Tseko Moletsane & Another. V Standard Bank Lesotho (C of A (CIV) No.50/2025) [2025] LSCA 65 (7 November 2025)

# Tseko Moletsane & Another. V Standard Bank Lesotho (C of A (CIV) No.50/2025) [2025] LSCA 65 (7 November 2025) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lsca/2025/65/eng@2025-11-07) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lsca/2025/65/eng@2025-11-07) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lsca/2025/65/eng@2025-11-07) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lsca/2025/65/eng@2025-11-07) [ __](mailto:?subject=Take a look at this document from LesLII: Tseko Moletsane & Another. V Standard Bank …&body=https://lesotholii.org/akn/ls/judgment/lsca/2025/65/eng@2025-11-07) [ Download PDF (149.7 KB) ](/akn/ls/judgment/lsca/2025/65/eng@2025-11-07/source) Report a problem __ * Share * [ Download PDF (149.7 KB) ](/akn/ls/judgment/lsca/2025/65/eng@2025-11-07/source) * * * * * Report a problem __ ##### Tseko Moletsane & Another. V Standard Bank Lesotho (C of A (CIV) No.50/2025) [2025] LSCA 65 (7 November 2025) Copy citation * __Document detail * __Related documents Citation Tseko Moletsane & Another. V Standard Bank Lesotho (C of A (CIV) No.50/2025) [2025] LSCA 65 (7 November 2025) Copy Media Neutral Citation [2025] LSCA 65 Copy Hearing date 16 October 2025 Court [Court of Appeal](/judgments/LSCA/) Case number C of A (CIV) No.50/2025 Judges [Sakoane CJ](/judgments/all/?judges=Sakoane%20CJ), [Musonda AJA](/judgments/all/?judges=Musonda%20AJA), [Van der Westhuizen AJA](/judgments/all/?judges=Van%20der%20Westhuizen%20AJA) Judgment date 7 November 2025 Language English Summary ###### Flynote _Civil Procedure – Exception – Appealability – Dismissal of exception – Whether_ _appealable without leave – Distinction between interlocutory and final orders –_ _Principles governing appealability – Fraud alleged in pleadings – Exception not_ 2 _determinative of factual disputes – Duty of appellate court to respect trial court’s_ _process – Piecemeal appeals discouraged._ Read full summary * * * Skip to document content ###### Flynote _Civil Procedure – Exception – Appealability – Dismissal of exception – Whether_ _appealable without leave – Distinction between interlocutory and final orders –_ _Principles governing appealability – Fraud alleged in pleadings – Exception not_ 2 _determinative of factual disputes – Duty of appellate court to respect trial court’s_ _process – Piecemeal appeals discouraged._ **LESOTHO** **IN THE COURT OF APPEAL OF LESOTHO** **HELD AT MASERU C OF A (CIV) No.50/2025** **CC/T/0113/2023** In the matter between: **TSEKO GILBERT MOLETSANE 1****ST****APPELLANT** **TEBOHO NEPHTALLY MOKOTSO 2****ND****APPELLANT** And **STANDARD LESOTHO BANK RESPONDENT** **CORAM:** SAKOANE CJ MUSONDA AJA VAN DER WESTHUIZEN**** AJA **HEARD:** 16**** OCTOBER 2025 **DELIVERED:** 07 NOVEMBER 2025 **FLYNOTE** _Civil Procedure – Exception – Appealability – Dismissal of exception – Whether_ _appealable without leave – Distinction between interlocutory and final orders –_ _Principles governing appealability – Fraud alleged in pleadings – Exception not_ 2 _determinative of factual disputes – Duty of appellate court to respect trial court’s_ _process – Piecemeal appeals discouraged._ _Held:_ _An order dismissing an exception is interlocutory and therefore not appealable_ _without leave under section 16(1)(b) of the Court of Appeal Act 1978. An_ _exception does not finally determine the rights of the parties nor dispose of the_ _main dispute; it merely tests the legal validity of pleadings in the absence of_ _factual proof. Allegations of fraud require trial and evidentiary ventilation. The_ _Court of Appeal will not usurp the High Court’s function by entertaining an_ _appeal that pre-empts a trial still pending. Judicial comity, expedition, and_ _avoidance of piecemeal litigation demand restraint._ _Result: Appeal struck off the roll with costs._ **JUDGMENT** **MUSONDA AJA** **INTRODUCTION** [1] We have before us an appeal against the High Court (Kopo J) dismissal of an exception. The defendant (respondent) alleged fraud. Appellants approached the High Court seeking the following prayer: (1) a refund of all the unlawfully impounded funds from/by the defendant from Bank accounts in the names of both appellants respectively to the tune of M326, 069.00 and interest thereof at the rate of 12% per annum to be calculated from 29th December 2022. [2] The defendant pleaded fraud in the court a quo. They alleged that when 1st appellant was opening the two accounts, he3 submitted the payslip reflecting that he earned a basic salary to the tune of twenty-six thousand three hundred Maloti (M26, 300.00) from Berea