Paul Lesholu V Mofihli Noosi & 4 Others (CIV/APN/265/2021) [2024] LSHC 108 (18 June 2024)

# Paul Lesholu V Mofihli Noosi & 4 Others (CIV/APN/265/2021) [2024] LSHC 108 (18 June 2024) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/108/eng@2024-06-18) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/108/eng@2024-06-18) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2024/108/eng@2024-06-18) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2024/108/eng@2024-06-18) [ __](mailto:?subject=Take a look at this document from LesLII: Paul Lesholu V Mofihli Noosi & 4 …&body=https://lesotholii.org/akn/ls/judgment/lshc/2024/108/eng@2024-06-18) [ Download PDF (423.9 KB) ](/akn/ls/judgment/lshc/2024/108/eng@2024-06-18/source) Report a problem __ * Share * [ Download PDF (423.9 KB) ](/akn/ls/judgment/lshc/2024/108/eng@2024-06-18/source) * * * * * Report a problem __ ##### Paul Lesholu V Mofihli Noosi & 4 Others (CIV/APN/265/2021) [2024] LSHC 108 (18 June 2024) Copy citation * __Document detail * __Related documents * __Citations 3 / - Citation Paul Lesholu V Mofihli Noosi & 4 Others (CIV/APN/265/2021) [2024] LSHC 108 (18 June 2024) Copy Media Neutral Citation [2024] LSHC 108 Copy Hearing date 15 June 2024 Court [High Court](/judgments/LSHC/) Case number CIV/APN/265/2021 Judges [Hlaele J](/judgments/all/?judges=Hlaele%20J) Judgment date 18 June 2024 Language English Summary Read full summary * * * Skip to document content **IN THE HIGH COURT OF LESOTHO** **HELD AT MASERU****CIV/APN/265/2021** In the matter between **PAUL MOHANOE LESHOLU APPLICANT****** **AND** **MOFIHLI NOOSI 1 ST RESPONDENT** **PASTOR NOOSI 2 ND ****RESPONDENT** **HIS WORSHIP MAGISTRATE THAMAE 3 RD RESPONDENT** **CLERK OF COURT 4 TH RESPONDENT** **ATTORNEY GENERAL 5 TH RESPONDENT** **Neutral Citation** : Paul Mohanoe Lesholu v Mofihli Noosi and 4 others [[2021] LSHC 108](/akn/ls/judgment/lshc/2021/108) Civ (June 2024). **CORAM : HLAELE J.** **HEARD : 20 TH SEPT 2023, 15TH DEC 2023, 15TH JUNE 2024.** **DELIVERED : 18 JUNE 2024** **SUMMARY** _:__The application of Rule 8(8),8(9),8(10(a) and 8(13) where a respondent does not file an intention to oppose. The Respondent is not bound to set the matter down where he does not oppose the matter._ _The requirements of what constitutes inordinate delay in prosecuting the matter are outlined._ **_ANNOTATIONS_****:** **_CITED CASES_** 1. Onyelekere v Mokula (C of A (CIV) 31 of 2017) [[2020] LSCA 34](/akn/ls/judgment/lsca/2020/34) (30 Oct 2020). 2. Seutloali v Director of Public Prosecutions LAC (2007-2008) 152 At 154. 3. Kuhn v Kerbel and Another 1957 (3) SA 525 (A) at 534 F – G. 4. The Liquidator Lesotho Bank v Flora Selloane Seleso (CIV/T/58/2002(20 September 2012). 5. Allen v Sir Alfred McAlpine & Sons****[1969]1 ALL ER 543. 6. Cassimjee v Minister of Finance __(455/11) [[2012] ZASCA 101](/akn/za/judgment/zasca/2012/101); 2014(3) SA 198 (SCA) (1 June 2012). **_STATUTES_** 1. The High Court Rules of 1980 ******JUDGMENT** **HLAELE J** **[1]****INTRODUCTION** 1.1 This is an application wherein the Applicant seeks that the Respondents’ claim be dismissed for want of prosecution. As a result, the Notice of Motion reads as thus; 1. That this matter be dismissed for want of prosecution. 2. That the Respondents be ordered to pay costs of suit on attorney and client scale. 3. That the Applicant be granted any further and or alternative relief. **[2]****FACTS OF THE CASE** 2.1 The facts of this case are not complex. They are simple and straight forward. This matter originated in the Small Claims Court. For convenience the parties will be referred to as they appear in the present case. The presiding Magistrate gave judgment in favour of the present Applicant. In the said court, the case was for damages suffered by the Applicant as a result of a collision between Applicant’s and Respondent’s motor vehicles. It was the learned Magistrate’s conclusion and decision that the collision was caused by the 1st and 2nd Respondents. She therefore ordered that the amount of money to be paid to the Applicant as per the judgment was Nine Thousand Two Hundred and Fifty (M9250.00) which was to be paid in three equal instalments of Three Thousand and Eighty-Three and Thirty-three (M3083.33). The 1st and 2nd Respondents appealed to the Magistrate Court. 