Mohapi v Sekasha (C of A (CIV) 37 of 2014) [2015] LSCA 24 (7 August 2015)

IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU In the matter between C of A (CIV) NO. 37/2014 MAKI MOHAPI APPELLANT and LIPUO LYDIA SEKASHA RESPONDENT CORAM: K. E. MOSITO P. T. MONAPATHI JA P. T. DAMASEB A. J. A. HEARD: 24 JULY 2015 DELIVERED: 7 AUGUST 2015 SUMMARY Practice - Appeal - Prosecution of - Proper prosecution of - Failure to comply with Rules 7(2) , 8(1), 9(1) and 15(2) and (3) of Rules of the Court of Appeal Rules 2006 - Application for condonation - Appellant's attorney failing to give adequate explanation for delay in filing notice of appeal and power of attorney - As to furnishing of security, no application for condonation of failure to file security also unduly delayed without any explanation - Applications for condonation of non-observance of Rules dismissed. Appeal - Costs of - Costs de bonis propriis - - Failure to comply with Rules 7(2) , 8(1), 9(1) and 15(2) and (3) of Rules of the Court of Appeal Rules 2006 - Application for condonation - Applications for condonation of late filing of notice of appeal - Flagrant and gross non-observance of Rules on part of appellant's attorney should ordinarily attract costs de bonis propriis – Since respondent has informed this Court she will not insist on costs in casu. Appeal struck off the roll with no order as to costs of the present proceedings before us. MOSITO P JUDGMENT [1] This is an appeal against an order of the High Court (Nomngcongo J) granted on 4 April 2014. The heart of the dispute in this appeal was an alleged breach of an agreement of sale of a certain house, which agreement was allegedly entered into by and between the respondent on the one hand and the appellant’s late mother on the other. [2] As pleaded by the respondent, the respondent and the appellant’s mother entered into an oral agreement of sale concerning a certain house situate at Khubetsoana near Sesotho Power Trucks Depot and Bochabela III shop for the purchase price of M90, 000.00 (ninety thousand maloti). According to the respondent, it was a term of the agreement that the appellant’s mother should pay an amount of M50, 000.00 (fifty thousand maloti) upfront and the remaining M40, 000.00 (forty thousand Maloti) on or before December 2011. The respondent alleges that, the appellant’s mother duly paid the said sum of M50, 000.00 (fifty thousand maloti) as per the agreement and, thereafter she (together with her children who included the appellant) took occupation of the house on or around December 2012. [3] The appellant’s mother passed away in February 2012. When she passed away, she still had not paid the outstanding sum of M40, 000.00 (forty thousand maloti). She left the appellant still staying on the property with her siblings. After the death of the appellant’s mother, the respondent entered into an agreement with the appellant to take over her mother’s debt and settle the outstanding sum of M40, 000.00 (forty thousand maloti). The respondent alleges that the appellant has to date failed to pay the outstanding sum of M40, 000.00 (forty thousand maloti). The respondent alleges that, in consequence thereof, the appellant is in breach of the agreement and the respondent is entitled to cancel the agreement. [4] On 8 November 2012, the respondent instituted an action against the appellant seeking an order in the following terms: “1. Cancellation of parties, defendant as daughter of ‘Mathapelo Mohapi and the plaintiff. the contract between the the late 2. Defendant be ordered to return plaintiff’s house to plaintiff, which is currently being occupied by defendant, her minor child and minor sibling. 3. Plaintiff be ordered to return to defendant the money paid to her as deposit in the amount of M50.000.00. 4. Costs of suit.” [5] On 10 December 2012, the High Court entered default judgment for the respondent. The appellant filed an application for rescission on 30 August 2013. An interim order for stay pending finalisation of the application for rescission was granted on 30 August 2013. The Appellant was apparently, subsequently permitted to file her plea and the matter was ultimately resolved on the basis of an exception directed at the plea. [6] The exception was based on the proposition that, no transfer of title to land could be effected by the respondent either to the appellant or her mother without prior ministerial consent. On 4 April 2014, the learned judge upheld this exception. Against this order this appeal was filed. [7] At the commencement of its