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CIV/T/19/97
IN THE HIGH COURT OF LESOTHO
In the matter between:
CANDI RAMAINOANE 1st Applicant
CR COMMUNICATIONS(PTY)LTD 2nd Applicant
and
MOEKETSI SELLO 1st Respondent
TAXING MASTER(M.MONYAKANE) 2nd Respondent
W J LEMENA 3rd Respondent
RULING
Delivered by the Hon Mr Justice ML Lehohla on the 12th day of June, 2000.
On 31st May, 2000 Mr Khauoe the attorney for applicants approached this Court on an application moved ex parte seeking an order couched in the following terms:
That the Rule Nisi be issued and returnable on the date to be determined by this Honourable Court calling upon the Respondents to show cause if any why;
The Warrant of Execution issued in these proceedings shall not be stayed pending the outcome of this application;
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The ruling of the Second Respondent shall not (sic) reviewed and set aside as irregular and unfair;
The execution of Judgment (sic) be stayed pending the outcome of appeal noted (sic) C of a (CIV) No.4/2000;
The First Respondent/Plaintiff in the main action shall not be ordered to pay cost (sic) of this application in the event of opposition;
The Applicants/Defendants in the main action shall not be granted such further and/or alternative relief.
2. That prayer l(a) be made an immediate interim order pending the outcome of this application.
The founding papers which constitute evidence in the main consist of Mr Khauoe 's sworn affidavit supported by the supporting affidavits of one W.J. Phakisi and of one 'Malipuo Thamae.
Of significance in this regard is that neither of the applicants has filed any founding papers as evidence.
They only filed their evidence at the replying stage in response to weaknesses and irregularities properly pointed out by the first respondent in his answering affidavit.
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Needless to say the Court having perused the papers filed on behalf of the applicants and sensing the unfairness of an attempt to obtain a rule nisi without notice to the respondents, a move that indeed is contrary to the Court of Appeal Rules in regard to applications for stay of execution, ordered that before any Rule could be issued the papers be served on the respondents and the matter be fixed for hearing on basis of the purported urgency on 9th June, 2000.
It has to be appreciated that even though the Court declined to grant an interim order the application was given preference on the roll to the disadvantage of all other matters which had been filed timeously and which by rights should have had their place on the roll undisturbed. The hearing on 31-05-2000 was done despite that the purported urgency was not prefaced by a prayer as required by the Rules that forms and periods of service be dispensed with. Perhaps it was taken for granted by the applicants' attorney that this would be done as a matter of course.
In his founding affidavit Mr Khauoe deposes that he is attorney, admitted to practise in this Court as K.T. Khauoe and Co.. Further that on 31st January 2000 his office noted an appeal in this matter to which the number C of A (CIV) 4/2000 was allocated.
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He deposes further that "the record is still being prepared and it was not on the roll in the last session of the Court of appeal".
He expresses his hope and belief that the matter will be heard in the next session.
It is significant that at this stage of his averments the deponent does not say who is preparing the record of proceedings to the Court of Appeal.
He proceeded thence to relate the story of how it came about that his office failed to be represented before the Taxing Master when the bill of costs got to be dealt with and the allocatur signed in favour of the 1st Respondent.
In paragraph 13 he seeks to justify why he thought better of proceeding in terms of Rule 49 and instead adopted the procedure laid down in Rule 50. In brief he indicates that Rule 49 could not apply because it presupposes that a review on taxation would be in respect of items objected to during taxation. Thus because of absence of the representative from his side then the procedure under Rule 49 would therefore not apply. The only viable alternative being adoption of the procedure set
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out in Rule 50. He stresses that due to potential prejudice to his clients, an urgent
application in his view was the only remedy.
The deponent reposes reliance on the Notice of Appeal and avers that the Applicants "have prospects of success on appeal regard being had to grounds given". Reference was made to a copy of Notice of appeal annexed and marked "KTK 4" in paragraph
14.
