Morena Mariti V ABSA Bank Limited & 3 Others (C of A (CIV) No.47/2025) [2025] LSCA 66 (7 November 2025)

LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C OF A (CIV) NO. 47/2025 In the matter between: MORENA MARITI APPELLANT AND ABSA BANK LIMITED REGISTRATION NUMBER 1986/004794/06 1ST RESPONDENT O/C VTD & CRU POLICE STATION 2ND RESPONDENT COMMISIONER OF POLICE ATTORNEY GENERAL 3RD RESPONDENT 4TH RESPONDENT CORAM: SAKOANE CJ DAMASEB AJA MUSONDA AJA HEARD: 17 OCTOBER 2025 DELIVERED: 7 NOVEMBER 2025 FLYNOTE Civil Procedure – Urgent Applications – Interim Custody of Disputed Property – Ownership and Possession – Rei Vindicatio and Spoliation – Suspension of Execution Pending Appeal – Peregrinus and Security for Costs – Jurisdiction and Lis Pendens – Principles of Urgent Relief. Held: The High Court was correct to order that a disputed motor vehicle be held in police custody pending the outcome of pending appeals between the parties. The order preserved the res and prevented irreparable harm to the party with prima facie ownership rights. Under a hire-purchase agreement, ownership remains vested in the title holder until the debt is fully paid. A purchaser deriving title from a defaulting hirer cannot acquire ownership against the title holder. The noting of an appeal automatically suspends execution of a subordinate court’s judgment. It was therefore a nullity for the Magistrate’s Court to enforce or found contempt upon a spoliation order whose execution was suspended by law. Rule 133 of the High Court Rules does not bar a peregrinus from seeking urgent relief before furnishing security for costs. In urgent proceedings, a court may, in the interests of justice, hear the matter and direct that security be dealt with subsequently. The complaint that the appellant was denied a hearing on urgency was unfounded. In urgent applications, the questions of urgency and interim relief are inseparable and may be heard together. Joinder of other parties alleged to be involved in earlier transactions was unnecessary where such persons were not in possession of the property forming the subject-matter of the interim relief. The High Court’s assumption of jurisdiction did not offend the lis pendens rule, as the interim relief was ancillary to pending appellate proceedings and intended to preserve the status quo. No basis existed for a punitive costs order; ordinary costs followed the result. Result: Appeal dismissed with costs, including costs of instructed counsel. JUDGMENT P. T. DAMASEB AJA [1] This is an appeal against an order of the High Court (Makhetha J), which directed that a motor vehicle whose ownership is hotly contested between the appellant and the first respondent be released into the custody of the police pending the determination of certain court proceedings pending between the parties to this appeal. Context and background [2] The narration under this heading is based on facts that are not in dispute and on findings and conclusions made by the court a quo on the strength of the parties’ pleadings and the supporting documents filed of record a quo. [3] The root of the dispute in this appeal is a Toyota HIACE Quantum VIN/Chasis NO.: AHTSS22P907154726 Engine NO: 2 KDB162305 (the disputed vehicle) over which there is now a monumental dispute of ownership between the appellant (Mr Mariti) and the first respondent (ABSA). ABSA is a peregrinus while Mr Mariti is an incola. [4] ABSA’s case is that it sold the disputed vehicle under a vehicle finance agreement (HP) in South Africa to Mr Mohlala Sekgopetse. The HP agreement was concluded in February 2024. An important term of the HP agreement is that ownership in the disputed vehicle remains with ABSA until the total debt is fully paid. [5] In terms of the HP agreement, Mr Sekgopetse was expected to pay an amount of R17 662,02 per month until the balance was settled but he never made any payment. A breach of the HP agreement entitles ABSA to repossess the disputed vehicle and to claim the balance due. [6] Unknown to ABSA and contrary to the HP agreement with Mr Sekgopetse, the disputed vehicle was sold to a third party. It is common cause that at the relevant time which led to the legal dispute which is the subject of the present appeal, Mr Mariti was in possession of the disputed vehicle. Mr Mariti maintains that he is the lawful owner of the disputed vehicle as he had bought it from a Mr Ralikhomo who in turn bought it from Mr Sekgopetse in South Africa. [7] It is common cause that the vehicle which was in Mr Mariti’s possession is the same vehicle as the one ABSA sold under the HP agreement to Mr Sekgopetse. Under our law, Mr Mariti’s possessory right can be protected by means of spoliation proceedings. However, assuming it remains the lawful owner of the disputed vehicle, ABSA is entitled to rei vindicatio. [8] As has been held in Chetty v Naidoo:1 ‘It is inherent in the nature of ownership that possession of the res should normally be with the owner, and it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner (e.g. a right of retention or a contractual right).’ Genesis of the dispute [9] How did the vehicle come within the jurisdiction of Lesotho courts? On suspicion of being stolen, the disputed vehicle was impounded in October 2024 from Mr Mariti by the Lesotho Mounted Police Service (LMPS) under the command of the second respondent. [10] On 29 October 2024, Mr Mariti instituted spoliation proceedings in the Maseru Magistrate’s Court against the second to fourth respondents. ABSA became aware of the spoliation proceedings and filed a joinder application to protect its interest in the disputed vehicle in those proceedings. From that joinder application Mr Mariti no doubt became aware of the interest which ABSA claims in the subject vehicle. [11] Yet, without the knowledge of ABSA and whilst the joinder application was pending in the Maseru Magistrate’s Court, Mr 1 Chetty v Naidoo 1974(3) SA 13(A) at 20B. Mariti moved for and obtained a spoliation order against the LMPS (second respondent) on 3 January 2025. The effect of that order was that the police had to surrender the vehicle to Mr Mariti. [12] Again, ABSA became aware of this order and instituted a rescission application in the Maseru Magistrate’s Court on 7 January 2025 against the spoliation order and a further order that the order be stayed, pending resolution of the ownership dispute over the vehicle. [13] The rescission application was dismissed with costs on 15 April 2025, and ABSA noted an appeal to the High Court (under case number CIV/A/0018/2025) against that judgment on the same day. Similarly, before the Magistrate’s Court, ABSA applied for a stay of the spoliation order pending the determination of the appeal in the High Court. On 16 April 2025, Mr Mariti instituted contempt of court proceedings against the LMPS, which application was opposed by both ABSA, as intervenor, and the LMPS. [14] The applications for contempt of court, stay, and intervention were heard together. On 18 June 2025, the Magistrate’s Court found the LMPS to be in contempt of court and ordered the release of the vehicle to the appellant. On 19 June 2025, ABSA noted an appeal against the contempt of court order and the spoliation order and on 25 June 2025, brought an urgent application for stay of the Magistrate’s Court orders and for the return of the vehicle into police custody pending the finalisation of the pending appeals. [15] The relevant parts of the notice of motion read: ‘2. A rule nisi be issued returnable on the date and time to be determined by this Honourable Court calling upon the respondents to show cause, if any, why: a. The court orders in CIV/APN/MSU/0171/2024 dated 18 June 2025 issued by the court a quo shall not be stayed pending the finalisation hereof being the appeal CIV/A/23/2025, b. The court orders in CIV/APN/MSU/0171/2024 dated 3 January 2025 issued by the court a quo shall not be stayed pending the finalisation hereof being the appeal CIV/A/0018/2025, c. The court orders in CIV/APN/MSU/0171/2024 dated 18 June 2025 issued by the court a quo shall not be stayed pending the finalisation hereof being the appeal CIV/APN/0101/2025, d. Pending the outcome of the matter in CIV/APN/0304/2024, e. That the vehicle as released on 18 June 2025 by the Second Respondent be returned to the custody of the second respondent, together with its keys for safe keeping pending the outcome of the appeals and/or other matters as cited above. 3. That prayers 1, 2(a)-(e) operate with immediate effect, pending the finalisation thereof. . . ’ [16] The High Court (Makhetha J) granted to ABSA certain of the prayers sought in its urgent application and specifically ordered Mr Mariti to deliver the disputed vehicle into the custody of the LMPS. It is that order that is the subject of the present appeal. In the High Court [17] After ABSA had filed its urgent application, Mr Mariti filed an answering affidavit and also delivered a notice for security for costs on the ground that ABSA was a peregrinus. [18] The gravamen of ABSA’s case is that it is the registered title holder of the disputed vehicle and stood to suffer irreparable harm if the disputed vehicle remained in Mr Mariti’s possession as he would continue to use it in his taxi business with the resultant depreciation; the danger of dissipation was real because the vehicle’s registration details had already been changed more than once in a foreign country so as to remove it from its control; and that it has no other alternative remedy to prevent a possible dissipation of the disputed vehicle. [19] Mr Mariti, on the other hand, disputed urgency as the vehicle had since been released to him by the LMPS following a court order; that because he was already in possession of the disputed vehicle ABSA did not suffer any harm or prejudice; that ABSA was not a party to the spoliation order it is seeking to stay and that ABSA had alternative remedies in South Africa such as cancellation of the HP ageement, claiming damages and or repossesion of the disputed vehicle. [20] He added that since the vehicle is now registered in his name in Lesotho, the balance of convenience