CIV/APN/313/00
IN THE HIGH COURT OF LESOTHO

In the matter between:

SEROENG MPHENETHA APPLICANT

and

TANKISO NTSEBENG 1^st RESPONDENT

TANKISO NTSEBENG 2^nd RESPONDENT

JUDGEMENT

Delivered by the Honourable Acting Mrs Justice A.M.
Hlajoane on the 9^th August, 2001

This was an application for an order declaring the
Respondents' appeal noted on the 24^th May, 1999 to have
lapsed. The matter had started at the Magistrate's Court in CC
1134/94, and judgement had been granted against
the Respondents on
the 29^th October, 1997.

On the 9^th August, 2001, Mr Mohau appeared
for the Applicant and there was

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no appearance for the Respondents. Mr Mohau in moving
his application had indicated that the Respondents had clearly
displayed the
attitude of reluctance to prosecute their appeal. I
therefore granted the order and showed that reasons would follow.
This case was
a typical portrait of Litigants who would just note an
appeal merely to frustrate the execution of judgement against them or
apply
for rescission of judgement for same purposes.

Turning now to the facts of this Application. The
Applicant was still the Applicant in the Court a quo, similarly were
the present
Respondents the Respondents.

The case arose out of the negligent driving of the first
Respondent's vehicle by the second Respondent, which resulted in a
collision
with Applicant's vehicle. According to the record of the
case, the Applicant who was represented by Mr Mohau, had given his
evidence
together with his witnesses. They had been duly
cross-examined by the Respondents' Counsel. The Respondents had
failed to testify
in their defence, neither did they show up, despite
the fact that their Counsel had informed the Court that he had duly
notified
them of the date of hearing. Judgement was thus given
against them.

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It was only a year after judgement had been granted,
that on the 7^th November, 1998 Respondents applied for
rescission of judgement. The Application was on the 12^th
May 1999 refused by the Magistrate. The Respondents then noted an
appeal to this Honourable Court on the 24^th May, 1999.

Counsel for the Applicant, Mr K. Mohau approached the
Court for a Declaratory Order, relying on Section 52 (1) (a) and (d)
of the
High Court Rules 1980. This was after he had served the
Respondents' Counsel with notice in terms of Rule 39(2) of the High
Court
Rules, on the 6^th December, 2000; inviting him to
approach the Office of the Registrar to come and set the matter down
for hearing. The notice of set
down was also served on the
Respondents' Counsel on the 10^th May, 2001.

The Rule read as follows:-

Rule 52(1) (a) "When an appeal has been noted
from a judgement

or order of a Subordinate Court, the Appellant may
within four weeks after noting of the appeal apply in writing to the
Registrar
for a date of hearing."

52(l)(d) "If neither party applies for a date of
hearing as

aforesaid the appeal shall be declared to have

lapsed unless the Court on good reasons shown shall
otherwise order."

Rule 52 goes on to show under subsection (4)(a) that:

"It shall be the duty of the Appellant or of the
party who
has applied for a date of hearing to prepare and
lodge
with the Registrar four typed or photocopied copies of
the
record of the case "

When I proceeded to deal with this Application, the
Respondents had not prepared the record for appeal neither was a
photocopy made.
It was the Applicant's Counsel who had made himself
photocopied scripts from the Magistrate Court, whilst the Respondents
had shown
no interest in the matter that had been pending before
Court. The Respondents had failed in all material respects to show
that they
had been genuine when they noted this appeal. Contrary to
the mandatory Rules of this Court, this had been evidenced by the
following:-

1. 
   They failed to prepare the record of proceedings either
   in the form of
   a typed record or photocopy.

   
   

2. 
   They failed to set the appeal down for hearing.

   
   

3. 
   They failed to give security for costs,

   
   

and this as already stated had been a clear indication
that their noting of appeal was merely to delay and frustrate the
execution
of judgement against them. See Dr S.M.

4

Kaleem vs M.Hlajoane 1997-98 LLR and LB 506. They never
intended to prosecute this appeal because even from the Magistrate's
Court
it was only after a year had gone and had been served with a
writ of execution that they had unsuccessfully decided to apply for
rescission of judgement.

In the result, the Application for an order declaring
the appeal to have lapsed was granted with costs as prayed for in the
notice
of motion.

A.M. HLAJOANE ACTING JUDGE

13^th August, 2001

For
the Applicants: Mr Mohau

For
the Respondents: Mr Sekake

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