Teboho Liau V Minister of Defence and National Security & 3 Others (C of A (CIV) 22/2025) [2025] LSCA 52 (7 November 2025)

# Teboho Liau V Minister of Defence and National Security & 3 Others (C of A (CIV) 22/2025) [2025] LSCA 52 (7 November 2025) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lsca/2025/52/eng@2025-11-07) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lsca/2025/52/eng@2025-11-07) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lsca/2025/52/eng@2025-11-07) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lsca/2025/52/eng@2025-11-07) [ __](mailto:?subject=Take a look at this document from LesLII: Teboho Liau V Minister of Defence and …&body=https://lesotholii.org/akn/ls/judgment/lsca/2025/52/eng@2025-11-07) [ Download PDF (326.5 KB) ](/akn/ls/judgment/lsca/2025/52/eng@2025-11-07/source) Report a problem __ * Share * [ Download PDF (326.5 KB) ](/akn/ls/judgment/lsca/2025/52/eng@2025-11-07/source) * * * * * Report a problem __ ##### Teboho Liau V Minister of Defence and National Security & 3 Others (C of A (CIV) 22/2025) [2025] LSCA 52 (7 November 2025) Copy citation * __Document detail * __Related documents * __Citations 1 / - Citation Teboho Liau V Minister of Defence and National Security & 3 Others (C of A (CIV) 22/2025) [2025] LSCA 52 (7 November 2025) Copy Media Neutral Citation [2025] LSCA 52 Copy Hearing date 16 October 2025 Court [Court of Appeal](/judgments/LSCA/) Case number C of A (CIV) 22/2025 Judges [Dr. Mosito P](/judgments/all/?judges=Dr.%20Mosito%20P), [Damaseb AJA](/judgments/all/?judges=Damaseb%20AJA), [Van der Westhuizen AJA](/judgments/all/?judges=Van%20der%20Westhuizen%20AJA) Judgment date 7 November 2025 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Commercial](/taxonomy/case-indexes/case-indexes-commercial) * [Civil Procedure](/taxonomy/case-indexes/case-indexes-commercial-civil-procedure) * [Principles](/taxonomy/case-indexes/case-indexes-commercial-civil-procedure-principles) * [Res Judicata](/taxonomy/case-indexes/case-indexes-commercial-civil-procedure-principles-res-judicata) Summary ###### Flynote Condonation – Delay in instituting review proceedings – Reasonableness of delay – Explanation – Prospects of success – Res judicata – Punitive costs. Read full summary * * * Skip to document content ###### Flynote Condonation – Delay in instituting review proceedings – Reasonableness of delay – Explanation – Prospects of success – Res judicata – Punitive costs. LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C OF A (CIV) 22/2025 In the matter between – TEBOHO LIAU APPELLANT and MINISTER OF DEFENCE AND NATIONAL SECURITY 1ST RESPONDENT P.S. MINISTRY OF DEFENCE AND NATIONAL SECURITY 2ND RESPONDENT MINISTRY OF DEFENCE AND NATIONAL SECURITY 3RD RESPONDENT ATTORNEY GENERAL 4TH RESPONDENT CORAM: MOSITO, P DAMASEB, AJA VAN DER WESTHUIZEN, AJA HEARD: 16 OCTOBER 2025 DELIVERED: 7 NOVEMBER 2025 2 FLYNOTE Condonation – Delay in instituting review proceedings – Reasonableness of delay – Explanation – Prospects of success – Res judicata – Punitive costs. An application for condonation requires the court to exercise a judicial discretion based on a proper consideration of interrelated factors, including the degree of lateness, the explanation therefor, prospects of success, and the importance of the case. A delay of one year and two months in instituting review proceedings, in the absence of a statutory time limit, was not per se inordinate. The appellant’s explanation—financial constraints occasioned by dismissal and pending criminal proceedings—was not so weak as to render consideration of prospects of success redundant. The High Court misdirected itself in finding the matter res judicata without properly analysing whether the cause of action in the second review was the same as that in the first. Although the relief sought was similar, the causes of action were different: the later application challenged the Minister’s misconstruction of his appellate function and the consequent denial of audi alteram partem. The requirements for res judicata were therefore not met. Because the matter had reasonable prospects of success, condonation ought to have been granted. The punitive costs order against the appellant was unwarranted and contrary to the Biowatch principle applicable to litigants asserting rights against the State. Held: 1. The High Court erred in finding the delay inordinate and the explanation untenable. 2. The High Court erred in holding that the matter was res judicata. 3. Condonation granted; matter remitted to the High Court to be heard by another judge. 4. Punitive costs order set aside; respondents to pay costs of appeal. 