Commander of Lesotho Defence Force and Another v Sekoati (C of A (CIV) 8 of 2007) [2008] LSCA 2 (11 April 2008)

IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C OF A (CIV) N O . 8 / 2 0 07 C I V / T / 3 6 5 / 2 0 07 In the matter between:- COMMANDER OF LESOTHO DEFENCE FORCE ATTORNEY-GENERAL AND 1st APPELLANT 2nd APPELLANT RANTSO SEKOATI RESPONDENT CORAM: RAMODIBEDI, JA SMALBERGER, JA GAUNTLETT, JA Heard: Delivered: 1 April 2 0 08 11 April 2 0 08 SUMMARY late noting of appeal sought Application for condonation for - to be appealed - judgment principles governing against preceded by settlement made an order of court - - no judgment success condonation other application refused of attorney justifying - and client costs. nullity deficient circumstances of - award prospects respects - in a JUDGMENT SMALBERGER. JA [1] The r e s p o n d e nt (as plaintiff) i n s t i t u t ed action against t he a p p e l l a n ts (as defendants) in the High Court for d a m a g es u n d er various h e a ds arising out of the alleged wrongful termination of h is commission as an officer of the Lesotho Defence Force. The matter came before Hlajoane J. On 26 March 2 0 0 7, the learned j u d ge p u r p o r t ed to deliver a j u d g m e nt wherein she m a de t he following order: " 1. That plaintiff be re-instated as a member of LDF with effect from the 1st of April, 2007. 2. 3. That he be paid his salary from the date of his dismissal which is J u ne 2000 when he got his last pay, to date of reinstatement. That he be paid M50,000.00 damages for emotional pain and suffering. 4. Costs of suit." [2] On 29 May 2 0 0 7, the appellant noted an appeal against t he above order. The a p p e al w as noted in the finality of t he j u d g m e nt is a factor which weighs with t he Court in t he exercise of its discretion (Beira v Raphaely-Weiner and Others 1997 (4) SA 332 (SCA) at 337 C-E). F u r t h e r m o r e, in an application for condonation t h e re should be a frank disclosure of all relevant facts t h at m ay have a bearing u p on t he proper exercise of t he Court's discretion. The considerations listed above are t h o se of general a nd m o st frequent application; they are not intended to be exhaustive. [4] It is c o m m on c a u se t h at u p on receipt of t he Notice of Appeal d a t ed 29 May 2 0 0 7, t he r e s p o n d e n t 's attorney a d d r e s s ed a letter to the second appellant for t he attention of Mr. Letsie, counsel for t he appellants. The letter r e a ds as follows: "Please refer to your Notice of Appeal dated 2 9th May, 2007 that h as only recently been brought to the attention of the writer hereof. We find your attitude in this matter to be absolutely mind boggling. In the first place, you will recall that after the Commander had given evidence and admitted that client had been unlawfully dismissed from the LDF and also confirmed that a decision had been taken to pay client and fellow soldiers as if they had attained the age of 55 years, the Court adjourned the matter on the note that the parties should attempt an amicable settlement. Your clients then insisted during the negotiations that client should go back to work even though he said he was apprehensive of doing so because he did not understand the reason for insisting that he, in particular, should return to the army when at least one other unlawfully expelled soldier who wanted to return was not allowed to do so. recall that client ultimately You will relented and accepted the terms of settlement reflected in the Court Order filed of record on 19th February, 2007 when we appeared before it to record our settlement. How then do you, under those circumstances note an appeal? Is the Court of Appeal going to be informed that even before the Court delivered its written judgment, we had reached an amicable settlement in the matter that was made an order of Court on 19th February, 2007? We trust that when you apply for condonation for late filling of your appeal, you will also be candid enough to draw the Court's attention to this fact that does not appear in your grounds of appeal." It is not d i s p u t ed t h at the letter w as received; it is