(civ) No. 7 of 2006 CIV/A/11/05
HIGH COURT OF LESOTHO
WORSHIP L. NTELANE 1ST APPLICANT
COURT 2nd APPLICANT
MOHALE'S HOEK POLICE STATION 3rd APPLICANT
OF POLICE 4th APPLICANT
OF PUBLIC PROSECUTIONS 5th APPLICANT
GENERAL 6th APPLICANT
by the Honourable Madam Justice N. MAJARA on the 9th June 2006
an ex parte application which was brought before this Court on 4th
May 2006 whereby applicants sought relief in the following
Rules of the above Honourable Court as to periods and modes of
service be dispensed with on account of urgency hereof;
a rule nisi be issued returnable on the date and time to be
determined by this Honourable Court calling upon the Respondent
show cause why (if any);
execution of judgment granted by the above Honourable Court of the
27th April 2006 in CIV/A/11/05 cannot be stayed pending
respondents cannot be ordered to pay costs hereof in the event of
applicant cannot be granted such further and/or alternative relief.
prayers 1 and 2 (a) operated with immediate effect as an interim
had read the papers filed of record and heard Mr Moshoeshoe Counsel
for applicants I granted the application in terms of
prayer 3 and
made the rule returnable on the 15th May 2006. On that date the rule
was extended to the 17th May 2006 for argument
as I was on duty
handling urgent matters.
17th May 2006 the matter was duly argued before me. In her replying
affidavit, respondent raised certain points of law which
in the following terms:
application is in breach of the peremptory provisions of Rule 6(3)
and (4) of the Court of Appeal Rules 1980.
order sought and granted to applicants is in the nature of a final
interdict and should not have been sought and granted without
hearing the respondent.
is no provision in the Court of Appeal Rules for an order of stay of
execution of the High Court judgment being obtained
ex parte as
applicants have done.
date of argument, Mr Phoofolo Counsel for respondent also submitted
that over and above respondent's points of law, applicants
followed the proper procedure for filing an application for leave to
appeal with the Court of Appeal as per the provisions
of Sections 16
and 17 of the Court of Appeal Act 1978.
Moshoeshoe's reaction to the above points was that the first point of
law is misconceived inasmuch as the provisions of Rule
6(3) and (4)
of the Court of Appeal Rules are not applicable in urgent
applications but were envisaged to apply to normal applications.
that the order sought and granted by this Court was in no way in the
nature of a final interdict inasmuch as it is a temporary
pending the final adjudication of this matter.
third point it was Mr Moshoeshoe's contention that this application
was for an extra-ordinary relief which is not envisaged
by the Court
of Appeal Rules and as such the said Rules are not applicable in this
issue of the wrong procedure for noting the appeal, Mr Moshoeshoe
submitted that the provisions of Section 16 of the Court
Rules relied on by Mr Phoofolo are not peremptory and as such cannot
form the basis of this matter being dismissed.
be apposite at this stage to give a brief background that gave birth
to this present application.
herein noted an appeal before me on the 10th April 2006 whereby she
was challenging the decision of the Magistrate Court
not to release
the motor vehicle the subject matter hereof to her. After hearing
arguments on both sides I upheld the appeal and
found that respondent
(appellant therein) had satisfied the provisions of Section 56 of the
Criminal Procedure and Evidence Act
of 1981 and released the vehicle
to her. It is that decision that brought about the present
application for stay of execution of
the said judgment pending appeal
in the Court of Appeal.
Mr Phoofolo raised the issue of the procedure that ought to have been
followed by applicants last and in the merits, it
is my opinion that
it is actually a point of law which ought to have been raised first
and as such I proceed to deal with it first.
appeals from the High Court are dealt with under Section 16, 17 and
18 of the Court of Appeal Act 1978. Section 16 provides:-
appeal shall lie to the Court –
all final judgments of the High Court;
leave of the Court from an interlocutory order, an order made ex
parte or an order as to costs only.
rights of appeal given by subsection (1) shall apply only to
judgments given in the exercise of the original jurisdiction
High Court." (my underlining)
17 in turn provides as follows:
"Any person aggrieved by any judgment of the High Court in its
civil appellate jurisdiction may appeal to the Court with the
of the Court or upon the certificate of the Judge who heard the
appeal on any ground of appeal which involves a question
of law but
not a question of fact." (underlining and emphasis mine)
without question that the above two quoted sections make a
distinction between appeals from the High Court where it sat in
original jurisdiction and where it sat in its civil appellate
jurisdiction. Further, reference to the Court in both sections
reference to the Court of Appeal.
Moshoeshoe correctly submitted, Section 17 which deals with appeals
from the High Court in its civil appellate jurisdiction
peremptory but merely permissive. However, the section goes on to lay
down the procedure to be followed in the event that
aggrieved by the judgment of the High Court so sitting, wishes to
appeal such judgment.
the law cannot force any party to lodge an appeal against any Court's
decision hence why the rule is merely permissive.
But where one
wishes to exercise their right of appeal as the rule so enables, then
such person has to meet the requirements that
have been set out
before his/her appeal can be said to be pending.
words, whilst the section only enables such an appeal to can be
lodged, in the event that it is so lodged, certain procedure
be followed as a matter of course, to wit, an would be appellant
first has to obtain leave of the Court of Appeal or at
certificate of the Judge who heard the first appeal.
those was done in casu. This means that Mr Phoofolo is correct in his
submission that there is presently no appeal pending
before the Court
of Appeal which factor would in turn entitle appellants to approach
this Court for stay pending same.
the two requirements, is the onus on appellant to satisfy the Court
of Appeal that he has a reasonable chance of persuading
it that no
reasonable Court could have come to the conclusion arrived at by the
trial Court and the Court of Appeal can only be
so satisfied at the
stage that an appellant seeks leave from it to appeal.
appellants herein have not sought leave of the Court of Appeal, they
have also not discharged the onus as already stated above.
1984 decision of the Court of Appeal in the case of Mampoi Letsoela
and Another v Paulosi Letsoela 383 at p 384 and that
of Simon Mahase
Makepe v Metropolitan Homes Trust Life (Pty) Ltd C of A (CIV) 9 of
1990 533 at 534 respectively.
It is not
enough for respondents to allege apply for stay of execution pending
appeal. An appeal has to be pending as a matter of
fact and as
prescribed by the rules of the Court of Appeal which is the Court
determine whether appellants have discharged the onus of showing that
no reasonable Court could have come to the conclusion
as the trial
Court. No such appeal is pending. It is my opinion that
noncompliance with the requirements of Section 17 of
of Appeal Act 1978 is fatal to this application.
It is for
the above reasons and on this ground alone that I discharge the rule
nisi and award costs to respondent.
appellants : Mr Moshoeshoe
respondent : Mr Phoofolo
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