Moeketsi Mohlahatsa & Ano. V The Commander LDF & Ano. (C of A (CIV/REV) No. 39/2025) [2025] LSCA 63 (7 November 2025)

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(C of A (CIV/REV) No. 39/2025) [2025] LSCA 63 (7 November 2025) Copy Media Neutral Citation [2025] LSCA 63 Copy Hearing date 13 October 2025 Court [Court of Appeal](/judgments/LSCA/) Case number C of A (CIV/REV) No. 39/2025 Judges [Damaseb AJA](/judgments/all/?judges=Damaseb%20AJA), [Van der Westhuizen AJA](/judgments/all/?judges=Van%20der%20Westhuizen%20AJA), [Mathaba AJA](/judgments/all/?judges=Mathaba%20AJA) Judgment date 7 November 2025 Language English Summary ###### Flynote Administrative Law — Review — Delay in institution of proceedings — Unreasonable delay — Effect — Continuing cause of action — Distinction between gratuity and pension — Gratuity payable once-off and does not give rise to a continuing cause of action — Pension payable periodically and giving rise to a new cause of action each month when short-paid — Review dismissed for unreasonable delay in respect of gratuity but allowed regarding pension — Matter remitted to High Court. Read full summary * * * Skip to document content ###### Flynote Administrative Law — Review — Delay in institution of proceedings — Unreasonable delay — Effect — Continuing cause of action — Distinction between gratuity and pension — Gratuity payable once-off and does not give rise to a continuing cause of action — Pension payable periodically and giving rise to a new cause of action each month when short-paid — Review dismissed for unreasonable delay in respect of gratuity but allowed regarding pension — Matter remitted to High Court. 1 LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C OF A (CIV/REV) NO:39/2025 CIV/APN/0094/2023 In the matter between: MOEKETSI MOHLAHATSA 1ST APPELLANT THUSO MOTANYANE 2ND APPELLANT AND THE COMMANDER, LDF 1ST RESPONDENT ATTORNEY GENERAL 2ND RESPONDENT CORAM: DAMASEB AJA VAN DER WESTHUIZEN AJA MATHABA AJA HEARD: 13 OCTOBER 2025 DELIVERED: 07 NOVEMBER 2025 FLYNOTE Administrative Law — Review — Delay in institution of proceedings — Unreasonable delay — Effect — Continuing cause of action — Distinction between gratuity and pension — Gratuity payable once-off and does not give rise to a continuing cause of action — Pension payable periodically and giving rise to a new cause of action each month when short-paid — Review dismissed 2 for unreasonable delay in respect of gratuity but allowed regarding pension — Matter remitted to High Court. The appellants, both retired members of the Lesotho Defence Force Air Wing, challenged the decision of the High Court dismissing their review and declaratory application on the ground of unreasonable delay. Their claim was that a 45% Air Wing allowance, historically included in pension computations, had been unlawfully excluded from their gratuity and pension payments upon retirement in 2009 and 2010. Held, that the appellants’ explanation for the 13–14-year delay in instituting proceedings was unreasonable as regards gratuity, a once-off payment whose cause of action arose at the time of retirement. However, underpayment of pension constitutes a continuing wrong, as each short payment gives rise to a new cause of action. Held, further, that while claims for accumulated arrears beyond a reasonable period before filing are barred, the appellants are entitled to correction of their pension computation on a continuing basis going forward. Held: 1. The High Court erred in upholding the defence of unreasonable delay in respect of the pension claim. 2. The claim concerning gratuity was rightly dismissed for unreasonable delay. 3. The matter is remitted to the High Court to proceed on the merits of the pension claim. 4. No order as to costs. Result: Appeal partly upheld; matter remitted. 3 JUDGMENT MATHABA AJA Introduction [1] The appellants call into question the judgment of the High Court (per Khabo J) dismissing their application for review and a declarator on the ground that it was not instituted within a reasonable time. Condonation [2] The appellants applied for condonation for late noting of the appeal. The application was not opposed and was granted following due consideration. Background Facts [3] The facts giving rise to the dispute are undisputed and simple. Likewise, the dispute is a narrow one. I proceed to provide the background focusing only on facts that are pertinent to the resolution of the appeal. [4] The appellants were members of the Lesotho Defence Force, (LDF), respectively holding the ranks of Colonel and Lieutenant General. The pair retired in 2010 and 2009 respectively. During their employment at the LDF, the appellants were deployed at the Air Wing of the LDF. Resultantly, in addition to their monthly salary, the appellants were paid a monthly allowance equal to 45% of their monthly salary. 