CIV/A/3/2003
CC1439/2003

IN THE
HIGH COURT OF LESOTHO

HELD AT
MASERU

In the
matter between:

NTANE
MATSUMUNYANE APPLICANT

AND

RETSELISITSOE
RANOOE_______________________RESPONDENT

JUDGEMENT

Delivered
by the Honourable Mr. Justice T. E. Monapathi On the 9th day of
March, 2007

This is
an application for condonation for late setting down of an appeal for
hearing.

Applicant's
counsel referred me to the following authorities:

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1. United
   Plant Hire (Pty) Ltd v Hills, 1976 (1) S.A. 717 at 720 EH;

   
   

2. Port
   Shepstone Fresh Meat & Fish (Pty) Ltd. V Collett, 1949 (1) S.A
   460 at 461;

   
   

3. Melane
   v Santam Insurance Company Limited, 1962(H) S.A. 531 at 532;

   
   

4. On
   the other hand respondent referred me to:

   
   

5. United
   Plant Hire (Pty) Ltd. V Hills, 1976(1) S.A. 717(a) at 720 E - G,

   
   

6. Darries
   v Sheriff, Magistrate's Court, Wynberg, 1998(3) SA 34 (SCA) at 41 C
   - D;

   
   

7. Fibro
   Furnishers (Pty) Limited v Registrar of Deeds, Bloemfontein, 1985(4)
   SA 773(A) at 789 1 to 790 C.

   
   

My
remarks are that unlike the typical appeal the situation in this case
is a little different in some respects. The Appellant,
who is the
Applicant for condonation of the late setting down of an appeal, was
originally Defendant in the court a quo. Having
not filed a plea,

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judgement
was entered by default against him. He filed an application for
rescission.

It is not
against the default judgement, strictly speaking, that the appeal was
made because the application for rescission was
not proceeded with by
the Defendant. This is strange in itself. In that situation one would
have expected that there would have
been steps taken at the failure
to prosecute the default judgement. Strictly speaking, one would not
have expected that the appeal
would have had a lot to do with the
merits, because in the absence of rescission the judgement remained
extant and alive against
the Defendant.

As I said
before, this is an application for condonation. The history of the
matter is that summons was filed in about September,
2003 and it was
served a few days later. Appearance to defend was filed on 12th
September that year. No plea was filed, despite
a notice to file
plea. Counsel for Defendant withdrew.

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Judgment
by default was granted and a warrant of execution was issued. Another
counsel was appointed. Later there was an application
for rescission
and stay of execution. As I said before, the application was opposed.
A date of hearing was appointed. Applicant
did not attend. The
application was therefore dismissed in April, 2004.

Execution
was again levied. Stay of execution was applied for later in the High
Court. This was on 6th May, 2005 and this was per
CIV/AP/216/2004.
The matter was heard before Guni J. Although the matter was opposed
judgement was eventually granted in favour
of the Applicant herein.
It was to enable him to proceed with the appeal.

It must
be clear by now that this matter has travelled quite a distance in
our Courts. Before Guni J, Mr Grundlingh submitted that
judgment in
this matter was delivered on what appeared to be

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moral
grounds. This, he says, is because the learned Judge, having decided
that there was an inordinate delay, all the same, by
reason of the
tardiness and negligence of Applicant's then attorneys, ordered that
the matter be put back into court, stay of execution
be granted and
the appeal be accordingly enrolled.

Mr.
Grundligh referred me to the remarks of Plewman JA in the case of
Barries (5) where reference was made about the extent to which
an
attorney's negligence can be tolerated, and the learned Judge most
distinctly pronounced that there is a limit to Counsel's
negligence
beyond which the client cannot rely on. It was said that:

"there is a limit beyond which a litigant cannot escape the
results of his Attorney's lack of diligence of the insufficiency
of
the explanation tendered. The present is a case where sympathy for
the litigant must yield to the more important principle that
flagrant
disregard for the Court Rules cannot be countenanced" (page 44E
to F).

