Khotso Mphaki V The Learned Magistrate Qacha's Nek Magistrate & 3 Others (C of A (CIV) 45/2024) [2025] LSCA 19 (2 May 2025)

LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C of A (CIV) 45/2024 In the matter between: KHOTSO MPHAKI APPELLANT AND THE LEARNED MAGISTRATE QACHA’S NEK MAGISTRATE 1ST RESPONDENT CLERK OF COURT QACHA’S NEK MAGISTRATE COURT MAFA MPHUTLANE NTSAA SEJANAMANE 2ND RESPONDENT 3RD RESPONDENT 4TH RESPONDENT CORAM: MUSONDA AJA MOSITO P CHIHNENGO AJA HEARD: DELIVERED: 10 APRIL 2025 2MAY 2025 FLYNOTE Civil Procedure — Postponement of appeal — Representation — Counsel withdrawal — Continuation of stay of execution — Costs in the cause. The appeal, initially set down for hearing in the October 2024 session, was postponed to the April 2025 session due to the non-appearance of the 3rd and 4th respondents. On the resumed hearing, the Court confronted an issue of representation: the 3rd respondent's counsel, having earlier filed papers, had withdrawn at his client’s request following a breakdown in their relationship. Upon inquiry by the Court, it emerged that the 3rd respondent, a pensioner, lacked funds to retain counsel and requested further postponement to the October 2025 session. The appellant’s counsel did not oppose the postponement, provided the existing stay of execution remained intact. Held, postponement was reluctantly granted in the interest of justice, recognising the respondent’s financial hardship and absence of opposition by the appellant. The stay of execution was implicitly preserved, and the costs of the postponement were made costs in the cause. JUDGMENT MUSONDA AJA Introduction [1] This matter was enrolled in the October 2024 Session; it could not take off due to non-availability of the 3rd and 4th Respondents. The matter was postponed to the April 2025 session. When the matter came up on 10th April 2025 we, demanded that though Advocate Masiphole former Counsel for the respondent had withdrawn after filing of the papers at the behest of the 3rd respondent despite the relationship having broken down, he should appear before us. [2] The Deputy Registrar phoned Advocate Masiphole, the call was joined by the 3rd respondent and Adv Molapo for the appellant. The 3rd Respondent said he had an outstanding balance of legal fees. He said he had also lost confidence in Adv Masiphole. He asked that the matter be postponed to the October Session. He said he was a pensioner and was seeking financial help from his children. [3] Adv Molapo, had no objection, as long as, the stay of execution continues. The court reluctantly adjourned the matter, to the October Session. Thus, it was ordered that – (i) The matter be postponed to the October 2025 Session of this court; and (ii) The cost of the postponement be costs in the cause. _________________________ P. MUSONDA ACTING JUSTICE OF APPEAL I agree I agree ______________________________ K. E. MOSITO PRESIDENT OF THE COURT OF APPEAL _______________________ M. CHINHENGO ACTING JUSTICE OF APPEAL FOR THE APPELLANT: ADV LD MOLAPO FOR THE 3RD RESPONDENTS : NON - APPEARANCE 4