Tholang Mofolo V Chaphole Mofolo (CIV/A/38/2021) [2023] LSHC 29 (8 August 2023)

# Tholang Mofolo V Chaphole Mofolo (CIV/A/38/2021) [2023] LSHC 29 (8 August 2023) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/29/eng@2023-08-08) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/29/eng@2023-08-08) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2023/29/eng@2023-08-08) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2023/29/eng@2023-08-08) [ __](mailto:?subject=Take a look at this document from LesLII: Tholang Mofolo V Chaphole Mofolo \(CIV/A/38/2021\) \[2023\] …&body=https://lesotholii.org/akn/ls/judgment/lshc/2023/29/eng@2023-08-08) [ Download PDF (237.7 KB) ](/akn/ls/judgment/lshc/2023/29/eng@2023-08-08/source) Report a problem __ * Share * [ Download PDF (237.7 KB) ](/akn/ls/judgment/lshc/2023/29/eng@2023-08-08/source) * * * * * Report a problem __ ##### Tholang Mofolo V Chaphole Mofolo (CIV/A/38/2021) [2023] LSHC 29 (8 August 2023) Copy citation * __Document detail * __Related documents * __Citations \- / 1 Citation Tholang Mofolo V Chaphole Mofolo (CIV/A/38/2021) [2023] LSHC 29 (8 August 2023) Copy Media Neutral Citation [2023] LSHC 29 Copy Hearing date 21 February 2024 Court [High Court](/judgments/LSHC/) Case number CIV/A/38/2021 Judges [Banyane J](/judgments/all/?judges=Banyane%20J) Judgment date 8 August 2023 Language English Summary Read full summary * * * Skip to document content ## **_IN THE HIGH COURT OF LESOTHO_** **HELD AT MASERU CIV/A/38/2021** **CIV/DLC/TT/02/19** In the matter between **THOLANG MOFOLO APPLICANT** AND **CHAPHOLE MOFOLO RESPONDENT** Tholang Mofolo v Chaphole Mofolo LSHC [2023] 29 Civ (8th August 2023) **CORAM** **:** **BANYANE J** **HEARD** **:** **08 AUGUST 2023** **ORDER ISSUED : 08 AUGUST 2023** **REASONS GIVEN** **:** **21 FEBRUARY 2024** **Summary** Application for condonation of failure to note and prosecute an appeal timeously requirements for condonation restated- application dismissed. **_ANNOTATIONS_** **_Cases cited_** **Lesotho** 1\. Theko Letsie v Moeketsane Letsie and others C of A(civ) 8/ 2018. 2\. Thoriso Makenete v Mookho Motanya C of A(civ) 46/17.**** 3\. Smith v T’sepong C of A(Civ) 22 of 2020 4\. Maphathe v Executors of the Estate of Maphathe and others LAC (2013-2014) 219. 5\. Minister of Foreign Affairs and International Relations v Tsikoane and others C of A(Civ) 7/2015 **South Africa** 1\. Darries v Sheriff, Magistrate’s Court, Wynberg and another 1998(3) SA 34 2\. Federated Employers Fire and General Insurance Co Ltd & another v Mckenzie 1969 (3) SA**** 360 (A) 3\. Uitenhage Transitional Local Council v South African Revenue Services 2004(1) SA 292(SCA) 4\. Western Johannesburg Rent Board and another v Ursula Mansions (pty) Ltd 1948 (3) SA 383 (A) **Rules** 1\. High Court Rules, 1980. 2\. District Land Court Rules, 2012. **JUDGMENT** **BANYANE J** **Introduction** **[1]** The matter before the court concerns three applications, namely, an application for substitution of the appellant, an application for condonation of the late noting of an appeal, and an application for dismissal of the appeal for non-prosecution as well as an order declaring the appeal to have lapsed under Rule 52 (1) (d) of the High Court Rules, 1980. These applications are a sequel to an appeal noted against a decision of Thaba-Tseka District Land Court in CIV/DLC/TT/02/2019. **[2]** On 08 August 2023, I heard arguments on the three applications after which I granted the application for substitution, dismissed the application for condonation, and simultaneously dismissed the appeal. The reasons for this order are as follows. **[3]** The application for substitution filed by the appellant’s wife was granted by consent. Having granted the application for substitution, I next considered the application for condonation. This is because an application for condonation for the late noting of an appeal is a procedure that precedes the pendency of an appeal.[1] Until the condonation has been granted, the appeal is _pro non scripto_.[2] **[4]** The dismissal of the condonation application negated the need to determine the application to declare the appeal to have lapsed or to dismiss it for non-prosecution. **Issue for determination** **[5]** The real question which arises for determination is whether this court should grant the indulgence sought notwithstanding the inordinate delay in noting the appeal and approaching the court for condonation. **The proper approach in a condonation application** **[6]** It is well established that the court has the discretion to condone non-compliance with the rules where sufficient cause is shown. This discretion must be excised judicially upon consideration of all the relevant factors.