3 JUDGMENT VAN DER WESTHUIZEN, AJA Introduction [1] This appeal against a judgment by Makhetha J in the High Court deals with condonation only. Yet, it involves rather complex questions about, inter alia, prospects of success and res judicata. The appellant applied to the High Court for condonation of the late filing of an application for judicial review of a decision of the first respondent (“Minister”) to dismiss the appellant, following disciplinary proceedings. Background [2] The High Court judgment provides a summary of the background to this matter. The appellant was employed as an Assistant Director in the Ministry of Defence and National Security Service (“Ministry; NSS”). In June 2022 the Ministry initiated disciplinary proceedings against the appellant for alleged misconduct. With effect from 10 August 2022 the appellant was dismissed, in a letter, received on 11 August 2022. [3] The appellant first appeared before a Board of Enquiry (“Board”). The Board found him guilty and recommended his demotion. The NSS Director General (“DG”) of NSS accepted the Board’s guilty verdict but rejected the recommendation of demotion. The DG substituted the Board’s recommendation of demotion with a discharge from duty. 4 [4] The appellant – unsuccessfully – appealed to the Minister. The Minister concluded in the letter of dismissal: “Based on the foregoing findings, I confirm the verdict of the Board … that the member is guilty on all charges. Having considered the recommendations of the Board and those of the Director General and those made by the member; I hereby discharge the member from the Service with effect from 10th August, 2022 in terms of Section 21(9)(e) of the National Security [Act NO. 11 Of 1998](/akn/ls/act/1998/11).” [5] On the basis of urgency, the appellant approached the High Court with an application to review the decision to discharge him. Hlaele J dismissed the application on 7 November 2022. [6] Then the appellant again approached the High Court to review the decision to discharge. According to the Court, the application for review was filed “a year and some two months later in October 2023”. Thus, the appellant applied for condonation. The High Court [7] The High Court diligently analysed the law on condonation, with extensive references to case law and academic writers. For present purposes, I mention but a few examples. [8] In Mokhonto v The Learned Magistrate & 3 Others1 this Court stressed that an application for review after an inordinate delay was not there for the taking. Where there is such a delay, the applicant must ordinarily make a properly motivated application 1 C of A (CRI) 10/08 5 for condonation and give an acceptable explanation on oath as to why the delay came about. The case concerned a delay of four years in filing a review application against a magistrate’s conviction and sentence, though. [9] In Mohlomi Seutloli v Director of Public Prosecutions2 this Court stated: “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 … 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 particular circumstances, including but not limited to prejudice…. I should be prepared to emphasize at this stage that as a matter of general principle, courts are loathe 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 years ago in Louw v Mining Commissioner OR3, namely that courts are reluctant to hear an applicant who ‘now wishes to drag a cow long dead out of a ditch’ …” [10] The High Court further quoted from National University of Lesotho v Thabane4, in which it is stated that an applicant must show sufficient cause for the granting of an application. The Court referred to “the degree of lateness, the explanation therefor, the prospects of success, and the importance of the case … these facts are interrelated: they are compatible with a true discretion, save of 2 C OF A (CRI) 14/06, delivered on 24 October 2007 3 (1896) 3 OR 190, 200 4 (C of A (CIV) 3 of 2008 [[2008] LSCA 26](/akn/ls/judgment/lsca/2008/26) (17/10/ 2008) 6 course that if there are no prospects of success there would be no point in granting condonation … What is needed is an objective prospective of all the facts. Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong. Or … strong prospects of success may tend to compensate for a long delay. And the respondent’s interest in finality must not be overlooked”. [11] The High Court then proceeded to evaluate the degree of lateness, the explanation for the delay and the prospects of success. Below, I return to the Court’s findings on these aspects. [12] In this matter the High Court judge expressed the following view (in [36] of the judgment):“I am inclined to agree with the Respondents that when the Applicant launched the present application, he was on a fishing expedition”. The judge quotes the appellant as saying in his Founding Affidavit that the dismissed case was “misconceived”. To this, I return below as well. [13] The High Court concluded: “In view of the above analysis and considerations, I will not hesitate to conclude that the present application falls to be dismissed for failure to meet the well-established requirements for condonation and the subsequent review should automatically not see the light of day as a result. The delay … is inordinate, and the explanation … is unreasonable and not for the court to grant the relief sought. There are also no prospects in a clear case of res judicata.” [14] The High Court dismissed the application and ordered the appellant to pay costs to the third respondent on the punitive scale of attorney and client. 7 Grounds of Appeal [15] For brevity, in the hope that I understand and reflect them correctly, I briefly summarise the appellant’s Grounds of Appeal, dated 28th May 2025: (1) It was not strictly necessary to apply for condonation, in so far as no legal time periods had prescribed. (2) The High Court judge erred and misdirected herself by dismissing the condonation application on the basis that the appellant had filed the same application before another court, which dismissed the application. Thus, the High Court found that the matter was res judicata, whereas the two applications were based on totally different grounds. (3) The learned judge erred in awarding a punitive costs order against the appellant, who had not abused court processes. (4) The High Court erred and misdirected itself by failing to apply its mind to the prospects of success. (5) The High Court judge erred and misdirected herself in finding that the appellant’s application was res judicata. She failed to consider, or ignored the different causes of action. Delay [16] The appellant is correct that no formally determined time period had prescribed. This is stated in the case law referred to by the High Court. However, any court may well ask why an apparently long – and perhaps inordinate – time has expired between the events and the application for review. Finality in litigation is important. 8 [17] This brings to the fore the question whether the delay was reasonable. [18] As mentioned in [5] above, the High Court stated the delay to be a year and some two months, from the dismissal in August 2022 to the launching of the application in October 2023. This is not particularly short, but far from the four years in Mokhonto v The Learned Magistrate, referred to in [8] above. Neither was it Gregorowski J’s 1896 “cow long dead” in “a ditch”, referred to in Louw v Mining Commissioner. In view of the fact that no time limit is stated by law, a delay of days, weeks, or even a few months may hardly be worth quibbling about. [19] The High Court judge found that her “view is that a delay of more than one year to launch a review application against a dismissal is excessive and unreasonable”. According to her, “(t)he Applicant expressly acknowledges the fact at paragraph 19 of his founding affidavit that the delay of one year and two months is inordinate”. From my reading of the appellant’s words on page 14 of the Founding Affidavit to which the High Court referred, the judge’s statement is not correct. [20] The appellant did not refer to the delay as “inordinate”, but indeed as “a lengthy delay” and “a lengthy period of time”. This he did as part his explanation of the delay, involving a change of legal representatives and of his cause of action. His mentioning of the time also fits in with his first ground of appeal, where he mentions that it was not strictly necessary to apply for condonation. He realised that there was a delay, even though no time limit was prescribed. There is a difference between “a lengthy delay” and “an 9 inordinate delay”. The first is a neutral description, whereas the second implicates impropriety. The Concise Oxford Dictionary of Current English explains “inordinate” as “immoderate, excessive, intemperate, disorderly”. [21] The appellant surely did not describe the delay that he attempted to explain as anything close to “excessive”. This finding by the High Court casts some doubt over the exercise of its discretion. The same applies to its strict cut-off line between a year and a year plus two months, especially since no fixed time period for filing a review application is prescribed by law. [22] The delay is not so unreasonable, that it cannot be explained. Explanation [23] As stated by the authorities above, the factors to be considered are intertwined and case specific. In short, the appellant explains that he swiftly approached the High Court on the 16th of August 2022 with an application to review his dismissal in the letter he received on 11 August 2022. On 17th November 