further c o m m on c a u se t h at it w as never replied to or its c o n t e n ts disputed, qualified or otherwise called into question. [5] It is surprising, to say t he least, t h at in his founding affidavit in s u p p o rt of t he a p p e l l a n t s' condonation application, Mr. Letsie m a de no reference to t he above-quoted letter, more particularly in view of w h at is s t a t ed in t he concluding p a r a g r a p h. It w as left to t he r e s p o n d e nt to do so in h is opposing affidavit. In s u p p o rt of h is contention t h at t he m a t t er h ad been settled t he r e s p o n d e nt a n n e x ed a copy of an extract from t he presiding j u d g e 's notebook where on 19 F e b r u a ry 2 0 0 7, in t he presence of Mr. Mohau for t he r e s p o n d e nt (plaintiff) a nd Mr. Letsie for t he appellants (defendants) t he settlement, which w as predicated on the r e - i n s t a t e m e nt of t he r e s p o n d e n t, is recorded as follows: " 1. That he be paid salary from date of dismissal to date of re-instatement. 2. He be reinstated upon payment of the amount set in 'payment para. 1. [Above this appears the words within 3 months'] 3. That he be paid M50,000 damages for contumelia." It w as further noted: "The agreement of both parties is made an order of this Court." [6] The official Court Order i s s u ed by t he Deputy Registrar on 29 May 2 0 07 r e a ds as follows: " 1. The Defendants be and are hereby directed to pay Plaintiff his salary from the date of his dismissal to the date of his reinstatement; 2. The Plaintiffs effected upon reinstatement be payment of the money referred to in paragraph 1 above; 3. The Defendants be and are hereby directed to pay to for amount of M50,000.00 an the Plaintiff contumelia." It will be observed t h at t h e re a re s o me minor differences in wording between t he C o u rt Order a nd the settlement as recorded by the trial j u d g e, b ut t h e se are clearly of no m o m e n t. It is c o m m on c a u se t h at the r e s p o n d e nt w as re-instated with effect from 1 April 2 0 0 7. The extent of the a p p e l l a n t s' liability to t he r e s p o n d e nt is accordingly clearly ascertainable from the Court Order. [7] In h is replying affidavit Mr. Letsie claims t h at the j u d ge a quo w as a p p r o a c h ed by counsel for t he parties to c h a n ge h er order of 19 F e b r u a ry 2 0 0 7. The r e s p o n d e nt did n ot have an opportunity to respond; b ut in any event it would seem t h at a ny c h a n g es sought could only have related to m i n or m a t t e rs of detail r a t h er t h an m a t t e rs of s u b s t a n c e. A court's power to effect correctional alterations is limited to c h a n g es which do not affect the s e n se or s u b s t a n ce of its j u d g m e nt or order. Consequently, t he Court Order embodying t he settlement agreement between t he parties s t a n ds as a final order. No case h as been m a de out t h at t he r e s p o n d e nt a b a n d o n ed t he Court Order or waived a ny of his rights in respect thereof. F u r t h e r m o r e, t he Court Order p o s s e s s es all t he a t t r i b u t es of a valid order. [8] It is n ot a p p a r e nt why t he j u d ge a quo considered it n e c e s s a ry to s u b s e q u e n t ly deliver a j u d g m e n t, let alone one which in some material respects is at variance with h er earlier order. There w as no need for h er to do so; in law s he w as precluded from s u p p l a n t i ng h er previous order. As stated in Firestone S o u th Africa (Pty) Ltd v Gentiruco A. G 1977 (4) SA 2 98 (A) at 306 F-G: "The general principle, now well established in our law, is that, once a court has duly pronounced a final judgment or order, it h as itself no authority to correct, alter, or supplement it. The reason is that it thereupon becomes its jurisdiction in the case having been functus officio: fully and finally exercised, its authority over the subject- matter h as ceased. See West Rand E s t a t es Ltd v New Zealand Insurance Co. Ltd, 1926 A. D. 173 at pp. 176, 178, 186-7 and 192; Estate Garlick v C o m m i s s i o n er of Inland R e v e n u e, 1934 A. D. 499 at p. 502." It follows