1

CIV/T/19/97
IN THE HIGH COURT OF LESOTHO

In the matter between:

CANDI RAMAINOANE 1^st Applicant

CR COMMUNICATIONS(PTY)LTD 2^nd
Applicant

and

MOEKETSI SELLO 1^st Respondent

TAXING MASTER(M.MONYAKANE) 2^nd
Respondent
W J LEMENA 3^rd Respondent

RULING

Delivered by the Hon Mr Justice ML Lehohla on the 12^th
day of June, 2000

On 31^st May, 2000 Mr Khauoe the attorney for
applicants approached this Court on an application moved ex parte
seeking an order couched in
the following terms:

1. That the Rule Nisi be issued and returnable on the
date to be determined by this Honourable Court calling upon the
Respondents
to show cause if any why;

(a) The Warrant of Execution issued in these
proceedings shall not be stayed pending the outcome of this
application;

2

2. 
   The ruling of the Second Respondent shall not (sic)
   reviewed and set aside as irregular and unfair;

   
   

3. 
   The execution of Judgment (sic) be stayed pending the
   outcome
   of appeal noted (sic) C of a (CIV) No.4/2000;

   
   

4. 
   The First Respondent/Plaintiff in the main action shall
   not be
   ordered to pay cost (sic) of this application in the event
   of
   opposition;

   
   

5. 
   The Applicants/Defendants in the main action shall not
   be granted such further and/or alternative relief.

   
   

2. That prayer l(a) be made an immediate interim order
pending the outcome of this application.

The founding papers which constitute evidence in the
main consist of Mr Khauoe 's sworn affidavit supported by the
supporting affidavits
of one W.J. Phakisi and of one 'Malipuo Thamae.

Of significance in this regard is that neither of the
applicants has filed any founding papers as evidence.

They only filed their evidence at the replying stage in
response to weaknesses and irregularities properly pointed out by the
first
respondent in his answering affidavit.

3 Needless to say the Court having perused the papers
filed on behalf of the

applicants and sensing the unfairness of an attempt to
obtain a rule nisi without notice to the respondents, a move that
indeed is
contrary to the Court of Appeal Rules in regard to
applications for stay of execution, ordered that before any Rule
could be issued
the papers be served on the respondents and the
matter be fixed for hearing on basis of the purported urgency on 9^th
June, 2000.

It has to be appreciated that even though the Court
declined to grant an interim order the application was given
preference on the
roll to the disadvantage of all other matters which
had been filed timeously and which by rights should have had their
place on the
roll undisturbed. The hearing on 31-05-2000 was done
despite that the purported urgency was not prefaced by a prayer as
required
by the Rules that forms and periods of service be dispensed
with. Perhaps it was taken for granted by the applicants' attorney
that
this would be done as a matter of course.

In his founding affidavit Mr Khauoe deposes that he is
attorney, admitted to practise in this Court as K.T. Khauoe and Co..
Further
that on 31^st January 2000 his office noted an
appeal in this matter to which the number C of A (CIV) 4/2000 was
allocated.

4
He deposes further that "the record is still
being prepared and it was not on the

roll
in the last session of the Court of appeal".

He expresses his hope and belief that the matter will be
heard in the next session.

It is significant that at this stage of his averments
the deponent does not say who is preparing the record of proceedings
to the
Court of Appeal.

He proceeded thence to relate the story of how it came
about that his office failed to be represented before the Taxing
Master when
the bill of costs got to be dealt with and the allocatur
signed in favour of the 1^st Respondent.

In paragraph 13 he seeks to justify why he thought
better of proceeding in terms of Rule 49 and instead adopted the
procedure laid
down in Rule 50. In brief he indicates that Rule 49
could not apply because it presupposes that a review on taxation
would be in
respect of items objected to during taxation. Thus
because of absence of the representative from his side then the
procedure under
Rule 49 would therefore not apply. The only viable
alternative being adoption of the procedure set

5 out in Rule 50. He stresses that due to potential
prejudice to his clients, an urgent application in his view was the
only remedy.

The deponent reposes reliance on the Notice of Appeal
and avers that the Applicants "have prospects of success on
appeal regard
being had to grounds given". Reference was made to
a copy of Notice of appeal annexed and marked "KTK 4" in
paragraph
14.