It will be appreciated that even though more than ninety percent of the averments in this proceeding relate to the grievance directed to the matter of taxation the writ of Execution that is very relevant to the question of stay was not attached to the founding papers when the matter was first filed and perused by the Court. It had to take the Court's effort to indicate that it would be impossible to have a complete view of the matter before it without such a document. Apparently the deponent thought that because such a document might have been lying somewhere in the Court's file it didn't quite matter that the Applicants' papers were thus incomplete. Amazingly this argument was persisted in in another leg of arguments which arose later even in the face of My Learned Sister Guni J's judgment in CIV/APN/135/95 Mohlomi vs Sun International of Lesotho (unreported) when dealing with
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application of Rule 50. More of that later; save that I shudder and demur at ....the implicit suggestion contained in the attitude that indexing and paginating of the record consisting of papers to be filed in civil applications for ease of reference, convenience of the Court and promotion of efficiency are of no consequence if this attitude is allowed to prevail. Otherwise how could papers jumbled up among bits and batches of documents filed previously be thought to be at hand when no effort is made to ensure that they accompany newly filed records? I boggle therefore at the insinuation that the Court is left to its devices to hunt for what has not been made part of the papers newly placed before it.
In his answering affidavit Moeketsi Sello the 1st Respondent who was the Plaintiff in the main action deposes that having read and understood Mr Khauoe's founding affidavit as well as the supporting affidavits made mention of earlier in this judgment, reacts by saying that on the date of hearing, his Counsel shall be instructed to raise in limine the following factors :
"A. LACK OF AUTHORITY
The application purports to be brought by Candi Ramainoane and CR Communications(Pty)Ltd. Both applicants have not filed any affidavits in support of the prayers purportedly sought on their behalf. No explanation has been proffered as to why these applicants have not filed any affidavits.
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Second applicant is an artificial person. No proof of authority has been placed before the Honourable Court that this applicant resolved to bring these proceedings.
The founding affidavit has been deposed to by Mr Khauoe. Nowhere in his founding affidavit does he allege let alone prove that he has been authorised to make this affidavit and/or to bring these proceedings on behalf of the applicants. He therefore has no authority to bring the proceedings on behalf of the applicants. There is no indication let alone proof that this application is being brought by the applicants. On this ground alone, the application ought to be dismissed.
B. NON-COMPLIANCE WITH THE RULES
The applicants have approached the Court ex parte for an order inter alia of stay of execution pending appeal to the Court of appeal. This is in stark violation of Rule 6 of the Court of appeal Rules 1980. Again on this ground alone, the application ought to be dismissed.
The appeal in respect of which the order is being sought, was noted on 31st January, 2000. Up to now some four and half months later, no record of proceedings has been filed with the Registrar nor served on the Respondent. This is in stark violation of Rule 3(7) of the Court of Appeal Rules. In the premises there is no appeal pending as the purported appeal cannot be enrolled. Thus the application is being brought merely to frustrate execution of the judgment of this Honourable Court. Again on this ground alone, the application ought to be dismissed.
The applicant is out of time not only in respect of the lodging of the record but also in respect of security for respondent's costs of the appeal in terms of Rule 7(9) of the Court of appeal Rules.
No-where in his founding affidavit has Mr Khauoe shown what prospects of success the applicants have on appeal. He has
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merely contended himself with a bare and unsubstantiated allegation that "the applicants herein have prospects of success on appeal regard being had to the grounds given".
Mr Khauoe has not in his founding affidavit, found it necessary to deal with the question of balance of convenience. He has completely ignored this aspect of the applicants' case. The onus is on the applicants in this regard and it has not been discharged.
The application purports to be a review of the second Respondent's ruling. In this regard the application has been brought in stark violation of Rules 49 and 50 of the High Court. Again on this ground alone the application ought to be dismissed.
In response to all the above Mr Khauoe in his replying affidavit says : "IN LIMINE : As the points herein are but point (sic) of law, they will be argued", and astonishingly contends himself with intimating that "However I wish to point out that they are in law of no value". Emphasis supplied by me.