4 [5] The policy regarding the 45% monthly allowance to members of LDF attached to the Air Wing came into force in March 1993. The 45% monthly allowance was included in computing terminal benefits, viz. gratuity and pension, of soldiers who worked at the Air Wing. [6] Apparently, sometime in the year 2010, the Auditor General’s office called into question the inclusion of the allowance in computing the terminal benefits. As a result, a legal opinion was sought from the office of the Attorney General on the lawfulness of the practice. [7] On 11 October 2010 the Deputy Attorney General issued a legal opinion sanctioning the practice given the provisions of the Pensions Proclamation No. 4 of 1964 and the Defence Force (Regular Force) (Officers) Regulations 1998. As a result, the practice continued and army officers that retired subsequently still had their terminal benefits computed considering both their salary and the allowance. However, the computation of the appellants’ terminal benefits was not inclusive of the 45% allowance. [8] Aggrieved that the allowance was not factored in in the computation of their terminal benefits, on 24 April 2023 the appellants approached the Court a quo seeking the following reliefs: “1. The decision by the RESPONDENTS to calculate the APPLICANTS’ gratuity and pension without including the additional 45% due to pilots and technicians be declared to be discriminatory and or infringing on the 5 APPLICANTS’ right to equality and consequently be declared as unlawful; 2\. The decision by the RESPONDENTS to calculate the APPLICANTS’ gratuity and pension without including the additional 45% due to pilots and technicians be reviewed, corrected and set aside for its unreasonableness; 3\. It be declared that the APPLICANTS are entitled to gratuity and pension the calculation of which must be inclusive of the additional 45% due to them as retired members of the airwing division of the LESOTHO DEFENCE FORCE; 4\. The RESPONDENTS be ordered to pay the APPLICANTS the additional 45% due to them as retired members of the airwing division of the LESOTHO DEFENCE FORCE; 5\. The RESPONDENTS be ordered to adjust the APPLICANTS’ monthly pensions by an additional 45% due to them as a Pilot and Technician and pay to the APPLICANTS the accumulated arrears due to (sic) calculable from the day they received their first pension payments; 6\. Further and or alternative relief; 7\. Costs of suit in the event of opposition hereof.” [9] On 6 September 2023 Khabo J heard the application and dismissed it with costs on 10 February 2025. I interpose that the respondents had not filed an answering affidavit. Rather, they had 6 filed a notice in terms of rule 10 (1)(c) of the High Court Rules of 19801 to raise points of law. [10] The points of law raised by the respondents were, (a) non-joinder of the Ministry of Finance being the Ministry responsible for payment of terminal benefits; (b) prescription under section 6 of the Government Proceedings and Contracts [Act No. 4 of 1965](/akn/ls/act/1965/4) \- contending that the appellants’ claim had prescribed since they received their terminal benefits when they retired in 2010 and 2009 respectively; alternatively that the appellants unreasonably delayed coming to court; and (d) that the legal opinion did not apply to the second appellant since it was proffered in 2010 when he had already received his terminal benefits. [11] The learned Judge considered only two preliminary objections, that concerning prescription under the Government Proceedings and Contracts Act and the other relating to unreasonableness of the delay under the common law. [12] The point relating to prescription failed because the learned Judge concluded that the Act only relates to delictual and contractual liabilities against the Government and not to a review application. She then dismissed the application on account of the unreasonable delay (13 and 14 years) by the appellants in seeking a remedy. The learned Judge appears to have addressed herself to the prayer seeking review to the exclusion of other prayers. Be that as it may, the effect of her conclusion on the points of law was that she did not consider the merits of the application. 1 High Court Rules, 1980, legal Notice No. 9 of 1980. 