Construction Building and Renovations as a safety officer. The 1st appellant also submitted a letter signed by the 2nd appellant as the Managing Director. [3] The defendant pleaded further that the 2nd appellant also submitted a letter showing that he is employed as a Machine Operator and earning a salary to the tune of twenty-eight thousand nine hundred and fifty-three Maloti (M28,953.00). The letter was signed by M B Bereng, who signed as Managing Director. [4] The plea further portrayed that the defendant, in essence, agreed to advance a loan to the 1st appellant. Furthermore, the defendant pleaded that it found that the 1st appellant earned a salary from Tsehla J Tatane t/a Mesikong General Dealer and the 2nd appellant through his FNB account as opposed to Berea Construction Building and Renovations. It is as a result of these inconsisties that the defendant pleaded that they had to freeze the accounts of the appellants. In a nutshell the appellants carefully planned and neatly executed a fraudulent project, as the loan facility was obtained by fraudulent misrepresentations by both appellants, so the defendant argued. [5] The appellants pleaded in the court a quo that the defendant had no defence and therefore only rely on their subjective4 conclusion. Moreover, they argue that the Defendant has no justifiable legal ground for their action. [6] The defendant on the other hand argued that it had established a defence that can be sustained by evidence at trial. [7] The learned Judge dismissed the exception with costs. The defendant alleged fraud and if fraud is indeed proved, there are a host of laws that would entitle the defendant to take action or even make the agreement between the parties null and void1, so the learned Judge reasoned. [8] The appellants noted an appeal against the dismissal of the application without leave. The appellants argue that the dismissal of their exception by the court a quo is appealable as it concerned a substantive question of law which is capable of disposing of the dispute. By discussing the exception, the court said the final word in the suit, and its order is not appealable at the final stage. [9] In support of their argument that the exception ought not to have been rejected, Advocate Ramochela, cites the decisions of Erasmus J and Benjamin J in Francis V Sharpe2 and Colonial Industries Ltd V Provincial Insurance Co Ltd3**** respectively. Benjamin J said: 1 Para 22 of the judgement 2 2004 (3) SA 148 (c) at 237 3 1920 CPD 627 at 6305 “Save in the instance where an exception is taken for the purpose of raising a substantive question of law which may have the effect of settling the dispute between the parties, an excipient should make out a very clear, strong case before he should be allowed to succeed.” [10] The appellants admit that as excipients, they shoulder a heavy burden to make out a clear and strong case. Where the court affirms that facts are common cause and the determination is of the substantive point of law, the exception will rightfully be appealable. Maize Board V Tiger Oats Limited4 . [11] Advocate Mpaka, valiantly argued that once it is accepted that dismissal of an exception is interlocutory in nature, it carries as a corollary that appellants herein are non-suited, regard being had to Section 16 (1) (9), of the Court of Appeal Act 19785. The absence of leave is fatal. [12] The dismissal of an exception is classified as an interlocutory order. Generally Interlocutory Orders, are not appealable6. In determining appealability, several factors must be considered. These includes whether the relief granted was final in effect, whether it definitely determine the rights of the parties, and whether it disposed of a substantial portion of the relief claimed. Additionally, considerations such as convenience, timing, delay, 4 2002 (5) SA 365 SCA at para 13 5 Kananelo Matsoha V The Principal Officer Standard Lesotho Bank Pension Fund and 3 others C of A (CIV) No. 95/2022 6 First National Bank of Lesotho Limited V Luqy’s Manufacturing LAC (2019- 2020) 3156 expedience, potential prejudice, the avoidance of piecemeal appeals, and the broader pursuit of justice also play a crucial role7 . [13] The issue that arises is whether the dismissal is appealable and if it was, leave is a condition precedent before we can entertain the appeal. [14] The facts in this matter are not common cause. The matter can therefore not be disposed on a point of law. Even if the appeal were to succeed, it is unlikely to be determinative of the case. The issue as to whether there was fraudulent misrepresentation by the appellants and illegal defunding of the appellant’s accounts by the respondent are