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C. OF A.
(CIV) NO.19/94

IN THE
COURT OF APPEAL OF LESOTHO

In the
appeal of:

MAHOPOLANG
KOALI Appellant

and

MBONESO
NKOSI Respondent

HELD AT

MASERU

Coram:

STEYN
A.P.

BROWDE
J.A.

KOTZE'
J.A.

JUDGMENT

KOTZE'
J.A.

This is
an application for condonation of the late lodging

of an
application for leave to appeal.

The
litigation between the parties commenced in the magistrate's court
for the district of Butha-Buthe where Mboneso Nkosi (respondent
in
this application) claimed against his mother-in-law Mahopolang Koali
(applicant in this application) an order of ejectment from
a
residential property at Phaphama ha Sechele and certain ancillary
relief. The ultimate outcome of the action was a judgment of

ejectment in favour of respondent based on a finding that the
property in question is his property.

An appeal
to the High Court was dismissed with costs by MAQUTU J. on 14th March
1994. The application now before us was lodged on
3rd May 1994 i.e.
forty nine days after the date of judgment whereas in terms of the
rules of court the application

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for leave
to appeal should have been lodged within twenty-one days. The
inordinate delay is not satisfactorily explained. Applicant
states in
her supporting affidavit:

"When judgment was delivered I was not present in Court. I live
in the Butha-Buthe district which is some distance from Maseru.
When
I received notification from my attorneys of the outcome of my appeal
in the High Court I learned from them, when I came to
see them in
response to their request that the time for making this application
had lapsed and that I could only be heard by this
Honourable Court if
it should be indulgent and condone my default."

According
to the respondent this explanation is false. He states in his
replying affidavit that:-

"I categorically deny that when judgment was delivered the
applicant was not present in court and put her to the proof thereof.

I honestly state that the applicant was personally present in court
when judgment was delivered on 14/3/94. She even approached
me with
her attorney for an amicable settlement of the matter outside Court."

The above
statement has not been denied or explained by or on behalf of the
applicant. Indeed when confronted with this situation
at the hearing
of the application by the learned Acting President, Mr. Sello, who
appeared for the applicant, very properly stated
that he would
"concede she was in Court."

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In the
light of the aforegoing the application for condonation should be
dismissed. There are several reasons for this conclusion:-

1. It
   has repeatedly been held by this Court and the Courts of
   neighbouring South Africa that condonation of a failure to comply

   with the rules of Court require an acceptable explanation. In the
   present case there is no explanation and condonation should
   be
   refused for that reason alone.

   
   

2. There
   has been a flagrant disregard of the rules.

   
   

3. The
   applicant has come to Court with soiled hands. She has sought to
   mislead the Court in a totally inexcusable manner and the
   Court
   should, in such circumstances, decline to come to the aid of a
   litigant.

   
   

A
consideration of the merits does not convince me that any injustice
will be done by allowing either the single or the cumulative
effect
of the above considerations to outweigh the said merits.

Moreover
Apart from the aforegoing, it seems to me that there is a legal
ground for refusing to grant condonation.

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Section
17 of the Court of Appeal Act No. 10 of 1978 provides:

"Any person aggrieved by any judgment of the High Court in its
civil appellate jurisdiction may appeal to the Court with the
leave
of the Court... on any ground of appeal which involves a question of
law but not on a question of fact."

In
presenting his argument Mr. Sello foreshadowed that in the event of
the application for leave being granted, he would advance
only one
submission in support of the appeal viz. that both the magistrate and
MAQUTU J. erred in not receiving a copy of a judgment
of the High
Court in a boundary dispute between chiefs which has a bearing on the
allocation of the land upon which the property
at Phaphama ha Sechele
is situate. This, in my view, is purely a question of fact which
cannot be the subject of an appeal to this
Court. In Motlalentoa
Matsumunyane v. Rex, C.of A. (Cri) 16 of 86 AARON J. repeated a
warning often uttered by this Court that
care should be taken in not
allowing questions of fact to be dressed up as questions of law. In
attempting to advance the foreshadowed
argument that a failure to
receive a judgment determining a boundary as a question of law
precisely amounts to an attempt to dress
up a question of fact as one
of law.

The
application for condonation of the late noting of appeal is dismissed
with costs.

G.P.C.
KOTZE'

JUDGE OF
APPEAL

I agree

J.H.STEYN

ACTING
PRESIDENT

I agree

J. BROWDE

JUDGE OF
APPEAL

Delivered
at Maseru This 28th Day of July 1994.