It will be appreciated that even though more than ninety
percent of the averments in this proceeding relate to the grievance
directed
to the matter of taxation the writ of Execution that is very
relevant to the question of stay was not attached to the founding
papers
when the matter was first filed and perused by the Court. It
had to take the Court's effort to indicate that it would be
impossible
to have a complete view of the matter before it without
such a document. Apparently the deponent thought that because such a
document
might have been lying somewhere in the Court's file it
didn't quite matter that the Applicants' papers were thus incomplete.
Amazingly
this argument was persisted in in another leg of arguments
which arose later even in the face of My Learned Sister Guni J's
judgment
in CIV/APN/135/95 Mohlomi vs Sun International of Lesotho
(unreported) when dealing with

6 application of Rule 50. More of that later; save that
I shudder and demur at ....the implicit suggestion contained in the
attitude
that indexing and paginating of the record consisting of
papers to be filed in civil applications for ease of reference,
convenience
of the Court and promotion of efficiency are of no
consequence if this attitude is allowed to prevail. Otherwise how
could papers
jumbled up among bits and batches of documents filed
previously be thought to be at hand when no effort is made to ensure
that they
accompany newly filed records? I boggle therefore at the
insinuation that the Court is left to its devices to hunt for what
has not
been made part of the papers newly placed before it.

In his answering affidavit Moeketsi Sello the 1st
Respondent who was the Plaintiff in the main action deposes that
having read and
understood Mr Khauoe's founding affidavit as well as
the supporting affidavits made mention of earlier in this judgment,
reacts by
saying that on the date of hearing, his Counsel shall be
instructed to raise in limine the following factors :

"A. LACK OF AUTHORITY

(i) The application purports to be brought by Candi
Ramainoane and CR Communications(Pty)Ltd. Both applicants have not
filed any affidavits
in support of the prayers purportedly sought on
their behalf. No explanation has been proffered as to why these
applicants have not
filed any affidavits.

7

(ii) Second applicant is an artificial person. No proof
of authority has been placed before the Honourable Court that this
applicant
resolved to bring these proceedings.

(iii) The founding affidavit has been deposed to by Mr
Khauoe. Nowhere in his founding affidavit does he allege let alone
prove that
he has been authorised to make this affidavit and/or to
bring these proceedings on behalf of the applicants. He therefore has
no
authority to bring the proceedings on behalf of the applicants.
There is no indication let alone proof that this application is being
brought by the applicants. On this ground alone, the application
ought to be dismissed.

B.
NON-COMPLIANCE WITH THE RULES

(i) The applicants have approached the Court ex parte
for an order inter alia of stay of execution pending appeal to the
Court of
appeal. This is in stark violation of Rule 6 of the Court of
appeal Rules 1980. Again on this ground alone, the application ought
to be dismissed.

(ii) The appeal in respect of which the order is being
sought, was noted on 31^st January, 2000. Up to now some
four and half months later, no record of proceedings has been filed
with the Registrar nor served on
the Respondent. This is in stark
violation of Rule 3(7) of the Court of Appeal Rules. In the premises
there is no appeal pending
as the purported appeal cannot be
enrolled. Thus the application is being brought merely to frustrate
execution of the judgment of
this Honourable Court. Again on this
ground alone, the application ought to be dismissed.

(iii) The applicant is out of time not only in respect
of the lodging of the record but also in respect of security for
respondent's
costs of the appeal in terms of Rule 7(9) of the Court
of appeal Rules.

(iv) No-where in his founding affidavit has Mr Khauoe
shown what prospects of success the applicants have on appeal. He has

8

merely contended himself with a bare and unsubstantiated
allegation that "the applicants herein have prospects of success
on
appeal regard being had to the grounds given".

(v) Mr Khauoe has not in his founding affidavit, found
it necessary to deal with the question of balance of convenience. He
has completely
ignored this aspect of the applicants' case. The onus
is on the applicants in this regard and it has not been discharged.

(vi) The application purports to be a review of the
second Respondent's ruling. In this regard the application has been
brought in
stark violation of Rules 49 and 50 of the High Court.
Again on this ground alone the application ought to be dismissed.

