C OF A
(CIV) 18/04

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between:-

LIBUSENG
LESESA APPELLANT

and

LEBALANG
KHUTLISI 1st RESPONDENT

M.K.M.
BURIAL 2nd RESPONDENT

CORAM:

STEYN, P

SMALBERGER, JA

PEETE, JA

HEARD :
16 OCTOBER 2007

DELIVERED
: 24 OCTOBER 2007

JUDGMENT

SUMMARY

Application
to reinstate matter previously struck off the Roll because of
non-compliance with the Rules — non compliance still
persisted
— no application for condonation — Finality key objective

2

of
litigation - Judgment given in August 2004 - inordinate delay -Effect
of - Reasons for judgment must be given - Deplorable conduct
of
practitioner - Application dismissed - Costs de bonis propriis
ordered.

STEYN, P

1. Whilst,
   technically, the applicant before us seeks to have an application
   for condonation for non-compliance with the Rules adjudicated,
   such
   application, in essence, seeks to reinstate an appeal struck from
   the roll in October 2006. The judgment striking off the
   appeal and
   delivered by my brother Grosskopf was concurred in by myself and
   Smalberger JA and in summary held as follows:

   
   

"Appellant was one year and nine months late in filing record of
appeal. Flagrant disregard of Rule 3(7) of the Appeal Court
Rules.
Appellant also failed to comply with Rule 15 (2) (b) of the High
Court Rules by not giving notice of the name and address
of her
present attorney. No application for condonation by appellant. Appeal
struck from roll with costs. "

2. In
   paragraph [4] of his judgment he outlines the circumstances which
   motivated the comment that there was a flagrant disregard
   of the
   Rule. He says:

   
   

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"(On) 14 August 2006 the appellant, out of the blue, filed the
appeal record with the Registrar. Rule 3 (7) of the Appeal
Court
Rules provides that the records of the proceedings shall be filed not
later than three months after notice of appeal has
been filed. The
appeal record in the present case was in fact filed two years after
the notice of appeal. This was one year and
nine months late, and in
flagrant disregard of Rule 3(7), yet the appellant did not see fit to
explain the delay or to apply for
condonation in terms of Rules 8(2)
and 8(3) of the Appeal Court Rules. "

3. This
   situation still obtains to-day. There is no explanation given why
   the record was filed late and no application has been made
   to
   condone this non-compliance with the Rules. (The application for
   condonation referred to in paragraph 1 relates to other aspects
   of
   non-compliance). The failure to do so is yet another example of a
   failure to observe the Rules of this Court. These breaches
   have
   serious consequences. See Napier v Tsaperas 1995 (2) S.A. 665 (A) at
   671 A-D. The Court says the following op cit:

   
   

"I must not, however, be taken to express, in this judgment, any
firm views on the merits of an application for condonation.
For
present purposes it suffices to say that there appear to be several
weaknesses in the explanations offered for the late lodging
of the
record, and that the Court, in deciding on condonation, may also have
regard to the appellant's failure to bring the application

4

timeously.
In Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A) at 129G it is
said that an appellant, when he realizes that he
has not complied
with a Rule of Court, should apply for condonation without delay. His
inaction may also be relevant, in my view,
when he should have
realized, but did not, that he has not complied with a Rule, The
matters to be taken into account in an application
for condonation
include the respondent's interest in the finality of a judgment, the
avoidance of unnecessary delay in the administration
of justice, and,
last but not least, the convenience of the Court. See Federated
Employers Fire & General Insurance Co Ltd
and Another v McKenzie
1969 (3) SA 360 (A) at 362G and Blumenthal and Another v Thomson NO
and Another 1994 (2) SA 118 (A) at 120F.
"

4. It
   should also be noted that the applicant did not seek to enroll the
   matter in the April 2007 Session of the Court. No reason
   has been
   given for the failure to do so.