hearing, it emerged that there are a number of procedural difficulties with this appeal. The respondent, through her counsel, Advocate Ts’abeha, raised a number of preliminary procedural points. Firstly, he submitted that the appeal had been noted out of time. He argued that, although an application for condonation for the late noting of the appeal was subsequently filed, the record of the appeal was also filed out of time, without either the consent of the respondent as to the extension of the time limit for the late lodging of the record as contemplated by Rule 5(2) of the Court of Appeal Rules 2006, or without an application for condonation therefor. Secondly, he argued that in terms of Rule 5(3) of the Court of Appeal Rules 2006, the appeal had lapsed and there was no application for its reinstatement. [8] Thirdly he submitted that, in terms of Rule 7(2) of the Court of Appeal Rules 2006, a certificate certifying the correctness of the record had not been filed. There was also no application for condonation for this breach of the Rule. Fourthly, he further contended that there was no security for costs filed as contemplated by Rule 8(1) of the Court of Appeal Rules 2006, and no application for condonation for the breach of this Rule. Lastly, the learned counsel submitted that, the appellant had filed heads of argument out of time contrary to Rule 9(1) of the Court of Appeal Rules 2006 and without an application for condonation therefor. [9] The learned counsel for the appellant, Mrs Thabane, sought to circumnavigate the above challenges by submitting that, while she conceded that there were such breaches of the Rules, this Court should condone the said breaches because the appellant has good prospects of success. She further contended that, the appellant was not responsible for the delay in the present case. Such delay was attributable at least to some extent, to the negligence and dilatoriness of the former attorneys from the Legal Aid, who formerly represented the appellant. She argued that this Court should in the circumstances be hesitant to debar the appellant from the relief she seeks. [10] I now proceed to consider the contentions of the parties. In terms of Rule 4 (1) of the Court of Appeal Rules 2006, the notice of appeal should have been filed within six weeks of the date of judgment. Further in terms of Rule 15(1) a breach of this (or indeed any other rule) renders an appeal liable to being struck off the roll. This Court has in a number of its decisions, commented on the need to apply for condonation whenever it is realised that the Rules of this Court have been breached (See, for example, such cases as Koaho v Solicitor-General 1980 – 1984 LAC 35; Rev. Father Khang v Bishop Mokuku And Others NNO 2000 – 2004 LAC 600; CGM Industrial (Proprietary) Limited v Adelfang Computing (Proprietary) Limited C of A (CIV) No. 5/08; Neo Andreas Motake v Bereng Moqhoai C OF A (CIV) NO. 5/2009 (and the cases cited therein). [11] As I indicated above, the order subject of this appeal was granted by the High Court on 4 April 2014. The notice of appeal to this Court was filed with the Registrar of this Court on 9 June 2014. The notice of appeal was clearly out of time when filed. Rule 4 (1) of the Court of Appeal Rules 2006 is couched in mandatory terms. An application for condonation for the late filing of the notice of appeal was necessary and was filed on 10 June 2014. [12] The application, which was not opposed, gives some explanation for the delay in noting the appeal. The explanation is that, appellant is an indigent person who was initially represented by the Legal Aid division of the Ministry of Justice. Following delivery of the judgment, the Legal Aid counsel representing appellant, felt that that he was no longer in a position to take the matter any further. The appellant then had to set out to look for another legal representative and make an application for stay and leave to sue in forma pauperis in the High Court. The High Court dismissed the said application. The above reasons caused delays in taking instructions and noting an appeal to this Court. As can be seen from Rule 4 (1), the appellant was, in my calculation, obliged to file his notice of appeal on or before 16 May, 2014. It follows that she was late by about three weeks when she filed hernotice of appeal. [13] In Neo Andreas Motake v Bereng Moqhoai C OF A (CIV) NO. 5/2009 this Court pointed out that, the principles applicable in an application for condonation of the late filing of an appeal are now