2022 his application was dismissed. While he was considering to note an appeal against the judgment of Hlaele J, for hearing during the April 2023 session of this Court, he was charged criminally in the Maseru Magistrate’s Court. [24] According to the appellant, he had to postpone the appeal and engage legal assistance for the criminal proceedings. This was due to the financial constraints arising from his dismissal without terminal benefits. When he later received financial assistance from his family and his financial situation improved partially, he 10 launched the review application before Makhetha J in the High Court without delay. [25] The High Court noted “that the criminal charge(s) followed four months after the judgment of my sister Hlaele J”. That “lag is not explained”, so found Makhetha J. [26] The respondents dispute the appellant’s alleged financial difficulties. According to the second respondent’s answering affidavit, he was free to collect “considerable monies” from his pension contribution under the Public Officers Pension Fund scheme, following his dismissal. The High Court held that the appellant’s reply that he could not access such monies had no legal basis. With reference to the relevant Regulations, the Court concluded that the appellant, although dismissed, “was entitled to a portion of his pension contribution under the Fund”. (The emphasis is mine). [27] It might be useful to keep in mind that legal fees are not insignificant, especially for criminal proceedings and an intended appeal or review application at the same time. A portion of one’s pension contribution cannot be expected to be utilised fully for those fees. One also has to live. [28] The High Court referred to the decision of the High Court of South Africa in Phetlu v Nthutang 5. In this judgment remarks from Du Plessis v Wits Health Consortium6 (Pty) Ltd are quoted: “It is clear … that a claim of lack of funds on its own cannot constitute a reasonable explanation for the delay … the applicant 5 871/2020 [2023] CAG PPHC 1123 3/10/2023 6 [2013] JOL 30060 (LC) at para 16 11 needs to provide more than a mere claim that the reason for the delay is lack of funds … the applicant has to take the court into his or her confidence in seeking its indulgence by explaining when, not only that he or she finally raised funds to conduct the case, but also how and when he or she raised those funds.” The Court stated that the “when” is important, because it enables a court to determine whether there was any further delay after raising the funds, which delay had to be explained. [29] Did the appellant not take the Court into his confidence? He even mentioned the criminal proceedings against him. He referred to his family’s assistance. The fact that the High Court regarded a delay of one year as reasonable, but not the additional two months, renders the “when” not to be of cardinal significance. [30] The High Court concluded that the lack of funds submission was unsubstantiated: “We only know that he partially regained financially (sic) and got financial assistance from family members to pursue the criminal trial. As to when he got the money for the present application is not known.” The Court concluded that the appellant’s “reasoning/explanation for the inordinate delay … is not tenable”. [31] Respectfully, I beg to differ. The explanation is clearly not so weak that it renders a look at the prospects of success redundant. [32] After finding the explanation for the inordinate delay not tenable, the High Court proceeded to consider whether the review application had reasonable prospects of success. 12 Res judicata [33] If this matter is indeed res judicata, the prospects of success would become irrelevant. Even if the previous decision is “wrong”, it is still final (besides the possibility of appeal, etc, of course). Reasonable prospects of success would – perhaps unfortunately - be of no significance. [34] The High Court judge not only found that the appellant’s case had no “reasonable”, but indeed “no prospects of success” at all. She directly linked this to her finding that the matter was clearly res judicata. It would seem that the finding of no prospects of success was to a large extent based on the outcome of the previous application, heard by Hlaele J. Makhetha J scrutinised the judgment of Hlaele J and concluded that the two applications were essentially the same. [35] In the light of this finding by the High Court, it is prudent and practical to deal with the res judicata issue first, before the prospects of success. [36] Counsel for the appellant relied on Ascendis Animal Health (Pty) Ltd v Merck Sharpe Dohme Corporation and Two Others7 regarding the requirements for successful reliance on res judicata as “(i) same parties; (ii) same cause of action: (iii) the same relief; and (iv) final judgment”. In this case the parties are the same and the judgment of Hlaele J was final. The matter turns on the cause of action and the relief sought. 