In response to all the above Mr Khauoe in his replying
affidavit says : "IN LIMINE : As the points herein are but point
(sic)
of law, they will be argued", and astonishingly contends
himself with intimating that "However I wish to point out that
they are in law of no value". Emphasis supplied by me.

In the interests of saving time the Court solicited both
Counsel's concurrence in disposing of the matter in limine and
without necessarily
going into the merits unless anything special
would warrant such a move.

There being nothing special to warrant hearing arguments
on merit if the matter could be briefly dealt with in limine the
Courtaccordingly
heard Mr Phafane 's points

9
of law tabled in his well-prepared heads of
arguments. Mr Khauoe responded to

these arguments but unfortunately he had not filed any
heads of arguments at all in this application as a whole. The Court
accordingly
intimated that his heads if filed any time during the
weekend they would be welcome. He however phoned the following day to
express
his regrets that due to pressures mounting on his free time
he would advise the Court that whatever arguments he had advanced the
previous day would be all he would stand by.

I may in passing just point out that in C of A (CIV)
13/98 Lesotho University Teachers & Others vs National University
of Lesotho
was endorsed the attitude by the Court of Appeal; of this
Court relying on the authority of CIV/APN/475/96 'Mabataung Moletsane
vs
David Mohapi Moletsane (unreported) at p. 12 delivered by
Ramodibedi J who indicated that in applications of this nature if the
Court
is to owe any assistance to Counsel at all it is obligatory
that they file written heads of arguments. In CIV/APN/23/97 Lesotho
University
Teachers & Others vs National University of Lesotho
the Court found itself in the unenviable position of having to
inflict penalty
de bonis propriis on counsel who had not heeded the
strong admonition given by Ramodibedi J with respect to failure by
Counsel to
be of assistance to the Court by way of filing prepared
heads of arguments.

10

I emphasise this point because the respondent's counsel
is the one who has

lesser time than the applicants' counsel to comply with
this requirement. Thus where the respondent's counsel out of sense of
duty
to the Court has filed his heads no excuse can suffice for the
applicants' counsel's failure so to do.

As if this form of unwholesome laxity to Court business
was not enough, and notwithstanding that the respondent's counsel
being aware
of the pressure that the Court Order for set down of this
matter on 9^th June imposed on him had very plausibly and
timeously served his client's answering papers on the applicants'
counsel on 6-6-2000
leaving more than a whole two days within which
the applicants were to reply, nonetheless their replying affidavits
were received
neither by him nor by the Court until when the hearing
was already in progress on 9^th June, 2000. This is
absolutely unacceptable. Nohow in the circumstances would counsel for
the respondent have been able to address
points raised therein in his
heads of arguments or even supplementary heads were he to be in
favour of doing so.

In argument Mr Phafane indicated that where a company
such as the second Applicant commences or opposes proceedings by way
of a petition
or affidavit, it must appear that the person making the
affidavit on behalf of the Artificial person is

11

duly authorised to do so. I agree.

Indeed Watermeyer J in Mall (Cape) Pty Ltd vs Merino
Ko-operasie Bpk

1957(2) 347 at 351 paragraph G uses the exact words
employed by the Learned Counsel and goes on to refer to Lurie
Brothers Ltd vs
Arcache 1927 NPD 139 and other cases mentioned in
Herbstein and Van Winsen, Civil Practice of the Superior Courts in
South Africa
at pp 37, 38. The Learned Judge butresses his view with
which I am in respectful agreement by saying :

"This seems to me to be a salutary rule and one
which should apply also to notice of motion proceedings where the
applicant is
an artificial person. In such cases some evidence should
be placed before the Court to show that the applicant has duly
resolved
to institute the proceedings and that the proceedings are
instituted at its instance. Unlike the case of an individual, the
mere
signature of the notice of motion by an attorney and the fact
that the proceedings purport to be brought in the name of the
applicant
are in my view insufficient. The best evidence that the
proceedings have been properly authorised would be provided by an
affidavit
made by an official of the company annexing a copy of the

resolution Where as in the present case, the

respondent has offered no evidence at all to suggest
that the applicant is not properly before the Court, then I consider
that a minimum
of evidence will be required from the applicant".

