE Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai on the
27th day of August,. 1986.

This is an application in which the applicant herein
moves the court for an order that CIV/A/23/81

be reinstated and the Respondent pay the costs only

in the event of opposition. The Respondent has intimated

his intention to oppose this matter and affidavits have
duly been filed by either parties.

It emerges from the affidavits that on 4th September,
1981 the Resident Magistrate of Maseru gave judgment in favour of the
Respondent
in Civil case No. 1047/77 where the latter had sued the
applicant for ejectment, damages, costs of suit and further or
alternative
relief. The applicant was unhappy with the decision
against which he noted en appeal to this Court on 21st September,
1981.

On 12th January, 1982 the Registrar of the High Court
addressed a letter to the Respondent, with a copy to the Applicant's
attorneys,
in which letter the parties were advised that the record
of proceedings in CC. 1047/77 had reached the office of the Registrar
and
they (the parties) should therefore, get in touch with the
Registrar

/for

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for purposes of agreeing on a suitable date of set down
in terms of the High Court Rules 1980 of which Rule 52(1) provides,
in part
:

"52(1) (a) when an appeal has been noted from

a judgment or order of a subordinate court the appellant
may within four weeks after noting of the appeal apply in writing to
the
Registrar for a date of hearing giving notice to the appellant
and all other parties that he has done so , ..."

It is common cause that the applicant did not, within
the time stipulated by Rule 52(1) (a) of the abovementioned High
Court Rules
set down the appeal for hearing. Nor, indeed, did the
Respondent himself do so before the expiration of two months from the
date
of the noting of appeal as required by the provisions of Rule
52(1) (c) of the High Court Rules. Instead the Respondent caused a
warrant of ejectment to be issued against the applicant in September,
1983 i.e. about two (2) years after the noting of appeal.
Now,Rule
52(1) (d) of the High Court Rules 1.980 clearly provides :

"(d) If neither party applies for a date of hearing
as aforesaid the appeal shall be deemed to have lapsed unless the
Court on
application by the appellant and on good reasons shown shall
otherwise order."

There can be no doubt, therefore, that as both the
applicant and the Respondent failed to comply with the provisions of
paragraphs
(a) and (c) of subrule (1)

of Rule 52 of the High Court Rules above, the appeal is
deemed to have lapsed and must not, ordinarily, be

entertained unless the Court otherwise orders in terms
of the provisions of Rule 52 (d) of the Rules.

The gravamen of this application is, in fact, that
notwithstanding the parties''failure to comply with -

/the provisions

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the provisions of Rule 52(1) (a) and (c) of the High
Court Rules, 1980 the Court should exercise a discretion and
resuscitate the
appeal. Two grounds are advanced by the applicant in
this regard viz. that failure to set down the appeal for hearing was
due to
attorney Jobodwana-s fault for which ho could not be punished
and he had good prospects of success in the appeal itself.

In his founding affidavit the applicant deposed that in
CC. 1047/77 he was represented by attorney Jobodwana of the firm G.M.
Kolisang
& Co.. After judgment had been delivered the appeal was
noted on his behalf by attorney Jobodwana who, however, left G.M.
Kolisang
& Co. in April, 1982 to practice on his own. Nonetheless
by mutual agreement between attorney Jobodwana, attorney

Kolisang and the applicant himself, attorney Jobodwana,
who was more familiar with the proceedings, was to handle

the appeal. In June, 1983 the applicant was told by
attorney Jobodwana that the appeal had been set down for hearing in
October 1983.
In November.1983 the applicant was, however, nerved
with a writ of execution. He then went to sec attorney Jobodwana
about it but
was informed that the latter had already left the
country. It is significant to note that attorney Jobodwana has not
filed any affidavit
and what he is alleged to have said remains
inadmissible hearsay evidence.

The answering affidavit which was deposed to by Mr.
Matsau, counsel for the Respondent, did not dispute that attorney
Jobodwana of
the firm of G.M. Kolisang & Co. had represented the
applicant in CC. 1047/77. It, however, disclosed that the appeal was
noted
by attorney G.M. Kolisang also of the firm G.M. Kolisang &
Co. Afters

/he had

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he had left the firm of G.M. Kolisang & Co. attorney
Jobodwana opened his firm styled Z.N. Jobodwana & Co.. At no
stage did
the firm of G.M. Kolisang & Co. file a notice of
withdrawal and, indeed, all correspondence (annexures "B",
"C"
& "D") showed that applicant's attorneys
of record were always G.M. Kolisang & Co.

