CIV/APN/255/00
IN THE HIGH COURT OF LESOTHO
In the matter between:
MOHAU MATJAMA APPLICANT
and
FIHLANG MATJAMA RESPONDENT
JUDGMENT
CORAM : THE HON. MR JUSTICE S.N. PEETE
DATE : 3rd NOVEMBER, 2004
Headnote
Appeal'- Appeal form the Judicial Commissioner's Court not timeously prosecuted - Rule 52 (1) of the High Court Rules 1980 - Discretion of the Court to grant condonation for non-compliance. Good reasons to be shown -scope of Delay precipitated by change of attorney.
Where the respondent has only lodged an application for leave to appeal in the Judicial Commissioner's Court, there is no formal appeal before the High Court to reinstate. And appeal can only be noted after the Judicial Commissioner has made his/her Certificate.
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The court may in the exercise of its judicial discretion condone delay for good reason shown. Inordinate non-compliance with the provisions of Rule 52 where such non-compliance has been occasioned by sudden change of attorney must be considered along with the rights for livelihood upon the fields in question.
The court must however put the put the defaulting litigant to terms in order to bring finality to litigation.
As regards costs, the respondent ordered by the court in exercise of its discretion to pay the costs of the application lodged by the applicant.
1. Since July 2000 when this application was first lodged in the office of the Registrar, much water has gone under the bridge and after many set-downs (I counted over ten of such) and many postponements, the matter was finally heard after some three years in November 2003. I deeply also regret the lateness of my judgment.
2, In his Notice of Motion, the applicant prayed for a declaration order couched as follows:
Declaring the appeal in JC 75/88 a matter of the Judicial Commissioner's Court noted on the 1 f September 1993 to have lapsed,
Directing that the judgment in JC75/88 a matter of the Judicial Commissioner's Court be carried into execution.
Directing the Respondent to pay costs of this application.
Granting Applicant further and/or alternative relief
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3. Historical Background
The applicant and respondent are relatives who are disputing some three fields situate at Ha Phalole in the district of Maseru.
4. It is clear from the papers that in its judgment dated 14th September 1993, the Judicial Commissioner upheld in favour of the
present Applicant Mohau Matjama an appeal form the Central Court (JC 75/88). It is common cause and it is alleged by respondent that he filed an "application for leave to appear on the 17th September 1993 also attaching thereto his extensive "Grounds of Appear signed by (now Justice) W.C.M. Maqutu (then attorney).
5. Respondent states that the appeal was not procedurally prosecuted because the then Mr W.C.M. Maqutu was elevated to the bench on the 1st day of October 1993 and his chamber work was taken over by Mrs Kotelo.
6. It was only after the present applicant Mohau Matjama had filed the present application to have the 1993 appeal declared lapsed that on the 26th August 2002 the respondent Fihlang Matjama suddenly out of the blue filed an application praying that the appeal in CIV/A/15/94 be reinstated.
7. The respondent had in the meantime also obtained ex parte an interim order from the Maseru Subordinate court (date stamped 2nd November 2004) restraining the present applicant from ploughing or
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in any way using the field situated at Ha Phalole .... which form subject of JC75/88. I will assume that the interim order is still
extant.
8. The timing of the respondent's application "for reinstatement" of the appeal and the relief claimed demonstrate that the respondent accepts or at least concedes that his notice of appeal had duly lapsed in the meantime.
9. It is not in dispute that on the 27th April 1994 (some seven months after noting his application for leave to appeal) the respondent attempted to have the matter set down for hearing in terms of Rule 52 (1) (a) of the High Court Rules 1980. The application is mistakenly headed "IN THE JUDICIAL COMMISSIONER'S COURT" but it is addressed to the Registrar of the High Court.
10. It is clear that since his application for leave to appeal dated 17th September 1993 and his application seven months later to have the matter set down for hearing, the respondent did absolutely nothing thereafter for another 8 years. It has been the old policy of law that "Law succours the vigilant and not the slumberous."
11. I took pains to inspect the JC 75/88
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12.Rule 52 of the High Court Rules 1980 reads:-
"52. (1) (a) When an appeal has been noted from a judgment 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.
(b) Notice must be given to all other parties interested in the judgment appealed against that such application for a date of hearing has been delivered.