2.2 The matter escalated to the Magistrate Court for appeal. Judgements of the Small Claims court are appealable to the Magistrate court. The appeal was heard by the 3rd Respondent herein. From the record of both courts which Khabo J had ordered to be dispatched to this court, the minute of the Magistrate (3rd Respondent) on appeal reads as follows: _Appeal proceedings in SC1357/19_ _On the 09 th July,2021 before court appears the Respondent. there is no appearance for the Appellants. Respondent: may the appeal be dismissed for lack of prosecution. _ _Court: The Appellants are not before court. There are rumours that applicant no.2 is in quarantine. It is not clear why Applicant 1 is not before court. Even for Applicant no 2 there is no proof of him being in quarantine. The appeal is hereby dismissed for lack of prosecution with costs._ It is important to note even at this stage, that the appeal was granted as a default judgement as a result of the non-appearance of the 1st and 2nd Respondents. 2.3 Being dissatisfied with the decision of the third Respondent, the 1st and 2nd Respondents then filed a review application in this court (High Court) on the 29th July 2021. It is worth noting that the Applicant alleges that the Respondents did not serve him with the review application. He only got to know about the review application from a Clerk of the Magistrate court whilst seeking assistance with compliance of the Small Claims Court order. On the face of it, nothing turns on this allegation, but on proper reflection, I am on the view that this application being a time-based application, any lapse of time is worth noting. 2.4 The review application was allocated to me on 18th December 2022. Through perusing the file, I discovered that there was no intention to oppose the review application filed of record, neither was there any other opposing papers from the Applicant. The only document filed of record from the Applicant is the notice of appointment of the legal representative for the Applicant. I heard the dismissal application on the 20th September 2023. 2.5 I have earlier shown that the Review application was filed on the 29th July 2021. The first minute on the file shows that Adv Tlapana appeared before my sister Khabo J. On the 25th October 2021 he was seeking the dispatch of the Magistrate Court record of proceedings. That was ordered. From there the next minute is mine which was taken when I heard the dismissal application on the 20th September 2023. **[3]****ISSUES FOR DETERMINATION** 3.1**** The 1st and 2nd Respondents had raised an objection. As a result, the first issue to determine before delivery into the merits is; 1\. Whether the Applicant should have complied with Rule 8(13) of the High Court Rules of 1980 (I will refer to them as Rule or Rules in this judgment). 2.Whether the Applicant has made out a case for dismissal of the review application for want of prosecution. The parties agreed that the matter should be dealt with holistically, the objection notwithstanding. The Respondent still had the first bite despite the judgement commencing with the applicants case. **[4]****THE APPLICANT'S CASE** 4.1 In laying down their case, the Applicants narrated the events that eventually persuaded them to approach the court to move for the dismissal of the review that had been mounted by the Respondents. 4.2 The narration commenced from the granting of the judgment of the collision judgement by the Magistrate Ralebese in the Small Claims Court. This was followed by the Respondents applying for the appeal of the Ralebese judgement before Magistrate Thamae. The matter before Magistrate Thamae suffered five postponements. Indeed, the record reflects this. Eventually on the 9th July 2019, Magistrate Thamae dismissed the Respondents herein appeal for lack of prosecution or by granting a default judgment for non-appearance. The narration then continues to disclose that the respondents herein dissatisfied with the Thamae outcome, filed a review. There was a delay in serving the review application on the Applicants. Ultimately the review application lingered in the courts. Frustrated with the delay by the respondents to prosecute it, the Applicants filed for its dismissal. Annexure “**PML4”******[1]**** is a clear indication that the Applicants herein were desirous of the matter to speedily reach finality. This to a point where they were not opposing the review application. 4.3 It is the Applicant’s case that the delay by the Respondents is indicative of a litigant who files an application for no purpose other than to delay finality of the matter.[2] The applicants continue to inform the court that the delay has caused and continues to cause them prejudice. The obvious prejudice being their inability to enjoy the fruits of a legitimate judgement of a court of law. They traced the lack of interest from the initial Small Claims court. 