issues which will remain undetermined, there will be no finality to these issues, so to speak. [15] An erudite judgement, the Supreme Court of Appeal of South Africa had this to say in TWK Agriculture Holdings (Pty) Ltd V Hoogvelt Boerdery Belleggings (Pty) Ltd and others8 ,**** per Unterhalter AJA: “A long line of cases, stretching back to Blaauwbosch Diamonds Ltd V Union Government (Minister of Finance) 1915, AD 599 at 601, has consistently held, save in very limited circumstances, that the dismissal of an exception is not appealable. The basis of this holding is that such an order is not final in effect because there is nothing to 7 Zweni V Minister of and Order 1993 (1) SA 523 at 532 J – 533 A 8 273/2022 [2023] ZA SCA 63 (5th May 2023) para 97 prevent the same law points being argued at the trial. As Innes CJ, put the matter, though the court is likely to change its mind, there is no legal obstacle to it doing so upon a consideration of fresh argument and authority” . [16] There is no legal obstacle which stands in the way of the trial court finally deciding the point of law. The dismissal of exception is simply not a final decision and until the matter is finally decided, an appeal should not lie to this Court to pre-empt what the High Court has yet to bring to finality. We are hearing this appeal against the dismissal of the exception, when the trial is pending before the High Court Commercial Division, which Court will finally determine all factual and Legal issues. [17] There is a principled consideration, this Court owes a duty of comity to the High Court. The High Court, having dismissed an exception, has not pronounced its last word on the subject. What the High Court has decided may be right or wrong. But under the exception procedure, the High Court may yet correct itself or confirm its decisions on exception. This Court should respect that process9 . [18] In many cases, the exception, even if ultimately successful, does not dispose of the case. The trial will have been delayed, and 9 Ibid, para 328 so too the final judgement to which the parties are entitled10 . The process of pursuing the exception is dilatory. [19] There is fairness to both parties if the matter is tried, the trial Judge will have the advantage of being aware of all facts for him to decide legal issues, like Unterhalter AJA said: “The advantage of the matter going to trial is that the plaintiffs must pin their colours to the mast. They must take a view on the law and the facts they mean to prove. These will then be decided at the trial, finally”11 . [20] The exception raises a pure question of law. It does not deal with factual disputes, as learned Judge pointed out: “The defendant is clear that it alleges fraud. Fraud can vitiate a contract. If proven, the contract may be declared null and void. It is for this reason that the exception must fail.”12 **Conclusion** [21] An exception should be used sparingly, because the determination of facts is absent. The exception is there to test the legal validity of the pleadings. This Court in Mafeteng Property 10 Ibid, para 36 11 Ibid, para 50 12 Para 22 of High Court Judgement9 Group (Pty) Ltd V Radiopelo Maphathe13 articulated circumstances in which an appeal lies without leave to this Court, i.e. if the lower court had no jurisdiction, which is the position of the Supreme Court of Appeal. The court is determining legality minus factuality and cannot be said to have finally determined the matter. There is no prejudice as both parties will have an opportunity to present their factual and legal arguments during trial. In sum, bringing the matter to trial as quickly as possible, upon the dismissal of an exception, has many advantages. They are advantages yielded by avoiding piecemeal litigation. I do not overlook the proposition, pressed in argument, that an authoritative decision by this Court on a point of law that disposes of the case is an optimal outcome, as that will be an economic use of judicial time. In circumstances where the court is sure-footed that the facts are common cause, proceeding first to trial, in those circumstances, is long and costly detour to an end. Those circumstances are absent in this matter. [22] In the result, I make the following order: 1\. Appeal is struck off the roll 2\. Costs will follow the event. ___________________________ **P. MUSONDA** **ACTING JUSTICE OF APPEAL** 13 C of A N0. 12/202110 I agree ___________________________ **S. P. SAKOANE** **CHIEF JUSTICE** I agree ___________________________ **J. VAN DER WESTHUIZEN** **ACTING JUSTICE OF APPEAL** **FOR APPELLANTS:** ADV. S. K. RAMOCHELA **FOR RESPONDENT:** ADV. T. MPAKA #### __Related documents ▲ To the top >