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I would,
without hesitation, say that my view of things, even at this late
stage, Guni J should have had regard to the principle.
Things had
seemingly gone out of control. This was born out by events that
followed.

The
situation, even in that case before Guni J, apparently, as counsel
argued, no reference was made to prospects of success. Again,
my view
is, had this been done, the applicant would have had even more
problems. This I say because of my unkind attitude to what
the
Applicant's Counsel in argument referred to as prospects of success.
To this I must say most instantly prospects of success
appear
regrettably not to have been raised in the papers, except where
counsel only made reference to them in paragraph 6 of his
Heads of
Argument.

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Before I
come to the issue of prospects of success I may note that it was one
of the four issues which were raised by the Applicant
in his Heads of
Argument as I said before. It is, firstly, that issue of prospects of
success in an appeal is one of the requisites.
Secondly, the degree
of non-compliance. Thirdly, the Respondent's interest in finality of
the judgement. Lastly, unnecessary delay
in the administration of
justice and more particularly whether the application was conducive
of undue delay or not.

It is
obvious that I may not do justice to all the issues raised, although
an application for condonation needs to justify all this.
If one of
them is not satisfied an application may end up being fatally
defective. I must start again by making reference to the
judgement of
Guni J. I have not been informed of the extent to which the learned
Judge viewed the fact that once the application
for rescission was
dismissed the judgement sought to be rescinded became automatically
re-instated by operation of the law.

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When
Counsel for the Applicant addressed the issue of prospects of success
he raised two aspects. Firstly, it was what amounted
to that, since
the damaged vehicle was insured the Plaintiff in the court a quo, as
an insured, could not claim. This was for the
reason that it ought to
be the insurance company which ought to have sued and not Plaintiff
in the court a quo. Furthermore the
Plaintiff would have had locus
standi only if he sued not for the whole amount, but for the excess.
If not so, consequently, the
Plaintiff had no locus standi.

A lot of
issues in rebuttal were raised by Mr Grundligh, this included that
the applicability if principle of subrogation and that
it was not
binding that LNIG as insurer should have sued. In support of
prospects of success Applicant had charged that in terms
of Rule
12(4) of Subordinate Court Rules the default judgement applied for by
Plaintiff had not satisfied the essential elements
of proof of
negligence. Furthermore that a statement by an evaluator called K.S.
Man did not satisfy that requirement of proof
of negligence.

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I
understood the reply to the above by the Respondent's Counsel to be
that the role of the valuator was to establish the question
of
damages which was all that was required in terms of the Rule 12 (4).
I thought it made sense because that Rule and the procedure
seems to
suggest that what the Court is to be assisted with, in the proof of a
liquid claim, is an estimate of the quantum of damages.
That being a
default judgement it does not seem that more is required, negligence
having been proved.

I remind
myself that the issue of the prospects of success was not founded on
the papers, where the issue is about delay in setting
down the
appeal. As I would instantly conclude where prospects of success have
not been demonstrated in any case like the present
that application
is bound to fail.

A lot of
things are raised by the Applicant to justify his delay starting with
the disappearance of the file. This is said to have
happened sometime
in September, 2005.

The file
resurfaced,

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having
been said to have disappeared three months before. It remains common
cause that after the judgement of Guni J. a lot of time
once again
elapsed during which Applicant ought to have set down the appeal. In
none of the reasons given for the late filing do
I find good
justification. I am satisfied, therefore, that the delay was
inordinate and unjustifiable.

The
degree of non-compliance by the Applicant was demonstrably and
unquestionably unfair and became unjust. This says to me that
this
Applicant has no interest in bringing these proceedings to finality.
To the extent that the delay and tardiness has always
been visited at
the door of the Applicant's Counsel, my remarks are similar to what
is to be found in Dairies (5) case in the quotation
I have earlier
spoken about in page 5. It is to say this is intolerable. This is
good reason again why this application ought to
be dismissed with
costs.

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Finally,
I refer again to my remarks that where prospects of success are not
demonstrated it is a good reason why an application
such as the
present should fail with costs.

This
application is dismissed with costs.

T.
Monapathi

Judge