4.4 On the issue of non-compliance with Rule 8(13) his response is that annexure **“PMLl4”** categorically states that the Applicants herein were not opposing the review application as such the rule has no application on them. **[5]****THE RESPONDENTS’ CASE** 5.1 In his answering affidavit, the 1st Respondent in _casu_ raised the issue that the Applicant has failed to comply with Rule 8(13) of the High Court Rules of 1980. As such, the argument goes, his application stands to be dismissed for non-compliance with this Rule. The affidavit is silent regarding the alleged non-compliance by the Applicants. It fails to elaborate in clear terms the said non-compliance. I will rely on the Heads of argument of the Respondent which are equally brief and they too, lack amplification. From the said heads, the case of the Respondent seems to be that, sometime after receiving the Notice of Motion, and within the expiration of the time stipulated in Rule 8(13), the Applicant should have approached the registrar for allocating a date of hearing. 5.2 On the issue or allegation that the proceedings before me constitute an abuse of court process, the affidavit also does not elaborate how the proceedings constitute same. **[6]****THE ANALYSIS OF THE LAW** 6.1 The case of the Respondent rests mostly on the Rule 8(13). It is prudent to start by citing verbatim, the provisions of Rule 8(13) of the High court rules. This is so for, in the event the court finds that the non-compliance is a determining factor then it may affect the case of the Applicant, for it may stand to be dismissed or delayed on that score. Rule 8(13) reads as follows: _“Where no answering affidavit nor any notice referred to in sub-rule 10(c) has been delivered within the period referred to in sub-rule 10(b) the applicant may within four days of the expiry of such period apply to the registrar to allocate a date for the hearing of the application. Where an answering affidavit or notice is delivered the applicant may apply for such allocation within four days of the delivery of his replying affidavit or if no replying affidavit has been delivered within four days of the expiry of the period referred to in sub-rule 11. If the applicant fails to apply for such allocation within the appropriate period as stated aforesaid, the respondent may do so immediately upon the expiry thereof. Notice in writing of the date allocated by the Registrar shall forthwith be given by applicant or respondent, as the case may be, to the opposite party”._ 1. 2. Applying this rule to the facts, the pertinent question is; was there any Notice of opposition filed, delivered or served in terms of Rule 8(8),8(9) and 810(c)? This question should be the starting point of the inquiry because it triggers the process envisaged in 8(13). Meaning the filling on an Intention to Oppose is the first step to be satisfied. It is common cause that none was filled. 3. Rule 8(8) is the starting point for the intervention of a potential respondent. it charges the as thus _In such notice the applicant shall appoint an address within 5 kilometers of the office of the Registrar at which he will accept notice and service of all documents in such proceedings,_and shall set forth a day not being less than five days after service thereof on the respondent on or before which such respondent is required to notify the applicant in writing whether he intends to oppose such application, and shall further state that if no such notification is given the application will be set down for hearing on a stated day, not being less than seven days after service on the said respondent of the said notice.__ __(my emphasis) The provisions of the rule are straight and need no further interrogation other than the literal interpretation that a potential respondent is warned to show that he intends to oppose the matter in writing and should communicate by a document styled intention to oppose. Failure to do so attracts a judgement being taken by default. 6.4 Rule 8(9) continues the journey by making specifying and shedding off any ambiguity regarding the consequences of failure to comply with the preceding Rule. It states: _If the respondent does not, on or before the day stated for that purpose in such notice, notify the applicant of his intention to oppose,_the applicant may place the matter on the roll for hearing by giving the registrar notice of set down_ before noon on the court day but one preceding the day upon which the application is to be heard._ __(my emphasis) 1. 4. Rule 8(10)(a) talks to the issue of an opposing respondent. it states: (_10)_Any person opposing_ the grant of any order sought in the applicant’s notice of motion shall: (a) (b) (c) within the time stated in the said notice, _give applicant notice in writing that he intends to oppose the application,_ and in such notice, he must state an address within five kilometers of the office of the Registrar at which he will accept notice and service of all documents._ (my emphasis) 1. 