well-established in this jurisdiction. In essence, the applicant must satisfy two requirements, namely, (1) that there is sufficient explanation for the delay in question, sometimes expressed as “sufficient cause” and (2) that there are prospects of success on appeal. It must further be borne in mind that an application for condonation is a matter which lies pre-eminently within the discretion of the Court. See in this regard Rule 15(2) of the Court of Appeal Rules 2006. [14] This Rule provides that '[t]he Court shall have a discretion to condone any breach on the application of the appellant.' As this Court pointed out in NEO Andreas Motake's case (supra), the discretion referred to in the preceding paragraph is, however, not an arbitrary one. It is a judicial discretion which must be exercised upon a consideration of all the relevant factors which have a bearing on the matter. Such factors will usually include the degree of the delay in question, the explanation for such delay, the prospects of success, the respondent’s interest in the finality of the matter and the importance of the case (the list is not exhaustive). Given the special circumstances of the appellant herein, I am of the view that the explanation for delay in noting the appeal is acceptable. I am also of the view that the prospects of success as reflected in the grounds of appeal are good. I would therefore grant the application for condonation for the late filing of the notice of appeal in this matter. [15] Advocate Ts’abeha argued further however, that, although an application for condonation for the late noting of the appeal was subsequently filed, the record of the appeal was also filed out of time without either the consent of the respondent as to the extension of the time limit for the late lodging of the record as contemplated by Rule 5(2) of the Court of Appeal Rules 2006, or without an application for condonation therefor. As a consequence, so Advocate Ts’abeha argued, in terms of Rule 5(3) of the Court of Appeal Rules 2006, the appeal had lapsed and there was no application for its reinstatement. [16] In terms of Rule 5 (1) of the Rules of this Court, the record of appeal should be lodged not later than three months after the notice of appeal. As indicated above, the notice of appeal to this Court was filed with the Registrar of this Court on 9 June 2014. The record was lodged on 6 August 2014. In my view, counting from the date when the notice of appeal was filed, the record was lodged within the prescribed period of three months. It therefore did not lapse. There was therefore no need for an application for reinstatement of the appeal. The appeal could only lapse if the record had not been lodged within the prescribed period of three months or within the extended period contemplated by Rule 5 (3) of the Rules of this Court. [17] Advocate Ts’abeha’s argument was that, the appeal had lapsed because it had been lodged beyond the time period given by a Directive of this Court (i.e. Court of Appeal Circular No. 3 of 2014). Mrs Thabane conceded as much that the appeal had lapsed and craved for the Court’s indulgence to enable her to file a reinstatement application. I am of the view that this concession was not properly made. There are two reasons for this view. The first is that, that Directive did not spell out the lapsing of an appeal as the consequence of non-compliance therewith. The second reason is that, the record had been lodged within the prescribed three months period in terms of Rule 5(1) of the Court of Appeal Rules 2006. I would therefore not uphold this objection. [18] Thirdly, Advocate Ts’abeha submitted that, in terms of Rule 7(2) of the Court of Appeal Rules 2006, a certificate certifying the correctness of the record had not been filed. He argued that there was no application for condonation for this breach of the Rule. Rule 7(2) provides that, ‘[a] certificate certifying the correctness of the record, duly signed by the person referred to in sub-rule (1), shall be filed with the record and served on all other parties to the appeal.’ This Rule is couched in mandatory terms. It was common cause that no such certificate had been filed in casu thereby breaching this Rule. I therefore find that the Rule has indeed been breached in this regard. There was indeed no application for condonation for the breach. [19] Fourthly, the learned counsel for the respondent submitted further that, there was no security for costs filed as contemplated by Rule 8(1) of the Court of Appeal Rules 2006. This Rule provides that, ‘[w]here the judgment appealed from in a civil matter has not been carried into execution by the respondent, the appellant shall, before lodging with the Registrar copies of the record, enter into security to the satisfaction of the Registrar for the respondent’s costs of the appeal.’ [20] While conceding that no application for condonation for the breach of the above Rule had been filed, Mrs Thabane argued that the appellant is a pauper. She had unsuccessfully applied to litigate in forma pauperis in the High Court. She argued that the appellant had been granted legal aid in the Court a quo. She therefore submitted that no filing of security for costs of appeal should be required of appellant. [21] In my view, for this contention to succeed, an application ought to have been made by the appellant, asking for leave to appeal in forma pauperis in terms of Rule 11(1) of the Court of Appeal Rules 2006. This Court itself has to decide whether the impecuniosity of the applicant, her prospects of success and the circumstances are such as to justify dispensation from having to furnish security (See: Putzier and Another v Union and South West Africa Insurance CO, LTD 1976 (4) SA 392 (A) p400). [22] In practice applicants for leave to appeal in forma pauperis normally request and obtain exemption from entering into security. (Cf. Hurwitz v Taylor, 1926 T. P. D. 8 at p. 11; Kader v Chix, 1958 (4) SA 207 (N) at p. 209G - H). In such applications, there are important considerations which emphasise that an order excusing an appellant from entering into security for the respondent's costs of appeal is a lesser concession than one granting leave to appeal in forma pauperis (Cf. Putzier and Another v Union and South West Africa Insurance CO, LTD 1976 (4) SA 392 (A) p. 400). [23] The grant of legal aid is of cause, a consideration to bear in mind and may serve as an explanation where criticism is directed against an appellant who fails to seek leave to prosecute his or her appeal in forma pauperis, since the grant of legal aid would often seem to be sufficient reason for confining the ambit of the relief sought (See: Putzier and Another v Union and South West Africa Insurance CO, LTD (supra) p400). As Kotzé AJA correctly pointed out in Putzier and another (supra), the fact that the legal aid board, after investigation, has decided these aspects in applicant's favour is of no moment, for the Court cannot abdicate its function under Rule 11 and simply act as a rubber stamp approving the board's decision. [24] There is at least one good reason for that. Whilst the board, in deciding whether or not to grant legal aid, need not observe the audi alteram partem rule – and there is nothing in the Legal Aid Act, 1976 to that effect – there is need for this court to do so. I am therefore of the view that, not only was there no application for condonation for the breach of Rule 8(1) of the Rules of this Court, there was also no application before us for the appellant to appeal in forma pauperis. In my view the applicant breached Rule 8 (1) by several months. The Appellant has made no application to this Court for an order condoning her failure to enter into security. [25] Fifthly, Advocate Ts’abeha further submitted that, the appellant had filed heads of argument out of time contrary to Rule 9(1) of the Court of Appeal Rules 2006 and without an application for condonation therefor. In my view, in a case such as the present, where there has been a flagrant breach of the Rules of this Court in more than one respect, and where in addition there is no acceptable explanation for some periods of delay and, indeed, in respect of other periods of delay, no explanation at all, the appeal should not be entertained and should be struck off whatever the prospects of success may be. [26] I find the following remarks by Plewman JA in Darries v Sheriff, Magistrate's Court, Wynberg, and Another 1998 (3) SA 34 (SCA) at p41-32 highly instructive and I have no hesitation in adopting them as reflecting the correct legal position in our jurisdiction as well: “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 Court apply for condonation as soon as possible… Where non-observance of the Rules has been flagrant and gross an application for condonation should not be granted, whatever the prospects of success might be.” [27] In fact, as was pointed out in Saloojee and Another NNO v Minister of Community Development 1965 (2) SA 135 (A) at 141C – E: "I should point out, however, that it has not at any time been held