Sekhoane v Sekhoane (C of A (CIV) 20 of 8) [2009] LSCA 26 (29 April 2009)

IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU In the matter between :- C of A CIV NO ( ) .20/08 MOTHUSI SEKHOANE APPELLANT And ‘MASECHABA SEKHOANE RESPONDENT CORAM : RAMODIBEDI P , Heard : Delivered : April 2009 April 2009 JUDGMENT RAMOBIDEDI P , [1] It is appropriate I think to commence this judgment by , , pointing out that on 20 October 2005, and in the case of Sekhoane v Sekhoane 2005 - 2006 LAC 264 between the same parties herein this , Court upheld the present respondent’s claim against the appellant for a relief declaring her minor son Malakia Sekhoane to be the heir of the late Kuni and ‘Mateboho Sekhoane . The Court also granted her sequential relief by way of interdicts . These included an order directing the appellant to vacate the late Kuni Sekhoane’s residence at Qoaling “the premises” ( ). [2] On 5 April 2006, the respondent launched contempt proceedings in CIV APN / /141/06 in the High Court on the ground that the appellant defiantly continued to remain in occupation of the premises notwithstanding the aforementioned order of this Court to vacate them . [3] On 14 November 2008, the court a quo held the appellant to be in contempt of this Court’s order referred to in paragraph [1] above The court then directed the appellant to comply with . the order in question and submit himself to that court on 21 November 2008 for sentence . The parties are on common ground that the appellant did not [4] submit himself to the High Court on 21 November 2008 as ordered or at all . It is not disputed however that he was ill in , hospital on that date . Thereafter the appellant seems to have , taken up the attitude that he could not approach the court because he had never been told of a new date for sentence . [5] It was submitted in effect on the respondent’s behalf on the other hand that the appellant was simply playing delaying tactics . It was incumbent on him so it was argued to , , approach the court after he had been discharged from hospital . In the light of the conclusion I have arrived at as fully set out below I deem it , unnecessary to reach a concluded view on the matter It shall suffice merely to say that what has weighed . heavily with this Court is that the proceedings before the High Court have not reached finality This must clearly be the case . as long as sentence has not yet been passed in that court . [6] On 5 December 2008, and notwithstanding the fact that the proceedings were still pending sentence in the court a quo the , appellant filed a notice of appeal against the contempt order in question . [7] On 12 March 2009, the respondent filed an application with this Court seeking relief in these terms :- 1.“ 2. 3. BarringtheAppellantfromarguinghisappeal untilhehassubmittedhimselftotheHighCourt forsentencinginCIV APN / /141/2006; Strikingtheappealfromtheroll ; DirectingtheAppellanttopaycosts” . It is important to note that this judgment is concerned solely [8] with the application referred to in the preceding paragraph It . has nothing to do with the merits or demerits of the contempt order in question Furthermore I should perhaps mention that . , I heard this application sitting as a single Judge in terms of Rule 18 (2) of the Court of Appeal Rules 2006. [9] But before proceeding further it is necessary to record at the , outset that Adv Mohau KC for the respondent readily conceded and properly so in my view that strictly speaking it , , would not make much sense to grant both prayers and at 2 1 the same time Thus for example if the appeal is struck from . , , the roll in terms of prayer 2, there would be no need to grant prayer 1 barring the appellant from arguing his appeal The . logic which immediately appeals to one’s mind here is that once the appeal is struck off the roll then there can be no , appeal pending Hence there is no need to bar the appellant as . suggested . [10] In determining the respondent’s application it proves useful to , have regard to the following provisions of section of the 6 (1) Court of Appeal Act 1978:- 16.“ ( )a AnappealshalllietotheCourt — (b) fromallfinal supplied .) judgmentsoftheHighCourt”Emphasis . ( I would lay it down as a general rule in this country that this [11] Court will be loath to exercise its appellate functions upon the unconcluded course of proceedings in a lower court See for . , example such cases as , Francis Another v Rex & NPD 1919 Wahlhaus 255; And Others v Additional Magistrate , Johannesburg And Another 1959 (3) SA 113 ( A S v ); Benade 1962 (1) SA 301 ( C ). The main motivation underlying the principle referred to in the [12] preceding paragraph is to prevent piecemeal litigation which in turn may invariably lead to the unnecessary clogging of the courts something that , should be avoided at all costs . It must be emphasised , however , that this Court retains its inherent power to do justice depending on the particular circumstances of each case . Such a power is one which is to be exercised sparingly and upon exceptional circumstances . In my view the , present matter is not such a case . [13] Mr Mphalane for the appellant relied heavily on the fact that the appellant has since purged his contempt by vacating the premises on December 3 2008. He submitted accordingly that , , the matter was brought to its “logicalconclusion” at that stage . Furthermore as , he contended in his heads of argument :- “Thesentencingwillnotserveanypurposeassuch Sentencewouldbesuspendedan sic conditionthat ( ) theappellantvacatesthedisputedpremises” . I consider that these submissions are disingenuous in the [14] circumstances of this case I reject them entirely It must . . surely beat one’s imagination how anybody could assume that the court a quo will necessarily suspend sentence in the matter . The fact remains that the question of sentence remains pending in the court a quo to date That court has a judicial . discretion to impose any appropriate sentence which it deems fit in the circumstances . In this regard Adv Mohau KC submitted that the appellant is a fugitive from justice in the sense that he has bolted from sentence in the High Court . I am inclined to agree . The fact that the appellant has to date failed to submit himself to the High Court for sentence says it all It is a telling factor against him that he has not bothered to . enquire about a new date for his sentence Nor has he sought . the date from the court himself as it was his right to do so . [15] In the light of the foregoing considerations I am of the view , that the respondent’s application must succeed with costs in terms of prayer thereof Accordingly the following order is , . 2 made :- (1)“ (2) The appellant’s appeal is struck from the roll . The appellant is ordered to pay the costs of this application ” . _______________________ . M M RAMODIBEDI PRESIDENT OF THE COURT OF APPEAL . For Appellant For Respondent : : Mr N Mphalane . Adv K K Mohau KC . .