CIV/A/4/2005

IN
THE HIGH COURT OF LESOTHO

In
the matter between:-

TSEKISO
MASOETSA APPLICANT

and

NTHERA
MASOETSA RESPONDENT

JUDGMENT

Delivered
by the Honourable Madam Justice N. Majara

on
the 8^th
February 2007

This matter came
before me by way of appeal. Its litigation process dates as far back
as 1987 when it was first instituted before
the Matala Local Court
wherein respondent herein had sued appellant over fields, building
structures, a plot of land as well as
trees. After hearing evidence,
the Court a quo found in favour of respondent.

Appellant lodged
an appeal before the Matsieng Central Court and the decision of the
Court a quo was overturned. Respondent appealed
to the Judicial
Commissioner’s Court and the matter was heard in September 1993
wherein the Court overturned the decision
of the Central Court in
favour of respondent. All these facts are common cause.

Before addressing
the merits of the present appeal, I find it apposite at this stage to
deal first with the points of law that respondent
raised wherein he
contended that there is no appeal before this Court for reasons that
can be summarized as follows:-

1. 
   That appellant
   has failed to comply with the Rules of Court in that he failed to
   act timely in the lodging and prosecution of
   his appeal after he had
   applied for and was issued with the certificate to appeal by the
   Judicial Commissioner’s Court.

   
   

2. 
   Appellant lodged
   both his grounds of appeal together with his application for a
   certificate on the same date i.e. 19^th
   October 1993 which resulted in his appeal being irregular because he
   should have filed his grounds only after the certificate
   had been
   granted and issued.

   
   

3. 
   Appellant failed
   to serve respondent with the said notice of appeal.

   
   

4. 
   Appellant failed
   to serve his grounds of appeal on the respondent after he was
   granted the certificate of appeal but only paid
   security and the
   appeal fee.

   
   

5. 
   Appellant should
   have applied to this Court for condonation for late filing through
   the Registrar since the certificate was granted
   on the 11^th
   December 1998 and it clearly stipulated the periods he should have
   observed and the steps he ought to have followed to prosecute
   his
   appeal.

   
   

6. 
   The appeal fee
   was paid on the 22^nd
   January 1999 after the expiry of the peremptory thirty (30) days
   which period is stipulated in the certificate of appeal.

   
   

In her heads of
argument filed with the Court, Ms
Ramafole
for the respondent made the submission that there is no appeal before
this Court for the reason that appellant failed to act upon
the terms
stated in the certificate of the Judicial Commissioner. She added
that appellant ought to have made a substantive application
in terms
of High
Court Rule 8
through the Registrar setting out on affidavit his reasons for the
inordinate delay in acting upon the stipulations of the certificate.

Counsel for
respondent added that this Court cannot entertain a verbal
application for condonation of late filing of the appeal
as this
would amount to counsel for appellant giving evidence from the bar
which evidence cannot be challenged. Further, that
it is appellant
himself who ought to explain to the Court the reasons for his failure
to act and/or the steps he took to see to
it that his appeal was
prosecuted during the period of thirteen (13) years and that his
counsel can only make affidavits in support
of those reasons.

In response to
these points, Mrs
Tau-Thabane
stated in her heads of argument that the rules of Court spell out the
procedure to be followed on appeal. She made reference to
Rule 52
which provides in particular that appellant may apply in writing for
a date of hearing within four (4) weeks of noting
an appeal and that
if appellant fails to so apply then respondent may apply within two
(2) months. Further that the rule also
provides that if both parties
fail to apply for a date, then the appeal lapses unless the Court
condones the breach.

Counsel for
respondent added that High
Court Rule 56 (6) (b)
provides that the same procedure applies to appeals from the Judicial
Commissioner’s Court and that Rule
52 (b)
provides that the provisions of Rule
8 shall
apply to an application for condonation unless the Court at the
hearing of the appeal condones such breach on application
made orally
as long as good cause is shown why the rules were not complied with.

Mrs.
Tau-Thabane
stated that the first problem concerns the issue of representation of
appellant who had instructed two attorneys resulting in some

confusion in terms of responsibilities between the two. She added
that after a certificate of appeal was applied for, it took
a long
time to be issued and that due to the problems in the early nineties
of the Judicial Commissioners’ Court being manned
with only two
Judicial Commissioners, who had to deal with appeals from all over
the country, this resulted in the certificate
being issued after a
lapse of about five (5) since it was applied for.

Further, that it
had been difficult to apply for a date of hearing in the High Court
especially during the 1998 political unrest
when there were delays in
the High Court due to its having been burnt down. She added that
although set downs were prepared they
were not followed up through no
fault of appellant but of the attorneys’ office.

I turn now to deal
with the above points of law.

The issue of
application for condonation of the filing of and/or prosecuting an
appeal has been dealt with before in numerous decisions
both in the
Lesotho High Court and the Court of Appeal. In determining the
question of condonation, the basic consideration is
whether an
applicant has shown good reason for his failure to proceed timely.
Secondly, he must show that there are good prospects
of success on
appeal. This was stated in the case of Mohale
Papashane and Another v Mamotlokoa Papashane 1982-82 LLR 367
quoted to this Court, wherein appellant had applied for condonation
after a considerable time after the expiry of the prescribed
period
in terms of the certificate granted by the Judicial Commissioner.