I have had the occasion to look at the notice of appeal
(pp. 47 and 48 of the record of proceedings) which clearly show that
the appellant/applicant's
attorney of record was "G.M. Kolisang
Esq." It seems to me there is substance in Respondent's
suggestion that if it were
true that after he had left the firm of
G.M. Kolisang & Co. attorney Jobodwana handled the appeal under
the new firm styled Z.N.
Jobodwana & Co. the firm G.M. Kolisang &
Co. which then ceased to act for the applicant, would have filed a
notice of withdrawal
in accordance with the provisions of the High
Court Rules 1980 of which Rule 15(4) provides, in part :

"(4) Where an attorney acting for any party
ceases
so to act he shall forthwith
notify the Registrar and all
parties
accordingly "

I have underscored the word "shall" in the
above cited subsection (4) to indicate my view that the provisions
thereof are
mandatory and the attorney concerned has no discretion in
the matter. Taking into account the fact that the notice of appeal
was
filed by G.M. Kolisang & Co., the subsequent correspondence
was always between the Respondent or his attorneys and the firm of
G.M. Kolisang & Co. and no notice of withdrawal was ever filed by
the firm of G.M. Kolisang & Co., it seems to me the balance
of

/probabilities

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probabilities is against the applicant's contention that
attorney Jobodwana of the firm Z.N. Jobodwena & Co. should bear
the blame
for non-compliance with the provisions of Rule 52(1) (a) of
the High Court Rules.

As regards the prospects of success it is worth noting
that the trial magistrate found as proved that . prior to 1969 the
area of
Ha Thamae was within the jurisdiction of chief Seqobela. In
1969 chief Moshe was, by a new gazette, proclamed the chief of Ha
Thamae,
It was, however, not clear that the area known as Ha Molipa
was included in the area of Ha Thamae for there was a boundary
dispute
between chief Seqobela and the new chief Moshe, over the area
of Ha Molipa, Shortly before April, 1971 and before the boundary
dispute
could be resolved, one Pulumo Sehlabo surrendered his arable
land situated in the area of Ha Molipa to chief Seqobela for
allocation
of residential sites On 20th April,

1971. 
      Respondent was one of the people who were
      allocated
      residential sites on the field by chief Seqobele.
      He
      obtained a Form C (Certificate of allocation) for
      the
      allocation, fenced the site on which ho errected
      a
      prefabricated structure in preparation for the building
      of a
      house In September 1971 the Ministry of Interior
      intervened in
      the boundary dispute between chief Seqobela
      and chief,Moshe when
      the area of Ha Molipa was lawfully
      declared an integral part of
      Ha Thamae. On 31st May,

      
      

1972. 
      chief Moshe re allocated the site, the subject
      matter
      of this case, to the applicant who was also issued
      with a Form
      "C" end subsequently had the site registered
      in his
      name

      
      

It is clear from the proven facts that until

/September

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September 1971 it was not settled that the area of Ha
Molipa was an intergral part of Ha Thamae. There is no doubt,
however, that
prior to 1969 the area of Ha Molipa was under the
jurisdiction of chief Seqobela. The fact that the new chief Moshe
disputed the
area of Ha Molipa did not, in my view, automatically
oust chief Seqobela of his jurisdiction over the area, Until the
Ministry of
Interior intervened and lawfully declared Ha Molipa an
integral part of Ha Thamae, Chief Seqobela still had jurisdiction
over the
area and could lawfully allocate the site, the subject
matter of this case, to the Respondent,

It follows, therefore, that when after the area of Ha
Molipa had lawfully been declared an integral part of his area (Ha
Themae) chief
Moshe purported to re­allocate the site to the
applicant he could not lawfully do so for the simple reason that the
site was
still lawfully allocated to the Respondent end, therefore,
not available for re-allocation. He could do so lawfully only after
he
had revoked or derogated the allocation to the Respondent in terms
of S. 9 of the now repealed Land Act Mo 24 of 1967 which
was,however the law applicable in 1972,

That being so, the applicant has on the merits of the
appeal no prospects of success.

It was argued before me that when on 4th September, 1981
the trial magistrate entered judgment for the Respondent the law
applicable
was the Land Act, 1979 in . terms of 3. 82 thereof
judgment should have been entered in favour of the applicant who had
developed
the site.

/I am

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I am unable to agree. CC. 1047/77 was instituted in 1977
when the applicable law was the Land Act No. 20 of 1973. To suggest
that
the magistrate should have invoked the provisions of the Land
Act, 1979 which was not in force at the time of the institution of
CC. 1047/77 implies that the Land Act 1979 should have been applied
with restrospective effect. I am not aware of any provisions
of the
Land Act, 1979 or any law for that matter, authorising the trial
magistrate to have taken such a course.

In my view this application ought not to succeed and I
accordingly dismiss it with costs.

J U D G E. 27th August, 1986.

For Appellant : Mr. Kolisang
For Respondent : Mr.
Matsau.