7 [13] Dissatisfied with the decision dismissing the application the appellants lodged the present appeal on the following grounds: “-1- THE LEARNED JUDGE in the court a quo erred and misdirected herself by concluding that underpayment of civil servants prescribes both under common law and or GOVERNMENT PROCEEDINGS AND CONTRACTS ACT OF 1965. -2- THE LEARNED JUDGE in the Court a quo erred and or misdirected herself by concluding that the cause of action is informed by the 45% ‘allowance’ instead of a ‘salary’ and by extension concluding that the applicable statute is the GOVERNMENT PROCEEDINGS AND CONTRACTS ACT O 1965. -3- ALTERNATIVELY, TO GROUND 2 above: the court a quo erroneously concluded that the date of the cause of action is reckoned upon retirement when underpayment of civil servants is a continuing illegality that may be challenged at any stage. -4- THE LEARNED JUDGE in the court a quo erred and or misdirected himself by failing to refer the matter to viva voce evidence to interrogate the issue of whether the earnings in issue were salaries or allowances which warranted the conclusion of whether they prescribe or not.” Consideration of the appeal [14] In his written submissions, Mr Rasekoai for the appellants devoted some time dealing with non-applicability of Government Proceedings and Contract Act and the Prescription [Act No. 6 of 1861](/akn/ls/act/1861/6) to the matter. He submits that the application of 8 the Acts was wrong and flawed given that the appellants’ cause of action was continuing. The net effect of the argument is that the appellants’ cause of action is not susceptible to prescription because it is continuing in nature. Mr Rasekoai persisted with this point even during oral submissions. [15] It is noteworthy that during his submissions, Mr Rasekoai accepted that the inordinate delay the appellants took to seek a remedy was a relevant consideration even from a common law perspective. And that unlike pension, gratuity is a once off payment and cannot give rise to a continuing cause of action. Accordingly, he conceded that the appellants’ claim relevant to gratuity was untenable due to the unreasonable delay of 13 and 14 years to initiate the claim. [16] Conversely, though Mr Motlomelo for the respondents recognised that pension was payable monthly, he supports the Court a quo’s order and reasoning dismissing the appellants’ application on account of the inordinate delay to seek a remedy. To buttress his argument, Mr Motlomelo relies on three authorities to the effect that courts can decline to hear a review application if the aggrieved party is guilty of unreasonable delay.2 That said, Mr Motlomelo conceded during argument that given that pension was paid monthly, insufficient monthly pension gives rise to a continuing cause of action. 2 Mojalefa Mpota and Another v. Attorney General and Another CIV/APN/512/2007; Mandela v. The Executors, Estate Late Nelson Rolihlahla Mandela & Others (131/17) ZASCA02 (19 January 2018); Associated Institutions Pension Funds & Others v. Van ZYL & Others 2005 (2) SA 302 (SCA). 9 [17] I pause to observe that the Court a quo did not uphold the objection that the appellants’ claims had prescribed under the Government Proceedings and Contracts Act. Though it did not explicitly overrule the objection, evidently, the Court a quo followed the previous decisions that the Act relates only to delictual or contractual liabilities against the Government.3 Thus, it did not apply the Act. [18] Granted, the Court a quo makes mention of prescription with reference to common law review in paragraph 13 of its judgment as well as saying that it was granting the respondents’ prayer in the alternative. Axiomatically, the Court a quo upheld the respondents’ alternative preliminary objection of unreasonable delay to seek a redress under common law. Thus, it dismissed the application on the ground that the delay of 13 and 14 years was unreasonable and not because it applied the Government Proceedings and Contracts Act. [19] In my respectful view, therefore, grounds 1 and 2 in the Notice of Appeal are devoid of merit to the extent that it is suggested that the Court a quo concluded that the underpayments had prescribed under Government Proceedings and Contracts Act. Neither did it say the Act was applicable. Accordingly, it was pointless for Mr Rasekoai to devote his attention on a point that the Court a quo had agreed with him. 3 Former Employees of Lesotho Agricultural Development Bank v. Government of the Kingdom of Lesotho and 2 Others CIV/AON/375/2019; Motebang Motumi v. Maseru City Council and Others LC/APN/28/2021. 10 The issue [20] As I see it, the only question that arises for our consideration in this appeal is whether the High Court was correct in dismissing the application on account of the unreasonable delay in instituting it. Discussion [21] It is trite that as part of its inherent jurisdiction the High Court has the power to refuse a review application if the aggrieved party is guilty of unreasonable delay in seeking a remedy. This is not only because the law aids the vigilant and not the indolent or those who sleep on their rights, but also because failure to bring a review within a reasonable time may cause prejudice to the respondents. Besides, there is a public interest in the finality of administrative decisions and the exercise of administrative functions. [22] In Mokhotho v. Learned Magistrate and Others4 Ramodibedi P (Melunsky JA and Majara JA concurring), had the following to say: “[8] It is well recognised that even although (sic) there is no fixed - time limit for an application for review, such an application must, however, be made within a reasonable time. In the case of Mohlomi Seutloali v Director of Public Prosecutions C of A (CRI) 14/06 this Court made 4 Mokhotho v. Learned Magistrate and Others LAC (2007 – 2008) 425. 