Thapelo Khadi V Total Lesotho (C of A (CIV) 30/2024) [2025] LSCA 15 (2 May 2025)

LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU In the matter between: C OF A (CIV) NO: 30/2024 CCT/0136/2016 THAPELO KHADI APPLICANT AND 1ST RESPONDENT TOTAL LESOTHO (PTY) LTD TOTAL LESOTHO PROPERTIES (PTY) LTD 2ND RESPONDENT CORAM: MOSITO P DAMASEB AJA MATHABA AJA HEARD: DELIVERED: 02 MAY 2025 09 APRIL 2025 FLYNOTE Civil Procedure – Leave to appeal – Interlocutory order – Amendment of pleadings – Piecemeal appeals – Withdrawal of application – Costs. An application for leave to appeal against an interlocutory High Court order permitting an amendment to a plea was withdrawn mid- hearing upon recognition that it was both premature and procedurally defective. The applicant’s attempt to appeal before final adjudication of the special plea raised concerns about piecemeal litigation, which the Court of Appeal confirmed is impermissible save in exceptional circumstances. The Court noted that interlocutory decisions, particularly those concerning pleadings, ought to be challenged only after final judgment, absent irreparable prejudice. Held, that withdrawal of the application rendered the applicant liable for the costs of the proceedings, consistent with the principle that a party who discontinues litigation is to be treated as an unsuccessful litigant for costs purposes. Application withdrawn; costs awarded to the respondents. JUDGMENT MATHABA AJA Introduction [1] This is an application for leave to appeal in terms of section 16(1)(b) of the Court of Appeal Act No. 10 of 1978 against an interlocutory order of the High Court (Kopo J) granted on 15 May 2024. The application was withdrawn in the middle of argument on 9 April 2025. [2] I set out the context within which the withdrawal happened. The applicant and respondents are adversaries in a pending civil trial in the Commercial Division of the High Court in CCT/0136/16. It is unnecessary to discuss what the dispute is all about. Suffice it to say that the fight concerns shareholding in the second defendant. [3] On 23 February 2023 the trial court granted an interlocutory order allowing the respondents to amend their plea. The amendment introduced a special plea. On 15 May 2024 the trial court declined the applicant’s application for leave to appeal the interlocutory order to this Court. The trial court correctly held that in terms of section 16(1)(b) of the Act, leave to appeal was justiciable in this Court given that the applicant wanted to appeal an interlocutory order. [4] Subsequently, in June 2024 the applicant noted an appeal against the decision declining leave to appeal and filed an application for leave to appeal the decision. The application was withdrawn on 11 October 2024 (during the October session). On 11 February 2025 the applicant reinstituted the application as well as seeking reinstatement of the appeal. This is the application that served before this Court during this Session. [5] Counsel for applicant was constrained to withdraw the application in the middle of argument upon realising that it was flawed. He conceded, correctly so in my view, that entertaining the appeal against the interlocutory order was going to result in piecemeal adjudication of litigation, something that was undesirable1 and can only happen in cases of great rarity. He appreciated that his client was at liberty to file a replication to the amended plea and that the trial court must first determine the special plea before appeal can be tenable in this Court. [6] In relation to costs, Counsel for applicant reluctantly tendered them at the insistence of Counsel for respondents. Indeed, a litigant who withdraws his or her application or appeal is in the same position as an unsuccessful litigant when it comes 1 First National Bank of Lesotho Limited v. Lugy’s Manufacturing (Pty) Ltd C of A (CIV) 51/2019) [2019] LSCA 33 (11 November 2019). to costs. The respondent or defendant is entitled to all costs caused by the institution of the proceedings2. [7] It follows from the foregoing considerations that the following order is made: - (i) The application for leave to appeal and reinstate the appeal filed by the applicant, Thapelo Khadi, on 11 February 2025 is hereby withdrawn. (ii) The applicant shall pay the respondents’ cost of the application. ______________________________ R. MATHABA ACTING JUSTICE OF APPEAL I agree _______________________________ K. E MOSITO PRESIDENT OF THE COURT OF APPEAL 2 Makhanya v. Pheko and Others (LAC 2011-2012)394 at 395 I agree ______________________________ P. T DAMASEB ACTING JUSTICE OF APPEAL FOR APPELLANT: ADV. R SEKATLE FOR RESPONDENTS: ADV. L. MOLAPO 5