that condonation will not in any circumstances be withheld if the blame lies with the attorney. There is a limit beyond which a litigant cannot escape the results of his attorney's lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the Rules of this Court. Considerations ad misericordiam should not be allowed to become an invitation to laxity. In fact this Court has lately been burdened with an undue and increasing number of applications for condonation in which the failure to comply with the Rules of this Court was due to neglect on the part of the attorney. The attorney, after all, is the representative whom the litigant has chosen for himself, and there is little reason why, in regard to condonation of a failure to comply with a Rule of Court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are." [28] In the present case the breaches of the Rules were of such a nature, and the explanation offered from the bar, in many respects so unacceptable or wanting that, even if virtually all the blame can be attributed to the appellant's former attorneys, condonation for breaches of the Rules relating to security and the certificate certifying the correctness of the ought not, in my view, to be granted in the absence of a substantive condonation application contemplated by Rule 15 (2) and (3) of the Court of Appeal Rules 2006. [29] Another argument advanced by counsel for the appellant was that the delay in lodging the record with the Registrar after it had been completed should be excused because it followed an earlier delay brought about by the noting of the notice of appeal. I cannot agree with this submission. In the first place, the noting of the appeal was itself out of time. It was a breach of the Rules. And, in the second place, I cannot agree with the view that, because of earlier delay, subsequent delay (for which there is no explanation) can be disregarded. In Commissioner for Inland Revenue v Burger 1956 (4) SA 446 (A) at 449G Centlivres CJ said "Whenever an appellant realises that he has not complied with a Rule of Court he should, without delay, apply for condonation." [30] Thus, the subsequent delay in the present case, after the record had been prepared, for which delay no explanation is given, is inexcusable. On behalf of the respondent, Advocate Ts’abeha asked that the appeal should, in the circumstances, be struck off the roll. The argument is not without merit. [31] I am of the view that the appellant’s attorneys were seriously remiss in not filing the necessary condonation applications. It their duty to know the Rules (See: Ferreira v Ntshingila 1990 (4) SA 271 (A) at 281G; See Moaki v Reckitt and Colman (Africa) Ltd and Another 1968 (3) SA 98 (A) at 101G-H; Kgobane and Another v Minister of Justice and Another 1969 (3) SA 365 (A) at 369 in fin-370A; Mbutuma v Xhosa Development Corporation Ltd 1978 (1) SA 681 (A) at 685A). [32] There remains the issue of costs. The costs of this appeal that has to be struck off were unnecessarily incurred. The appellant is in principle obliged, insofar as the Court and the respondents are concerned, to carry the burden of her attorney's gross neglect of his duties as between the appellant and her attorney. There would ordinarily be no reason why the attorney should not bear an appropriate share of the costs in a case such as this (See: Darries v Sheriff, Magistrate's COURT, Wynberg, and Another (supra) pp.45). Ordinarily, the present would be an appropriate case for an order that the attorney pay the costs of the appeal that has been struck off, de bonis propriis. I have considered that justice requires that a special order as to the costs be made as a mark of this Court’s displeasure at the way in which this appeal was handled (See: Rev. Father Khang v Bishop Mokuku and Others NNO LAC (2000 – 2004) 600). [33] However, when the issue of costs of the appeal before us was put to counsel for the parties, they both informed the Court that they did not insist on costs. That being the case, I am inclined, albeit very reluctantly, to let the appellant’s attorney off the hook. [34] The order of this Court is consequently that, this appeal is struck off the roll with no order as to costs for non-compliance with Rules 7(2), 8(1), 9(1) and 15(2) and (3) of the Rules of the this Court. _______________ DR K. E. MOSITO President of the Court of Appeal I agree ________________ T. MONAPATHI Justice of Appeal I agree ______________ P. T. DAMASEB Acting Justice of Appeal For Appellant For Respondent : : Mrs K Thabane Advocate S. S. Ts’abeha 18