did not favour the granting of the application. He therefore stood to suffer prejudice as a bona fide buyer as he would not be able to use the car to carry on his business. He also objected to the relief because ABSA had not paid security for costs in respect of the urgent application. [21] Before I set out the conclusions arrived at by the court a quo on the merits of the application instituted by ABSA, it is necessary to first refer to matters of procedure recorded in Makhetha J’s written reasons of 4 July 2025. That is necessary in light of the fact that a substantial part of Mr Mariti’s grounds of appeal are directed at the court a quo’s handling of the matter a quo. [22] According to Makhetha J, ABSA’s urgent application served before her against the backdrop of two appeals lodged by ABSA in the High Court: CIV/A/0018/25 and CIV/A/0023/25. In the first one, ABSA appeals against the spoliation order and in the second against both the contempt of court order granted on 18 June 2025 and the spoliation order. All the appeals are against orders made by the Magistrate’s Court of Maseru on different dates. [23] Makhetha J’s first interaction with the parties’ counsel in court was on 30 June 2025 ‘for arguments on urgency and the interim prayers’. The learned judge was the Duty Judge on that day. The learned judge records that when counsel appeared before her, Mr Mariti had already opposed ABSA’s urgent application and also filed an answering affidavit. Makheta J saw her task to be ‘confined to the prayers seeking interim relief only and relied on Counsel’s arguments thereon’. [24] According to the learned judge: ‘5. Advocate Makara presented a brief historical background giving rise to the application and the prayers in the notice of motion. He also presented reasons for urgency and interim relief as are contained in the Applicant’s founding affidavit…’ [6] Advocate Mariti also briefly responded to the background above. His view was that there was no urgency in the matter. He contended that the prayers sought by the Applicant were all moot as the motor vehicle had already been released to his client on the 19th June 2015…[and] that [Mr Mariti] would suffer prejudice by an order releasing the motor vehicle back into the custody of the [LMPS] as the prayers sought by [ABSA]…had a final effect by their nature. [7] Upon the court’s inquiry into whether the judge who is already seized with the rei vindication is not an appropriate court to hear and determine the application, Adv. Mariti agreed that it was appropriate for Justice Khabo to determine the prayers. I was however persuaded by the applicant’s counsel’s submission that the judge on call was enjoined still, to determine interim prayers relating to the opposed appeals which were not allocated to any judge yet. [8] After hearing both parties, I identified a need to be addressed further on urgency with the support of relevant authorities. I ordered counsel to file written submissions, latest by the 2nd July and to be addressed further on the 3rd July 2025. There was compliance, and the court was addressed accordingly. But just as Adv Mariti had argued on the 30th June, the court was of the same view that there was nothing to stay in terms of stay prayers 2(a) to (d) as the vehicle had already been released back to the 1st respondent on the 19th June. The prayers had been overtaken by events. [9] Counsel for the applicant conceded and abandoned all the interim prayers for stay, but urged the court to grant prayers 2(e) for the return/release of the motor vehicle into the custody of the 2nd respondent’s pending the appeal. [10] Having read the parties’ papers filed of record and having heard both sides, I ruled that the matter was urgent, having weighed the applicant’s case against the factors listed in the Chief Justice’s Practice Direction No.2 of 2024 (Urgent Applications).2 Considering the nature of the subject matter of appeal, I also granted prayer (e) for return of the motor vehicle to the custody of the 2nd respondent pending a determination of the opposed appeals. I granted the Interim Order on the 4th July 2025 and referred the matter to allocation to be heard on expedited basis. I also undertook to provide written reasons for my decision later, as I do in this ruling.’ [25] Makhetha J granted the following prayers: 1. Prayers 1 and 2(e) are granted as prayed. That the vehicle as released on 18 June 2025 by the second respondent be returned to the custody of the second respondent, together with its keys for safe keeping pending the outcome of the appeals, CIV/A/0018/2025 & CIV/A/0023/2025. 2. Costs to be costs in the cause. 3. The file to be allocated for the purpose hearing to appeals. [26] In determining the matter before her, the learned judge evaluated the affidavits filed by both parties. She accepted that ABSA had demonstrated a prima facie right over the disputed vehicle. The vehicle was still registered in ABSA’s name under a finance agreement with one Sekgopetse, from whom Mr Mariti derived his claim of ownership. The court found that ABSA had established a reasonable apprehension of irreparable harm should the vehicle remain in the possession of Mr Mariti. 