It stands to reason that where as in the present
proceeding the respondent has challenged the propriety of the
applicants being before
the Court more than a mere

12 minimum of evidence is required. But as it is,
not even the minimum has been

placed before Court. On this ground alone it seems to me
that the application for stay ought to be dismissed.

Indeed Mr Khauoe reposed his faith on Moosa and Cassim
NNO vs Community Development Board 1990(3) SA 175 for the view he
advanced
in the instant case that ratification by way of annexing a
resolution to a replying affidavit would suffice to remedy the
irregularity
objected to by the 1^st respondent. I asked
him if in Moosa for that to be done there was no leave sought of
court to condone the said ratification and he
told me there was none.
But I have since had a look at Moosa and since discovered that the
resolution so accepted in that case was
an amendment to the founding
affidavit and not as in the instant case a document filed with the
replying affidavit as a matter of
course. Moreover in Moosa the
second leg relied on for the locus standi was the delegated authority
given to the Board by the Minister.
In the instant case there is no
such a parallel. In any event I am of the view that for a
ratification that is resorted to after
objection by the respondent
leave of court should be sought.

Mr Phafane relying on R.T. Morrison(Pty)Ltd vs Belle
1981(1) LLR 206

13 submitted that the deponent to the founding affidavit
in the instant matter has failed to place before court a properly
worded
resolution indicating that the 2^nd applicant
actually resolved to institute these particular proceedings as
opposed to the different proceedings which were brought
by way of
action that led to the trial. In Morrison there was in fact a
resolution but it was of a general character and there was
lack of
proof that proceedings were at the instance of the artificial person.
Learned Counsel accordingly submitted lack of a properly
worded
resolution in the instant matter is fatal. I agree.

Indeed in the instant matter the resolution attached to
the replying affidavit does not seem to relate even to the instant
proceedings
but to the proceedings on appeal.

It reads :

CR Communications Pty Ltd P.O. Box 7234 Maseru

RESOLUTION

CORAM: PRESENT

AGENDA : APPEAL IN CIV/T/19/97

RESOLUTION : 1. That the company should note an appeal

2. That C R Ramainoane is given power of attorney to
nominate and chose(sic) the lawyer to prosecute the

14 appeal

3. That C R Ramainoane is given power to delegate his
powers in this regard.

DATED at Calton Centre Maseru this 25^th Day
of January 1999(sic)

Signed : Secretary/Director

In Pretoria City Council vs Meerlust Investments Ltd
1962( 1) SA 321 at 325 Ogilvie Thompson said -

"Since an artificial person, unlike an individual,
can only function through its agents, and can only take decisions by
the passing
of resolutions in the manner prescribed by its
constitution less reason exists to assume, from the mere fact that
proceedings have
been brought in its name, that those proceedings
have in fact been authorised by the artificial person concerned."

I
am in respectful agreement with this statement.

The circumspection made by Mr Phafane for his submission
that whereas in urgent applications an allegation of authority may in
a proper
case suffice has immediate relevance to the remarks of
Mahomed J A in Central Bank of Lesotho vs Hae Phoofolo LAC 1985-1989)
253
at 259 that

'There is no invariable rule which requires a juristic
person to file a
formal resolution, manifesting the authority of a
particular person to
represent it in any legal proceedings, if the
existence of such authority
appears from other facts ".

15

However Mr Phafane was quick to indicate that it is of
pivotal importance to note that in the instant case no such
allegation of authority
has been made in respect of both the first
and second applicants. I indeed have observed that the resolution in
the instant matter
is of no relevance to these proceedings. It does
not say that the present proceedings be instituted even though filed
at the replying
stage. On the question of ratification therefore it
is significant that the resolution filed and annexed to the replying
affidavit
makes no reference to the instant matter of application for
review of taxation and application for stay of execution before this
Court. There is no indication either that the 1^st
applicant authorised the deponent in these proceedings. The deponent
himself has given no evidence that he has been authorised by
the 1^st
applicant. He only contends himself with saying he has a power of
attorney to represent the applicants. But the power of attorney
which
related to proceedings in the trial is not evidence as envisaged in
applications of the instant nature. Indeed power of attorney
entitles
the legal practitioner to represent his client in pursuing or
defending a legal case. That should not be understood to mean
he is
thereby entitled to give evidence on his client's behalf in
application proceedings without stating in evidence or production
of
a resolution the authority his principal has granted him. There is a
vast difference therefore between a power of attorney

16
and a resolution including the requirement that
in evidence it should be borne out that the witness has authority to
represent the
other. Unfortunately it seems this distinction is
incomprehensible to the applicants' deponent.

