C. OF A.
(CIV) NO. 25/1996

IN THE
LESOTHO COURT OP APPEAL

In the
matter of:

SWISSBOURGH
DIAMOND MINES (PTY) LTD FIRST APPELLANT RAMPAI DIAMONDS (PTY)
LIMITED SECOND APPELLANT

AND

THE
COMMISSIONER OF MINES AND

GEOLOGY
N.O. FIRST RESPONDENT

THE
ATTORNEY GENERAL SECOND RESPONDENT

THE
CHAIRMAN OF THE MINING BOARD THIRD RESPONDENT

THE
REGISTRAR OF DEEDS FOURTH RESPONDENT

LESOTHO
HIGHLANDS DEVELOPMENT AUTHORITYFIFTH RESPONDENT

Held
at:MASERU

CORAM

STEYN,
A.P.

KOTZE,
J.A.

LEON.
J.A.

JUDGMENT

STEYN
A.P.:

On the
3rd of May, 1996, the learned Chief Justice

2

granted
the following order on an application the Appellants had brought
before the High Court:

"The interlocutory application is dismissed. The Applicant shall
pay (the) costs of this application on attorney and client
scale,
Such costs shall include the costs of two Counsel."

On the
14th of May the Appellants filed the following notice of appeal:

"Be pleased to take notice that the abovenamed Appellants, who
were the Respondents in the High Court of Lesotho in the counter

application brought by the Fifth Respondent under case No.
CIV/APN/394/91, being dissatisfied with the whole of the order of the

said High Court given by the Chief Justice His Lordship Mr. J L
Kheola on 3 May 1996, in terms of which he dismissed with costs
the
Appellants' contention that the Fifth Respondent is precluded from
raising the issue that the Rampai lease is null and void
ab initio
and of no force and effect by reason of the operation of the doctrine
of issue estoppel, hereby appeal against the whole
of the said order

3

to the Court of Appeal of Lesotho on the grounds set out in the
annexure hereto headed "Grounds of Appeal".

The Appellants reserve their rights to deliver further grounds of
appeal within the time period set out in Rule 3 of the aforesaid

Court of Appeal."

The
grounds of appeal referred to in the notice read as follows:

"That the learned Judge erred in not holding that the doctrine
of issue estoppel forms part of the law of Lesotho.

That the learned Judge erred in hot finding that the Fifth Respondent
was precluded, by virtue of the doctrine of issue estoppel,
from
seeking the relief claimed in its counter application in
CIV/APN/394/91.

That the learned Judge erred in awarding costs against the Appellants
on the attorney and client

4

scale or at all."

The next
relevant event in this aspect of the many faceted litigation between
Appellants, Respondent and other parties whom the
Appellant has cited
in proceeding)? before this Court, is a letter which Appellants'
attorney writes to the Registrar of the Court
of Appeal. It is dated
the 30th May, 1996, and I cite it in full. It reads as follows:

" We acknowledge receipt of Court of Appeal Circular No.6 of
1996 under reference REG/CA/6 dated 22 May 1996.

You are aware that the hearing of oral evidence is proceeded with in
the High Court of Lesotho before the Honourable Chief Justice,
His
Lordship Mr J L Kheola, following the dismissal of the preliminary
point raised on behalf of our clients. At this stage dates
have been
agreed for the continuance of the hearing of oral evidence during
August and September 1996.

It is quite clear that no reasons for the decision, which is the
subject of the above

5

mentioned appeal, will be available prior to the proposed date of
hearing for the

appeal. In addition, the reasons for judgment by the Court of Appeal
of Lesotho in respect of the striking down of the Revocation
Order
under case number C. of A. (Civ) No, 38 of 1994 are not yet
available.

As required in terms of your circular we are instructed to advise
you, as we hereby do, that our clients request that the appeal,
and
if necessary, the application for leave to appeal be removed from the
current roll and postponed for hearing during the first
session of
the Court of Appeal in January 1997.

We should be grateful if you would advise the Honourable President
and the other Honourable Judges of the Court of Appeal accordingly."