In the interests of saving time the Court solicited both Counsel's concurrence in disposing of the matter in limine and without necessarily going into the merits unless anything special would warrant such a move.
There being nothing special to warrant hearing arguments on merit if the matter could be briefly dealt with in limine the Courtaccordingly heard Mr Phafane 's points
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of law tabled in his well-prepared heads of arguments. Mr Khauoe responded to these arguments but unfortunately he had not filed any heads of arguments at all in this application as a whole. The Court accordingly intimated that his heads if filed any time during the weekend they would be welcome. He however phoned the following day to express his regrets that due to pressures mounting on his free time he would advise the Court that whatever arguments he had advanced the previous day would be all he would stand by.
I may in passing just point out that in C of A (CIV) 13/98 Lesotho University Teachers & Others vs National University of Lesotho was endorsed the attitude by the Court of Appeal; of this Court relying on the authority of CIV/APN/475/96 'Mabataung Moletsane vs David Mohapi Moletsane (unreported) at p. 12 delivered by Ramodibedi J who indicated that in applications of this nature if the Court is to owe any assistance to Counsel at all it is obligatory that they file written heads of arguments. In CIV/APN/23/97 Lesotho University Teachers & Others vs National University of Lesotho the Court found itself in the unenviable position of having to inflict penalty de bonis propriis on counsel who had not heeded the strong admonition given by Ramodibedi J with respect to failure by Counsel to be of assistance to the Court by way of filing prepared heads of arguments.
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I emphasise this point because the respondent's counsel is the one who has lesser time than the applicants' counsel to comply with this requirement. Thus where the respondent's counsel out of sense of duty to the Court has filed his heads no excuse can suffice for the applicants' counsel's failure so to do.
As if this form of unwholesome laxity to Court business was not enough, and notwithstanding that the respondent's counsel being aware of the pressure that the Court Order for set down of this matter on 9th June imposed on him had very plausibly and timeously served his client's answering papers on the applicants' counsel on 6-6-2000 leaving more than a whole two days within which the applicants were to reply, nonetheless their replying affidavits were received neither by him nor by the Court until when the hearing was already in progress on 9th June, 2000. This is absolutely unacceptable. Nohow in the circumstances would counsel for the respondent have been able to address points raised therein in his heads of arguments or even supplementary heads were he to be in favour of doing so.
In argument Mr Phafane indicated that where a company such as the second Applicant commences or opposes proceedings by way of a petition or affidavit, it must appear that the person making the affidavit on behalf of the Artificial person is
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duly authorised to do so. I agree.
Indeed Watermeyer J in Mall (Cape) Pty Ltd vs Merino Ko-operasie Bpk
1957(2) 347 at 351 paragraph G uses the exact words employed by the Learned Counsel and goes on to refer to Lurie Brothers Ltd vs Arcache 1927 NPD 139 and other cases mentioned in Herbstein and Van Winsen, Civil Practice of the Superior Courts in South Africa at pp 37, 38. The Learned Judge butresses his view with which I am in respectful agreement by saying :
"This seems to me to be a salutary rule and one which should apply also to notice of motion proceedings where the applicant is an artificial person. In such cases some evidence should be placed before the Court to show that the applicant has duly resolved to institute the proceedings and that the proceedings are instituted at its instance. Unlike the case of an individual, the mere signature of the notice of motion by an attorney and the fact that the proceedings purport to be brought in the name of the applicant are in my view insufficient. The best evidence that the proceedings have been properly authorised would be provided by an affidavit made by an official of the company annexing a copy of the resolution....................................Where as in the present case, the respondent has offered no evidence at all to suggest that the applicant is not properly before the Court, then I consider that a minimum of evidence will be required from the applicant".
It stands to reason that where as in the present proceeding the respondent has challenged the propriety of the applicants being before the Court more than a mere
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minimum of evidence is required. But as it is, not even the minimum has been placed before Court. On this ground alone it seems to me that the application for stay ought to be dismissed.