I accept therefore Mr Phafane 's submission that the
affidavit filed in support of the present application has to be
thrown out as
having been deposed to by an uninvited witness.
Pretoria City Council above is the authority to rely on for this
proposition.

The other leg of Mr Phafane's argument extended to his
attack on the applicants' indifference to the requirement to observe
and comply
with Rules of Court.

He submitted that this application has been brought in
violation of Rule 6 of the Court of appeals Rules 1980.

That particular Rule reads in subsections (1) (2) and
(3) as follows :

(1) Subject to the provisions of the sub-rules infra
the noting of an appeal does not operate as a stay of execution of
the judgment
appealed from.

17

2. 
   The appellant may at any time after he notes an appeal,
   apply to the
   judge of the High Court whose decision is appealed
   from for leave to
   stay execution.

   
   

3. 
   The application referred to in sub-rule (2) herein
   shall be brought by
   notice of motion, supported by affidavit,
   delivered to the respondent and
   filed by (sic) the Registrar not
   less than seven days before the date set
   down for hearing the
   application".

   
   

(I think the word by located before the phrase the
Registrar immediately above was meant to read with).

In violation of the last mentioned sub-rule above the
applicants had to be ordered to go and serve the respondent because
they had
sought to obtain an order for stay ex parte and without
notice to the other side.

I may go further and observe that in the papers as they
stood ex parte there was not even mention of an undertaking to give
security
for payment of the respondent's

costs.

I thus have formed the view that the 1^st
respondent's quarrel with the applicants' non-compliance with Rule 6
of Court of Appeal Rules 1980, and arguments raised in support
of the
1^st respondent's queries constitute an impregnable
garrison of daunting robustness against the applicants' vain
counter-attacks.

18
The next objection was in respect of the
applicants' non-compliance with Rule

3(7) of the Court of Appeal Rules 1980. That Rule reads
:

"In every appeal the appellant shall, not later
than three months after

notice of appeal has been filed file with the Registrar
five

copies of the record of the proceedings of the High
Court and two copies of such record on each respondent".

Mr Khauoe while conceding that no record of proceedings
has been filed maintains that the applicants are not to blame and
that it
would be unfair to penalise them for something that is beyond
their control. Indeed consistent with this view is his own reply in
a
sworn affidavit that (AD PARA 5 AT 5.3)

"I aver further that because the preparation of
record is not in the hands of the applicant but of the Registrar, and
appellant
cannot in any way be punished for the failure of the
Registrar of High Court who is also the Registrar of Court of
Appeal".

In seeking thus to lay the blame at the door of the
Registrar for failure to prepare the record - a duty that in terms of
clear reading
of the relevant Rule is peremptorily placed on the
appellants' shoulders - Mr Khauoe rings a familiar note rung by Mr
Pheko in a
case of uncanny similarity to the instant one, where as in
the

19 present case counsel for appellant was steadfastly
advancing an argument that despite the clear reading of the rules, in
practice,
the rule was not being observed.

The case in point is C of A(CIV) 20 of 1987 'Maphillimon
Motlalentoa vs Monyane Monyane and Anor, (unreported).

The crucial aspect of that case to be decided by the
Superior Courts had originated in the Judicial Commissioner's Court.
The appellant
was maintaining that there was an appeal "pending"
in the High Court while the respondents were of a contrary view.

Mahomed JA as he then was outlined the facts as follows
:

"The learned judge in the Court a quo held that
there was no appeal pending in the High Court because of a failure by
the appellant's
husband to comply with the requirements of 52(1) of
the High Court Rules which reads as follows :

'52(l)(a) when an appeal has been noted from a judgment
or order of a subordinate court the appellant may within four weeks
after
noting the appeal apply in writing to the Registrar for a date
of hearing.

(b) Notice must be given to all other parties interested
in the judgment appealed against that such application has

20
been delivered.

