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Commander- Lesotho Defence Force and Others v Makhele (C OF A (CIV) 7 OF 2010)
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU
C OF A (CIV) 7 OF 2010
In the matter between:-
THE COMMANDER -
LESOTHO DEFENCE FORCE …..........................1ST APPELLANT
THE MINISTER OF DEFENCE …........................2ND APPELLANT
THE ATTORNEY-GENERAL …............................3RD APPELLANT
JOHN TŠOLO MAKHELE …...................................RESPONDENT
CORAM: SCOTT, JA
HEARD: 12 OCTOBER 2010
DELIVERED: 22 OCTOBER 2010
Respondent abandoning judgment and tendering costs of appeal – appellants pursuing appeal to set aside judgment of Court a quo – appellants entitled to their costs.
 In July 2007 the respondent commenced motion proceedings against the appellants for an order “condoning the late filing of CIV/T/210/05”. The case bearing that number is an action which the respondent had himself instituted against the first appellant in May 2005 and in which the latter had raised a special plea of prescription. On 5 February 2010 Mahase J granted the order prayed together with costs of suit. The present appeal, which is against that order, was set down for hearing in this Court on 12 October 2010.
 In the action instituted against the first appellant, the respondent, a former second lieutenant in the Lesotho Defence Force, claimed damages for “contumelia, emotional trauma, hurt and injuria” as well as damages for “loss of salary” and patrimonial loss. The grounds on which the special plea was raised were that the action based on injuria, i.e the actio injuriarum, had not been brought within a year of the injuria, or alternatively, that none of the claims were brought within two years from the time when the cause of action accrued as required by the Government Proceedings and Contracts Act 1965. In response to the plea, the respondent launched the application which became the subject of the appeal.
 The appellants opposed the relief sought on a number of grounds, one of which was that the respondent’s attempt to obtain a court ruling in a separate application amounted to an abuse of the process of the Court. This objection was apparently overlooked by the learned Judge a quo who incorrectly recorded in her judgment that there was “no objection to the fact that the instant application was lodged after proceedings in CIV/T/210/2005 had already been issued and filed.” Needless to say, the procedure adopted by the respondent was improper. The special plea should have been enrolled for hearing as a proceeding in the main action.
 For the reason that will become apparent from what follows, it is necessary to refer only to two other findings of the Court a quo. The first relates to the relief that was granted. In this regard the Court held that it had a discretion to grant an extension of the prescriptive period set by the common law or by statute, even in the absence of a statutory provision authorising such an extension. The learned Judge cited three cases in support of this proposition. However, none of them do so and the conclusion to which she came is clearly incorrect.
 The second finding relates to an observation made by the learned Judge regarding the conduct of the first appellant. She said in her judgment:-
“It has now become clear from the facts of the case that actually [the first appellant] did not act bona fide or genuinely with [the respondent] when it purportedly wrote annexure ‘MM2’. The [first appellant] was actually buying time so as to mislead [the respondent] into believing that it entered into the said negotiations genuinely, whereas its aim was to mislead [the respondent] until the time for [the respondent] to issue an action for damages would have run out by the time that negotiations deadlocked. This I say with the greatest respect.”
The annexure “MM2” referred to was a letter written on behalf of the first appellant marked “without prejudice” in which the respondent was invited to make a settlement proposal regarding the dispute which subsequently became the subject matter of the action for damages instituted by the respondent. It appears that there were some settlement negotiations but these came to nought mainly because, according to the first appellant, the respondent was unwilling to indicate how his claim was made up.
 In my view there is nothing in the papers to justify this far-reaching inference drawn by the learned Judge in the passage in her judgment quoted above. Certainly no such finding could fairly be made without having heard oral evidence.
 On 20 August 2010 the respondent filed a notice in which he abandoned the whole of the judgment granted in his favour and tendered to pay the appellants’ costs.
 On 26 August 2010 the appellants’ attorneys wrote to the respondent’s attorneys in which they expressed the view that the effect of the notice was that the respondent had abandoned his opposition to the appeal, and continued:-
“3 Consequently we shall be asking for an order upholding the appeal on the ground that the High Court does not have the power to grant an order which, in effect, ‘condones’ the delay in bringing action beyond the time limit set by the common law and/or the Government Proceedings and Contract Act …
4 In addition the Honourable Court will be asked to rule that there was no justification for the Court a quo to find that the first appellant ‘did not act bona fide or genuinely’.”
 In reply, the respondent’s attorneys wrote on 3 September 2010 that there was no need to go into the merits of the High Court decision “because to us it is a dead letter.”
 In this Court counsel for the respondent contended that the appellants were entitled to their costs only up to 20 August 2010 when the notice of abandonment was served on the appellants’ attorneys. Adv. Viljoen SC, on behalf of the appellants, submitted, on the other hand, that the judgment of the Court a quo may have been “a dead letter” as far as the respondent was concerned, but it nonetheless remained a judgment of the High Court and, until set aside, could be used as a precedent. He referred, in addition, to the passage in the judgment quoted above criticising the first appellant and submitted that, having appealed, the first appellant was entitled to pursue the matter to court to have the record set straight. In my view counsel for the appellants is correct and I can see no reason why the appellants should be deprived of their costs in seeking to have the judgment of the Court a quo set aside.
 The appeal is accordingly upheld with costs and the order of the Court a quo is set aside and the following substituted in its place:-
“The application is dismissed with costs”.
JUSTICE OF APPEAL
I agree: ______________________
JUSTICE OF APPEAL
I agree: ______________________
JUSTICE OF APPEAL
For Appellants : Adv. H.P. Viljoen SC
For Respondent : Adv. K.K. Mohau KC