   
   

5. Finality
   is the key objective of litigation. In dealing with delays
   occasioned by judicial ineptitude, Harms JA said the following
   in
   New Clicks S.A. (Pty) Ltd v Minister of Health 2005(3) SA 238 (SCA)
   at pp 261-262:

   
   

"There rests an ethical duty on Judges to give judgment or any
ruling in a case promptly and without undue delay and litigants
are
entitled to judgment as soon as reasonably possible. Otherwise the
most quoted legal aphorism, namely that justice delayed
is justice
denied', will become a mere platitude. Lord Carswell recently said:

5

'The law's delays have been the subject of complaint from litigants
for many centuries, and it behoves all courts to make proper
efforts
to ensure that the quality of justice is not adversely affected by
delay in dealing with the cases which are brought before
them,
whether in bringing them on for hearing or in issuing decisions when
they have been heard.' ''

In Goose
v Wilson Sandford and Co, Law Times Reports (February 19, 1998) 85 at
p.86, the Court of Appeal censured a judge for his
delay in
delivering a reserved judgment and

said:

"Compelling parties to await judgment for an indefinitely
extended period ... weakened public confidence in the whole judicial

process. Left unchecked it would be ultimately subversive of the rule
of law".

4. As
   was pointed out in this Court's judgment cited above, the respondent
   had obtained a judgment from the High Court as long ago
   as the 2nd
   of August 2004. Nothing was done to prosecute it. Its withdrawal was
   publicly noted at the Appeal Court roll call
   on 5 October 2005.
   Subsequently, this Court non-suited the present applicant by
   striking the appeal off the roll 12 months ago.
   Without any further
   change in the status quo ante the applicant, without good cause
   shown or any

   
   

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compelling
supervening facts being canvassed, now seeks to resuscitate the
moribund litigation. Such an application is not only
devoid of merit
but does, in our view, constitute an abuse of the process of the
Court.

4. We
   have pointed out on many occasions in the past that it is not
   acceptable that judges should make orders without giving reasons
   for
   their decision. See e.g. Qhobela and Another v Basotholand Congress
   Party and Another

   
   

L.A.C. (2000-2004) 28 at p.38 In the present case, no reasons were
ever given. Parties are entitled to know why they have lost;
less
importantly perhaps also why they have won. Moreover if there is an
appeal the judge's reasoning can be critical in its adjudication.

4. Counsel
   has pointed out that it was the negligence of the various legal
   practitioners who acted for the applicant that was responsible
   for
   the delay and that we should not visit our

   
   

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disaffection on their innocent client. I do not know what occurred
between the client and her counsel or other advisers, and to
what
extent she may have been the architect of her own misfortune. But
even if counsel is correct, this contention does not have
unlimited
application. It must be borne in mind that the need for finality and
the efficient administration of justice has great
value for the
citizens who rely on the law for the protection of their rights.
These rights become illusory if not efficiently
dealt with by the
Courts. See the New Clicks judgment referred to above.

4. For
   these reasons the application to condone the non­compliance with
   the Rules of Court is refused and the application to
   reinstate the
   matter is dismissed. The decision of the High Court stands as a
   final and enforceable judgment.

   
   

8

4. I
   come to deal with the appropriate order the Court should make in
   regard to the costs of appeal. At the hearing the Court gave
   Mr.
   Khauoe notice that we wanted him to submit reasons why in all the
   circumstances he should not personally pay the costs of
   appeal. We
   referred him to a judgment of this Court setting out the
   considerations that the Court would evaluate when granting
   a costs
   order de bonis propriis. He suggested that he would file heads of
   argument in this regard and agreed to do so by noon
   on Friday the
   19th October. He failed to do so either on Friday or on Monday 22nd.
   Heads were finally received at 10.00am on
   Tuesday the 23rd of
   October. (This is the day before the Court was due to deliver its
   judgments.)

   
   

4. I
   cite his argument in its full and deplorable state:

   
   

"HEAD
OF ARGUMENT ON COSTS DE BONIS PROPRIS INTRODUCTION

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[1] ON
THE 16th October this honourable court notice that I show course why
coust de bonis propris shall not be ordered against
me, I hereby with
all due respect do give my reasons as to why such costs will not be
appropriate in the circumstances of this
case..