(c) If the appellant fails to apply for a date of hearing within the four weeks as aforesaid, the respondent may at any time before the expiration of two months from the date of the noting of appeal set down the appeal for hearing giving notice to the appellant and all other parties that he has done so.
(d) If neither party applies for a date of hearing as aforesaid the appeal shall be deemed to have lapsed unless the court on application by the appellant and on good reasons shown shall otherwise order.
(e) If an appeal lapses but a cross appeal has been noted the cross appeal shall also lapse unless application for a date of hearing is made to the Registrar for a date of hearing of such cross appeal within three weeks of the date of lapse of the appeal. " (My underline)
13. The Court of Appeal has often stated that Rules of Court must always be complied with and the court should not condone noncompliance where no cogent reasons are not shown. In my view the main purpose behind Rule 52 is to expedite finality of appeals from the Subordinate Courts; a litigant who appeals a Subordinate or Judicial Commissioners Court's decision must expeditiously
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prosecute his appeal in the High Court so that his rights or those of the other party be finally determined by the superior court.
14. In casu it was only after the applicant sought a declaratory order in July 2000 that the respondent now wishes to have his appeal reinstated. I would say "revived" and reinstated.
15. It seems to me that failure to apply for a date in accordance with the provisions of Rule 52 (1) lapses the appeal unless good reasons are shown convincing the court to reinstate the same; where the appeal has not been prosecuted timeously within the period and in the manner prescribed under this Rule, the remedy available to the defaulting litigant is to apply for condonation and extension of time for a good cause shown (Motsamai v Read and Another - 1961 (1) SA 173 - where it was held that where an appeal has lapsed in terms of the Rule for want of prosecution there is "until relief has been granted, no appeal before (this) court" - see also De Sousa vs Cappy's stall - 1975 (4) SA 958.
16. In his papers, the respondent is not applying for condonation of noncompliance but for a straight forward reinstatement of the appeal -whose notice in my view - was never made. An application or leave to appeal is not "notice of appeal." There are many procedural steps that ought to have been taken before the appeal could be said to be properly before this court.
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17. The consideration of this application does not and should not however involve an inquiry of the merits of prospects of success, the issue being limited, in my view to the question, whether the delay of the respondent can be regarded as being inordinate. In the case of SA Shipping Co. Ltd vs Liquidators Promoters it was held that where there is a time limitation whether statutory or in terms of the rules of court the High Court has the inherent right to grant condonation where principles of justice and fair play demand it and where the reasons for non-compliance with the time limits have been explained to the satisfaction of the court. See United Plant Hire (Pty) Ltd vs Hills - 1976 (!) SA 717 at 720 E-G for principles to be considered when exercising the judicial discretion in this regard.
18. It has been stated that condonation of non-observance of rules is by no means a mere formality - Meintjies v HD Combrink (Edms) BPK - 1961 (1) SA 262. Yet it has also been stated that a lengthy delay may be condoned if when weighed against other factors such as a lack of means and "assured" success on appeal explanation for it is satisfactory or forgivable. A long delay will not be condoned if it is clear that the applicant had throughout desired not to prosecute his appeal.
19. In casu it appears that having caused the application for leave to appeal, the respondent reposed the responsibility for the
prosecution upon his attorney. In this case I take due cognizance of the fact that the then attorney Mr W.C.M. Maqutu was soon thereafter elevated to the Bench of the High Court and it is probable that the appeal was
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not pursued as it ought to be. See Erasmus - Superior Court Practice B1-361-363. Any remissness through changes of attorneys is relevant but not conclusive nor decisive.
20. I seem to take the holistic view that in Lesotho fields are the sometimes the only means of subsistence, if not survival; there seems to have existed a protracted dispute over these fields. Despite the long delay which would otherwise indicate that respondent sat on his laurels and only rises up again only to frustrate the decision of the Judicial Commissioner favourable to the present applicant, I have decided to condone the non-compliance with the Rules. I however put the respondent to strict terms that he should do all that is necessary in terms of Judicial Commissioners Court's and High Court Rules and that this exercise to be completed within 30 days and date of hearing be duly appointed.
Order: (1) Both applications by applicant and by respondent are dismissed.
(2) Respondent must however bear the applicant's costs for his application.
S.N. PEETE
JUDGE
For Applicant : Mr Phafane
For Respondent : Mrs Kotelo