5. Adv Tlapana was at pains to convince the court that the document styled “Notice of Appointment of Attorneys” tantamounts to an intention to oppose, supposedly under Rule 8(10)(a). Unfortunately, I disagree with this submission. Not only is the document filed by the Respondent a creation of their own rules, it nowhere reads that they intend to oppose the matter. 1. 6. This explains the sequence of events commencing from Rule 8(8) in which the Applicant is to inform in clear terms, the days within which an intention to oppose should be filed. In the said notice, the Applicant clearly stipulates that, absent the intention to oppose the matter shall proceed by default. Rule 8(10)(a) outlines the duty of the Applicant where the intention to oppose is not filed. It instructs the Applicant to place the matter on the roll for hearing. 1. 7. Rule 8 (13) should not be read in isolation. That is, without engaging the preceding provisions. The Rules engage a step-by-step procedure that determines the role each party has to play in ensuring that the matter is set down for hearing. The Rules give the _domis litis_ a leading role, for the obvious expectation is that he is the one who has the greater interest in seeing the matter being finalized. The respondent had no role to play where he has not opposed the matter. The setting down rests solely on the Applicant. Even where he files opposition, the Respondent is given a secondary role. He only comes as an eventuality not as a primary role player. 6.5 The case of **_Onyelekere v Mokula_****** discusses the function of a notice of intention to oppose. In this case it was held that; _“The Rules of the High Court 8 (10) (a) and 13 says any person to oppose must give notice. Briefly, when a notice to oppose is filed it has set in motion the deployment of material resources both financial and human to vigorously defend the action. When the respondent received the notice, they put on notice of opposition…A notice of intention to oppose is a notice to fight. "_ 1. 8. The question therefore is, could the Applicant who had not opposed the review application be bound to invoke Rule 8(13)? In my view, the answer should be in the negative. As the case of **_Onyelekere v Mokula_** above posits, the notice of intention to oppose is a notice to fight and to set in motion deployment of material resources both financial and human to vigorously defend the action. This therefore means that the Applicant who never filed an intention to oppose never intended to fight the prayers sought by the Respondents. It was therefore mischievous for the Respondent to have invoked Rule 8(13) when the Applicant had not opposed the case. I therefore find that reliance on Rule 8 (13) is misplaced and is not sustained by the court. **[7]****ARE THE PROVISIONS OF RULE 8(13) PEMPORARY** 7.1 Another objection by Advocate Tlapana is that the provisions of this rule are peremptory. As I have indicated in my discussions, Rule 8(13) is not applicable in the review proceedings as the Respondents in that matter had not filed any document in opposition to the review. An Applicant who relies on Rule 8(13) in the absence of a Notice of intention to oppose has clearly misread and misunderstood the rules. 7.2 I however find it necessary to state for the record that with regard to the proposition that the provisions of Rule 8 (13) are peremptory, I am in full agreement with Kopo J in the case of **_Lesotho Communication Authority V Global Voice SA_**[3] that in the application of this rule: _“_ _The timeline provided for within which the application in question may be instituted is not peremptory.”_ 7.3 Rule 8(13) is replete with the use of the word “may”. It is a trite rule of interpretation that in an Act or statutory instrument, the word "may", or a similar term, used in relation to a function indicates that the function may be exercised or not exercised. It is a discretion. **[8]****CONCLUSION** 8.1 The suggestion by the Respondents that the Applicants should have complied with Rules 8(10) (b) and 8(13) of the Rules is misplaced and not applicable where a Respondent has not filed any document indicating that he opposes the matter. 8.2 I also conclude that the provisions of the rule 8(13) are peremptory, so much so that strict non-compliance does not nullify the case _per se._ The circumstances of each case shall determine whether the outcome is a nullity or condonable by the court.