Indeed Mr Khauoe reposed his faith on Moosa and Cassim NNO vs Community Development Board 1990(3) SA 175 for the view he advanced in the instant case that ratification by way of annexing a resolution to a replying affidavit would suffice to remedy the irregularity objected to by the 1st respondent. I asked him if in Moosa for that to be done there was no leave sought of court to condone the said ratification and he told me there was none. But I have since had a look at Moosa and since discovered that the resolution so accepted in that case was an amendment to the founding affidavit and not as in the instant case a document filed with the replying affidavit as a matter of course. Moreover in Moosa the second leg relied on for the locus standi was the delegated authority given to the Board by the Minister. In the instant case there is no such a parallel. In any event I am of the view that for a ratification that is resorted to after objection by the respondent leave of court should be sought.
Mr Phafane relying on R.T. Morrison(Pty)Ltd vs Belle 1981(1) LLR 206
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submitted that the deponent to the founding affidavit in the instant matter has failed to place before court a properly worded resolution indicating that the 2nd applicant actually resolved to institute these particular proceedings as opposed to the different proceedings which were brought by way of action that led to the trial. In Morrison there was in fact a resolution but it was of a general character and there was lack of proof that proceedings were at the instance of the artificial person. Learned Counsel accordingly submitted lack of a properly worded resolution in the instant matter is fatal. I agree.
Indeed in the instant matter the resolution attached to the replying affidavit does not seem to relate even to the instant proceedings but to the proceedings on appeal.
It reads :
CR Communications Pty Ltd
P.O. Box 7234
Maseru
RESOLUTION
CORAM: PRESENT
AGENDA : APPEAL IN CIV/T/19/97
RESOLUTION : 1. That the company should note an appeal
2. That C R Ramainoane is given power of attorney to nominate and chose(sic) the lawyer to prosecute the
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Appeal
3. That C R Ramainoane is given power to delegate his powers in this regard.
DATED at Calton Centre Maseru this 25th Day of January 1999(sic)
Signed : Secretary/Director
In Pretoria City Council vs Meerlust Investments Ltd 1962( 1) SA 321 at 325 Ogilvie Thompson said –
"Since an artificial person, unlike an individual, can only function through its agents, and can only take decisions by the passing of resolutions in the manner prescribed by its constitution less reason exists to assume, from the mere fact that proceedings have been brought in its name, that those proceedings have in fact been authorised by the artificial person concerned."
I am in respectful agreement with this statement.
The circumspection made by Mr Phafane for his submission that whereas in urgent applications an allegation of authority may in a proper case suffice has immediate relevance to the remarks of Mahomed J A in Central Bank of Lesotho vs Hae Phoofolo LAC 1985-1989) 253 at 259 that
'There is no invariable rule which requires a juristic person to file a formal resolution, manifesting the authority of a particular person to represent it in any legal proceedings, if the existence of such authority appears from other facts..............".
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However Mr Phafane was quick to indicate that it is of pivotal importance to note that in the instant case no such allegation of authority has been made in respect of both the first and second applicants. I indeed have observed that the resolution in the instant matter is of no relevance to these proceedings. It does not say that the present proceedings be instituted even though filed at the replying stage. On the question of ratification therefore it is significant that the resolution filed and annexed to the replying affidavit makes no reference to the instant matter of application for review of taxation and application for stay of execution before this Court. There is no indication either that the 1st applicant authorised the deponent in these proceedings. The deponent himself has given no evidence that he has been authorised by the 1st applicant. He only contends himself with saying he has a power of attorney to represent the applicants. But the power of attorney which related to proceedings in the trial is not evidence as envisaged in applications of the instant nature. Indeed power of attorney entitles the legal practitioner to represent his client in pursuing or defending a legal case. That should not be understood to mean he is thereby entitled to give evidence on his client's behalf in application proceedings without stating in evidence or production of a resolution the authority his principal has granted him. There is a vast difference therefore between a power of attorney
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and a resolution including the requirement that in evidence it should be borne out that
the witness has authority to represent the other. Unfortunately it seems this distinction is incomprehensible to the applicants' deponent.
