This was an appeal against the decision of the High Court to recognise the respondent as the rightful heir to real property. The matter had commenced in the local court, the contention between the parties being, who the rightful heir to the property was.
The issue for the court’s determination was whether it could entertain the appeal. It relied on s 17 of the Court of Appeal Act 1978 and the decision in Mahabanka Mohale v ’Makholu Leuta Mahao C of A (CIV) No. 22 of 2004. The court observed that the appellant filed a notice of motion for leave to appeal almost fourteen months after the High Court judgement had been passed and found that the appeal was out of time.
The Court stated further that although it had discretion to allow a breach of rules in a fitting case, the appellant had failed to file an application for condonation with supporting affidavits to enable the court to make a determination on whether to exercise its discretion.
Accordingly, the court dismissed the appellant’s application for leave to appeal and struck the appeal off the roll.
OF A (CIV) NO.28 OF 2005
THE COURT OF APPEAL OF LESOTHO
the matter between
Civil appeal Section 17 of the Court of Appeal
Act 1978 not followed Application for leave to appeal made almost
after the date of the High Court judgment sought to be
appealed against No application for condonation Rules 2(1)
and 8 (2) and (3) of the Court of Appeal Rules 1980 invoked.
 This case has, in typical fashion of cases of its nature in this
country, already shuttled through four different courts including
High Court. It all began on 21 December 1999 when the appellant sued
the respondent at Peka Local Court for a residential site,
and 2 forests of poplar trees at Ha Mofeli. These properties had
previously belonged to the appellants late grandfather,
Mofeli and his wife Malieketseng who had also passed away. The
appellant claimed the properties on the basis of inheritance.
relied on a family decision, annexure A, dated 19 August 1995
which apparently nominated him as heir to both Motake Mofeli
Malieketseng. The old couple had no male children. They only had
one daughter, namely, the respondents mother who was married
the Kaibe family at Mathokoane.
 The respondents case on the other hand was that he was adopted
by the deceased couple who brought him up as their own child.
lived with them since 1956. Furthermore, he, too, relies on a
written decision by Mofeli family, dated 21 July 1985. Therein
family endorsed Malieketsengs decision to award the disputed
properties to the respondent. This decision was made in the presence
of the Chiefs representative, Thabo Makoeng. The decision also
bears the chiefs date stamp as an indication of his approval.
 Before proceeding further, it is convenient at this stage to
mention that after hearing submissions in this matter on 12 October
2006, we dismissed the appellants application for leave to appeal
and struck the appeal off the roll. We intimated that reasons
be filed on 20 October 2006. These are the reasons.
 The record shows that the parties enjoyed fluctuating fortunes
from one court to another, stretching all the way up to the fourth
tier of the courts hierarchy in this country. The Peka Local
Court found for the appellant purely on the basis that he was the
heir to the deceased couple. The Respondents appeal to
Tsifalimali Central Court succeeded to the extent that the court
that the case should start de novo. On further appeal
to the Judicial Commissioners Court, however, the decision of the
Tsifalimali Central Court was reversed and
that of the Peka Local
Court reinstated. The respondent appealed to the High Court which
upheld the appeal with costs on 12
appellant has purported to come before this Court on appeal.
But it is evident from the aforementioned background that,
gone through several appellate courts, this appeal is hit by
the provisions of section 17 of the Court of Appeal Act
section in question reads as follows:-
17. 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 or upon the certificate of the
Judge who heard the appeal on any ground of appeal which involves a
law but not on a question of fact.
has dealt with the effect of this section in such cases as Mahabanka
Mohale v Makholu Leuta Mahao C of A (CIV) No. 22 of 2004; Mofoka v
Lihanela 1985 89 LAC 326. Legal practitioners have
therefore sufficiently been warned.
9 October 2006, a few days before the hearing of the appeal and
almost fourteen months since the High Court judgement, the
filed a notice of motion for leave to appeal against the court a
quos judgment in question. However, it is important to have
regard to the provisions of Rule 2 of the Court of Appeal Rules 1980.
(1) and (2) thereof read as follows:-
2. (1) Where an application for leave to appeal
necessary in a criminal matter in terms of section 8
Court of Appeal Act No. 10 of 1978, such application shall be made by
way of a notice of motion supported by affidavits.
(2) The notice of motion together with affidavits and
all relevant documents including the judgment of the High Court shall
within twenty-one days of the date of judgement or order
of the High Court, a copy of such notice shall be served upon the
of Public Prosecutions.
Sub-rule (7) of Rule 2 in turn provides:-
Where an application for leave to appeal in a civil
matter is necessary in terms of section 17 of the
Act No. 10 of 1978 the provisions of sub-rules (1)
to (6) inclusive of this Rule shall mutatis
all parties who might be interested in the appeal if
application were to be
granted being considered to be in
the position of the Director of Public Prosecutions.
 It follows from the aforegoing that the application for leave to
appeal is hopelessly out of time. An application that should
been made within 21 days has now been made almost 14 months after the
High Court judgment.
this Court has a judicial discretion in terms of Rule 8(2) to condone
any breach of the Rules in a fitting case it will
only do so for good
cause shown on application by notice of motion. In this regard
sub-rule 8 (3) provides:-
Such application shall
be by notice of motion
delivered to the respondent and to the Registrar
not less than seven days before the date of hearing.
Now, the reason why the Rules of this Court provide for a notice of
motion, supported by affidavits, is clearly to enable the
gauge such factors as (1) the degree of delay involved before making
the application, (2) the adequacy of the reasons given
for the delay,
(3) the prospects of success on appeal and (4) the respondents
interest in the finality of the matter. See Koaho v Solicitor
General 1980 1984 LAC 35 at 36-37.
the absence of an application for condonation supported by affidavits
this Court is not in a position to gauge these factors.
the delay of almost 14 months before the appellant brought an
application for leave to appeal is inordinate. Prima
again, the respondent may have been severely prejudiced thereby. His
interest in the finality of the matter cannot,
circumstances, be ignored. There is, therefore, a need to draw a
these circumstances, and there being no application for condonation
for the late filing of the application for leave to appeal
Court, the application for leave to appeal is dismissed and the
appeal struck off the roll with costs.
agree M.E. TEELE
Delivered at Maseru this 20th day of October 2006.
For Appellant : Miss N. Hoohlo
Respondent: Mr T. Hlaoli
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