HIGH COURT OF LESOTHO
THE HON. MR JUSTICE S.N. PEETE
DATE : 3rd NOVEMBER, 2004
Appeal form the Judicial Commissioner's Court not timeously
prosecuted - Rule 52 (1) of the High Court Rules 1980 - Discretion
the Court to grant condonation for non-compliance. Good reasons to be
shown -scope of Delay precipitated by change of attorney.
respondent has only lodged an application for leave to appeal in the
Judicial Commissioner's Court, there is no formal
appeal before the
High Court to reinstate. And appeal can only be noted after the
Judicial Commissioner has made his/her Certificate.
may in the exercise of its judicial discretion condone delay for good
reason shown. Inordinate non-compliance with the
provisions of Rule
52 where such non-compliance has been occasioned by sudden change of
attorney must be considered along with
the rights for livelihood upon
the fields in question.
must however put the put the defaulting litigant to terms in order to
bring finality to litigation.
regards costs, the respondent ordered by the court in exercise of its
discretion to pay the costs of the application lodged by
1. Since July 2000 when this application was first lodged in the
office of the Registrar, much water has gone under the bridge
after many set-downs (I counted over ten of such) and many
postponements, the matter was finally heard after some three years
November 2003. I deeply also regret the lateness of my judgment.
2, In his Notice of Motion, the applicant prayed for a declaration
order couched as follows:
the appeal in JC 75/88 a matter of the Judicial Commissioner's Court
noted on the 1 f September 1993 to have lapsed,
that the judgment in JC75/88 a matter of the Judicial Commissioner's
Court be carried into execution.
the Respondent to pay costs of this application.
Applicant further and/or alternative relief
3. Historical Background
The applicant and respondent are relatives who are disputing some
three fields situate at Ha Phalole in the district of Maseru.
4. It is clear from the papers that in its judgment dated 14th
September 1993, the Judicial Commissioner upheld in favour of the
present Applicant Mohau Matjama an appeal form the Central Court (JC
75/88). It is common cause and it is alleged by respondent
filed an "application for leave to appear on the 17th September
1993 also attaching thereto his extensive "Grounds
signed by (now Justice) W.C.M. Maqutu (then attorney).
5. Respondent states that the appeal was not procedurally prosecuted
because the then Mr W.C.M. Maqutu was elevated to the bench
1st day of October 1993 and his chamber work was taken over by Mrs
6. It was only after the present applicant Mohau Matjama had filed
the present application to have the 1993 appeal declared lapsed
on the 26th August 2002 the respondent Fihlang Matjama suddenly out
of the blue filed an application praying that the appeal
CIV/A/15/94 be reinstated.
7. The respondent had in the meantime also obtained ex parte an
interim order from the Maseru Subordinate court (date stamped
November 2004) restraining the present applicant from ploughing or
in any way using the field situated at Ha Phalole .... which form
subject of JC75/88. I will assume that the interim order is still
8. The timing of the respondent's application "for
reinstatement" of the appeal and the relief claimed demonstrate
that the respondent accepts or at least concedes that his notice of
appeal had duly lapsed in the meantime.
9. It is not in dispute that on the 27th April 1994 (some seven
months after noting his application for leave to appeal) the
respondent attempted to have the matter set down for hearing in terms
of Rule 52 (1) (a) of the High Court Rules 1980. The application
mistakenly headed "IN THE JUDICIAL COMMISSIONER'S COURT"
but it is addressed to the Registrar of the High Court.
10. It is clear that since his application for leave to appeal dated
17th September 1993 and his application seven months later
the matter set down for hearing, the respondent did absolutely
nothing thereafter for another 8 years. It has been the
old policy of
law that "Law succours the vigilant and not the slumberous."
11. I took pains to inspect the JC 75/88
12.Rule 52 of the High Court Rules 1980 reads:-
"52. (1) (a) When an appeal has been noted from a judgment or
order of a subordinate court the appellant may within four
after noting of the appeal apply in writing to the Registrar for a
date of hearing.
(b) Notice must be given to all other parties interested in the
judgment appealed against that such application for a date of
has been delivered.
(c) If the appellant fails to apply for a date of hearing within the
four weeks as aforesaid, the respondent may at any time before
expiration of two months from the date of the noting of appeal set
down the appeal for hearing giving notice to the appellant
other parties that he has done so.
