James Rashid Rajah V Resident Magistrate Banyane & 3 Others (C of A (CIV) No 22/2018) [2025] LSCA 51 (7 November 2025)

LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C OF A (CIV) NO. 22/2018 In the matter between: JAMES RASHID RAJAH APPLICANT And RESIDENT MAGISTRATE BANYANE 1ST RESPONDENT UNICE CASSIM ABDULLA 2ND RESPONDENT THIBELLO FRANCIS MONESE 3RD RESPONDENT COURT MESSENGER MOKHOTHU 4TH RESPONDENT CORAM: MOSITO P MUSONDA AJA MATHABA AJA HEARD: 07 OCTOBER 2025 DELIVERED: 07 NOVEMBER 2025 FLYNOTE Appeal — Failure to appear — Want of prosecution — Striking off the roll — Rule 5 of the Court of Appeal Rules — Appellant and counsel absent despite prior indulgence — Inherent power of the Court to regulate its own process — Interests of justice and finality — Proper exercise of discretion. Where an appellant, after due notice and indulgence by the Court, fails to appear or take steps to prosecute his appeal, such conduct constitutes a want of prosecution. The Court of Appeal, under Rule 5 and its inherent jurisdiction, possesses the power to strike the matter from the roll to preserve the integrity of its process, protect the respondent’s right to finality, and prevent abuse of procedure. The Court’s discretion to do so will be exercised where the appellant’s default is unexplained and persistent, notwithstanding prior opportunities to comply. REASONS FOR DECISION MOSITO P Introduction [1] This matter first served before this Court on 7 April 2025, during the last session of the Court. When the matter was called, neither the Appellant nor his instructing attorney, Mr Maieane, nor his counsel, Advocate Seotsanyana, appeared. The Court, anxious that justice should not be defeated by mere inadvertence, directed the Registrar to notify counsel and the attorney to attend the present session. The matter was accordingly postponed to this session, upon the respondent’s counsel graciously acceding to such indulgence. [2] The case was thereafter placed on the roll on 19 September 2025 for ascertaining its state of readiness for hearing. On that occasion, Advocate Seotsanyana appeared and assured the Court that the matter would be ready to proceed at the commencement of the October 2025 session. [3] The matter was thus set down and called before us on 7 October 2025. Yet again, neither the Appellant, his counsel, nor his instructing attorney appeared. The Court directed the Court Orderly and the Registrar to trace them within the precincts of the Court, but all efforts proved fruitless. Counsel for the respondent thereupon applied for the appeal to be struck from the roll for want of prosecution. [4] The Court, being satisfied that the Appellant and his representatives had shown a persistent want of diligence and had failed to take the Court into their confidence, ordered that the appeal be struck off the roll. We now give our reasons. Issues For Determination [5] The issues that arose for determination in this matter were few but fundamental. The first was whether the appellant and his legal representatives had been duly notified of the hearing of the appeal and afforded a fair opportunity to be heard. This went to the heart of procedural fairness and the right of access to justice. The Court had to be satisfied that proper notice was given and that the appellant’s absence could not be attributed to any failure on the part of the Court or its officers. [6] The second issue was whether the appellant’s repeated failure to appear before the Court, despite prior indulgence and express notice, amounted to a want of prosecution warranting the striking off of the appeal. In other words, the Court was called upon to determine whether the appellant’s conduct evinced a deliberate neglect or abandonment of his appeal. [7] The third issue concerned the power of this Court, both under its Rules and its inherent jurisdiction, to strike a matter from the roll for want of prosecution where an appellant fails to appear or to take necessary steps to advance his appeal. This required consideration of the scope of Rule 5 and the general principle that courts of superior jurisdiction retain control over their own processes to prevent abuse and to ensure efficiency in the administration of justice. [8] The final issue was whether, in the circumstances of this case, the exercise of the Court’s discretion to strike the matter off the roll was justified in the interests of justice and finality. This called for a careful balancing of the appellant’s right to be heard against the respondent’s entitlement to certainty and the Court’s obligation to uphold procedural discipline and prevent its processes from being rendered nugatory. The Duty to Prosecute an Appeal [9] An appellant who invokes the appellate jurisdiction of this Court bears a duty to prosecute his appeal with reasonable expedition and to attend when the matter is called. The filing of an appeal does not, in itself, preserve it indefinitely; the process requires active and timely pursuit. An appellant who fails to attend court without explanation not only neglects his own cause but also abuses the Court’s time and the respondent’s right to finality. [10] This duty is underscored by Rule 5 of the Court of Appeal Rules, which makes plain that an appeal that is not properly prosecuted within the prescribed time lapses by operation of law. Even where an appeal has been properly lodged, a persistent default in appearance or preparation may justify striking it from the roll for want of prosecution. The Court cannot be expected to remain indefinitely in suspense while a dilatory litigant disregards its processes. The Interests of Justice and Finality [11] The administration of justice demands both fairness and finality. The Court is ever reluctant to deny a litigant a hearing, but it is equally bound to prevent its process from being turned into an instrument of delay. The respondent, who has prepared to meet the appeal, is entitled to certainty and repose. The integrity of the Court’s calendar and the efficient dispatch of its business equally require discipline in the observance of its rules and fixtures. [12] The Court extended indulgence at the previous session, expressly to ensure that the appellant was not prejudiced by an initial default. The renewed failure of appearance at the present session, despite clear notice and previous assurances of readiness, evinces a disregard incompatible with the orderly conduct of litigation before this Court. Conclusion [13] In these circumstances, the Court had no alternative but to strike the matter from the roll. The order was warranted by the appellant’s sustained inaction and by the necessity of preserving the authority and efficiency of the Court’s process. [14] Accordingly, the appeal was struck off the roll for want of prosecution. ________________________________ K E MOSITO PRESIDENT OF THE COURT OF APPEAL I agree ______________________________ P MUSONDA ACTING JUSTICE OF APPEAL I agree ____________________________________ R MATHABA ACTING JUSTICE OF APPEAL FOR THE APPELLANT: NO APPEARANCE FOR RESPONDENTS: ADV M SEMANO 7