Lebohang Sethathi V Morapeli Borotho & 4 Others (C of A (CIV) No 26/2023 C of A (CIV/REV) No 1/2025) [2025] LSCA 46 (15 October 2025)

# Lebohang Sethathi V Morapeli Borotho & 4 Others (C of A (CIV) No 26/2023 C of A (CIV/REV) No 1/2025) [2025] LSCA 46 (15 October 2025) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lsca/2025/46/eng@2025-10-15) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lsca/2025/46/eng@2025-10-15) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lsca/2025/46/eng@2025-10-15) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lsca/2025/46/eng@2025-10-15) [ __](mailto:?subject=Take a look at this document from LesLII: Lebohang Sethathi V Morapeli Borotho & 4 …&body=https://lesotholii.org/akn/ls/judgment/lsca/2025/46/eng@2025-10-15) [ Download PDF (247.2 KB) ](/akn/ls/judgment/lsca/2025/46/eng@2025-10-15/source) Report a problem __ * Share * [ Download PDF (247.2 KB) ](/akn/ls/judgment/lsca/2025/46/eng@2025-10-15/source) * * * * * Report a problem __ ##### Lebohang Sethathi V Morapeli Borotho & 4 Others (C of A (CIV) No 26/2023 C of A (CIV/REV) No 1/2025) [2025] LSCA 46 (15 October 2025) Copy citation * __Document detail * __Related documents * __Citations 7 / - Citation Lebohang Sethathi V Morapeli Borotho & 4 Others (C of A (CIV) No 26/2023 C of A (CIV/REV) No 1/2025) [2025] LSCA 46 (15 October 2025) Copy Media Neutral Citation [2025] LSCA 46 Copy Hearing date 7 November 2025 Court [Court of Appeal](/judgments/LSCA/) Case number C of A (CIV) No 26/2023 C of A (CIV/REV) No 1/2025 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 15 October 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) Summary ###### Flynote Review of Court of Appeal Judgment — Exceptional Jurisdiction — Inherent Review Powers of Apex Court — Patent Error or Gross Injustice Threshold — New Cause of Action Raised on Review — Compensation for Improvements to 2 Land Not Claimed in Lower Courts — Abuse of Process — Condonation — Late Filing of Heads — Costs de bonis propriis Read full summary * * * Skip to document content ###### Flynote Review of Court of Appeal Judgment — Exceptional Jurisdiction — Inherent Review Powers of Apex Court — Patent Error or Gross Injustice Threshold — New Cause of Action Raised on Review — Compensation for Improvements to 2 Land Not Claimed in Lower Courts — Abuse of Process — Condonation — Late Filing of Heads — Costs de bonis propriis 1 LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C OF A (CIV/REV) NO:01/2025 C OF A (CIV) NO 26/2023 In the matter between: LEBOHANG SETHATHI APPLICANT AND MORAPELI BOROTHO 1ST RESPONDENT ‘MAMPOI MAJARA 2ND RESPONDENT KANANA COMMUNITY COUNCIL 3RD RESPONDENT LAND ADMINISTRATION AUTHORITY 4TH RESPONDENT THE ATTORNEY GENERAL 5TH RESPONDENT CORAM: DAMASEB AJA VAN DER WESTHUIZEN AJA MATHABA AJA HEARD: 15 OCTOBER 2025 DELIVERED: 07 NOVEMBER 2025 FLYNOTE Review of Court of Appeal Judgment — Exceptional Jurisdiction — Inherent Review Powers of Apex Court — Patent Error or Gross Injustice Threshold — New Cause of Action Raised on Review — Compensation for Improvements to 2 Land Not Claimed in Lower Courts — Abuse of Process — Condonation — Late Filing of Heads — Costs de bonis propriis Application to review and set aside a judgment of the Court of Appeal in terms of its inherent jurisdiction. The matter concerned land rights and alleged entitlement to compensation for improvements made on disputed land. The applicant sought, inter alia, remission to the High Court for assessment of compensation. No claim for compensation had been advanced in the District Land Court or the Land Court. The application rested on the assertion that denial of compensation constituted a grave injustice. Held, dismissing the application, that the Court of Appeal, as the apex court, has inherent jurisdiction to review its own decisions only in exceptional circumstances — namely where a patent error or grave miscarriage of justice is demonstrated (Lepule v Lepule; Hippo Transport v Commissioner of Customs & Excise followed). The applicant advanced a new cause of action and failed to plead or establish exceptional circumstances. The founding affidavit was silent on the mandatory threshold. Counsel properly conceded that the application did not meet the requisite standard. Further held, condonation for late filing of heads refused where the delay was unexplained and supplementary heads filed without leave. Applications for condonation must be lodged immediately upon discovery of non-compliance. Costs — Legal practitioner’s personal liability. In view of the unmeritorious and ill-conceived nature of the proceedings, and counsel’s reckless conduct in instituting a disguised rehearing and seeking to “short-circuit” proper procedure, costs de bonis propriis are awarded against counsel. However, in light of counsel’s concession that the review did not satisfy the threshold, costs were ordered on the attorney-and-client scale (not attorney-and-own-client). Order: Application dismissed; condonation refused; counsel ordered to pay costs de bonis propriis on attorney-and-client scale. 