(c)

(d)

Mr Pheko who appeared for the appellant conceded that
Rule 52( 1) was

indeed of application to the appeal and that the
requirements of

this Rule had not been complied with. He contended,
however, that there had been a practice which had been operative for
many years
in terms of which a prospective appellant who had obtained
leave to appeal from a Judicial Commissioner pursuant to the
provisions
of section 28(3)(b) of the Central and Local Courts
Proclamation No.62 of 1958, simply took no further steps to prosecute
the appeal
until he received further notification of the matter from
the Registrar.

Mr Pheko did not attempt to argue that an adherence to
this practice
could be a substitute for proper compliance with the
express
requirements of Rule 52(1)

Mr Pheko argued that in the instant case it (judicial

discretion) was not judicially exercised. I do not
agree.

There were weighty grounds in support of the conclusion
arrived at by
the Court a quo ".

As in the above-cited case where a point was made that
provisions of Rule 52(1) are clear and peremptory, the provisions of
Rule 3(7)
in the instant case are equally so. While those of 52(1) at
the time were said to have been in existence for 7 years, the ones in
the instant case have been in existence for almost 20 years to-date.
In both the above-cited case and the instant one the appellant/s
were

21 represented by experienced counsel, a further point
of similarity is that the notice of motion contained no prayer for
condonation.
While in the above-cited case the application for
condonation was not made by the prospective appellant aggrieved by
the judgment
but by his wife, in the instant case evidence has been
proffered by an uninvited witness. In both these cases no averments
were made
with regard to the crucial question of balance of
convenience. Needless to state just as in the above-cited case the
High Court and
Court of Appeal ruled that there was no appeal pending
I feel obliged for similar reasons to rule that in the instant case
there
is no appeal pending and therefore that this application be
dismissed on that ground alone. Otherwise it would be absurd to say
ditto
to the argument that an adherence to a practice that is
patently wrong should serve in place of proper compliance with the
express
requirements of Rule 3(7) of the Court of appeal Rules 1980.
While straining to persuade the Court that it would be unfair to
depart
from this practice he alluded to Mr Khauoe conceded the
existence of the Rule in question. When asked what would happen if an
applicant
who has not paid for preparation of his or her appeal and
decides to abandon it despite the Registrar having gone into the
trouble
of completing the record, Mr Khauoe said as officers of the
Court the attorneys are supposed to be faithful and keep their word
to
the Registrar.

22
The virtue of that Utopian view in my opinion is
off-set by the real danger of

the Registrar being left with an egg on her face. For
were there no such danger the words appearing in CIV/APN/336/88
'Makoetle
Koetle vs Benjamin Sello

(unreported) at p.3 would not have been printed to the
following effect:

"I make a distinction between the instant case and
that of Montseng Letsoela vs Michael Nkhope CIV/APN/140/87
(unreported) because
in the latter case the Attorney had gone out of
his way to deceive his client by saying that the appeal had been
noted when he knew
fully well that none had been".

Thus I am of the firm view that the practice advocated
by Mr Khauoe is at variance with clear and express provisions of Rule
3(7).
It would be imprudent therefore to follow it in the face of
that law.

Mr Phafane argued further that Rule 3(9) of the Court of
appeal Rules 1980 has not been complied with.

That Rule reads :

"If the judgment appealed from in a civil matter
has not been carried into execution by the respondent, the appellant
shall,
before lodging with the Registrar copies of the record, enter
into security to the satisfaction of the Registrar for the
respondent's
costs of the appeal".

23
I observe that this Rule has not been complied
with. The risk for such failure falls on the applicants therefore.

Mr Phafane having ascertained from Mr Khauoe that the
application for review is solely on the basis of Rule 50 and no
longer 49 of
the High Court Rules indicated that this Rule too has
been violated.

That Rule reads :

"(l)(a) Save where any law otherwise provides, all
proceedings to bring under review the decision or proceedings of any
subordinate
or other inferior court and of any tribunal, board or
officer or any person performing judicial, quasi-judicial or
administrative
(duty) shall be by way of notice of motion directed
and delivered by the party seeking to

review such decision or proceedings to all other parties
who may

be affected by the decision or proceedings."