I accept therefore Mr Phafane 's submission that the affidavit filed in support of the present application has to be thrown out as having been deposed to by an uninvited witness. Pretoria City Council above is the authority to rely on for this proposition.
The other leg of Mr Phafane's argument extended to his attack on the applicants' indifference to the requirement to observe and comply with Rules of Court.
He submitted that this application has been brought in violation of Rule 6 of the Court of appeals Rules 1980.
That particular Rule reads in subsections (1) (2) and (3) as follows :
Subject to the provisions of the sub-rules infra the noting of an appeal does not operate as a stay of execution of the judgment appealed from.
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The appellant may at any time after he notes an appeal, apply to the judge of the High Court whose decision is appealed from for leave to stay execution.
The application referred to in sub-rule (2) herein shall be brought by notice of motion, supported by affidavit, delivered to the respondent and filed by (sic) the Registrar not less than seven days before the date set down for hearing the application".
(I think the word by located before the phrase the Registrar immediately above was meant to read with).
In violation of the last mentioned sub-rule above the applicants had to be ordered to go and serve the respondent because they had sought to obtain an order for stay ex parte and without notice to the other side.
I may go further and observe that in the papers as they stood ex parte there was not even mention of an undertaking to give security for payment of the respondent's costs.
I thus have formed the view that the 1st respondent's quarrel with the applicants' non-compliance with Rule 6 of Court of Appeal Rules 1980, and arguments raised in support of the 1st respondent's queries constitute an impregnable garrison of daunting robustness against the applicants' vain counter-attacks.
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The next objection was in respect of the applicants' non-compliance with Rule
3(7) of the Court of Appeal Rules 1980. That Rule reads :
"In every appeal the appellant shall, not later than three months after notice of appeal has been filed................ file with the Registrar five copies of the record of the proceedings of the High Court and two copies of such record on each respondent".
Mr Khauoe while conceding that no record of proceedings has been filed maintains that the applicants are not to blame and that it would be unfair to penalise them for something that is beyond their control. Indeed consistent with this view is his own reply in a sworn affidavit that
(AD PARA 5 AT 5.3)
"I aver further that because the preparation of record is not in the hands of the applicant but of the Registrar, and appellant cannot in any way be punished for the failure of the Registrar of High Court who is also the Registrar of Court of Appeal".
In seeking thus to lay the blame at the door of the Registrar for failure to prepare the record - a duty that in terms of clear reading of the relevant Rule is peremptorily placed on the appellants' shoulders - Mr Khauoe rings a familiar note rung by Mr Pheko in a case of uncanny similarity to the instant one, where as in the
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present case counsel for appellant was steadfastly advancing an argument that despite
the clear reading of the rules, in practice, the rule was not being observed.
The case in point is C of A(CIV) 20 of 1987 'Maphillimon Motlalentoa vs Monyane Monyane and Anor, (unreported).
The crucial aspect of that case to be decided by the Superior Courts had originated in the Judicial Commissioner's Court. The appellant was maintaining that there was an appeal "pending" in the High Court while the respondents were of a contrary view.
Mahomed JA as he then was outlined the facts as follows :
"The learned judge in the Court a quo held that there was no appeal pending in the High Court because of a failure by the appellant's husband to comply with the requirements of 52(1) of the High Court Rules which reads as follows :
'52(l)(a) when an appeal has been noted from a judgment or order of a subordinate court the appellant may within four weeks after noting the appeal apply in writing to the Registrar for a date of hearing.
Notice must be given to all other parties interested in the judgment appealed against that such application......has
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been delivered.
......................
.....................