3 JUDGMENT MATHABA AJA Introduction [1] The applicant in this matter brought an application by way of notice of motion for review of a decision of this Court handed down on 30 May 2024 in C of A (CIV) 26/2023 by Chinhengo AJA sitting with Sakoane CJ and Van Der Westhuizen AJA. [2] In terms of the said application the applicant seeks an order from this Court as follows: “-1- (a) That the judgment of this honourable Court issued in C of A (CIV) No:26/2023 be reviewed, corrected and set aside; (b) That the Applicant be compensated for the costs of improvements he effected on the land situated at Marabeng in the district of Berea; (c) That the matter be remitted to the High Court to determine the compensation amounts due and payable to the Applicant with the help of quantity surveyors, whose cost shall be borne by the parties equally. (d) That the process should be expedited at least within ninety (90) days. (e) That each party should bear its own costs.” [3] The first respondent hotly contests the matter and requests the application to be dismissed with punitive costs. 4 The factual background [4] The dispute between the parties concerns a piece of land situated at Marabeng in the district of Berea. The land is registered in the names of the first respondent under Lease No. 15264-014. The dispute originated from Teya-Teyaneng District Land Court where the applicant had instituted a claim amongst others seeking cancellation of the first respondent’s lease and an order directing the Land Administration Authority to issue a lease in his own names for the disputed land. [5] On the other hand, the first respondent had reacted with a counter-application amongst other seeking an order that the applicant be ejected from the disputed plot and that he remove his belongings thereat, failing which the removal was to be done by the Messenger of the Court assisted by the Lesotho Mounted Police Service (LMPS). [6] The District Land Court dismissed the counter-application and granted the applicant an order in the following terms: “(1) That the 4th respondent being the Land District Administration Authority is hereby ordered to cancel an expunge 2nd respondent’s name [1st respondent herein] in its records with regard to lease no:15264-014. (2) The 4th respondent being the Land Administration Authority is hereby ordered to cancel the lease No. 15264-014 issued in favour of the 2nd respondent [1st respondent herein]”. (3) The 4th respondent being the Land Administration Authority is hereby ordered to issue a lease in favour of the applicant after following the process of the law. 5 (4) No order as to costs. Further the Court orders thus: (5) The applicant’s counter-application in the Counter-application and 2nd respondent in the main application is hereby dismissed. No other as to costs.” [7] The first respondent appealed to the Land Court which made the following order effectively replacing that of the District Land Court: “a) The main application is dismissed. b) An order of absolution from the instance in the counter-application is issued. c) Each party to bear their own cost.” [8] As this Court pointed out in its judgement, the subject of the review proceedings, the implication of the learned Judge’s order was that she did not accede to or confirm either the first respondent or the applicant’s title to plot no: 15264-014.The practical effect of an order of absolution in the counter-application was that the applicant remained in possession of the plot even though his right to do so had not been established. [9] Aggrieved by the decision of the Land Court particularly the order of absolution, the first respondent had noted an appeal to this Court which made the following order on 3 May 2024: “(a) The appeal against the order of absolution from the instance is set aside. (b) The order of the District Land Court is substituted with the following order- 6 “(i) The main application is dismissed. (ii) The applicant be and is hereby evicted from Plot No. 15264-014 and is further ordered to remove his property from the Plot, failing which the messenger of the court shall take all necessary steps to remove him and his property therefrom and applicant shall not either by himself or through any person acting on his instructions or on his behalf interfere with the appellant’s [first respondent herein] possession and use of the plot. (iii) The applicant shall pay the 2nd respondent’s [first respondent herein] costs.” (c) The 1st respondent [the applicant herein] shall pay the appellant’s [first respondent herein] costs in the Land Court and in this Court.” The review [10] In motivating his approach to this Court by way of review, the applicant contends that at the time the Land Court decided the appeal from the District Land Court, it was incumbent upon it to issue an order that he be compensated for the developments he made on the disputed land. Otherwise, the land shall be enriched unfairly at his expense, so proceeds the argument. [11] Additionally, the applicant contends that grave injustice would occur if this Court does not review its own decision ejecting him from the plot by making an order that the matter be remitted to the Land Court for the assessment “of proprietary developments” he made so that he may be compensated accordingly. 