(b) directs that the notice shall call upon persons to
whom notice is addressed to dispatch within 14 days of receipt of the
notice,
to the Registrar of this court the record of such proceedings
and to notify applicant that he has done so.

Mr Khauoe argued that the record is already in place
before court thus implying there is no need to comply with the terms
of the Rule
as laid down in it. But this is in contradiction of an
important decision on the application of Rule 50. The decision is

24
in CIV/APN/135/95 Pinkie Mohloai vs Sun
International of Lesotho t/a Maseru sun

Cabanas & Casino (unreported) by Guni J who said at
page 10 :

"According to Rule 50(1 )(b) the onus is on the
applicant to show the Court that he did call upon the respondent to
dispatch
the said record and

respondent has not heeded the call There is no duty

automatically placed upon the respondent, without being
asked to, to dispatch the record of the proceedings sought to be
reviewed".

Subsection (3) is of crucial importance in that it
requires that the applicant shall furnish the Registrar with two
copies and each
of other parties with one copy thereof in each case
certified by the applicant as true copies.

The one that I happened to lay my hands on and which
must be the one that the Court was told non-chalantly that it is
already before
the Court does not bear this essential requirement.
Had provisions of Rule 50 been regarded as of any consequence this
could not
have been the case. Even the urgency that was conceived in
bringing this application was not warranted. It was at best
self-inflicted
: the applicants having sat back for well over 4
months of noting of the appeal and only coming at a rush to Court for
intervention
when a Writ of Execution has been or is being inflicted
upon them. That smacks of lack of bona fides and shows scant regard
to the
requirement of the law that litigation must come to finality.
That there is a rule that appeal to the

25 Court of Appeal is no stay is in part a recognition
of this fact. It is clear from this therefore that the applicants
would gleefully
sit back and temporise while the judgment creditor is
denied the fruit of his victory. That should not be allowed as it
says ditto
to the false virtue of delay.

In the light of these numerous breaches of the Rules it
would be essential to direct attention to what the Superior Courts
have repeatedly
been saying in an endeavour to illustrate that when
prescribed forms and procedures are ignored causes are lost or at
least that
such is an unacceptable and intolerable state of affairs.

In Strong Thabo Makenete vs Major General Lekhanya &
Ors 1991 -92 LLR

&LB 126 at pp 127 and 128 Ackermann J A in a searing
statement of admonition said

"It has become clear during the present session
that many practitioners are displaying a lamentably lax attitude to
the rules
of Court bordering on the contemptuous. The attitude
evinced seems to be that the rules are unimportant, can be
disregarded at will
and that non-compliance will simply be
over-looked or condonation granted as a matter of course or right. It
is time that practitioners'
minds were disabused of this much
mistaken impression and the misconceived idea that their disregard of
the rules will be overlooked
because of the prejudice their clients
might suffer. Clients who suffer loss because of omissions on the
part of their legal representatives
may, in appropriate
circumstances, have remedies

26 against their advisers".

In Leribe Poultry Cooperative Society vs Minister of
Agriculture & 2 Ors

1993-94 LLR & LB 190 at 191 it was said :

"There may be occasions when failure to file a
record timeously is completely beyond the control of appellants or
their legal
representatives. This does not excuse practitioners from
seeking condonation in the prescribed manner."

See also Federal Employers Insurance Co. vs Mckenzie
1969(3) 300 at 360 at 362 and 363 where Holmes J A said :

"As to the need for avoiding unnecessary delays in
the administration of
justice, the person primarily affected is
the respondent "

Only if it can be shown that the appellants' delay was
not wholly avoidable condonation may be granted. Otherwise it may
not. In the
instant case nothing has been shown as indicating steps
the applicants took to ensure that the record is placed before
relevant parties
and officers within the times prescribed.

I accept Mr Phafane 's submission that in the instant
case there has been a flagrant breach of the rules of Court in more
than one
respect and no acceptable

27 explanation has been proffered.

I accept also the statement that although this Court has
inherent power to condone non-compliance with the Rules, condonation
is not
just there for the taking. Special circumstances must be
placed before court in a substantive application for such condonation
to
enable the court to consider, inter alia, the degree of such
non-compliance, prospects of success, convenience of the court, the
magnitude of the case, the question of avoidance of unnecessary delay
in the administration of justice and the need for finality
to
litigation, as neatly put by Ramodibedi J in Everistus R. Sekhonyana
& Ors vs The Attorney-General & Ors 1995-96 LLR &
LB 290
at pp 294-6.