2 Government Notice No. 22 of 2024, section 3.3. [27] According to the learned judge, the apprehension of irreparable harm was justified by Mr Mariti’s own admission that he was considering disposing of the vehicle to recover his litigation expenses, coupled with the fact that the vehicle was being used for long-distance business travel across several countries and was thus subject to continuing depreciation. The court reasoned that these factors could render any eventual judgment on appeal in favour of ABSA nugatory. [28] By contrast, Mr Mariti would suffer no real prejudice from the interim order since the vehicle was to be placed in the custody of the second respondent, a neutral party, pending the outcome of the appeal. The court also found that ABSA’s appeal had reasonable prospects of success. [29] It is observed by Makheta J that the spoliation order granted by the Magistrates Court had been executed while an appeal was pending, contrary to the principle that the noting of an appeal suspends the operation of the order appealed against. Moreover, the Magistrate’s Court had proceeded without determining ABSA’s intervention application or resolving the issue of security for costs demanded by the respondent. [30] As regards Mr Mariti’s request for security for costs under Rule 133, Makhetha J concluded that although Rule 133(4)3 did 3 Rule 133(4) reads: (4) If the party from whom security is demanded contests his liability to give security or if he fails or refuses to furnish security in the amount de- manded or the amount fixed by the Registrar within ten days of the demand or the Registrar’s decision, the other party may apply to the Judge on notice for an order that such security be given and that the proceedings be stayed until the order is complied with. not oblige the Duty Judge to decide the question of security for costs at that stage, the interests of justice required the granting of urgent interim relief to preserve the subject matter of the litigation. The learned judge emphasised that where the risk of irreparable harm outweighs the immediate requirement for security, a court may justifiably issue a protective order to prevent the dissipation of property pending appeal. The interim order for the return of the vehicle into the safe custody of the second respondent was accordingly granted in order to maintain the status quo and to ensure that the appeal proceedings would not be rendered academic. Grounds of appeal [31] Aggrieved by the order, Mr Mariti sought leave from this Court which was granted on 25 July 2025. He then lodged this appeal on the following grounds: 1. The court a quo erred and/or misdirected itself in ordering the 1st respondent's prayer which was not sought before court. 2. The court erred in ordering the appellant to return the motor vehicle before hearing the contempt application. 3. The court misdirected itself in granting the order mero motu before hearing the contempt application without giving the applicant a hearing on why he shall not be ordered to purge contempt, if any. 4. The court erred and/or misdirected itself in ordering the appellant to return the motor vehicle 17:00hrs to the 2nd respondent at 20:00hrs before determining the whereabouts of the motor vehicle and the executability of the order within three hours. 5. The court erred and/or misdirected itself in dismissing the application for stay of execution on the 15th August 2025 at 13:00hrs in the presence of compelling grounds for granting such. 6. The court erred in totally ignoring the fact that there is an appeal in which leave to appeal was granted before the Honourable Court, against its order in C of A. (CIV) 47/2025 when accusing the appellant’s counsel of record of hiding behind the rules and that she will catch him, he can go tell that to the Court of Appeal. 7. The court erred in including issues of a lapsed appeal in CIV/A/0018/2025 in the order of the 28th August 2025. 8. The court erred in not hearing the substantive application for recusal brought before it on the 28th August 2025. 9. Appellant reserves the right to file or advance further grounds of appeal. Discussion [32] Based on the evidence led on affidavit and the record of the proceedings in the Magistrate’s Court, Makhetha J made the following crucial factual findings: (a) After the disputed vehicle was seized from Mr Mariti, further police investigations uncovered that the vehicle is registered in two jurisdictions, Lesotho and South Africa. (b) In Lesotho it is registered in the name of Mr Mariti and in South Africa in the name of Mr Mohlala Sekgopetse as owner and ABSA as title holder pursuant to an HP agreement between ABSA and Mr Sekgopetse – concluded in February 2024. [33] It is common cause that the disputed vehicle is the same vehicle which ABSA sold under HP to Mr Sekgopetse and which was impounded by the LMPS on suspicion of being stolen. Under the HP agreement, ABSA retains ownership in the