7 [12] The first respondent reacts as follows in the answering affidavit: “1.4. I strong (sic) aver that the application raises matters which were not adjudicated upon in the main matter as it moved through from the DISTRICT LAND COURT to this Honourable Court. The APPLICANT seeks an order remitting the matter to the High Court for the determination of value for compensation due to the developments he made on the site. The challenge is that the APPLICANT in his founding papers, which commenced the proceedings in the DISTRICT LAND COURT did not make any case that he be compensated for the developments he made on the site. It will be inappropriate in my humble averment that the APPLICANT for the first time raises the issue of compensation in this Honourable Court and it is entertained. 1.5. The issue of compensation will be a new and different cause of action altogether from the case that the APPLICANT had pleaded when he first instituted his case before the DISTRICT LAND COURT in the district of BEREA. I have been advised that the Honourable Court in exercising its review powers is ordinarily restricted to the issues that were subject to the determination by either this Honourable Court, or that were legally supposed to be determined by the LAND COURT and or DISTRICT LAND COURT as the case maybe. 1.6. The other challenge is that when the case was first instituted in the DISTRICT LAND COURT, the site had not yet been developed. The APPLICANT started building on the site after an order was issued in his favour in the DISTRICT LAND COURT. The APPLICANT built on the site despite the fact that I had noted an appeal and served him with the Notice and Grounds of Appeal. When I realized that the APPLICANT was building on the 8 site nonetheless, I applied for an interdict against him in the DISTRICT LAND COURT, to the effect that he be stopped from building on the site until after the conclusion of the appeal. I annex hereto the said application hereto and mark it ANNEXURE A. 1.7 I wish to take this Honourable Court into my confidence and state that the APPLICANT opposed the application for the interdict in the DISTRICT Land Court; his opposing affidavit is annexed hereto and marked ANNEXURE B. Unfortunately, the application for interdict was dismissed and the APPLICANT continued to build on the site. The APPLICANT at the same time was also pursuing LAND ADMINISTRATION AUTHORITY (LAA) to issue him a lease in his names per the court order issued by the DISTRICT LAND COURT in his favour but was subject of appeal to the LAND COURT under LC/A/04/2020.” [13] More significantly, the first respondent contends that this Court should decline to revisit its decision on review as no case has been made for such an extraordinary remedy. The issue [14] Therefore, the issue raised in this application is whether the applicant has made a case for this Court to review its own decision in C of A N0:26/2023. The law [15] At this juncture, it is necessary to remind ourselves of ambit of this Court’s power or jurisdiction to review its judgements while taking into consideration the issues raised by the parties in 9 their respective affidavits. This Court broke the ground when it formulated the applicable test in Lepule v. Lepule and others1 when it explicitly stated the following: “[97] Based on the above exposition of the practice in apex courts in the jurisdictions discussed, we are persuaded that although the Lesotho Court of Appeal does not have direct jurisdiction, whether in the Constitution or in the applicable legislation to review its own judgments, the Court may, when the appropriate circumstances arise, exercise that jurisdiction, based on its inherent common law duty and obligation to serve the interests of justice. However, similar to the jurisdictions discussed earlier, this Court, must be circumspect in doing so, but not exercise that power with undue rigidity. This Court must therefore proceed to do so only when exceptional circumstances are present. Similarly, exceptional circumstances will exist where, in the prior judgment, a patent error has occurred and or there has been a gross or serious miscarriage of justice which can be corrected only by reviewing this Court's prior judgment.” [16] Further, in Hippo Transport (Pty) Limited v. The Commissioner of Customs & Excise and Another2 Mosito P, (Musonda AJA and Mtshiya AJA concurring) remarked as follows regarding this Court’s jurisdiction to review its own decisions: “[19] It is my view that when the Court of Appeal is the final court (apex court), it has the inherent jurisdiction or powers to review its own previous decision. No doubt that the Court of Appeal of Lesotho is not statutorily conferred with such jurisdiction or powers. An apex court must be armed with such inherent powers in order to correct obvious mistake and to do justice. However, in exercising 1 Lepule v. Lepule and Others LAC (2015 – 2016) 78 at 124. 2 Hippo Transport (Pty) Ltd v. The Commissioner of Customs & Excise C of A (CIV) 6 of 2017) [[2018] LSCA 5](/akn/ls/judgment/lsca/2018/5) (7 December 2018). 