It seems
to me to be clear from the contents of this letter that Appellant is
alleging that because the reasons for judgment by
the Chief Just ice
will not be available, this is the motivation for seeking the relief
sought. For good measure the fact that
this Court has not given its

6

reasons
for striking down the revocation order which purported to expropriate
Appellant's property without compensation is introduced
as an
additional reason for an application that the appeal should be
removed from the roll and postponed for hearing,

Early in
June 1996 two things happened. Appellants settle a document under
heading "Withdrawal of Appeal Pending Outcome of
Trial"
which is filed with the Registrar and also served on the Respondent
on the 5th of June. The notice reads as follows:

"TAKE NOTICE that the abovenamed Appellants hereby withdraw the
appeal launched by way of Notice of Appeal dated 14 May 1996
and the
Application for Leave to Appeal, but expressly reserve their right to
appeal, if necessary, at a later stage and after
the conclusion of
the presently part-heard trial, against the order of the High Court
given by the Honourable Chief Justice His
Lordship Mr J L Kheola on 3
May 1996, in terms of which he dismissed with costs the Appellant's
contention that the Fifth Respondent
is precluded from raising the
issue that the

7

Rampai lease is null and void ab initio and of no force and effect by
reason of the operation of the doctrine of issue estoppel."

On the
previous day and upon receipt of a copy of the letter of the 30th of
May cited above. Respondents' attorneys write to the
Registrar to
protest against the attempt by Appellant unilaterally, to seek to
withdraw the appeal. For the sake of completeness
I cite the letter
in full. It reads as follows:

"Dear
Madam

re:CONDITIONAL
APPLICATION FOR LEAVE TO APPEAL AND APPEAL: SWISSBOROURGH DIAMOND
MINES (PTY) LIMITED AND ANOTHER vs LHDA AND OTHERS:
C OF A (CIV)
NO.25/96: APPLICANTS' REQUEST FOR REMOVAL FROM THE ROLL

1. We
   have received a copy of the letter to you from Messrs. S A
   Redelinghuys & Company dated 30 May 1996 requesting that the

   above appeal and, if necessary, the application for leave to appeal
   (which appear on the Roll for hearing on 25 June 1996) be
   removed
   from the Roll. We are writing to object to such procedure for the
   reasons set out below and shall be grateful if this
   letter could be
   brought to the attention of the Honourable President of the Court of
   Appeal

   
   

2. While
   it has, since this appeal was noted, been the attitude of our client
   (LHDA) that there is no reasonable prospect of success
   with the
   appeal, it has been recognised that the preliminary point taken, if
   decided in

   
   

8

favour of Applicants, would dispose of the entire case. For that
reason the Application for leave to appeal (or the appeal itself,
if
the Honourable Court of Appeal were to hold, as Applicants argue,
that the High Court's order was final and that they have a
right to
appeal) was opposed only on the merits. That the appeal may finally
dispose of the dispute between the parties is the
very reason put
forward by applicants themselves for hearing it at this stage, even
although proceedings before the Court a quo
are far from complete.
(The position is that the hearing began on 20 May 1995 and continued
for only three days whereafter it was
adjourned to dates in August
and September 1996). We respectfully draw the following extracts from
Applicants' own papers to the
notice of the Honourable Court of
Appeal:

2.1 From the Affidavit supporting Applicants' application for leave
to appeal of Mr. Van Zyl, dated 13 May 1996:

2.1.1. "6.6 Unless rectified on appeal,

there will be a very lengthy and expensive trial..."

2.1.2. "8.1 Applicants respectfully

submit that the Order appealed against was a final one, for ever
refusing the Applicants the right to avoid an unnecessary and

expensive trial".

2.1.3. "8.3If the finding was wrong, as

Applicants respectfully submit to be the case, it would be cold
comfort for the Applicants to be content with a right of appeal
on
that issue (issue estoppel) only after the entire trial has been
concluded".

9

2.1.4. "9.4 This forces the Applicants to

suffer the very prejudice (namely the costs, delays and inconvenience
inherent in the full trial) which was sought to be avoided
by the
separation of issues",

2.1.5. "11.13 Based on the above facts, it

is no exaggeration to submit that this trial, if it continues, may
last for months and will be very costly".

2.2. And from the Heads of Argument filed on behalf of Applicants:

2.2.1. "2.2 It is respectfully submitted

that , if the order was interlocutory, there are good grounds for
allowing an appeal on the single legal issue raised in limine,

thereby avoiding an unnecessary lengthy and costly trial. "

3. 3.1 LHDA 'S response to the application was to deny that there
was a reasonable prospect of success and ask that the application
for
leave to appeal be turned down on the grounds that it would not
succeed on the merits. But it was conceded that there was benefit
in
a final ruling on the point in limine if that could be accomplished
without delaying the further hearing of the matter and,
as it had
transpired that could be accomplished, (having regard to the date on
which the matter was to the date on which the matter
was to be heard)
it did not oppose the application on other grounds than that the
point in limine was without merit.