[3] Factors that usually weigh with the court considering an application for condonation include the degree of lateness or non-compliance, the explanation thereof, the importance of the case, the respondent’s interest in the finality of the judgment of the court below, the convenience of the court and the avoidance of unnecessary delay in the administration of justice. These factors are ordinarily interrelated and must be considered together.[4] **[7]** In **Darries v Sheriff, Magistrate’s Court, Wynberg and another** (cited with approval in **Smith v Tsepong**[5]****) Plewman JA said: “Condonation of the non-observance of the rules of this court is not a mere formality. _In all cases, some acceptable explanation not only of, for example, the delay in noting an appeal, but also where this is the case, any delay in seeking condonation must be given_. _An appellant should whenever he realises that he has not complied with a rule of the court apply for condonation as soon as possible._ Nor should it be simply assumed that, where non-compliance was due entirely to the neglect of the appellant’s attorney, condonation will be granted. In applications of this sort the applicant’s prospects of success are in general, important though not decisive. When an application is made for condonation, _it is advisable that the petition should set forth briefly and succinctly such essential information as may enable the court to assess the appellant’s prospects of success, which is but one of the factors relevant to the exercise of the court's discretion, unless the cumulative effect of the other relevant factors in the case is such as to render the application for condonation obviously unworthy of consideration._ Where non-observance of the Rules has been flagrant and gross an application for condonation should not be granted, whatever the prospects of success.”[6](underlining mine) **[8]** In **Uitenhage Transitional Local Council v South African Revenue** **Service**[7]** ** the court said: “One would hope that the many admonitions concerning what is required of an applicant in a condonation application would be trite knowledge among practitioners who are entrusted with the preparation of appeals to this court. Condonation is not to be had merely for the asking; a full, detailed, and accurate account of the causes of the delay and their effect, must be furnished so as to enable the court to understand clearly the reasons and to assess the responsibility. It must be obvious that, if the non-compliance is time–related, then the date, duration and extent of any obstacle on which reliance is placed must be spelled out.”[8] **Discussion** **[9]** With these guiding principles in mind, I turn to consider the facts of the present matter. Before doing so, it is necessary to first highlight the relevant rules governing the form and periods of appeal. **Form and period of appeals** **[10]** Rule 90 of the District Land Court Rules, 2012 prescribes the form and time of appeal as follows: “90 (1) Every appeal shall be lodged by filing a notice of appeal in the register of the court, upon payment of the prescribed court fee. 90 (3) The notice of appeal together with the court record shall be filed with the Land Court within forty-five days of the _judgment_ appealed against being delivered. 91 (1) The notice of appeal shall contain: (2) A certified copy of the full record of the proceedings in which the judgment appealed from was given.” **[11]** It is clear in these rules that a notice of appeal must be accompanied by the certified record of proceedings. It bears mention that the appellant or his legal representative is responsible for the preparation of the court record in terms of rule 88 (3). **[12]** In terms of rule 90(3) of the District Land Court Rules, the appeal should have been noted within forty–five days. These lapsed on 26 July 2021 because the decision appealed against was given on 02 June 2021.[9] The notice of appeal was however only filed on 29 October 2021. Although the appeal was three months late, it was filed without an application for condonation. The application for condonation was only filed on 20 January 2022. This means it was filed after three months of the defective notice of appeal. **The explanation for the delay** **[13]** The appellant’s explanation for these delays is as follows. After judgment was noted on 02 June 2021, his legal representative sought written reasons for judgment from the presiding magistrate to enable him to note an appeal. The reasons were not immediately available, but the magistrate promised to furnish them after two weeks. This period came and passed. The magistrate allegedly extended the period for delivery of reasons by two more weeks, at the expiry of which, he further extended