CIV/APN/251/82

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

1. MOHALE
PAPASHANE ) Applicants

2.
STEPHEN PAPASHANE) Applicants

v

MAMOTLOKOA
PAPASHANE Respondent

REASONS
FOR JUDGMENT

Filed by
the Hon. Acting Chief Justice, Mr. Justice M.P.Mofokeng on the 5th
day of October 1983

This is
an application to condone the late noting of an appeal.

The
dispute before the president of Matala Local Court was a very simple
one indeed The respondent sought to evict the applicants
from
certain business premises. Judgment was granted in favour of the
respondent. There was an appeal and the results were the
same. There
was a further appeal to the Judicial Commissioner's Court. Again the
respondent was granted Judgment. The applicants
were granted a
Certificate by that Court requiring them to file a notice of appeal
within 30 (thirty) days. The said certificate
is dated 27th May 1981.
Applicants failed to do so.

According
to the well-known principles, the applicants must show good reason
for their failure to proceed. They must also show that
there is a
good prospect of success on appeal. (High Court Rule 52(1)(d);
Selebalo & Mongalo v R. 1967-70 LLR 101; Molapo v
Molapo, 1974-75
LLR 116).

2

The
application for condonation is dated the 6th October 1982. There is
no dispute that this is a considerable time after the expiration
of
the prescribed period in terms of the said certificate granted by the
Judicial Commissioner. There is no explanation for this
inordinate
delay, and what is worse, the hearing of the application takes place
almost a year after the application was launched.
The applicants put
the blame entirely at the door of their legal representative. Now,
there have been cases where condonation was
granted because of the
lawyer's errors (Sello v R, 1971-73 LLR 201). However, in the present
application, the applicants give no
explanation of the steps they
took to enquire as to the progress of their appeal. They paid no
attention to the matter for a lengthy
period of over a year. In such
circumstances, therefore, the applicants cannot rely on the default
of their lawyer if they themselves
were negligent. (Dichaba v
Dichaba, 1926-53 HCTLR 208; Saloojee v Minister of Community
Development. 1952(2) SA 135 at 141 B-H;
P.E. Bosman Transport Works
Committee v Piet Bosman Transport,1980(4) SA 794 at 799 D-H).

The
applicants have failed totally to offer a reasonable explanation as
to why there was such an inordinate delay in bringing the

application.

Concerning
the question of prospects of success the general principle is that it
is necessary for the applicant to show a prospect
of success on
appeal. This must not be merely submitted but these contentions must
be well supported. (Molapo v Molapo (supra);
Tsita v R. 1959 HCTLR 1
at 2 C-D; Ramatlepe v Seitlheko. CIV/APN/257/77). This has not been
done in this particular matter.

In
conclusion it is to be noted that this matter has been dragging
before the courts of law for a very long time. In my view the
time
has arrived when the realities of the situation have to be faced.
What began as a simple case of eviction has now been enlarged
and
embellished by legality

3

to the
point where the applicants are concerned with the question of bohali
(marriage cattle) and succession. This practice was
depricated by
Rooney, J in Moshesha v Majake, 1980(1) LLR 191 at 195. However, the
truth of the matter is that the respondent has
been highly prejudiced
by this considerable delay. In the words of Schutz, JA in Matlola
Ramatekoa v Selebalo Ramatekoa, C. of
A (CIV) No.5 of 1980 at 11 :

"It is a vital principle that litigation should have an end.
This litigation demonstrates that, if allowed, it can go on almost

forever."

These
remarks are apposite in the present application.

It was
for the above reasons that the application was dismissed with costs.

ACTING
CHIEF JUSTICE

5th
October 1983

For
Applicants : Adv. Phakoane

For
Respondent : Adv Pearson