vehicle until it is fully paid. Mr Mariti did not gainsay ABSA’s case that Mr Sekgopetse had not even begun to pay the instalments nor paid up the debt in respect of the disputed vehicle. By operation of law, therefore, ABSA retains ownership in the disputed vehicle – at least until a court of law finds that Mr Mariti had in the meantime acquired title that defeats that of ABSA. [34] In appeals from the Magistrate’s Court to the High Court, execution is automatically suspended upon noting the appeal. This is the correct position under the common law.4 In Tumo Majara v Seeiso Sehloho5 it was held that: “When a party to civil proceedings in a subordinate court appeals against a judgment of that court, the noting of the appeal automatically suspends the execution of that judgment pending appeal and deprives the judgment of any effect which would bring about a change in the status quo ante. The same rule applies to a judgment of Judicial Commissioner against which an appeal has been noted and should also be applied to judgments of the local and central courts.” [32] A respondent may apply to the Magistrate’s Court for leave to execute the judgment pending appeal in accordance with Rule 4 Abubaker v Magistrate Quthing (C of A (CIV) 19 of 2015) [2016] LSCA 5 (29 April 2016) at para 14. 5 Tumo Majara v Seeiso Sehloho 1974 – 1975 LLR 170. See also JDG Trading (Pty) Ltd t/a Supreme Furnishers v Monoko and Others LAC/REV/39/04 (unreported); where it was held that “the noting of an appeal at common law has the effect of staying execution of the judgment or decision appealed against. 51 of the Subordinate Court Act.6 The court, in exercising its discretion, will consider factors such as the prospects of success on appeal, potential prejudice to either party, and whether the appeal is vexatious or frivolous. [33] The appeals filed by ABSA against the spoliation order suspended execution of that order. In law, therefore, it became unenforceable.7 [34] ABSA had demonstrated irreparable harm if the relief it sought was not granted. Mr Mariti stated unequivocally that depreciation was unavoidable because he would use the disputed vehicle for his taxi business. He had also made clear on oath that he was considering selling the disputed vehicle. How it could then be suggested that ABSA would not suffer prejudice stretches credulity. The suggestion that he would suffer prejudice because he would not be able to use the vehicle for his business is counterintuitive because it implies that his possessory rights deserved greater protection than what, prima facie, is ABSA’s title deriving from the HP agreement which remains unchallenged. As I already pointed out, an owner has the right by means of the rei vindicatio to the return of the property. The only issue remaining 6 Section 51 of the Subordinate Courts Act, 9 of 1988, provides: Where an appeal has been noted or an application to rescind, correct or vary a judgment has been made, the court may direct either that the judgment shall be carried into execution or that execution thereof shall be suspended pending the decision on appeal or application. The direction shall be made upon such terms, if any, as the court may determine as to security for the due performance of any judgment which may be given upon the appeal or application. 7 See Abubaker and another v Magistrate Quthing and others LAC (2015- 2016) 360 para 18. being whether Mr Mariti had beccome a bona fide purchaser without knowledge of the defect in the merx. [35] The undisputed version at this stage is that the disputed vehicle has been the subject of potential fraud – hence the involvement of the police. In the rei vindicatio that evidence might throw doubt on Mr Mariti’s claim that he was a bona fide purchaser. [36] Besides the clearly demonstrated irreparable harm to ABSA if the disputed vehicle was not preserved until the relevant disputes between the protagonists are adjudicated, it was a clear nullity for the Magistrate’s Court to grant a contempt of court order to enforce a spoliation order which had become suspended by operation of law.8 [35] The High Court’s order granting ABSA an order releasing the disputed vehicle to the LMPS for safe custody therefore seems unimpeachable - unless Mr Mariti can show that it was bad in law on some other basis. That leads me to consideration of Mr Mariti’s grounds of appeal. Denial of a hearing [36] This ground of appeal was actuated by what emerged during the hearing of the appeal to be a misunderstanding on Advocate Mariti’s part about how an urgent application is adjudicated. In 8 Abubaker supra, para 18. his understanding, in an urgent application, the court must deal separately with the issue of ‘urgency’ from that of the merits of the relief sought on an urgent basis. In other words, only if the court is satisfied that there is urgency should the court proceed to decide (presumably at a separate hearing) whether to grant the relief. [37] Mr Mariti did not cite any authority for that rather novel proposition. Whether or not a matter is urgent is inseparable from the