3.2 Clearly, if LHDA errs in its view of the law and the point taken
is good, it will suffer the self-same prejudice as that outlined
by

10

Applicants
in the excepts quoted in par. 2 above.

4. 4.1 There has been no consultation by Applicants

with LHDA concerning their sudden and surprising about-face on the
hearing before the Court of Appeal.

4.2 In Applicants' letter to yourself, it is said that the reasons
for the ruling of the Court a quo will not be available by
the time
the appeal is heard, nor will those of the Court of Appeal itself in
striking" down the Revocation Order. However,
this has been know
to both sides throughout. (The Honourable Chief Justice, when a date
for resumption of the hearing of the main
application was discussed
in Chambers on 8 May 1996, was told by Applicants' attorney that an
appeal was to be lodged and made
it clear that his reasons would not
be available for several months.

4.3 In any event, it is LHDA's view that neither the reasons of the
Court of Appeal nor those of the Court a quo are necessary
for
adjudication of the matter, nor was it suggested in the application
for leave to appeal or the applicants' Heads of Argument
that such
reasons are necessary for adjudication of the application (or of the
appeal).

4.4 It is respectfully submitted that having put Respondents to the
trouble and expense of preparing fully for the appeal, including
the
presentation of written Heads of Argument, Applicants will not be
allowed unilaterally to remove the matter from the Court
of Appeal's
Roll at this juncture.

5. Respondent
   respectfully requests the Honourable Court Appeal of Appeal to hear
   the matter on the date enrol led and, if necessary,
   to provide a
   ruling on the point in the absence of Applicants."

   
   

11

The
dispute was referred to me and the Registrar was instructed to advise
the parties that the appeal has to be "unconditionally
and
properly" withdrawn. If not, it would be heard during the
current session of the Court of Appeal.

On the
18th of June a fresh notice of withdrawal of Appeal is filed by the
Appellant. It does not contain any condition and reads
as follows:

"TAKE NOTICE that the abovenamed Appellants hereby withdraw the
appeal launched by way of Notice of Appeal dated 14 May 1996
and the
Application for Leave to Appeal against the order of the High Court
given by the Honourable Chief Justice His Lordship
Mr J L Kheola on 3
May 1996, in terms of which he dismissed with costs the Appellant's
contention that the Filth Respondent is
precluded from raising the
issue that the Rampai lease is null and void ab initio and of no
force and effect by reason of the operation
of the doctrine of issue
estoppel."

The
notice contains no offer to pay the costs occasioned by the abortive
appeal process.

12

When the
matter was called Mr. Edeling who appeared for the Appellants
submitted that the appeal had been withdrawn, that there
was nothing
before the Court and that in any event the Court had no authority to
make any costs order because the Rules of Court
did not empower it to
do so.

The
Appeal Court is a creature of statute. The relevant Act is the Court
of Appeal Act No.10 of 1978. In respect of Civil Appeals
the relevant
provisions deal with the rights of litigants to appeal to the Court
of Appeal and authorise an appeal:

"(a) from ail final judgments of the High Court" and

(b) by leave of the Court from an interlocutory order, an order made
ex parte or an order as to costs only."

The Court
of Appeal Rules in Rule 3 lay down the procedural guidelines with
which an Appellant has to comply in order to bring his
appeal before
the Court. Nowhere in the Act or in the Rules do we find any
provisions which prescribe what the powers of the Court
are, neither
were we referred to any enactment which deals with the powers of the
Court in the event of any appellant either purporting
to

13

withdraw
or in fact withdrawing an appeal.

I deal
first of all with the proposition that the Court is not authorised to
make costs orders because it is not legislatively empowered
to do so
by the Rules of Court. Whilst Courts are creatures of statute, their
powers are to do justice between parties and would
of necessity
include the power to make orders for costs. Indeed it does so
regularly. It has power to amend orders for costs made
by the Court a
quo and did so in previous litigation in which the parties presently
before us were involved. Moreover it has the
power to grant attorney
and client costs and has done- so from time to time. An example of
such an exercise of discretion is to
be found in a decision of this
Court in William Lepota v, Ivan Hyland C. of A. (Civ) No. 22 of 1985.