t h at t he court a quo's j u d g m e nt is a nullity, m u st be treated as pro non scripto a nd consequently c a n n ot be t he subject of an appeal. On t h at g r o u nd alone t he application for condonation could not succeed. [9] Mr. P u t s o a n e, for t he appellants, w as concerned t h at t he j u d g m e nt did not correctly reflect t he law in certain respects, a nd w as a n x i o us t h at we should clarify t he legal principles t h at h ad arisen in t he action. We do not know w h at considerations influenced t he p a r t i es in reaching a settlement. The parties are b o u nd by their agreement. It w as not open to t he j u d ge a quo to question, nor w as s he required to approve, t he b a s is of t he settlement. The j u d g m e n t, as a nullity, c a n n ot create any form of legal precedent. To do as Mr. P u t s o a ne a s k ed would require us to engage u p on a purely academic exercise. The Appeal Court is not t h e re for s u ch p u r p o s e. [10] There are other i m p o r t a nt r e s p e c ts in which the application for condonation is defective. It is lacking in c a n d o u r. The fact of t he earlier settlement should have b e en mentioned a n d, to t he extent t he appellants considered necessary, p ut in perspective, particularly in view of the letter written to Mr. Letsie calling u p on h im to do so. He could not reasonably have believed t h at t he previous history of t he m a t t er w as of no relevance. F u r t h e r m o r e, Mr. Letsie claims t h at t he court a quo's j u d g m e nt only c a me to his notice on 17 April 2 0 0 7. Yet in a letter a d d r e s s ed to the r e s p o n d e nt by t he first appellant on 2 April 2 0 07 advising h im of his r e - i n s t a t e m e nt t he opening sentence s t a t es t h at "receipt of j u d g m e nt delivered by the Honourable J u s t i ce A. M. Hlajoane on t he 2 6th March 2 0 07 is acknowledged". On t he face of it there is an u n e x p l a i n ed discrepancy between t h e se s t a t e m e n t s. Finally, although the appeal w as noted on 29 May 2 0 07 t he application for condonation w as only filed on 4 F e b r u a ry 2 0 0 8, some eight m o n t hs later. No explanation is forthcoming for t h is delay. As previously m e n t i o n e d, condonation s h o u ld be sought as soon as non-compliance with a rule becomes a p p a r e n t; a failure to do so could r e s u lt in prejudice to a r e s p o n d e n t. In the p r e s e nt i n s t a n c e, h ad condonation b e en timeously s o u g ht it s e e ms likely t h at t he m a t t er could h a ve been disposed of in t he previous session. [11] The r e s p o n d e n t 's commission w as t e r m i n a t ed a nd he w as dismissed from t he Lesotho Defence Force in J u ne 2 0 0 0. T h at his dismissal w as wrongful, a nd t h at he h ad a legitimate claim against t he first appellant, is no longer disputed. He h ad to wait until 19 F e b r u a ry 2 0 07 for his claim to be settled, a nd until 1 April 2 0 07 for h is r e i n s t a t e m e n t. A year later he is still waiting to be paid the a r r e ar salary a nd the d a m a g es t h at are h is due. While t he appellants accept liability for costs should their application n ot succeed, t he history of t he m a t t er t a k en in conjunction with t he woeful i n a d e q u a c i es a nd complete lack of merit in their condonation application call for a punitive order as to costs. It is only fair t h at t he r e s p o n d e nt should be p ut in a position where, as far as possible, he c an recover all h is costs from t he appellants. We are accordingly of t he view t h at t he c i r c u m s t a n c es justify the award of attorney a nd client costs. following order is m a d e :- 1. It is re-iterated t h at t he application for condonation w as dismissed on 1 April 2 0 0 8. 2. The appellants are ordered to pay t he costs of t he application on an attorney a nd client scale, s u ch costs to include t h o se of a nd relating to t he appeal. J W SMALBERGER JUSTICE OF APPEAL I agree: I agree: M M RAMODIBEDI JUSTICE OF APPEAL J J GAUNTLETT JUSTICE OF APPEAL For Appellants For R e s p o n d e nt Mr T. S. P u t s o a ne Mr K. K. M o h au