7[2019] ZACC 41at 9 13 [37] From the outset it must be said that the remark by the High Court (mentioned in [12] above) that the appellant says in his own Founding Affidavit that the dismissed case was “misconceived” was either misunderstood or quoted out of context. The appellant attempted to explain the delay and to show that the application before the High Court differed from the ill-fated one before Hlaele J. He did not discredit his own application for which he was seeking condonation from the High Court but sought to distinguish it from the failed previous one. [38] The core of the appellant’s complaint against the High Court judgment is that Makhetha J focused on the relief sought, at the cost of the cause of action. Naturally, the relief prayed for in the two applications would be the same or similar. After all, the appellant wishes his dismissal to be reviewed and set aside. [39] Is the cause of action the same, though? [40] The High Court judgment of 7th of November 2022, by Hlaele J, states the first issue for determination as whether the grounds put before the Court were grounds for review or appeal. Then the Court asked: “5.2 What are the grounds for review? 5.3 Has the Applicant complied with these grounds for review. 5.4 Was the Applicant denied a fair hearing 5.5 Did the disciplinary board address its mind to issues at hand before it made a recommendation to the Director 14 5.6 Did the Minister act outside the tenant’s Natural Justice when he preferred written representations against oral representation?(sic) [41] Hlaele J then analysed the grounds in order to determine whether they were grounds of appeal or review. She concluded that some were grounds of appeal, which could not be entertained. Others were indeed grounds of review, according to her. [42] After a lengthy enquiry into the law regarding the duty of a reviewing court, citing numerous cases, she quoted the appellant’s submissions from his Heads of Argument: “The core issue therefore which this honourable court is invited to make a decision on is whether the 2nd and the 4th Respondent committed any irregularities which would warrant setting aside of the Applicant’s discharge and whether the Applicant can be reinstated without loss of remuneration. The latter is dependent on the findings of the former.” [43] The judgment then states: ” The irregularities he mentions are that the decision-maker failed to apply his mind to the facts of the case and evidence before he could make a decision…” After briefly referring to the record, the judge remarks: ”The reasoning by the trier of fact indicates that he addressed his mind to the dispute at hand. He was alive to the charge and the requirements thereof. The evidence before him proved the charge. It is not for this court to reevaluate the evidence and come to a different finding. The issue is … to test whether a reasonable arbitrator or trier of fact could have reasonably come to such a decision. I conclude that from the reasoning articulated in his findings the arbitrator and the 2nd 15 Respondent’s decision stands and cannot be reviewed or set aside. … My conclusion is based on the fact that I do not find anything on record that manifests unlawfulness.” [44] Under the heading “Conclusion” Hlaele J concludes yet again”I find that the recommendations made by the 4th Respondent, and accepted as the basis for the decision of the 2nd Respondent are not reviewable on the grounds laid out by the Applicants.” (sic) [45] In his Founding Affidavit for the application before Makhetha J the appellant states that, after receiving his dismissal letter on 11 August 2022, he instructed his lawyers to challenge the decision. On 16th August 2022 a review application was filed. It was dismissed by Hlaele J on 7 November 2022. (Events after that are explained above, under the delay and its reasons. [46] After his legal representatives had been served with the docket from the Director of Corruption and Economic Offences (DCEO), they requested him to bring all relevant documents to them. He then submitted them to his new and indeed current lawyers and received advice that the previous application had been misconceived and was bound to fail again. [47] So, what changed? In the appellant’s Founding Affidavit grounds of review to be determined are stated. I summarise briefly. [48] The Minister) failed to consider the appellant’s grounds of appeal, when he appealed to him. This is tantamount to the appeal being dismissed without being heard. The Minister nowhere pronounced himself to a single ground of appeal. The grounds constitute pleadings. They had to be entertained. 