I have no
doubt therefore that no explicit legislative empowerment of the Court
of Appeal is required in order for it to make such
costs orders as it
deems necessary to do justice between litigants.

I come to
deal next with the validity of the arguments concerning the
withdrawal of the Appellant's appeal. It would seem to me
to be
obvious that a party who wishes to

14

withdraw
an appeal should do so unequivocally. Should he append a condition to
his withdrawal the other party would, unless he was
prepared to
accede to such conditionality and the Court were prepared to sanction
it, be entitled to resist the withdrawal having
any effect. Counsel
did not cite any authority for his submission that a withdrawal of
the kind reflected in the original notice
of appeal was procedurally
proper. I am not surprised at this, because the proposition is
clearly untenable i.e. that a litigant
can unilaterally seek to
impose conditions upon its withdrawal of any litigation on which it
has joined issue with its opponent
and with which the Court is
seized. Respondent was therefore entitled upon receipt of the
"conditional withdrawal" of
the appeal to resist the
attempt to defer a decision on the merits of the appeal to a future
date in the guise of a qualified notice
of withdrawal.

The
proposition advanced by Counsel that pursuant to the unconditional
notice of withdrawal of the appeal there is nothing before
the Court
to consider requires to be dealt with. There are two major problems
facing him in regard to this contention. In the first
place
Appellants failed in their second notice to tender any payment of
wasted costs. It meant that, certainly until the day of
the hearing
of the

15

appeal,
no such tender, either in the notice of withdrawal or otherwise, had
been made. A letter was handed in by Counsel at the
hearing dated the
25th of June but only received by Respondent on the day of the
hearing, in which Appellants conceded that they
"should be
responsible for the costs occasioned by the appeal and the
application for leave to appeal" However, Mr. Edeling
contended
that the Court had no Jurisdiction to make any costs orders, because
"there was nothing before it" as a result
of the second
notice of withdrawal.

In my
view neither the notice of withdrawal nor the acceptance by
Appellants that they "should be responsible for the costs"

aforesaid, in any way deprives the Court of its power to make such
order of costs as it deems appropriate.

I
interpose to say that it should be noted that in the same letter
Appellants' attempt in a different form to reserve their rights
"to
argue the issue estoppel point as a ground for a possible future
appeal..." (As can be seen from the grounds of appeal
the "issue
estoppel point" is apart from the issue of costs - the very
matter to have been adjudicated upon in the appeal
noted by them).

16

However,
later in the same letter Appellants attorneys advance the contention
that:

"Despite our clients' initial unhappiness about the
interlocutory prder by the Honourable Chief Justice to the effect
that
the trial should proceed, they now accept such position and no
longer appeal against the order to that effect".

Be that as it may, I am satisfied certainly on the facts of this
case, that appellants could not deprive this Court of its right
to
make an enforceable order of costs which was duly executable by the
Respondents. A statement in a letter handed in at the hearing
that
"our clients accept that they should be responsible for the
costs of appeal and the application for leave to appeal"
falls
short of a tender to pay the wasted costs occasioned by the appeal in
all its permutations.

However, there is another reason why the Court of Appeal should
resist the contention that "there was nothing before it".

The
Respondent had in its heads of argument dated 22nd

17

May,
1996, - i.e. before any notice of withdrawal had been filed - and in
an answering affidavit dated 31st May, 1996, given notice
that they
would be applying to this Court for an order that should the appeal
be dismissed, costs on the scale between attorney
and client should
be decreed, Should this Court be of the opinion that such a special
order as to the costs may well be appropriate,
I am of the opinion
that in a proper case, it could direct that the matter should remain
enrolled so that the propriety of such
an order could be argued and
adjudicated upon. Moreover, and again in a proper case and probably
only in highly exceptional circumstances,
the Court could mero motu
direct that the parties should be advised that it wished to have an
appeal already enrolled and set down
for hearing argued on the
question of. the propriety of a special order for costs whether on
the. scale, of attorney and client
or de bonis propriis. Such an
order will usually only be made "when notice (formal or
otherwise) has been given of an intention
to seek such an order".
Per Ackermann JA in Khaketla v. Malahleha C of A (Civ) No. 18 of 1991
(Lesotho). In this regard the
situation is in my view analogous to
that which obtains in a criminal appeal. See in this regard R v.
(trundling 1955 (2) SA 269(A)
at 272 where Schreiner J.A. said:

18

"... the appellant cannot withdraw a criminal appeal that he has
noted, not only once it has been called in Court, but also
once he
has been notified, either by the Crown or by the Registrar of the
Court that will be hearing the appeal, that the issue
of the increase
of the sentence will be raised at the hearing of the appeal".

