Eminence Electro Mechanical & Construction (PTY) LTD V Mafeteng District Council & 2 Others (C of A (CIV) 45/2025) [2025] LSCA 69 (7 November 2025)

LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C OF A (CIV) NO. 22/2025 CCA/0002/2025 In the matter between: EMINENCE ELECTRO MECHANICAL & CONSTRUCTION (PTY) LTD APPELLANT And MAFETENG DISTRICT COUNCIL 1ST RESPONDENT MINISTRY OF LOCAL GOVERNMENT, CHIEFTAINSHIP, HOME AFFAIRS AND POLICE 2ND RESPONDENT ATTORNEY GENERAL 3RD RESPONDENT CORAM: MOSITO P DAMASEB AJA MUSONDA AJA HEARD: 15 OCTOBER 2025 DELIVERED: 07 NOVEMBER 2025 FLYNOTE Appeal — Interlocutory order — Urgency — High Court striking application off the roll for want of urgency — Whether such ruling final or interlocutory — Section 16(1)(b) of the Court of Appeal Act 1978 — Leave to appeal — Jurisdiction. An order striking a matter off the roll for want of urgency is interlocutory in nature. It neither determines the parties’ substantive rights nor finally disposes of the dispute, as the applicant remains free to reinstitute the proceedings on proper papers. Under section 16(1)(b) of the Court of Appeal Act 1978, no appeal lies from such interlocutory rulings without prior leave of the High Court or, if refused, of the Court of Appeal. The requirement of leave is a jurisdictional precondition that cannot be waived or cured by consent. Absent such leave, the appeal is incompetent and must be struck off the roll. Held: The ruling that the matter lacked urgency was an interlocutory order; leave to appeal was required but not obtained. Appeal struck off the roll; no order as to costs. MOSITO P BACKGROUND JUDGMENT [1] This appeal arises from a ruling of the High Court (Mathaba J) delivered on 17 May 2025, whereby the learned Judge struck the applicant’s motion off the roll of urgent matters for want of urgency. The applicant, dissatisfied with that ruling, noted an appeal to this Court without seeking or obtaining leave. The question that now arises is whether such an appeal is competent in light of section 16 of the Court of Appeal Act 1978. Background [2] The essential facts are not in dispute. The appellant had entered into a contractual agreement with the first respondent on 7 December 2022 for the servicing and repair of the Council’s yellow plant. The relationship deteriorated; on 16 December 2024, the Council terminated the agreement, citing dissatisfaction with performance and initiated the engagement of another service provider. [3] The appellant, apprehending commercial loss, launched an urgent application in the High Court to stay implementation of the Council’s decision and to restore the status quo pending arbitration. The High Court, upon hearing the matter, held that the application did not warrant urgent enrolment and struck it from the roll of urgent matters. No determination was made on the merits of the interim relief sought. [4] The appellant now appeals, contending that the learned Judge erred in finding a lack of urgency and in discounting financial loss as a ground of urgency. Issue for determination [5] The sole issue before this Court is whether the ruling that the matter lacked urgency is an interlocutory order which, by virtue of section 16(1)(b) of the Court of Appeal Act 1978, requires leave to appeal. The Law [6] Section 16(1)(b) provides that: “An appeal shall lie to the Court of Appeal— (a) … (b) with the leave of the High Court or, if that has been refused, with the leave of the Court of Appeal, from any interlocutory judgment or order.” [7] An order is interlocutory if it does not finally determine the rights of the parties but leaves the main issue for future determination. As Lord Denning MR explained in Salaman v Warner [1891] 1 QB 734 at 736, an order is final only if it “finally disposes of the rights of the parties.” The same approach was adopted by this Court in Attorney General v Sekoala (C of A (CIV) No 46/2012, unreported), where it was held that an order striking a matter off the roll for want of urgency is plainly interlocutory. [8] The rationale is that such a ruling does not preclude the applicant from reinstating or re-launching the application on proper papers. It therefore lacks finality either as to rights or as to the cause of action. [9] In Nqojane v Director of Public Prosecutions (C of A (CRI) No 07/2005), this Court reaffirmed that where the decision complained of is interlocutory, leave to appeal is a condition precedent to the exercise of appellate jurisdiction. Absent leave, the Court of Appeal is without power to entertain the appeal. Consideration of the appeal [10] Measured by these principles, the ruling of the learned Judge a quo was manifestly interlocutory. The High Court merely determined that the matter was not urgent; it did not adjudicate the substantive dispute concerning termination of the contract or entitlement to interim relief. The appellant remains at liberty to institute fresh proceedings in the ordinary course. [11] Accordingly, the appellant was obliged to seek and obtain leave to appeal either from the High Court or, if refused, from this Court. No such leave was sought or granted. [12] In consequence, this appeal is incompetent. The absence of leave goes to jurisdiction, not merely to form. As Lord Reid observed in Midland Bank Trust Co v Green [1981] AC 513 (HL), jurisdiction cannot be conferred by consent or oversight; it exists only if statutory preconditions are satisfied. [13] It follows that this Court cannot entertain the merits of the appeal. The question of urgency or otherwise is immaterial once the jurisdictional bar is established. Disposal [14] For these reasons, we hold that the order appealed against is interlocutory in nature, and that leave to appeal under section 16(1)(b) of the Court of Appeal Act 1978 was required but not obtained. The appeal is therefore struck off the roll as incompetent. No order as to costs is made, the matter having been disposed of on a jurisdictional ground raised by the Court itself. Order 1. The appeal is struck off the roll for want of leave under section 16(1)(b) of the Court of Appeal Act 1978. 2. No order as to costs. ______________________________ K. E. MOSITO PRESIDENT OF THE COURT OF APPEAL I agree: I agree: _____________________________ P T DAMASEB ACTING JUSTICE OF APPEAL _____________________________ P MUSONDA ACTING JUSTICE OF APPEAL FOR APPELLANTS: FOR RESPONDENTS: ADV M MATSOSO ADV L P MPHOSO