[2] I
which to start with the principles of law applicable in such cases.

PRINCIPLES
OF LAW.

[3] In
the case of LESOTHO BRAKE & CLUTCH vs. SACHS S.A (PTY) 1999-2000

LLB-LR
quoting with approvvval the works of HERBSTEIN & VAN WINSENMR
JUSTICE STEYN,P stated as follows at pg. 266-267;

"The court will in appropriate circumstances award ccosts de
bonis propris against an attorney. WEEBB &OTHEEEERS vs. BOTHA
is
an extreme casse, in which the attorney obstructed the interests of
justiceoccasiooned unnecessary costs to be incurred by aall
the
parties to the appeal and delayed the final dertmination of the
action to such an extent that prejudice to the parties might
well
result........An order to pay waisted costs de bonis propris was made
against a plaintiff's attornsy where his conduct was
unreasonable and
his handling of his client's case was slack and apparently
characterized by lack of concern ".

See also
the case of KALEEM vs HLAJOANE 1997-98 LLR 'LB 506

FACT

[3] This
matter was originally dealt with by another attorney and not the
present one. As it will be seen from the affidavit on
condonation
problem has been the judgment That problem was not within the reach
of the present attorneys In fact there was

.

CONCLUSION

[4] It
will be clearly seen that the attorneys have been relying on the
reasons for judgment by Mr. Justice Monaphati for full record
to be
submitted and the preparation of the heads of argument.

[5] It is
conceded that the attorneys may have thought otherwise and not to
wait for the last minute. This was an

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oversight
and we submit that it should not be regarded as negligence on his
part.

DATED A T
MASERU THIS 22nd DA Y OF OCTOBER 2007

K.T.KHAUOE

ATTORNEY"

4. As
   can be seen from the contents of these Heads they contain very
   little material which could explain this practitioner's own
   dilatory
   and unprofessional conduct of the litigation. The attorneys who
   acted for the appellant at the time judgment was given
   in 2004 may
   have been excused for delaying the preparation of the record and the
   consequent pursuit of the appeal for a short
   while. However Mr.
   Khauoe cannot be held responsible for their conduct. It is his
   management of his clients case after the matter
   was struck from the
   roll in October 2006 that is relevant. He knew at that time that the
   Court had removed the matter from the
   roll for non-compliance with
   the Rules. Yet he proceeds to enroll the matter without advancing
   reasons why the unexplained irregularities
   had occurred and
   advancing reasons why this conduct should be condoned. He also fails

   
   

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to
explain how he came to allege that the matter was struck from the
roll in April 2007 when it was so removed in October 2006.
There is
also no explanation why he did not enroll the matter at the April
Session but delayed until October 2007.

4. As
   is evident from the judgment in Napier v Tsaperas cited above delays
   of this kind have serious consequences for parties who
   seek finality
   as well as for the Courts. The prevalence of delays attributable to
   practitioners' ineptitude and unprofessional
   behaviour is so
   manifest as to oblige us to make penal orders. This is all we as a
   Court can do to try to combat the prevalence
   of such behaviour. See
   in this regard the judgment of this Court in Lesotho Brake and
   Clutch v Sachs S.A. (Pty) Ltd (2000-2004)
   LAC 75 at pp 80-82.

   
   

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4. For
   these reasons it is ordered that the application to condone the
   non-compliance with the Rules of Court is refused and the

   application to reinstate the matter is dismissed with costs. The
   practitioner of record Mr. K.T. Khauoe is ordered to pay such
   costs
   personally and may not recover such costs from his client. The Court
   orders that this judgment should be served on the
   appellant
   personally so that she is informed that she personally has no
   obligation to pay such costs.

   
   

J H STEYN

PRESIDENT

I agree:

J W SMALBERGER

JUDGE OF APPEAL

I agree:

SPEETE

JUDGE OF APPEAL

FOR
APPELLANT : MR. K.T. KHAUOE

FOR
RESPONDENT: MR. SEKONYELA