nature of the relief sought. The nature of the relief sought is in turn the function of the circumstances that led to it being sought: in this case the danger of dissipation and resultant irreparable harm. [38] I have already quoted verbatim the procedure followed by the judge a quo in adjudicating the urgent application that served before her. It is apparent therefrom that the parties were afforded ample opportunity to address the court on the issue of urgency and whether the relief could be granted. Mr Mariti was constrained during oral argument to concede that the criticism against the judge that she denied his client a hearing was untenable. The first ground of appeal is therefore meritless. Absence of security [39] This ground too is inspired by a wrong interpretation of Rule 133 of the High Court Rules. It need not detain us. First the misunderstanding: According to Advocate Mariti, once security is demanded, a peregrinus applicant is bound to make good on the security demanded before it can he heard. That approach is not supported by Rule 133. To avoid prolixity, I will not quote the rule in its entirety. The rule operates in this way: Once security is demanded against a peregrinus, the parties approach the Registrar to set the amount of security. If the quantum as determined is agreed between the parties, the party against whom it is granted makes good on it in the manner determined by the Registrar. If liability for security is disputed, the matter comes before a judge for adjudication in terms of Rule 133(4). In the ordinary course, that will happen after proceedings are launched and before the matter is adjudicated. [40] There is nothing in Rule 133, however that requires that an urgent application may not be heard in the absence of security for costs being furnished. That would defeat the very purpose of urgent relief. In any event, on the facts before us the issue of costs is a redherring. After the urgent application was disposed of and at the prompting of ABSA’s attorney of record, the parties met with the Registrar for the security amount to be determined. A minute of that meeting records that Advocate Mariti rejected ABSA’s tender of security because Makhetha J had not dealt with the issue of security. He realised that if he accepted the security Mr Mariti’s pending appeal would become moot. The truth is that Advocate Mariti raised the issue of security and the learned judge a quo made clear that it is not a bar to her considering the urgent relief. The second ground of appeal also fails. Failure to determine ABSA’s lack of locus standi; non-joinder of seller [41] This ground is amplified in the heads of argument. It is submitted that since ABSA accuses Mr Mariti of being an ‘accessory’ in the theft of the disputed vehicle, the alleged co- conspirators ought to have been joined, including the person to whom ABSA sold the disputed vehicle under HP. There is a complete answer to this argument. Neither the person who bought the vehicle from ABSA nor the alleged co-conspirator(s) were in possession of the disputed vehicle when ABSA launched its urgent application. Why those persons should have been joined defies logic. The relief was intended to secure the vehicle in the interim and if other people need to be joined in future when the rei vindicatio is to be determined is another matter. Ground three also fails. Makhetha J had no jurisdiction; matter was pending before Khabo J [42] My understanding is that what was pending before Khabo J is the rei vindicatio brought by ABSA in CIV/APN/0304/2024. If the suggestion is that the matter was lis pendens it has no merit because the urgent application was intended to ensure that any relief that ABSA may obtain in due course does not become an empty shell. Nothing at all is said in the heads of argument on this ground and it too must therefore fail. Disposition [43] For all the reasons that I have given, the appeal must fail. As far as costs are concerned, Advocate Makara for ABSA during oral argument asked for costs on attorney and client scale. No intimation is made for such an order in the heads of argument on behalf of ABSA. During the hearing of the appeal counsel sought to buttress the case for such an order by stating that the appellant’s counsel had (a) failed to serve the record on ABSA on time and, (b) filed the heads of argument out of time and failed to apply for condonation. Both those points are not foreshadowed in ABSA’s heads of argument – even by way of supplementation. [44] A punitive costs order is not had for the asking. A proper basis must be laid for it. That has not happened and I decline to grant such an order. A party and party costs order will suffice. Order The appeal is dismissed, with costs, including costs of instructed counsel. –––––––––––––––––––––––– P. T DAMASEB ACTING JUSTICE OF APPEAL I agree I agree ________________________________ S. P. SAKOANE CHIEF JUSTICE ____________________________________ P MUSONDA ACTING JUSTICE OF APPEAL FOR APPELLANT: ADV K. A. MARITI FOR RESPONDENT: ADV MM MAKARA (assisted by L ADAMS)