11 the point in the following terms which bear repetition: - “[4] It is necessary to point out at the outset that unlike an appeal, there is no specific time limit laid down for a review. A court seized with a review application, however, is fully entitled to refuse to entertain such proceedings if it considers that there has been unreasonable delay. Each case must nevertheless be considered in the light of its own peculiar circumstances, including, but not limited to prejudice. [5] I should be prepared to emphasize at this stage that as a matter of general principle, courts are loath to hear review applications which are brought after unreasonable delay. In this regard I am mainly attracted by the remarks of Gregorowski J expressed some 111 years ago in Louw v Mining Commissioner (1896) 3 OR 190, 200, namely that courts are reluctant to hear an applicant who “now wishes to drag a cow long dead out of a ditch ” This I am afraid is exactly what the appellant seeks to do in this case. [6] It is important to recognise that the concerns about undue delay of the institution of review proceedings are in my view, mainly motivated by four factors, namely, (1) finality to litigation, (2) prejudice to the party which has obtained judgment in having to await execution thereof, (3) the need to hear matters while they are still fresh in the minds of the parties and witnesses and (4) by the consideration of the impact a ready recourse to the re-institution of proceedings has on the efficient administration of justice. The Criminal Courts are already over-burdened and should not be unnecessarily placed under greater stress than they already are.” [23] It is apposite to point out that an application for review after the delay is not there for the taking. Thus, the applicant must make a properly motivated application for condonation providing 12 a reasonable explanation for the delay. The reasonableness or unreasonableness of the delay requires a factual inquiry and involves a value judgment.5 [24] I turn to consider whether the Court a quo correctly concluded that the appellants had unreasonably delayed in launching their application. Applying the principles to the facts of this case, it is worthwhile to note that the respondents do not dispute that the appellants were short-changed in respect of both gratuity and pension and that they continue getting insufficient pension compared to what they deserve. On the other hand, it is obvious that the cause of action arose in 2009 and 2010 when the appellants were paid less than what they should have received. [25] The appellants’ explanation for the delay is that they were still pursuing talks with the Army (the former employer) which at some stage stalled due to instability in the Army at the time. I find inspiration in the following profound remarks the Court made in Shiv Dass v. Union of India6 which resonates well with me: “It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Raja Lakshmiah v. State of Mysore (AIR 1967 SC 993). There is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of 5 Associated Institutions Pension Funds & Others v. Van ZYL & Others, supra, para 48. 6 2007 (9) SCC 274. 13 another representation on similar lines will not explain the delay. In State of Orissa v. Sri Pyarimohan Samantaray, (AIR 1976 SC 2617) making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See State of Orissa v. Arun Kumar (AIR 1976 SC 1639 also). In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. It would depend upon the fact of each case. If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years. The High Court did not examine whether on merit appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that score alone.” [26] I have quoted from this case in extenso not only because I find it highly persuasive, but also to drive home the point that the time one spends negotiating or making representations is a necessary but not an adequate explanation to take care of the delay. There is a limit to the time which can be considered reasonable for making representations. It bears repeating that the law does not ordinarily assist the tardy and the lethargic. [27] In Mokhotho, (supra), the appellant had delayed instituting a review application by four years from the date of his conviction and sentence to eight years imprisonment. This Court confirmed the judgment of the Court a quo dismissing the application on account of unreasonable delay and for failure to seek condonation. 