See also
R. v. Kluyts and Another 1951 (1) S.A. 474 (CS), S. Hougaard 1972(2)
70 (c); 5. v. Mabhongo 1969 (3) S.A. 388 (N) and S.
v. Esterhuizen
1972 (2) S.A. 76 (o).

It is my
view that on reasoning similar to that advanced in these criminal
cases, once either a party or the Court of Appeal has
notified a
litigant who has noted and presented an appeal to the Court of
Appeal, that a special order for costs will be sought,
such an appeal
cannot be withdrawn without the leave of the Court. It follows that
the question of what an appropriate costs order
would be and is
before us and requires to be adjudicated upon.

Mr.
Viljoen for the Respondents submitted that the Court a quo granted
the special costs order against the following background:

"18.1
The Honourable Chief Justice granted it

19

against
the following background, of which he was aware:

1. Following
   on the Order of 27/3/95 this matter, together with Applications
   198/91 and 206/91 was enrolled for hearing and came
   before the Chief
   Justice himself on 5 June 1995.

   
   

2. At
   that hearing Appellants herein sought a postponement by reason of
   alleged inadequate discovery and argued that case No.394/91
   (the
   present case) should be disposed of before cases No.198/91 and
   206/91 were heard.

   
   

3. The
   Honourable Court reserved judgment and on 16 June 1995 ordered that
   all three of the above cases should be heard together,
   commencing on
   1 August 1995. and that Appellants should pay the costs occasioned
   by the postponement of the hearing.

   
   

20

4. The
   case could not proceed on 1 August 1995 because Senior Counsel for
   appellant at that time, Mr. Anton le Roux SC, was not available
   and
   Respondent had accepted that, in that event, mutually acceptable
   dates had to be found.

   
   

5. In
   correspondence placed before the Court a quo Respondent pressed for
   enrolment of case No.394/91 for hearing, cases 198/91 and
   206/91
   having become irrelevant save for costs by reason of intervening
   legislation expropriating Appellants' mining rights within
   the
   Rampai area, against payment of compensation. Eventually, on or
   about 14 December 1995, the matter was enrolled for hearing
   on 22
   April 1996.

   
   

6. The
   papers in the application now on appeal were served on Respondent on
   the Friday prior to the Monday on which evidence in case
   No. 394/91
   was to be

   
   

21

heard,
that is on Friday 19 April 1996.

18.2 It is respectfully submitted that the Honourable Court a quo was
justified in exercising its disoration as it did. The facts
before it
and a alluded to herein were clear, were known to all the parties and
simply could not justify reliance on the doctrine
put forward.

18.3 In the circumstances Respondent should not be burdened with any
part of the costs occasioned by the untimely and unfounded
contention
put forward."

For the
same reasons it was contended attorney and client costs were
justified on appeal.

In
supplementary heads of argument counsel for the Respondent contended
that Appellants' conduct since the order granted by the
Court a quo
dismissing the application that the matter was res judicata - or that
the doctrine os issue estoppel applied - reinforced
the correctness
of the order made and justifies an order on appeal on the same

22

scale.

In his
heads of argument on behalf of Appellants dated 13th of May, 1996,
Mr. Edeling submitted "that the grant of costs on
the scale of
attorney and client was completely unwarranted and Appellants asked
that such order be set aside. "The point
in limine is a bona
fide one".

I am
satisfied that neither in the High Court or in the Court of Appeal in
any of the matters of dispute before them, was the issue
whether the
mining leases had been validly granted decided. Indeed it was
Appellant's own case that this issue could not be decided
without
hearing oral evidence. The learned Chief Justice in his judgment
found in relation to the issue as to whether there was
statutory
non-compliance which could impugn the validity of the grant of the
mining leases that:

"The applicants (Appellants before us ) deny any such or other
statutory non-compliance and clearly many of such issues could
only
be resolved by viva voce evidence."

