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CIV/T/3/1992

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

MAFUPU
LELOSA Plaintiff

And

'MAMORAFO
LEKHANYA Defendant

For the
Plaintiff : Mr. Metlae

For the
Respondent : Mr. Khauoe

RULING ON
APPLICATION FOR POSTPONEMENT

Delivered
by the Honourable Mr. Justice T. Monapathi On the 25th Day of
February 2004

Yesterday,
before the hour of twelve midday a witness for the Plaintiff called
Mr. Moshoeshoe completed his evidence. This man is
a structural
engineer in Lesotho Government. He testified. This was a follow up to
a previous report that he made on affidavit.
I do not want to comment
any further about the content of his evidence.

What it
is now of moment is that after he be heard, after he being cross
examined and re-examined I perceived that Mr. Metlae could
be having
misgiving about the full content or the quality of this witness1
evidence. And indeed when we were about to postpone
for the day of
yesterday Mr. Metlae indicated that due to the

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absence
of Mr. Khauoe's witness the Defendant, he (Mr Metlae) would be taking
the opportunity for a postponement to further evidence
to put in and
call another witness. This could be understood to mean that the
Plaintiff's case would be re-opened for that witness
if Plaintiff had
closed her case. But it is not quite clear that she had said she was
closing her case. Postponements of on going
cases are not there for
the taking. See Masupha Epraim Sole v Brendan Peter Cullinan, NO and
Six Others Constitutional case No.3/2002,
Lehohla CJ 17th December
2002 at page 9.

What is
further important to me is that before expiry of Mr Moshoeshoe's
evidence Mr. Metlae had intended and had not thought of
finding other
evidence. This he conceded. To me there can be no better indication
of indifference if not negligence. See generally
VAN DYK vs CONRADIE
AND ANOTHER 1963(2) SA 413 (A). Because it is not disputed that
during adjournment Mr. Metlae went about looking
for the witness of
some quality. On principle he is entitled to do that. But what is the
problem is that today he has not secured
the witness and he is now
seeking for a postponement. This is opposed by Mr. Khauoe.

I
suggested that Counsel must argue the postponement from the bar
immediately. I did not want them to adjourn. They did argue. The

normal rule being that:

"If a postponement has become necessary in consequence of a
fault or default of one of the parties or his representative ...

wasted costs are awarded against the party who was at fault or in
defaul".

See
BURGER v KOTZE AND ANOTHER 1970(4) SA 302. (Headnote).

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Much as I
find fault on Mr Metlae on the circumstances of this postponement
that he requires, I do not think it is in the interest
of justice to
refuse the postponement. It is clear that he feels that his case can
be complete only if that unnamed witness is
available. But he ought
to have realized much earlier about defects on the quality of Mr.
Moshoeshoe's evidence. An application
for postponement must be made
timeously. See Myburgh Transport v Bothat t/a Truck Bodies 1991(3) SA
310 at 315 as approved in Masupha
Ephraim Sole's case (supra) at page
12.

About the
evidence of Mr. Moshoeshoe the witness seems to say no more than what
he said in the said report. This I say without prejudging
the matter.
One of the answers he has not given is that definitely actions or
disturbances around the house of the Defendant caused
the cracks on
Plaintiff's house. That is why the specific answers that he gives are
only those in which he professes any knowledge
only when he is
questioned by Court or merely in response to the last question from
Mr. Khauoe. That is why it was not surprising
that his Counsel might
have had misgivings. I said he might.

If before
Mr. Moshoeshoe's evidence was led it was intimated that another
witness would be pursued it would be a different case.
My attitude
would therefore differ about costs under those circumstances. That is
why I grant this postponement but with wasted
costs of today to the
Defendant. I felt slow in my discretion to award those costs on a
high scale. One of the things I considered
was that the application
for a postponement seemed to have been made bona fide. See Masupha
Ephraim Sole's case (supra) at page
13. I also accepted the
explanation offered by the Plaintiff for the

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requested
postponement. See Masupha Ephraim Masupha Sole's case at pages 14 and
15 and cases cited therein.

I still
endorse that this is an old case but not a complicated case. It has
taken too long. It really should not. I do not want
to blame anybody.
That is not my task for now. Today is about this postponement which I
have granted with costs to the Defendant.

This case
must be given a specific date of hearing during April this year. That
is my order.

T.
Monapathi

Judge
25th

February
2004