14 [28] In my respectful view, the appellants in casu do not have a reasonable explanation for the inordinate delay of 13 and 14 years in seeking a redress. More significantly, an order that the Government should pay the appellants accumulated arrears on gratuity and pension effective from 2009 and 2010 will certainly have a severe strain on the fiscus. Continuous cause of action [29] Mr Rasekoai for the appellants conceded that since gratuity was payable only once, it cannot give rise to a continuing cause of action. On the other hand, Mr Motlomelo for the respondents conceded that short-changing the appellants on their monthly pension gives rise to a continuous cause of action. Given that these are concessions on questions of law, they are not binding on this Court7 and the party against whose interest they were made. Therefore, I proceed to consider if the concessions were correctly made. [30] In Slomowitz v. Vereeniging Town Council8 Thompson JA provided a thoroughgoing exposition of categories of causes of action, viz. one arising from a single wrongful act and the other arising from continuing injury causing damage from day to day which may give rise to a series of rights of action arising 7 Matatiele Municipality and Others v. President of the Republic of South Africa and Others (1) [[2006] ZACC 2](/akn/za/judgment/zacc/2006/2) (27 February 2006), para [67]. 8 Slomowitz v. Vereeniging Town Council 1966 (3) SA 317 (A) at page 330 to 331. 15 from moment to moment. The learned Justice had the following to say: “The statement in Halsbury, 2nd ed., vol. 20, para. 757; 3rd ed., vol. 24, para. 347, which has often been cited in our Provincial Courts and received at least the inferential approval of this Court in McKenzie v. Farmers' Co-operative Meat Industries Limited, 1922 AD 16 at p. 23, reads: 'Apart from any statutory provision, a cause of action normally accrues when there is in existence a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed.' Provided he could show damage, plaintiff would no doubt have been entitled to sue immediately the road was closed. But I am unable to agree that, in the events that have happened, such was plaintiff's only cause of action. For, as was said by WATERMEYER, J.A., at p. 589 of the Oslo Land case, supra, and with mention of the earlier decision of this Court in Symmonds v Rhodesia Railways Ltd., 1917 AD 582, it is necessary to distinguish between 'a single wrongful act giving rise to one cause of action and a continuing injury causing damage from day to day which may give rise to a series of rights of action arising from moment to moment': … In Symmonds v Rhodesia Railways Ltd., supra, the Railways had inter alia, failed to take back sheep which they had wrongly delivered to Symmonds who had in consequence been put to expense in herding and dipping the sheep subsequent to 21st September, 1916, the date of issue of summons in an action previously instituted by Copyright Juta & Company Symmonds against the Railways for delivery of the sheep in fact consigned to him (or 16 their value) and for expenses then already incurred in herding the sheep wrongly delivered to him, and which said action was settled on 8th January, 1917. In rejecting the Railways' plea in abatement - raised to Symmonds' later action for the above-mentioned expenses incurred by him in relation to the sheep after 21st September, 1916 - that he had only one cause of action in respect of the herding of the sheep and was bound to sue once and for all for all the damage he had suffered, SOLOMON, J.A., remarked at p. 588: 'The damage sustained by the plaintiff, however, was not damage which had been occasioned once and for all: it accrued from day to day owing to the continued refusal of the defendant to take back the sheep.' Then, after observing that there is not merely one cause of action where there is 'a continuance of a wrongful act causing fresh damage from day to day' and referring to the English decision of Whitehouse v Fellows, the learned Judge of Appeal went on to say at p. 589: 'Now here there was a continuing refusal on the part of the defendant to take back the sheep after the date when the plaintiff instituted his action; that continuance of the wrongful act caused further injury to the plaintiff; and in my opinion it gave rise to a new cause of action for expenses incurred after the date of action. And if that be so, it entirely disposes of the defendant's plea in abatement . . .' [31] In M.R Gupta v. Union of India9 the Court applied the principles of continuing wrong and said the following in reversing the High Court decision rejecting a claim on the basis that it was launched after 11 years: 9 [1995 (5) SCC 628]. 