10 such powers, it should not position itself as if it were hearing an appeal. [20] The case clearly demonstrates that the power by an apex court to review its own previous decision may only be done in very exceptional circumstances. I find myself in respectful agreement with the remarks of the Court of Appeal of Malaysia (Review Jurisdiction)13 that: …that one instance where the power to review may be exercised is when there is a Corum failure. Another instance that I can think of is where the Court of Appeal has by mistake imposed a wrong sentence as provided by law. Example, if the law imposes a maximum sentence of 20 years imprisonment, but for a mistake the Sessions Court imposes 25 years imprisonment; and this is subsequently affirmed by the High Court and Court of Appeal. In such a situation, another panel of the Court of Appeal, being the apex court can use its inherent powers to set aside the illegal sentence and impose the sentence that is appropriate as provided by the law. Of course, there may be other instances, but the exercise of such power depends on the facts and circumstances of each case (see Ramanathan s/o Chelliah v Public Prosecutor [2009] 6 MLJ 215). However, as said earlier, the power to review must not be treated as an appeal; otherwise, there will be no end to litigation.” … [22] This court can only exercise its review power in exceptional circumstances. This court will view circumstances as exceptional only when gross injustice and or a patent error has occurred in the prior judgment. The power of this court to review its own decisions should therefore not be a disguised rehearing of the prior appeal. It is therefore not a disguised rehearing of the prior appeal, going over it with a fine comb for the re-determination of aspects of that judgment. It is therefore not done for purposes other than to correct a patent error and or grave injustice, realised only after the judgment had been handed down.” [17] Similarly, guided by the principles enunciated in Lepule and applied in Hippo, (supra), this Court in Rex v. Maphale 11 Phantši3 overruled its own decision in Mohale and Another v. Rex4 that was inconsistent with section 12(4) of the Constitution. This Court had incorrectly held in Mohale, (supra), that the relevant age for consideration for purposes of section 26(1) of the Children’s Protection Act, 1980,5 is the age of the accused on the date of sentence, as opposed to the age on the commission of the offence. [18] In Phantši, (supra) the High Court had reserved a question of law in terms of section 15(1) of the Court of Appeal Act, 19786 because it was disquieted that the decision of this Court in Mohale, (supra), was inconsistent with section 12(4) of the Constitution. Having found that the relevant age for purposes of the Children’s Protection Act, in the light of section 12(4) of the Constitution, is the age on the date of the commission of the crime and not the date of sentence, this Court overruled its previous decision in Mohale, (supra) to the extent that it was inconsistent with the Constitution and remitted the matter in Phantši, (supra), to the High Court for treatment according to law. [19] A closer examination of these decisions reveals that for the applicant to succeed in this matter, he must demonstrate exceptional circumstances viz. gross injustice or a patent error in the prior judgment. It is an exception to the res judicata doctrine for this Court to review its own decision. Thus, it is a power that must be exercised with caution to ensure that old cases are not 3 Rex v. Phantsi (C of A (CRI-RESERVE 1 of 2021) [[2021] LSCA 6](/akn/ls/judgment/lsca/2021/6) (14 May 2021). 4 Mohale and Another v. R LAC (2005 – 2006) 197. 5 Children’s Protection [Act No.6 of 1980](/akn/ls/act/1980/6). 6 Court of Appeal [Act No. 10 of 1978](/akn/ls/act/1978/10). 12 ‘exhumed’. There must be end to litigation for the sake of certainty once cases have been decided. Consideration of the application [20] It is noteworthy that the applicant is approaching this Court with a completely new cause of action for compensation relevant to improvements he made on the disputed plot. The applicant never claimed compensation from the District Land Court or from the Land Court. [21] More tellingly, the applicant’s affidavit is as silent as a graveyard regarding the mandatory exceptional circumstances he must demonstrate, viz. gross injustice or a patent error in the prior judgment. Doubtlessly, this is fatal to the application. At the hearing of the matter, Mr Sehapi for the applicant conceded, correctly so in my view, that the application falls short of the required threshold. I will therefore not labour on this point. [22] At this juncture, it is convenient to interpose and point out that the heads of argument for the applicant were belatedly filed. As a result, the applicant filed an application for condonation for late filing of the heads of argument on 14 October 2025, a day before the application was heard. The heads of argument had been filed on 1 October 2025. To add salt to injury, the application for condonation was apparently filed together with supplementary heads of argument for which there was no corresponding application for condonation. [23] Given