Mr Pheko who appeared for the appellant conceded that Rule 52( 1) was indeed of application to the appeal.............and that the requirements of this Rule had not been complied with. He contended, however, that there had been a practice which had been operative for many years in terms of which a prospective appellant who had obtained leave to appeal from a Judicial Commissioner pursuant to the provisions of section 28(3)(b) of the Central and Local Courts Proclamation No.62 of 1958, simply took no further steps to prosecute the appeal until he received further notification of the matter from the Registrar.
Mr Pheko did not attempt to argue that an adherence to this practice could be a substitute for proper compliance with the express requirements of Rule 52(1).................................
Mr Pheko......................... argued that in the instant case it (judicial discretion) was not judicially exercised. I do not agree.
There were weighty grounds in support of the conclusion arrived at by the Court a quo..............".
As in the above-cited case where a point was made that provisions of Rule 52(1) are clear and peremptory, the provisions of Rule 3(7) in the instant case are equally so. While those of 52(1) at the time were said to have been in existence for 7 years, the ones in the instant case have been in existence for almost 20 years to-date. In both the above-cited case and the instant one the appellant/s were
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represented by experienced counsel, a further point of similarity is that the notice of motion contained no prayer for condonation. While in the above-cited case the application for condonation was not made by the prospective appellant aggrieved by the judgment........but by his wife, in the instant case evidence has been proffered by an uninvited witness. In both these cases no averments were made with regard to the crucial question of balance of convenience. Needless to state just as in the above-cited case the High Court and Court of Appeal ruled that there was no appeal pending I feel obliged for similar reasons to rule that in the instant case there is no appeal pending and therefore that this application be dismissed on that ground alone. Otherwise it would be absurd to say ditto to the argument that an adherence to a practice that is patently wrong should serve in place of proper compliance with the express requirements of Rule 3(7) of the Court of appeal Rules 1980. While straining to persuade the Court that it would be unfair to depart from this practice he alluded to Mr Khauoe conceded the existence of the Rule in question. When asked what would happen if an applicant who has not paid for preparation of his or her appeal and decides to abandon it despite the Registrar having gone into the trouble of completing the record, Mr Khauoe said as officers of the Court the attorneys are supposed to be faithful and keep their word to the Registrar.
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The virtue of that Utopian view in my opinion is off-set by the real danger of the Registrar being left with an egg on her face. For were there no such danger the words appearing in CIV/APN/336/88 'Makoetle Koetle vs Benjamin Sello (unreported) at p.3 would not have been printed to the following effect:
"I make a distinction between the instant case and that of Montseng Letsoela vs Michael Nkhope CIV/APN/140/87 (unreported) because in the latter case the Attorney had gone out of his way to deceive his client by saying that the appeal had been noted when he knew fully well that none had been".
Thus I am of the firm view that the practice advocated by Mr Khauoe is at variance with clear and express provisions of Rule 3(7). It would be imprudent therefore to follow it in the face of that law.
Mr Phafane argued further that Rule 3(9) of the Court of appeal Rules 1980 has not been complied with.
That Rule reads :
"If the judgment appealed from in a civil matter has not been carried into execution by the respondent, the appellant shall, before lodging with the Registrar copies of the record, enter into security to the satisfaction of the Registrar for the respondent's costs of the appeal".
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I observe that this Rule has not been complied with. The risk for such failure falls on
the applicants therefore.
Mr Phafane having ascertained from Mr Khauoe that the application for review is solely on the basis of Rule 50 and no longer 49 of the High Court Rules indicated that this Rule too has been violated.
"(l)(a) Save where any law otherwise provides, all proceedings to bring under review the decision or proceedings of any subordinate or other inferior court and of any tribunal, board or officer or any person performing judicial, quasi-judicial or administrative (duty) shall be by way of notice of motion directed and delivered by the party seeking to review such decision or proceedings..............to all other parties who may be affected by the decision or proceedings."
directs that the notice shall call upon persons to whom notice is addressed to..........dispatch within 14 days of receipt of the notice, to the Registrar of this court the record of such proceedings.............. and to notify applicant that he has done so...............
