Mataeli Makhele-Sekhantso V Attorney General & 2 Others (C of A (CIV) 23/2024) [2025] LSCA 14 (2 May 2025)

LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C of A (CIV) 23/2024 In the matter between – MATAELI MAKHELE-SEKHANTSO APPELLANT and ATTORNEY GENERAL 1ST RESPONDENT MINISTER OF LOCAL GOVERNMENT AND CHIEFTAINSHIP 2ND RESPONDENT CORAM: MUSONDA, AJA CHINHENGO, AJA VAN DER WESTHUIZEN, AJA HEARD: 9 APRIL 2025 DELIVERED: 2 MAY 2025 FLYNOTE Postponement of hearing – Death of counsel – Staff shortage in Attorney General’s office – Replacement counsel unable to prepare due to pre-engagement in criminal trial – Application to postpone appeal – Concession on costs – Whether costs order suffices to cure prejudice. Held: Where an application for postponement is made on compassionate and logistical grounds – namely, the death of legal counsel and constraints of time and capacity in securing effective representation – the court may grant the postponement if no material prejudice arises to the opposing party that a costs order cannot cure. In the present matter, the appellant's counsel opposed the application but ultimately conceded that an appropriate award of costs could remedy any potential prejudice. The Court accordingly postponed the matter and directed the applicants (respondents in the appeal) to pay the costs occasioned by the postponement. Postponement Administrative incapacity – Procedural fairness. – Compassionate grounds – Costs – JUDGMENT VAN DER WESTHUIZEN, AJA: [1] This matter was enrolled to be heard as an appeal on Wednesday, 9 April 2025. The respondents formally applied to postpone the matter to the October 2025 session of this Court. [2] The application was based on the death of counsel for the respondents on 20 March 2025, followed by his burial on 5 April 2025. According to the applicants, the office of the Attorney General “had not been aware of the gap left by” the death of counsel and was also experiencing a staff shortage. On 3 April 2025, another counsel was instructed, but he was involved in “a marathon high-profile criminal trial” and had no time to prepare a written argument, given the short notice. [3] The applicants submitted that a cost order could cure any possible prejudice the respondent (appellant) may suffer. [4] The application for postponement was opposed, but counsel conceded that an appropriate cost order could eliminate any prejudice. Thus, it was ordered that – (a) The matter be postponed to the October 2025 session of this Court; and (b) The costs of the postponement were to be paid by the applicants. I agree _____________________________ J VAN DER WESTHUIZEN ACTING JUSTICE OF APPEAL _____________________________ P MUSONDA ACTING JUSTICE OF APPEAL I agree: ____________________________ M CHINHENGO ACTING JUSTICE OF APPEAL For the applicants (respondents in the appeal): Adv PTBN Thakhalekoala For the respondent (appellant in the appeal): Adv N Mafaesa