[4] 8.3 I also find that no _prejudice_ was suffered by the Respondents due to the non-compliance of the time frames stipulated in the rule. **[9] WHETHER THE APPLICANT HAS MADE OUT A CASE FOR DISMISSAL FOR WANT OF PROSECUTION** **Applicant’s case** 9.1 Adv Lesholu vigorously argued that the Respondents seemed to have no intention of proceeding with the review application after filling it in court. He submitted this was apparent from the Respondents’ conduct since the filling of the Review application. The conduct of the Respondent is indicative of someone whose interest is just to frustrate the order which was granted on behalf of the Applicant by the Small Claims Court. He further argued that this is compounded by the failure to attend the Magistrate Thamae’s appellate Court. The order which was also confirmed by the Magistrate Thamae resulting in the dismissal of the Appeal. 9.2 He argued that the points that prove that the Respondents never intended to prosecute the review application to finality are the following; 1. Firstly, the Respondents did not serve him with the review application. He only got to lay his hands on the application by approaching the High Court registry for a copy. 2. Secondly, the Applicant wrote a letter, that is “**(PML3)** ” to the office of Adv Tlapana on the 23rd May 2022 informing him that the Applicant is not opposing the matter, therefore, to enroll the review application on the uncontested motion roll. This letter was never replied to. 3. Thirdly, a month later on the 21st June 2022 the Applicant still in a quest to see the matter finalized, wrote to the Respondents yet again imploring him to enroll the case. Despite all these efforts by the Applicant, the matter was never enrolled until the Applicant instituted the dismissal application. 9.3 It was Adv Lesholu’s further argument that, taking into consideration all the efforts the Applicant made to ensure that the matter is disposed of, the Respondents’ inactivity amounts to abuse of court process. As such the dismissal of it for lack of prosecution should be granted. **[9]****THE RESPONDENTS’ CASE** 9.1 Adv Tlapana’s argument in this regard was that the Applicant did not point to the court the rule he was relying on. He amplified his argument by stating that the Applicant should not be allowed to forge his own rules. He cited the case of **_Seutloali v Director of Public Prosecutions_**[5]**__** where it was held that; _“I should be prepared to emphasise 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 Gregoroswski J expressed some 111 years ago in Louw v Mining Commissioner (1886) 3 OR 190 at 200 namely, that courts are reluctant to hear an applicant who “now wishes to drag a cow long dead out of a ditch”._ 9.2 His reliance on the** _Seutloali_** case was to point towards the argument that his review application was distinguishable. This he argued was so because the review application was not brought out of time nor had there been a delay in processing it. Therefore, the Applicant had brought the dismissal application prematurely. He further submitted that the Respondents filed their review application within a reasonable time. As such they are within time to prosecute same to finality. **[10]****ANALYSIS** 10.1 Advocate Tlapana seems to have totally misconstrued the application before court. The application before court is not that of prescription. The case is that of dismissal of a case for the reason that there has been an inordinate delay in prosecuting such a case (dismissal application for want of prosecution). 10.2 There is no Rule of Court or of practice which lays down the period that must lapse before proceedings are regarded as being stale or delayed. It is in the discretion of the Court to allow proceedings on a stale summons to continue. The case of **_Kuhn v Kerbel and Another_** is instructive in this regard** _**[6]**_**_._ **__** 10.3 There are three requirements to be satisfied for a dismissal application for want of prosecution to succeed. They are as laid down in the case of **_The Liquidator Lesotho Bank v Flora Selloane Seleso_**** _**[7]**_**, whereby the court cited with approval the case of **_Allen v Sir Alfred McAlpine & Sons_**** _**[8]**_****_,_** a leading British case on dismissal for want of prosecution. Those requirements are as follows; 1. Inordinate delay; 2. That the inordinate delay is inexcusable. As a rule, until a credible excuse is made out, the natural inference would be that it is inexcusable; 3. And the defendant is likely to be seriously prejudiced by the delay. I deliberately, hint each of these requirements. **[11]****INORDINATE DELAY** 11.1 An inordinate or unreasonable delay in prosecuting an action may constitute an abuse of process and warrant the dismissal of an action. The case of ** _Cassimjee v Minister of