Mr Khauoe argued that the record is already in place before court thus implying there is no need to comply with the terms of the Rule as laid down in it. But this is in contradiction of an important decision on the application of Rule 50. The decision is
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in CIV/APN/135/95 Pinkie Mohloai vs Sun International of Lesotho t/a Maseru sun
Cabanas & Casino (unreported) by Guni J who said at page 10 :
"According to Rule 50(1 )(b) the onus is on the applicant to show the Court that he did call upon the respondent to dispatch the said record and respondent has not heeded the call................... There is no duty automatically placed upon the respondent, without being asked to, to dispatch the record of the proceedings sought to be reviewed".
Subsection (3) is of crucial importance in that it requires that the applicant shall furnish the Registrar with two copies and each of other parties with one copy thereof in each case certified by the applicant as true copies.
The one that I happened to lay my hands on and which must be the one that the Court was told non-chalantly that it is already before the Court does not bear this essential requirement. Had provisions of Rule 50 been regarded as of any consequence this could not have been the case. Even the urgency that was conceived in bringing this application was not warranted. It was at best self-inflicted : the applicants having sat back for well over 4 months of noting of the appeal and only coming at a rush to Court for intervention when a Writ of Execution has been or is being inflicted upon them. That smacks of lack of bona fides and shows scant regard to the requirement of the law that litigation must come to finality. That there is a rule that appeal to the
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Court of Appeal is no stay is in part a recognition of this fact. It is clear from this therefore that the applicants would gleefully sit back and temporise while the judgment creditor is denied the fruit of his victory. That should not be allowed as it says ditto to the false virtue of delay.
In the light of these numerous breaches of the Rules it would be essential to direct attention to what the Superior Courts have repeatedly been saying in an endeavour to illustrate that when prescribed forms and procedures are ignored causes are lost or at least that such is an unacceptable and intolerable state of affairs.
In Strong Thabo Makenete vs Major General Lekhanya & Ors 1991 -92 LLR &LB 126 at pp 127 and 128 Ackermann J A in a searing statement of admonition said
"It has become clear during the present session that many practitioners are displaying a lamentably lax attitude to the rules of Court bordering on the contemptuous. The attitude evinced seems to be that the rules are unimportant, can be disregarded at will and that non-compliance will simply be over-looked or condonation granted as a matter of course or right. It is time that practitioners' minds were disabused of this much mistaken impression and the misconceived idea that their disregard of the rules will be overlooked because of the prejudice their clients might suffer. Clients who suffer loss because of omissions on the part of their legal representatives may, in appropriate circumstances, have remedies
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against their advisers".
In Leribe Poultry Cooperative Society vs Minister of Agriculture & 2 Ors 1993-94 LLR & LB 190 at 191 it was said :
"There may be occasions when failure to file a record timeously is completely beyond the control of appellants or their legal representatives. This does not excuse practitioners from seeking condonation in the prescribed manner."
See also Federal Employers Insurance Co. vs Mckenzie 1969(3) 300 at 360 at 362 and 363 where Holmes J A said :
"As to the need for avoiding unnecessary delays in the administration of justice, the person primarily affected............is the respondent................."
Only if it can be shown that the appellants' delay was not wholly avoidable condonation may be granted. Otherwise it may not. In the instant case nothing has been shown as indicating steps the applicants took to ensure that the record is placed before relevant parties and officers within the times prescribed.
I accept Mr Phafane 's submission that in the instant case there has been a flagrant breach of the rules of Court in more than one respect and no acceptable
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explanation has been proffered.
I accept also the statement that although this Court has inherent power to condone non-compliance with the Rules, condonation is not just there for the taking. Special circumstances must be placed before court in a substantive application for such condonation to enable the court to consider, inter alia, the degree of such non-compliance, prospects of success, convenience of the court, the magnitude of the case, the question of avoidance of unnecessary delay in the administration of justice and the need for finality to litigation, as neatly put by Ramodibedi J in Everistus R. Sekhonyana & Ors vs The Attorney-General & Ors 1995-96 LLR & LB 290 at pp 294-6.
