C. of A.
(CIV) 14 of 1987

IN THE
LESOTHO COURT OF APPEAL

In the
appeal of:

ANACLETUS
N. LEUTA Appellant

and

TAB
CONSULTANT (PTY) Respondent

HELD AT
MASERU

CORAM

Schutz P.

Plewman
J.A.

Trengove
J. A.

JUDGMENT

Plewman
J.A.

This is
an application for condonation for the late filing of an appeal
against the judgment of Mr. Justice Kheola in Civil Case

CIV/T/241/86. In this case the learned Judge refused to rescind a
default judgment. I will refer to this application as the main

application. The leerned Judge held that the appellant did not have
or had not shown that he had a bona fide defence to the claim.
There
is also before us an application to condone the late filing of
affidavits in opposition to the main application. This I will
call
the supplementary application. In the view I take of the matter if is
unnecessary to consider supplementary application because
the main
applicaiton for condonation cannot succeed. The learned Judge in
Court a quo examined the affidavit filed in support of
that
application, observed that the defence which

2

the
applicant for condonation stated he wished to advance was

an
allegation that there was a condition of precedent to the written
agreement on which the claim was based. An examination of that

agreement showed that the allegation that there was a condition
precedent was not well founded. Indeed no such condition exists
or is
referred to in the written agreement,

In these
circumstance's the application for condonation has failed on an
essential requirement of an application brought under rule
27(b){c)
of the rules of Court, and the applicant has no prospects of
succeeding in the appeall I am therefore not prepared to
condone the
application for the late filing of an appeal. As far as the main
application goes there­fore it is refused with
costs. There is
left for consideration the supplementary application. As the matter
has turned out this application was unnecessary
but in any event I
consider that the present respondent is not entitled to the costs of
that application. Where condonation is
sought the ordinary rule is
that the person seeking the indulgence must pay the wasted costs of
the other party. The appropriate
order therefore, is that in so far
as the application dated the 30th of December by the present
respondent is concerned the respondent
will pay the applicant wasted
costs in relation to that application.

The order
which is made therefore is that:

1. The
   applicant (Mr. Leuta) fails in his application, that is, the main
   application, and must pay the costs of that application
   and

   
   

2. that
   the Respondent (TAB Consultant) must pay

   
   

3

the
wasted costs in relation to the supplementary application filed on
4th January, 1988.

Signed : C. PLEWMAN

Judge of Appeal

I agree
Signed: W.P. SCHUTZ

President

I agree
Signed: J.J. TRENGOVE

Judge of Appeal

Delivered
at Maseru this 25th day of January, 1938.