In casu,
appellant has attached at page 26 of the Court’s file, a
Certificate of Appeal which bears the Judicial Commissioner’s

date stamp of the 11^th
December 1998 and is couched as follows:-

“
1) With
reference to application by appellant leave to appeal to the High
Court is allowed on all the grounds advanced by appellant.

2) Applicant is
required to comply with the rules of this court, which allow him 30
days of granting this certificate within which
to lodge, with the
clerk of this court at Maseru the appeal fee of M22.50 and a deposit
of M18.60 against the estimated fee for
preparing the record, and a
deposit of M60.00 being security for costs of respondent. TOTAL
M100.60

3. Applicant
   is required to have served upon the Respondent a copy of his written
   grounds of appeal and a copy of set-down for the
   next session of the
   High Court.

   
   

3. Applicant
   has also to lodge with the clerk of court at Maseru a notice of set
   down addressed to the Registrar of the High Court.

   
   

3. All
   rules have to be complied with timeously (sic)
   failing which an application of (sic)
   condonation of late lodgement (sic)
   of the appeal should be submitted to the High Court through the
   Registrar.

   
   

3. The
   rules are to be read in conjunction with the High Court decision in
   the case of Letsie Motsoene vs Setsumi Molapo H.C.T.L.R.
   1926-1953
   at page (sic)
   which lays (sic)
   down that 30 days are allowed to run from the date of issue of this
   certificate.”

   
   

The certificate is
signed by M. Ramashamole.

It is not in
dispute that appellant herein has failed to comply with the above
stated conditions in the certificate. However his
reasons for the
delay were provided as already shown above. Taking all the
circumstances into account, whilst I accept that there
could be valid
reasons for the late filing of this appeal, I am not convinced that
this justified the appellant having taken yet
another long spell
before eventually prosecuting his appeal. This is aside from the
fact that he did not even make a substantive
application for
condonation contrary to the 5^th
condition as stated in the certificate of the Judicial Commissioner
and the provisions of High
Court
Rule
52 (1) (d)
which reads as follows:-

“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 cause shown shall otherwise order.”

In addition,
whilst I agree with counsel for appellant that High
Court Rule 54 (6)
makes provision for an application for condonation of breach to can
be made verbally, it is my view that considering the lengthy
passage
of time between the lodging and the prosecution of the appeal,
appellant ought to have made a substantive application in
terms of
Rule
8
so that the other party would have had the opportunity to test and/or
challenge the evidence contained in the affidavits. I have
already
shown that the reasons advanced for the late filing might be valid,
but I am not of the view that they also justified the
lengthy delay
in its prosecution.

As a result, I do
not believe that under such circumstances an application for
condonation should have been made verbally. As I
have already
stated, this matter was decided as far back as 1993 in the Judicial
Commissioner’s Court, all of thirteen (13)
years ago. There
can be no argument that this is a considerably long period of time.
The case should have long come to rest and
the principle that there
should be finality in litigation cannot be taken lightly either by
the Courts or by litigants and their
legal representatives. See the
case of Khosi
L. Molapo v Lepoqo l. Molapo 1974-75 LLR 116.

Although Mrs.
Tau-Thabane
made the submission that the long delay should not be visited on
appellant as it originated from the attorneys’ office,
I wish
to respectfully adopt the position that was stated in the Papashane’s
case (supra)
p368,
that even if that might be so, appellant failed to give an
explanation of the steps he took to enquire as to the progress of the

appeal, something he might probably have done if he had made a
substantive application in terms of the Rules and the certificate
of
appeal. It is trite that every litigant has a duty to show an
interest in his case and in my opinion he should demonstrate
this by
actively taking steps to make enquiries regarding its progress.

Furthermore, while
I agree that this Court has to power to condone this breach, per the
provisions of High
Court Rule 54 (6),
I wish to add that such power should be exercised judiciously and not
whimsically. I have already shown that if there is a case
that
required a substantive application to have been made in terms of the
Rules, particularly Rule 8, it is the one at hand for
the reasons I
have already shown above.

It was also
submitted on behalf of appellant that if this Court dismisses this
case on this point only, this ‘will
cause an anomaly to the law and also create the problem whereby this
case is cited as an authority in the lower courts
as the court a quo
quoted some Judicial Commissioner’s decisions which were not
applicable to this case and therefore resulted
in misdirecting
itself’.

I cannot accept
this argument because I believe it is flawed for the reason that my
dismissing this case on this point alone without
getting into the
merits will mean that I have not made any consideration of the merits
so that even if this case would be cited
as an authority, it would
only be insofar as the issues that were determined go and nothing
else. I would not in anyway be stating
the legal position on the
merits.

I accordingly find
that the points of law were well taken by respondent.

For these reasons,
I dismiss the application for condonation and the appeal with costs.

N.
MAJARA

JUDGE

For
appellant : Mrs. Tau-Thabane

For
respondent : Ms Ramafole