(d) If neither party applies for a date of hearing as aforesaid the
appeal shall be deemed to have lapsed unless the court on
by the appellant and on good reasons shown shall otherwise order.
(e) If an appeal lapses but a cross appeal has been noted the cross
appeal shall also lapse unless application for a date of hearing
made to the Registrar for a date of hearing of such cross appeal
within three weeks of the date of lapse of the appeal. "
13. The Court of Appeal has often stated that Rules of Court must
always be complied with and the court should not condone
where no cogent reasons are not shown. In my view
the main purpose behind Rule 52 is to expedite finality of appeals
from the Subordinate
Courts; a litigant who appeals a Subordinate or
Judicial Commissioners Court's decision must expeditiously
prosecute his appeal in the High Court so that his rights or those of
the other party be finally determined by the superior court.
14. In casu it was only after the applicant sought a declaratory
order in July 2000 that the respondent now wishes to have his
reinstated. I would say "revived" and reinstated.
15. It seems to me that failure to apply for a date in accordance
with the provisions of Rule 52 (1) lapses the appeal unless
reasons are shown convincing the court to reinstate the same; where
the appeal has not been prosecuted timeously within the
period and in
the manner prescribed under this Rule, the remedy available to the
defaulting litigant is to apply for condonation
and extension of time
for a good cause shown (Motsamai v Read and Another - 1961 (1) SA 173
- where it was held that where an appeal
has lapsed in terms of the
Rule for want of prosecution there is "until relief has been
granted, no appeal before (this) court"
- see also De Sousa vs
Cappy's stall - 1975 (4) SA 958.
16. In his papers, the respondent is not applying for condonation of
noncompliance but for a straight forward reinstatement
appeal -whose notice in my view - was never made. An application or
leave to appeal is not "notice of appeal."
There are many
procedural steps that ought to have been taken before the appeal
could be said to be properly before this court.
17. The consideration of this application does not and should not
however involve an inquiry of the merits of prospects of success,
issue being limited, in my view to the question, whether the delay of
the respondent can be regarded as being inordinate. In
the case of SA
Shipping Co. Ltd vs Liquidators Promoters it was held that where
there is a time limitation whether statutory or
in terms of the rules
of court the High Court has the inherent right to grant condonation
where principles of justice and fair
play demand it and where the
reasons for non-compliance with the time limits have been explained
to the satisfaction of the court.
See United Plant Hire (Pty) Ltd vs
Hills - 1976 (!) SA 717 at 720 E-G for principles to be considered
when exercising the judicial
discretion in this regard.
18. It has been stated that condonation of non-observance of rules is
by no means a mere formality - Meintjies v HD Combrink (Edms)
1961 (1) SA 262. Yet it has also been stated that a lengthy delay may
be condoned if when weighed against other factors such
as a lack of
means and "assured" success on appeal explanation for it is
satisfactory or forgivable. A long delay will
not be condoned if it
is clear that the applicant had throughout desired not to prosecute
19. In casu it appears that having caused the application for leave
to appeal, the respondent reposed the responsibility for the
prosecution upon his attorney. In this case I take due cognizance of
the fact that the then attorney Mr W.C.M. Maqutu was soon
elevated to the Bench of the High Court and it is probable that the
not pursued as it ought to be. See Erasmus - Superior Court Practice
B1-361-363. Any remissness through changes of attorneys is
but not conclusive nor decisive.
20. I seem to take the holistic view that in Lesotho fields are the
sometimes the only means of subsistence, if not survival; there
to have existed a protracted dispute over these fields. Despite the
long delay which would otherwise indicate that respondent
sat on his
laurels and only rises up again only to frustrate the decision of the
Judicial Commissioner favourable to the present
applicant, I have
decided to condone the non-compliance with the Rules. I however put
the respondent to strict terms that he should
do all that is
necessary in terms of Judicial Commissioners Court's and High Court
Rules and that this exercise to be completed
within 30 days and date
of hearing be duly appointed.
(1) Both applications by applicant and by respondent are dismissed.
(2) Respondent must however bear the applicant's costs for his
Applicant : Mr Phafane
Respondent : Mrs Kotelo
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