Finance_**** _**[9]**_** captures this principle elegantly where the court held (at para 11) that: _‘There are no hard-and-fast rules as to the manner in which the discretion to dismiss an action for want of prosecution is to be exercised. But the following requirements have been recognised. First, there should be a delay in the prosecution of the action; second, the delay must be inexcusable; and, third, the defendant must be seriously prejudiced thereby. Ultimately the inquiry will involve a close and careful examination of all the relevant circumstances, including the period of the delay, the reasons therefore and the prejudice, if any, caused to the defendant. There may be instances in which the delay is relatively slight but serious prejudice is caused to the defendant, and in other cases the delay may be inordinate but prejudice to the defendant is slight. The court should also have regard to the reasons, if any, for the defendant’s inactivity and failure to avail itself of remedies which it might reasonably have been expected to do in order to bring the action expeditiously to trial”._ 11.2 In the case before me the facts to take into consideration in establishing an inordinate delay or otherwise are as laid down below. 11.3 As has been stated earlier in the judgement, upon the perusal of the file I observed that the review application was instituted on the 29th July 2021. There was no Notice of Intention to Oppose filed of record. Only a notice of appointment of attorneys of record was filed. I have already shown earlier that a notice of appointment of attorneys of record is not an opposition document. It is just a document which shows who is an attorney and advocate for a litigant. It also shows the address for such an attorney and advocate. 11.4 There being no opposing papers filed of record, Rule 8 (8) kicks in, meaning where no notification is received by an Applicant, he sets the matter down. 11.5 I must emphasis that the rule makes no room for a notification “Notice of appointment of attorney”. It is a creation of the Applicant and serves no purpose in the review application. Its filing is but a waste of ink and resources. 11.6 On the 25th October 2021 according to the first minute on the file, Adv Tlapana was granted an order for dispatch by my sister Justice Khabo. That was the only minute on the file till on the 20th September when I heard this dismissal application. On the 20th April 2022 which is close to a year since the review application was filed, the office of Adv Lesholu wrote to Adv Tlapana as per attachment marked PML2 informing them that his client is not opposing the review application. He requested the office of Adv Tlapana to enroll the review application in the following week’s motion roll. Nothing happened until the office of Adv Lesholu wrote again to the office of Advocate Tlapana on the 23rd May 2021 as per attachment “**PML3** ”. He was informing him once again that their client is not opposing the review application. The Responded neither responded to these letters nor enrolled the review application in court. 11.7 On the 10th October 2022 the Applicant filed the dismissal application. At that time, a full year and a couple of months had elapsed since the period stipulated in Rule 8(8) for enrolling of an unopposed application had elapsed. 11.7 I take into consideration the fact that the application was never opposed, then Rule 8(8) applies. I also observe the efforts of the Applicant through his lawyers in writing more than one letter to the Respondents’ Counsel imploring them to finalize the matter. I therefore, come to the conclusion that the period of one year and three months that lapsed without the review application being heard amounts to inordinate delay. 11.8 As I indicated earlier, three (3) requirements should be met before a dismissal for want of prosecution order can be satisfied and granted by the court. The Applicants have satisfied the first leg. The next requirement to be addressed is whether the inordinate delay is inexcusable. **[12]****IS THE INORDINATE DELAY INEXCUSABLE?