In
seeking to set aside the Revocation Order Appellants sought in
interim order "pending the final determination of

23

the
matter". Indeed it is beyond any dispute that the order setting
aside the revocation order was not made either by the High
Court or
by this Court because the leases were not proved to be invalid. Such
a contention was never adjudicated upon. It was as
a matter of fact
never considered by either Court as justifying the setting aside of
the Revocation Order. The order was struck
down without any
consideration of the issues raised in regard to any alleged defects
such leases may have had.

This
Court also granted interim relief to the Appellants. In doing so it
recognized that there were factual disputes between the
parties, one
of which was whether or not the leases were validly granted. In
granting relief pendente lite this Court said that:

"We are satisfied that Respondent's rights have been violated.
There are however residual but fundamental disputes between
the
parties that require to be resolved. Pending their resolution ....
they are prima facie entitled to have such rights as they
are able to
prove protected in an appropriate form. The questions are, what have
they proved and if they have established rights
prima facie, what
form should the relief then granted take. This requires an
examination of the principles upon which a Court should
approach
applications for an interdict pendente lite,"

24

It is my
view that the application brought in the Court a quo alleging that
Respondent "is precluded from raising the defence
to appellants
suit, that the relevant mining lease is void since it has already
been determined in earlier proceedings" was
without any
substance whatsoever. I repeat that this matter was never considered
by this Court in adjudicating upon the disputes,
which were before
it. This was simply never an issue to which the Court applied its
mind in setting aside the Revocation Order.
Insofar as the granting
of interim relief was concerned, the Court was only adjudicating upon
whether or not Appellant had established
a prima facie case entitling
it to an interdict pendente lite. Any definitive finding on this
issue was to be made at the hearing
of the matter. I have no doubt
that all the parties to the matter were well aware of the fact that
this was indeed the case.

It is
therefore my view that the learned Chief Justice was fully justified
to have made the order which he did in decreeing that
Appellants
should pay costs in the Court a quo occasioned by bringing such an
application before it.

It would
also in my view justify such an order in this Court on appeal.
However the behaviour of the Appellant since the High Court
dismissed
the application on the 3rd of May 1996,

25

compounds
the unacceptable - indeed reprehensible conduct of the Appellants as
litigants.

It is
clear that Appellants have not been candid with this Court. Counsel
stated from the Bar that the reason why appellants decided
to change
their stance in relation to the validity of their appeal on the issue
estoppel defence was that the came into the case
and advised his
client accordingly. It is to be noted however that he signed the
heads of argument on the 13th of Hay, 1996. This
is of course not the
reason advanced in the correspondence cited above. The only
motivation contained in the letter to the Registrar
dated 30th of May
was that the reasons for judgment had not yet been received.

More
serious, however, has been the attempt by Appellants to manipulate
the process of this Court on appeal. The attempt to note
a
"conditional appeal", their failure, until the morning of
the trial, to make any tender of wasted costs and, when doing
so, to
couch it in the equivocal terms reflected in their letter handed in
at the trial, all speak of an unacceptable approach
to the conduct of
litigation.

26

Finally,
the spurious arguments raised by Counsel in contending that this
Court has no power to make orders for costs because no
power was
conferred by statute enabling it to do so, that a litigant could
conditionally withdraw an appeal and that he could do
so unilaterally
and without a tender of payment of wasted costs are all further
examples of the reprehensible manner in which Appellants
have
conducted thee proceedings before this Court.

That the
cumulative effect of the misconduct of a trial merits such an award
is amply supported by authority in this Court. See
in this regard
Lepota v. Hyland (the judgment of Miller JA) and Khaketla v.
Malahleha per Ackermann JA cited above. See also Myburgh
Transport v.
Botha 1991(3) SA 310 (NM. SC.) and Rautenbach v. Symington 1995(4)
583 (o). Indeed, there is no reason why Respondent
should be caused
to have to pay any costs by virtue of the manner in which Appellants
have conducted the litigation and more particularly
be held
accountable for any costs incurred in the appeal proceedings.

It is our
view that in these circumstances the appropriate order this Court
should make is that the appeal is struck from the roll
with costs.
Such costs are to be

27

paid by
Appellants - the one paying the other to be absolved on the scale as
between attorney and client. Such costs are to include
the costs of
two Counsel.

PRESIDENT
OF THE COURT OF APPEAL

I agree:

G.P.C.
KOTZE

JUDGE OF
APPEAL

I agree:

R.N.LEON

JUDGE OF
APPEAL

Delivered
at MASERU this 29th day of JUNE, 1996.