Mampolokeng Matela V Democratic Congress & 6 Others. (C of A (CIV) 57/2024) [2025] LSCA 23 (2 May 2025)

# Mampolokeng Matela V Democratic Congress & 6 Others. (C of A (CIV) 57/2024) [2025] LSCA 23 (2 May 2025) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lsca/2025/23/eng@2025-05-02) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lsca/2025/23/eng@2025-05-02) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lsca/2025/23/eng@2025-05-02) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lsca/2025/23/eng@2025-05-02) [ __](mailto:?subject=Take a look at this document from LesLII: Mampolokeng Matela V Democratic Congress & 6 …&body=https://lesotholii.org/akn/ls/judgment/lsca/2025/23/eng@2025-05-02) [ Download PDF (193.2 KB) ](/akn/ls/judgment/lsca/2025/23/eng@2025-05-02/source) Report a problem __ * Share * [ Download PDF (193.2 KB) ](/akn/ls/judgment/lsca/2025/23/eng@2025-05-02/source) * * * * * Report a problem __ ##### Mampolokeng Matela V Democratic Congress & 6 Others. (C of A (CIV) 57/2024) [2025] LSCA 23 (2 May 2025) Copy citation * __Document detail * __Related documents Citation Mampolokeng Matela V Democratic Congress & 6 Others. (C of A (CIV) 57/2024) [2025] LSCA 23 (2 May 2025) Copy Media Neutral Citation [2025] LSCA 23 Copy Hearing date 11 April 2025 Court [Court of Appeal](/judgments/LSCA/) Case number C of A (CIV) 57/2024 Judges [Dr. Mosito P](/judgments/all/?judges=Dr.%20Mosito%20P), [Musonda AJA](/judgments/all/?judges=Musonda%20AJA), [Van der Westhuizen AJA](/judgments/all/?judges=Van%20der%20Westhuizen%20AJA) Judgment date 2 May 2025 Language English Summary ###### Flynote Flynote Practice and Procedure — Condonation — Late Filing of Record — Audi Alteram Partem — Court of Appeal Rules, 2006, Rules 5 and 15 — Duty to Serve Timeously — Procedural Fairness — Costs. Read full summary * * * Skip to document content ###### Flynote Flynote Practice and Procedure — Condonation — Late Filing of Record — Audi Alteram Partem — Court of Appeal Rules, 2006, Rules 5 and 15 — Duty to Serve Timeously — Procedural Fairness — Costs. LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C OF A (CIV) NO. 57/2024 MAMPOLOKENG MATELA APPELLANT And DEMOCRATIC CONGRESS 1STRESPONDENT NATIONAL EXECUTIVE COMMITTEE OF DC 2ND RESPONDENT CONSTITUENCY COMMITTEE OF DC BUTHA-BUTHER NO.5 3RD RESPONDENT ‘MANTSOBO MOHANOE 4TH RESPONDENT INDEPENDENT ELECTORAL COMMISSION 5TH RESPONDENT MINISTRY OF LOCAL GOVERNMENT 6TH RESPONDENT ATTORNEY GENERAL 7TH RESPONDENT CORAM: MOSITO P MUSONDA AJA VAN DER WESTHUIZEN AJA HEARD: 11 APRIL 2025 DELIVERED: 2 MAY 2025 2 Flynote Practice and Procedure — Condonation — Late Filing of Record — Audi Alteram Partem — Court of Appeal Rules, 2006, Rules 5 and 15 — Duty to Serve Timeously — Procedural Fairness — Costs. Where a party seeks condonation for the late filing of the record of appeal, the application must not only comply with the requirements of the Court of Appeal Rules, 2006, but must also be served on all opposing parties within a reasonable time to enable them to respond meaningfully. An application filed and served on the morning of the hearing, without prior notice, offends against the principle of procedural fairness enshrined in section 12 of the Constitution of Lesotho and the audi alteram partem rule. The Court will not permit the appeal to proceed in such circumstances, and a postponement will be ordered to prevent injustice. Where both parties have contributed to the procedural disruption—one by defaulting in service and the other by raising a meritless objection to the completeness of the record—the Court may decline to make any order as to costs. The interests of justice are not served by rewarding either dilatoriness or misplaced technical objections. Held (per Mosito P, with Musonda AJA and Van der Westhuizen AJA concurring): The application for condonation having been improperly served and procedural fairness compromised, the matter is postponed to the next session of the Court of Appeal, with no order as to costs. JUDGMENT MOSITO P Introduction [1] This matter came before this Court on 11 April 2025, set down for hearing in the normal course. The appellant had appealed against a judgment of the court a quo. However, it became immediately apparent upon commencement of proceedings that 3 the record of appeal, though filed, had been accompanied by no application for condonation for its late filing. Counsel for the appellant, Advocate Lephuthing, conceded that the application for condonation had not been lodged in accordance with the Rules of this Court and had only been filed on the very morning of the hearing. [2] The respondents, appearing through Advocate Phororo, were manifestly taken by surprise. He informed the Court that the condonation application had only just reached his hands and that he had not had an opportunity to read it, let alone to consult with his clients or to prepare opposing papers. He therefore objected, with understandable vigour, to the Court proceeding to hear the appeal in the absence of due and fair opportunity to answer the condonation application. Issue [3] Concerning the facts and circumstances of the case, the background leading to the hearing on 11 April 2025, and the conduct of both parties, the following issues arise for determination by the Court: (a) Whether the appeal can be heard in circumstances where the application for condonation for the late filing of the record was only filed on the morning of the hearing and had not been served on the respondents in advance. (b) Whether the respondents, having been surprised by the late and unserved condonation application, were entitled, as a matter of procedural fairness, to consider and respond to it before the appeal could proceed. 