** 12.1 As a rule, until a credible excuse is made out, the natural inference would be that a delay is inexcusable. The case of **_The_** _**Liquidator Lesotho Bank v Flora Selloane Seleso**)__**[10]**_ is instructive in this regard. I quizzed Adv Tlapana on the reason for his inactivity, pointing towards it being inordinate. He responded that at the time he had been granted an order for dispatch of the record by Khabo J, the dispatch of the record was delayed from the Magistrate court. I understood the response to mean that he had waited for the clerk of the Magistrate Court to comply with the order. The Court has on many occasions warned that a litigant should not play a passive role where a dispatch order has been granted. Meaning that any inaction on their part in accessing the record will be visited upon them. A litigant who is armed with an order should take all necessary steps to ensure that the record to be reviewed is placed before the reviewing court. For adv. Tlapana not to have; (a) ensured the access of the file, (b) not set the matter down timeously; shows that he was not desirous of ensuring that the matter proceeds to its legal finality. I also will not ignore the fact that that the matter commenced in 2018. 12.2 Another explanation that Adv Tlapana gave for his inactivity was that the case was opposed. Also, that the Applicant also bore the responsibility of setting the matter down for hearing in terms of Rule 8(13). As discussed earlier, this rule does not support Adv Tlapana’s case as it applies where opposition papers are filed. 12.3 For the foregoing reasons, I find that this inordinate delay cannot be sanctioned by this court. It is inexcusable. **[13]****IS THE APPLICANT PREJUDICED BY THE DELAY?** 13.1 It is common cause that the judgment of the Small Claims Court was delivered on the 31st August 2020. The judgment against the Respondents was for Nine Thousand Two Hundred and Fifty M9250.00 payable in three (3) equal installments of Three Thousand and Eight Three Maloti and Thirty-Three Cents M3083.33. Immediately after this judgment was delivered, the Respondents appealed to the Magistrate Court. Their claim was dismissed. I note that this appeal also suffered five (5) postponements until Magistrate Thamae, I suspect frustratingly, granted a final order in default. 13.2 Having lost the case for the second round, the Respondents continued to institute yet another case, the review. I have already stated the journey that the review application in question travelled in the High Court. Advocate Lesholu stated before this Court that this delay has seriously prejudiced his client. The events of this case happened as far back as 2018. Having to wait for such a long period after being awarded judgement obviously has negative and prejudicial repercussions. A successful litigant has a right to enjoy the fruits of his success. 13.3 Taking into consideration all these facts, my conclusion is that the Respondents seem to be just dilly dallying around aimlessly and without any intention whatsoever to prosecute this matter to finality. They use court processes as a delaying tactic to frustrate the execution of the judgment. This indeed constitutes an abuse of court process. 13.4 It is also alarming considering that the judgment debt is a mere Nine Thousand Two Hundred and Fifty (M9250.00) which the Small Claims court in its wisdom made payment less bearable by dividing it into three (3) installments of Three Thousand and Eight Three Maloti and Thirty-Three Cents M3083.33. A cursory look at the debt, as well as the journey that this matter travelled through lawyers who charge legal fees, I am of the view that the amount paid by the Respondents for legal fees and other related costs must have exceeded the judgment debt. This only shows a lawyer who failed to advice his clients accordingly. It is for this reason that I order punitive costs. The delay can also be attributed to the negligence of the legal representative. As a result, I make this order. **[14]****THE ORDER** 1. The application for the dismissal of the Applicant’s review application for want of prosecution is granted. 2. The Respondents are ordered to pay costs of suit on attorney and client scale. \------------------------------ **M. G. HLAELE** **JUDGE** For Applicant: Adv. Lesholu For Respondents: Adv. Tlapane * * * [1] Page 21 of the record [2] Paragraph 19 of the founding affidavit at page 13 of the record. [3] **_Lesotho Communication Authority V Global Voice SA (_** CCA 97 of 2022) [[2023] LSHC 212](/akn/ls/judgment/lshc/2023/212) (25 April 2023). [4] **_The Executor Estate Late Thabo Kabeli Moerane v Co-executor Estate Late Thakane Chimombe_** (CIV/APN/08/2022) [[2022] LSHC 127](/akn/ls/judgment/lshc/2022/127) (5 October 2022). [5] **_Seutloali v Director of Public Prosecutions LAC_**(2007-2008) 152 at 154. [6] **_Kuhn v Kerbel and Another 1957 (3)_** SA 525 (A) at 534 F – G. [7] **The Liquidator Lesotho Bank v Flora Selloane Seleso** CIV/T/58/2002. [8] **_Allen v Sir Alfred McAlpine & Sons _**[1969]1 ALL ER 543. [9] **_Cassimjee v Minister of Finance (455/11) [2012] ZASCA_** 101; 2014 (3) SA 198 (SCA) (1 June 2012). [10] **_The_** _**Liquidator Lesotho Bank v Flora Selloane Seleso**_ (CIV/T/58/2002(20 September 2012). #### __Related documents ▲ To the top >