the period. No definite date for delivery was fixed this time because his lawyer was told to await communication from the clerk of court as soon as reasons were available. He waited until August 2021 when he decided to note the appeal without reasons for judgment. **[14]** His explanation is further that on 02 August 2021 ‘papers’ were prepared. An attempt to file them was made on 03 August 2021. However, the filing was unsuccessful because the presiding magistrate denied his lawyer entry into the court premises ‘ _for payment of security for costs’_. According to the explanation, the magistrate also said the appellant could not appeal before written reasons were given. The appeal was only accepted by the clerk of court on 24 November 2021. **[15]** From the above narrative, it appears that the appellant complains that he was disabled from timely noting an appeal by the absence of reasons for judgment. In **Minister of Foreign Affairs and International Relations v Tsikoane and others**[10]**, **the Court of Appeal**** considered the question of whether it is justifiable for an appealing party to await reasons for judgment before appealing. The court said: “[9] In the commentary on section 12 (2) of the South African Supreme Court [Act 59 of 1959](/akn/ls/act/1959/59), the learned authors Erasmus, Superior Court practice, say the word judgment can be used in two senses, first to mean the statement setting out the legal grounds (reasons) for the order made by a particular Judge and secondly the word judgment can be used to denote the final order of the court (see Erasmus et al Superior Court Practice Service 8, 1997, PA 1-15) **** [10] In my opinion, the words final judgment in section 16 (1) (a) of the Court of Appeal Act refer to orders and not reasons given in court in the cause of making interlocutory orders, _ex parte_ orders or costs orders. [11] It is a well-established principle in our law that appeals cannot be noted against the reasons for judgment but only against the substantive order made by the court.”[11] **The application for condonation** **[16]** No record of appeal was filed with the notice of appeal as required by rule 91 of the District Land Court Rules, nor was condonation sought for the late noting of the appeal when the appeal was noted in October 2021. The application for condonation was only filed on 22 January 2022, three months after the defective notice of appeal was filed and five months after the period for noting of the appeal lapsed. **[17]** Despite this late filing, the appellant failed to explain what happened when he noted an appeal in October 2021 to secure the record of proceedings in compliance with the Rules of Court. Moreover, there is no explanation for why the record has not been filed to date nor why the condonation application was belatedly filed. **[18]** In **Smith v Tsepong** , the Court said: “[61] condonation is not a right but an indulgence that the court grants on good cause shown. It is elementary that condonation must be sought as soon as the non-compliance becomes apparent. It is an abuse of the process of the court to wait until eight months and to apply for condonation seven days before hearing of the appeal when it was reasonably possible to do so much earlier. Worst still, where there is no satisfactory explanation for why the applicant for condonation waited for so long as it did before seeking condonation.”[12] **[19]** The period for noting the appeal lapsed in July 2021 as stated earlier. In October 2021, the appellant was three months late. The appellant blames the presiding magistrate for the delay because according to him, reasons for judgment were not readily available, yet the magistrate barred him from noting the appeal without reasons. He also asserts that his lawyer was denied entry into the court premises. The problem with the appellant’s affidavit is that it is materially lacking in the two last aspects. He does not explain how the Magistrate barred his lawyer entry to the Court premises. Did the Magistrate lock the gates to the courthouse? I am not told. He also does not explain when and how the magistrate prevented his lawyer from noting an appeal. Absent the necessary averments in this regard, the explanation for the failure to timely act is absurd because the noting of appeals and payment of security for costs upon noting an appeal are functions of the Clerk of Court in terms of Subordinate Court Rules, 1996. **[20]** The reasons for the delay in noting an appeal are therefore not satisfactory or reasonable. In the circumstances, I am not persuaded that the applicant furnished a satisfactory explanation for his failure to act timeously. **[21]** The delay in seeking condonation is also long. The application