4 (c) Whether the appellant's conduct in filing the condonation application late, and of the respondents in raising an ultimately unfounded objection to the completeness of the record, warranted any adverse order as to costs against either party. (d) Whether, in light of the procedural irregularities and mutual contribution to the resulting inefficiency, the proper course was to postpone the matter to a future session of the Court with no order as to costs. Law [4] The filing of records in civil appeals before the Court of Appeal of Lesotho is governed by a well-established framework, principally codified under the Court of Appeal Rules, 2006. These Rules are not mere procedural adornments. They constitute a binding and structured code of appellate practice designed to ensure that the administration of justice proceeds in an orderly, predictable, and fair manner. Amongst the most crucial of these procedural rules is the requirement that the record of appeal be filed timeously, and where it is not, that condonation for the late filing be sought promptly and in due form. [5] The principal Rule addressing this subject is Rule 5(1), which stipulates that a record of appeal must be filed within three months of the date of noting the appeal, unless the President of the Court has, for good cause, extended such period. This temporal requirement is not discretionary. It operates ex lege, and failure to comply renders the appeal susceptible to being struck off unless an application for condonation is timely and properly advanced. 5 [6] Rule 15(1) of the same Rules further provides that where a party has failed to comply with any rule, direction or order, that party must apply to the Court for condonation, setting forth fully the reasons for the failure and demonstrating good cause why the indulgence of the Court ought to be granted. Importantly, Rule 15(2) reinforces that such an application must be served on all other parties, giving them a reasonable opportunity to answer it should they wish. This service requirement is not perfunctory—it is fundamental to the observance of the audi alteram partem rule, a constitutional imperative deeply embedded in Lesotho’s legal system through section 12 of the Constitution. [7] Failure to observe procedural rules—particularly those governing time limits and application service—will not be condoned lightly, save where the breach is technical, non-prejudicial, or where substantial justice would otherwise be defeated. Thus, the emphasis is upon fair notice and meaningful opportunity to respond rather than perfunctory compliance. Application of the law to the case [8] In this matter, Advocate Lephuthing urged the Court to proceed with the hearing, contending that the interests of justice would be served by moving forward without delay. With respect, this position was untenable. The Rules of this Court do not permit condonation to be presumed or granted ex tempore in the absence of an opportunity for the opposing party to engage meaningfully with the application. To do so would be to elevate expediency above fairness and erode procedural justice's integrity. 6 [9] In these circumstances, the Court had no option but to postpone the matter to the next session of the Court. Regrettably, a postponement became necessary at this late stage, particularly when it might have been avoided by an earlier application for condonation properly served on the opposing parties. [10] That said, the blame for the inconvenience and inefficiency that followed is not the appellant’s alone. At the commencement of proceedings, Advocate Phororo raised a strenuous objection to the record of appeal, alleging that it was incomplete and thereby rendering the appeal fatally defective. The Court was compelled to devote considerable time—in excess of an hour—to interrogate this objection. It ultimately emerged that the record was, in fact, in proper form and that the objection was without merit. [11] The Court must express its disquiet at this aspect of the proceedings. Counsel must advance their clients’ interests with due care, efficiency, and responsibility. Time spent litigating spurious technicalities detracts from the Court’s ability to administer justice in a timely manner, particularly where, as here, judicial time was misapplied to a point lacking substance. Costs [12] In light of these circumstances, the question of costs naturally arises. It is the practice of this Court that costs follow the event. However, this is not an immutable rule. Where both parties have contributed to the situation necessitating a postponement, and neither has emerged blameless, the interests of justice may dictate that each bear their own costs. 7 [13] Accordingly, in this case, the Court is not inclined to order costs in favour of either party. To do so would be to reward dilatoriness on one hand and procedural brinkmanship on the other. The postponement occasioned was, in equal measure, a consequence of procedural irregularity on the part of the appellant and a misdirected objection on the part of the respondents. Disposal [14] For the foregoing reasons, the matter must be postponed to the next session of this Court, with no order as to costs. Order [15] The matter is postponed to the next session of the Court of Appeal. There shall be no order as to costs. ____________________________________ K E MOSITO PRESIDENT OF THE COURT OF APPEAL I agree: __________________________________ P. MUSONDA ACTING JUSTICE OF APPEAL I agree: 8 ________________________________ VAN DER WESTHUIZEN ACTING JUSTICE OF APPEAL FOR THE APPELLANT: ADV C L LEPHUTHING FOR THE RESPONDENT: ADV K.T. PHORORO #### __Related documents ▲ To the top >