At 296 the learned judge having referred to Michael
Mthembu vs Lesotho Building Finance Corporation c of A (CIV) No.4 of
1984 by Schutz
P quoted with approval the extract from P.E. Bosnian
Transport Works Committee and Others vs Piet Bosman Transport Pty Ltd
1980(4)
SA 794 A at 797 where Miller J said most aptly :

"In a case such as the present there has been a
breach of Rules of Court in more than one respect and where in
addition there
is no acceptable explanation for some periods of delay
and, indeed, in respect of other

28

periods of delay, no explanation at all, the application
should, in my opinion, not be granted whatever the prospects".
Emphasis
supplied by me.

If notwithstanding the prospects a breach of the Rules
warrants refusal of a similar application to the instant one then no
firmer
illustration of the need to avoid laxity with application of
the Rule can be made.

In Kutloano Building Construction vs Matsoso & 2 Ors
LAC (1985-1989) Schutz P in illustrating the importance of observing
prescribed
procedures and forms contained in the Rules of Court said
:

"I am afraid that my decision may smack of the
triumph of formalism over substance. But forms are often important
and the requirements
of the sub-rule are such".

I have observed on many occasions that with litigants
and practitioners who are keen to ensure that their matters are
brought to Court
in time and in turn that appeal Court records are
rendered ready without delay, in a matter of two days after the
Judgment in the
High Court has been delivered the record is ready for
binding not at the instance of the Registrar but of the appellants.
This would
tend to give support to Mr Phafane's negative response to
Mr Khauoe's assertion that the office of the

29 Registrar is the one that prepares records and
therefore which should continue to do

so.

I would grant counsel of a veteran's experience by
saying in fact the Registrar should keep a Calender of each appeal
being noted
and when the time required for preparation of the record
lapses without any move by the appellants he/she should send the High
Court
file to the President of the Court of Appeal informing him and
the parties that the file will be called at next session of the
Appeal
Court for purposes of being struck off for want of
prosecution.

As reflected in 'Makoetle Koetle vs Benjamin Sello
CIV/APN/336/88 (unreported) at page 2 where 'Maphillimon Motlalentoa
above is referred
to with approval the extract of the High Court
decision endorsed by the Appeal Court in the latter decision is of
such salutary benefit
that I should even at the cost of prolixity in
this judgment, cite it. The learned Judge of the High Court refused
condonation holding
that there was no justification for the practice
relied upon. (This is the practice that was in violation of Rule
52(1) of the High
Court Rules). He said :

"To permit the Registry and practising attorneys to
become so slack in bringing a matter as important as an appeal before
this
Court is, in my

30

opinion, unacceptable. I am certainly not willing to
condone it. The correct procedure is simple and straight forward and
the Registrar
must see to it that it is followed in future".

The same can and should be said in regard to the
direction to be followed as stated in Rule 3(7) of the Court of
Appeal Rules 1980.

See also Tsie B Pekeche vs Motsoahae T. Thabane &
Ors CIV/APN/259/98

(unreported) at pp 8-9 by Ramodibedi J.

The onus to show that balance of convenience favours the
stay of execution rests on the applicants. No evidence has been
adduced or
attempt made to discharge that onus. On that ground alone
this application ought to be dismissed.

The first respondent and his counsel have more than
amply justified their contention that this is a case where the Court
should register
its displeasure at the flagrant disregard of the
Rules of Court and the unwarranted attitude that condonation thereof
would be given
out with the rations. But since no specific prayer was
made for costs on a higher scale than on ordinary scale (see C of A
(CIV)
No. 13/98 and CIV/APN/223/97 Lesotho University Teachers and
Researchers Union vs National

31 University of Lesotho) the Court even though being at
large to award costs on a higher scale mero motu has decided in
dismissing
this application to award costs on party and party scale
only.

The application is accordingly dismissed with costs.

JUDGE
12^th June, 2000

For Applicants : Mr Khauoe
For Respondents : Mr
Phafane