for condonation was filed five months after the dateline for noting the appeal. The appellant proffered no reason for the delay. Moreover, the record of proceedings was not filed to date and no reasons are given for this. **[22]** Moreover, he tersely addressed his prospects of success in paragraph 9 of the application, as follows: “The present application for appeal is of great importance as the learned Magistrate very much misdirected himself, thereby causing me to have a legitimate and proper case to bring high prospects of success in the matter. The learned Magistrate Tapole acted ultra vires his powers in that, my application was merely for ejectment, but he made his decision on grounds of heirship, and had no jurisdiction to have gone that far. He acted beyond the jurisdictional powers of the Magistrate Court.” **[23]** The appellant has, in my view, failed to succinctly place essential information to enable this court to assess his prospects of success. The court cannot therefore decide whether the appeal has merit. **The appellant’s conduct after the late noting of an appeal and condonation application** **[24]** The appellant’s conduct after noting the appeal is also a relevant factor in determining whether to grant the indulgence sought. Despite the late filing of the application for condonation, the application lay dormant until 06 September 2022 when the respondent applied for dismissal of the appeal for want of prosecution, as well as an order declaring the appeal to have lapsed under Rule 52 (1) (d) of the High Court Rules, 1980. According to the notice of application, it was to be moved on 26 September 2022. The appellant filed his notice of intention to oppose on 06 September 2022. **[25]** On 14 September 2022, an application for substitution was filed by the appellant’s wife. It was also intended to be moved on 26 September 2022. According to a death certificate that was handed from the bar during arguments, the appellant Mr. Chaphole Mofolo departed this life on 12 August 2022. This application for substitution too, was not moved. **[26]** The appellant neither filed the record nor made any attempt to obtain a hearing for the two applications (substitution and condonation). Even when the respondent facilitated the hearing of the dismissal application by; a) issuing the notice inviting the appellant to approach the Registrar to obtain a hearing date; and b) a notice set down, on 17 May 2023 and 01st August 2023 respectively, the appellant made no effort to secure the record in order to demonstrate an interest in pursuing the appeal. **Disposal** **[27]** All things considered, I shall assume, in the appellant’s favour, that the matter is of substantial importance to him. I also accept that the delays caused no or minimal inconvenience to the court. I am, however, not persuaded that the appellant satisfied the other requirements for a successful application for condonation. **[28]** Considering all the facts and circumstances of this case, such as the degree of non-compliance with the rules, the explanation therefore, the lateness of the application for condonation, lack of explanation thereof, the prospects of success, the respondent’s interest in the finality of his judgment, and the avoidance of unnecessary delay in the administration of justice, the appellant has failed to show sufficient cause for condoning the breach of the rules. **Order** **[29]** As a result, the application for condonation is dismissed with costs so is the appeal. _____________ **P. BANYANE** **JUDGE** For the applicant : Advocate Motloang For the respondent : Advocate Lefikanyane * * * [1] Theko Letsie v Moeketsane Letsie and others C of A(civ) 8 OF 2018, para 11. See also Thoriso Makenete v Mookho Motanya C of A(civ) 46/17 [2] supra [3] Koaho v Solicitor General LAC (1980-1984) Maphathe v Executors of the Estate of Maphathe and others LAC (2013-2014) 219 [4] Maphathe(supra fn3 at 219),Federated Employers Fire and General Insurance co Ltd &another v**** Mckenzie**** 1969 (3) SA**** 360 (A) at 362 G-H [5] C of A(CIV)22 of 2020 [6] 1998(3) SA 34(SCA) at 40H-41E [7] 2004(1) SA 292(SCA), para 6 [8] Para 6 of the judgment [9] Discounting Sundays and public holiday on 17 July [10] **Minister of Foreign affairs and International Relations v Tsikoane and others** C of A(CIV) 7 of 2015. See also **Western Johannesburg Rent Board and another v Ursula** **Mansions** (pty) Ltd 1948 (3) SA 353 (A) at 355, where Centlivres JA, after stating the rule in those terms, pointed out that it is not open to a respondent on appeal to argue that the order appealed against should be supported by the grounds that were rejected in the court a quo. [12] Para 61 of the judgment #### __Related documents ▲ To the top >