this Court’s prima facie view that the application for review was unmeritorious, Mr Sehapi was directed to first 13 address the Court on the prospects of success of the review application. In the light of his concession that the applicant did not meet the threshold for this Court to review its judgment, the application for condonation too cannot succeed. [24] Additionally, the applicant has not even explained the delay in filing the application for condonation from the time he became aware that his heads of argument were not filed on time. This Court has repeatedly stated that application for condonation must be filed as soon as non-compliance becomes apparent.7 Costs [25] In his answering affidavit, the first respondent requested this Court to dismiss the application with punitive costs. In short, the applicant was warned that punitive costs were going to be sought. Given the warning, coupled with this Court’s attitude that the application was unmeritorious, Mr Sehapi was given an opportunity to address the Court why costs de bonis propriis on attorney and own client scale should not be imposed. Though he ended up conceding to the proposed costs order, Mr Sehapi argued that he had hoped this Court would be sympathetic given his earlier concession that the case does not meet the required threshold for this Court to review its judgment. 7 Zainab Moosa and Others v. Lesotho Revenue Authority (C of A (CIV) 2 of 2014 [[2015] LSCA 36](/akn/ls/judgment/lsca/2015/36) (6 November 2015); Christoffel Smith v. Tsepong Proprietary Limited (C of A (CIV) 22 of 2020) [[2021] LSCA 11](/akn/ls/judgment/lsca/2021/11) (14 May 2021); Mants’o Koloko & Ano. v. Clement Mapoki & 4 Others (C of A (CIV) 86/2024) [[2025] LSCA 41](/akn/ls/judgment/lsca/2025/41) (2 May 2025). 14 [26] On behalf of the respondent, Mr Lebakeng insisted on costs on attorney and client scale and submitted that costs de bonis propriis were warranted in this case. [27] There is a catena of judgments of this Court and judgments of other jurisdictions on the subject. As a general rule, costs de bonis propriis are awarded in exceptional circumstances. However, it is not unprecedented that costs are made against a legal representative. An order of costs de bonis propriis can be made against a lawyer where the court is satisfied that there has been negligence in a serious degree which warrants such an order of costs as a mark of the court’s displeasure. [28] It is trite that lawyers, as officers of this Court, owe it an appropriate level of professionalism and courtesy. Errors of law or failure to comply with the rules is an everyday occurrence and may not necessarily result in an order of costs de bonis propriis. The degree of the error must be considered. [29] As this Court stated in Makeka v. Africa Media Holdings C/O Lesotho Times and Others,8 commencing or conducting proceedings that are an abuse of court process; raising untenable defences for purposes of delay; repeatedly putting untenable submissions; acting in ignorance of the rules and prosecuting an appeal which has no prospects of success are conduct that can warrant costs de bonis propriis. Further, gross incompetence and lack of care may justify an order for costs de bonis propriis.9 8 Makeka v. Africa Media Holdings C/O Lesotho Times and Others (C of A (CIV) 14/2022) [[2022] LSCA 62](/akn/ls/judgment/lsca/2022/62) (11 November 2022). 9 Muilti-Links Telecommunications Ltd v. Africa Prepaid Services Nigeria Ltd 2014 (3) SA 265 (GP), 289. 15 [30] Regard being had to a plethora of cases concerning this Court’s power to review its decision, and a lawyer’s duty to familiarize himself with the rules of this Court and relevant authorities, Mr Sehapi did not, in my respectful opinion, act with due care and the required reasonableness. Evidently, he has been reckless or negligent in a serious degree in instituting this application. The application was unmeritorious, ill-advised and reckless. [31] It boggles the mind how Mr Sehapi could be so cavalier with this Court and institute a new cause of action disguised as review application. He should have advised his client of the proper forum to claim compensation relevant to improvements made on the disputed plot. Mr Sehapi clearly wanted to short circuit the process. It will be unfair to expect Mr Sehapi’s client to bear the costs in circumstances where he was clearly ill-advised to institute this application. That said, though Mr Sehapi has earned himself costs de bonis propriis, imposing them on attorney and own client scale will be harsh given his concession that the case did not meet the threshold for this Court to review its judgment in C of A (CIV) 26/2023. The concession saved the time of this Court. The order [32] In the result the following order is made: (a) The application is dismissed. (b) The application for condonation is dismissed. 16 (c) Costs are ordered de bonis propriis against Mr Sehapi on attorney and client scale in favour of the first respondent. ______________________________ 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 APPLICANT: ADV. F. SEHAPI FOR 1ST RESPONDENT: MR. P.T LEBAKENG #### __Related documents ▲ To the top >