At 296 the learned judge having referred to Michael Mthembu vs Lesotho Building Finance Corporation c of A (CIV) No.4 of 1984 by Schutz P quoted with approval the extract from P.E. Bosnian Transport Works Committee and Others vs Piet Bosman Transport Pty Ltd 1980(4) SA 794 A at 797 where Miller J said most aptly :
"In a case such as the present there has been a breach of Rules of Court in more than one respect and where in addition there is no acceptable explanation for some periods of delay and, indeed, in respect of other
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periods of delay, no explanation at all, the application should, in my opinion, not be granted whatever the prospects". Emphasis supplied by me.
If notwithstanding the prospects a breach of the Rules warrants refusal of a similar application to the instant one then no firmer illustration of the need to avoid laxity with application of the Rule can be made.
In Kutloano Building Construction vs Matsoso & 2 Ors LAC (1985-1989) Schutz P in illustrating the importance of observing prescribed procedures and forms contained in the Rules of Court said :
"I am afraid that my decision may smack of the triumph of formalism over substance. But forms are often important and the requirements of the sub-rule are such".
I have observed on many occasions that with litigants and practitioners who are keen to ensure that their matters are brought to Court in time and in turn that appeal Court records are rendered ready without delay, in a matter of two days after the Judgment in the High Court has been delivered the record is ready for binding not at the instance of the Registrar but of the appellants. This would tend to give support to Mr Phafane's negative response to Mr Khauoe's assertion that the office of the
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Registrar is the one that prepares records and therefore which should continue to do
so.
I would grant counsel of a veteran's experience by saying in fact the Registrar should keep a Calender of each appeal being noted and when the time required for preparation of the record lapses without any move by the appellants he/she should send the High Court file to the President of the Court of Appeal informing him and the parties that the file will be called at next session of the Appeal Court for purposes of being struck off for want of prosecution.
As reflected in 'Makoetle Koetle vs Benjamin Sello CIV/APN/336/88 (unreported) at page 2 where 'Maphillimon Motlalentoa above is referred to with approval the extract of the High Court decision endorsed by the Appeal Court in the latter decision is of such salutary benefit that I should even at the cost of prolixity in this judgment, cite it. The learned Judge of the High Court refused condonation holding that there was no justification for the practice relied upon. (This is the practice that was in violation of Rule 52(1) of the High Court Rules). He said :
"To permit the Registry and practising attorneys to become so slack in bringing a matter as important as an appeal before this Court is, in my
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opinion, unacceptable. I am certainly not willing to condone it. The correct procedure is simple and straight forward and the Registrar must see to it that it is followed in future".
The same can and should be said in regard to the direction to be followed as stated in Rule 3(7) of the Court of Appeal Rules 1980.
See also Tsie B Pekeche vs Motsoahae T. Thabane & Ors CIV/APN/259/98 (unreported) at pp 8-9 by Ramodibedi J.
The onus to show that balance of convenience favours the stay of execution rests on the applicants. No evidence has been adduced or attempt made to discharge that onus. On that ground alone this application ought to be dismissed.
The first respondent and his counsel have more than amply justified their contention that this is a case where the Court should register its displeasure at the flagrant disregard of the Rules of Court and the unwarranted attitude that condonation thereof would be given out with the rations. But since no specific prayer was made for costs on a higher scale than on ordinary scale (see C of A (CIV) No. 13/98 and CIV/APN/223/97 Lesotho University Teachers and Researchers Union vs National
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University of Lesotho) the Court even though being at large to award costs on a higher
scale mero motu has decided in dismissing this application to award costs on party and party scale only.
The application is accordingly dismissed with costs.
JUDGE
12th June, 2000
For Applicants : Mr Khauoe
For Respondents : Mr Phafane