16 [49] The Minister treated the appeal as a review, rather than an appeal. He went “all the way to review the Board’s recommendations, the accompanying record of proceedings, the Director General NSS’s recommendations and me defaulting to make written representations, and ultimately (found) that the Board (had) conducted its proceedings” properly. This is a clear case of review, not appeal. The appellant never lodged a review before the Minister, but an appeal, so he argues. [50] Relying on his interpretation of section 21(7) of the National Security [Act 11 of 1998](/akn/ls/act/1998/11), the appellant furthermore submits that he had the right to make oral submissions and was not obliged to make written submissions. [51] The essence of the appellant’s cause of action in the application before Makhetha J seems to be that the Minister misconceived the nature of the proceedings and his duty. He treated the appeal as a review. This resulted in a denial of audi alteram parte. [52] In his Heads of Argument the appellant’s counsel further elaborates on the above. In particular, he focuses on the judgment of Hlaele J and the analysis thereof by Makhetha J. [53] In Hlaele J’s above-mentioned interrogation of the alleged “irregularities”, there is little or no mention of the appellant’s cause of action, especially regarding the nature of the proceedings before the Minister, as set out in the new application. It is thus no wonder that Makhethe J, in her scrutiny of Hlaele J’s judgment, does not mention it either. The only overlap is the issue of written versus oral submissions. In the judgment of Hlaele J it features as a 17 procedural irregularity, whereas in the appellant’s submissions on the cause of action it is linked to the Minister’s alleged misunderstanding of the appeal before him. [54] Hlaele J worked with what was before her. Makhetha J’s analysis of Hlaele J’s judgment was misdirected. [55] In an answering affidavit the 2nd respondent submits that the matter was res judicata. There are also no prospects of success. [56] In answer to the appellant’s arguments, submissions from the side of the respondents’ counsel would have been useful. None were made though. The respondents neither filed a Notice of Opposition to the appeal, nor written Heads of Argument. They were not represented by counsel in this Court. On behalf of the 4th respondent, counsel attended for “a watching brief”. The appeal was effectively unopposed. The respondents did not indicate that they abided by the decision of this Court. Remarkably, this came from respondents who – in the High Court - labelled the applicant’s conduct “a fishing expedition”- a statement with which Makhetha J apparently wholeheartedly agreed. [57] The respondents’ conduct is regrettable. This Court expresses its severe displeasure at it. It signals disrespect for this Court; the litigation thus far; the plea of the appellant who was discharged from his job; the decision made and process followed by the respondents themselves, who discharged him; and thus the rule of law in Lesotho. [58] It is noteworthy that in her judgment of 7th November 2022 Hlaele J commented quite extensively on the “unethical and unprofessional conduct of counsel” for the respondents. She even 18 ordered costs, on the scale of attorney and client, de bonis propriis, against counsel … in spite of finding in his favour and dismissing the application! [59] Naturally, there are similarities between the causes of action in the applications that were brought before Hlaele J and Makhetha J in the High Court. However, I am unable to find that the above-mentioned requirements for successful reliance on res judicata, set out in Ascendis (in [36] above) – particularly that the cause of action must be the same – are met. Reasonable prospects [60] This conclusion impacts on the consideration of prospects of success of the review application. As stated above, the issues were intertwined and interdependent, also the reasoning of the High Court. [61] The prospects of success are important. This is clear from the authorities on condonation referred to above. To dismiss a matter with reasonable prospects because of a relatively weak explanation of a delay which is not outrageously or excessively long, would grossly offend justice. To grant condonation in the absence of reasonable prospects is a waste of time, money and other resources. [62] In its investigation regarding reasonable prospects, a court does not have to – and indeed should not endeavour to - determine, or even predict, the final outcome of the matter. A finding that no reasonable prospects present