17 “The appellant’s grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to the rules. It is no doubt true that if the appellant’s claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant’s claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with the rules and to cessation of a continuing wrong if on the merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc, would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitations. It is to this limited extent of proper pay fixation, the application cannot be treated as time barred…” [32] Further, the Supreme Court of India in Union of India & Ors v. Tarsem Singh10 stated that cases relating to a continuing wrong are an exception to the rule that belated service-related claim will be rejected on the ground of the delay and laches. The Court stated further that claims affecting third parties like 10 Civil Appeal No. 5151-5152 of 2008, para 5. 18 seniority of promotion may be rejected on account of delay while cases relating to payment or re-fixation of pay or pension may be granted despite the delay since they do not affect the rights of third parties. [33] The noteworthy takeaway from the above authorities, which I find highly persuasive and agree with, is that short-changing retired employees on their monthly pension gives rise to a continuing cause of action because the employer has a periodic obligation to pay pension. Therefore, the employees have a new cause of action each month they are paid less than what they are actually entitled to. [34] The phrase ‘continuing cause of action’ sounds inelegant because there is no right of action that can continue indefinitely. Linguistic challenges aside, in substance, a continuing cause of action in the context of a monthly pension, means that a new right of action arises every month that a retired employee is short-changed. It is noteworthy that a single harmful act may result into a continuing damage. That does not necessarily translate into a continuing cause of action. [35] In the present matter, the concession that failure to pay a correct amount of gratuity did not give rise to a continuing cause of action was correctly made. Given that gratuity was payable once, the cause of action arose in 2009 and 2010 when the appellants were short-changed. Therefore, the Court a quo cannot be faulted 19 for having dismissed the claim relevant to gratuity on account of unreasonable delay on the side of the appellants to seek a remedy. [36] In relation to pension, I have no hesitation in finding that the Court a quo misdirected itself by not considering that the respondents have a periodic obligation to pay the appellants their pension. Had it done so, it would have realised that every month employees are short-changed, that gives rise to a new cause of action requiring the defence of unreasonable delay to be conscientiously considered. I have no doubt that the erroneous computation of the appellants’ pension must be corrected going forward. [37] In so far as it relates to the relief concerning accumulated arrears for the past years, the appellants cannot claim them from 2009 and 2010 when they retired. The common law principle that they should have sought a remedy within a reasonable time still applies. Consequently, this claim must be restricted to a reasonable period prior to the date of filing of the application. The Court a quo, with the benefit of the parties’ submissions, will use its own discretion in fixing the period. It is undesirable for this Court to be prescriptive on that score. Disposal [38] When all is said and done, the appeal must succeed in respect of the aspect of the application relating to pension and fail in respect of the one relating to gratuity. The appeal succeeds to 20 the extent that the High Court is found to have erred in upholding the defence of unreasonable delay even in respect of pension without considering that failure to pay pension gives rise to a new cause of action every month the retired employee is short-changed. [39] As indicated in paragraph 12 above, the Court a quo did not entertain the merits of the application or address other preliminary objections raised by the respondents. Thus, the appropriate order is to remit the matter to the High Court to proceed with it. Costs [40] Each party has been successful in its respective arguments. Therefore, the fairest and just order with regard to costs , in my view, is that each party should bear its own costs. Order [41] In the circumstances, the following order is made: 1. The appeal is allowed with respect to the aspect of the appeal relating to pension and the order of the High Court is set aside and replaced by the following order: “The respondents’ preliminary objection that the application was belatedly instituted is upheld in respect of the claim relating to gratuity and 21 overruled with respect to the one relating to pension.” 2. The matter is remitted to the High Court before the same judge to proceed with the application. 3. There is no order as to costs. _______________________________ A. R. MATHABA ACTING JUSTICE OF APPEAL I agree _______________________________ P.T DAMASEB ACTING JUSTICE OF APPEAL I agree ______________________________ J. VAN DER WESTHUIZEN ACTING JUSTICE OF APPEAL FOR APPELLANTS: MR. M. RASEKOAI FOR RESPONDENTS: ADV.T. 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