themselves is naturally the end of the case. However, a conclusion that reasonable prospects exist neither has any binding effect, nor imposes any obligation on 19 another court – except of course to fulfil its duty according to judges’ oath of office. [62] Bearing the above in mind, it cannot be said that the application before Makhetha J in the High Court has no reasonable prospects of success. As stated above, this finding has a significant impact on the condonation sought. Conclusion [63] The appeal must succeed. Condonation must be granted. In view of the history of this matter, including the outcome of the applications before Hlaele J and Makhetha J, as well as aspects of the remarks in the judgment of the latter, the matter must be referred back to the High Court, to be heard by another judge. Costs [64] The judge in the High Court provided reasons for her decision to order punitive costs against the appellant. She refers to academic authorities, as well as case law; and mentions “vexatious and frivolous proceedings”. [65] The High Court quotes Mogoeng CJ in South Africa:” Costs on an attorney and client scale are to be awarded where there is fraudulent, dishonest, vexatious conduct and conduct that amounts to an abuse of court process.” (Public Protector v South African Reserve Bank8) (The judge states that “the Supreme Court of South Africa per Mogoeng CJ” uttered the quoted words. Mogoeng CJ presided in the Constitutional Court. He never served in a 8 CCT/107/18 [[2019] ZACC 29](/akn/za/judgment/zacc/2019/29) at 4 20 “Supreme Court”. Since the arrival of the present constitutional dispensation, South Africa has not had one.) [66] The High Court furthermore referred to the words of Mushore J in Crieff Investment (PVT) Ltd and Another v Grand Home Centre (PVT) Ltd and Others9, namely that a punitive costs order will not be awarded lightly. It will not happen merely because the winning party requested them. [67] Then, the High Court judge repeated her remark that the appellant “was obviously on a fishing expedition, well knowing that he has no prospects of success in a contemplated review that was already determined in 2022. Re-instituting such an application in my view is frivolous and vexatious, as well as being an abuse of court process as submitted by the Respondents … Clearly, the application was intended to protract the conclusion of the matter that was long decided in 2022, causing painful extra burden on the Court by bringing cases that have already been decided. In my view the conduct of the Applicant in bringing the present application fits well into the extraordinary circumstances that justify award of costs on a punitive scale. The reason for awarding punitive costs is to penalise blameworthy conduct.” [68] The punitive costs order also follows on the High Court’s misdirected findings that the delay (of two months outside the period that the judge regarded a reasonable) was inordinate and that the explanation without any merit. 9 (HH 12 of 2018, HC 6113 of 2016 Ref 8895 of 2012 [2018] ZWHHC120) 21 [69] The High Court did not discuss the well-known and oft-followed Biowatch judgment (Biowatch Trust v Registrar: Generic Resources and Others)10 of the South African Constitutional Court, which ruled that an unsuccessful litigant in proceedings against the state ought not to be ordered to pay costs, unless the application is frivolous, vexatious, or manifestly inappropriate. One reason for this principle is that the chilling effect of an adverse costs order may discourage potential litigants from asserting their rights against the state. But, as shown above, the judge was firmly of the view that the application was frivolous and vexatious and that the appellant’s blameworthy conduct had to be punished. [70] On the scale of the costs order against the appellant the High Court erred and misdirected itself. Even if this appeal substantially failed, the Court’s costs order had to be set aside. Order [71] In view of the above, the following is ordered: (a) The appeal is upheld. (b) The order of the High Court is set aside and replaced by the following: The application for condonation is granted, with costs. (c) The matter is referred back to the High Court, to be heard by another judge. (d) The 1st to 3rd respondents must pay the costs of this appeal. 10 [[2009] ZACC 14](/akn/za/judgment/zacc/2009/14) 2009 (6) SA 232 (CC)) 22 _______________________________ J VAN DER WESTHUIZEN ACTING JUSTICE OF APPEAL I agree: ______________________________ KE MOSITO PRESIDENT OF THE COURT OF APPEAL I agree _________________________________ PT DAMASEB ACTING JUSTICE OF APPEAL FOR THE APPELLANT: ADV LD MOLAPO ADV L KETSI FOR THE RESPONDENTS: NONE #### __Related documents ▲ To the top >