Kaibe v Mofeli (CXV/APN/172/03)

Case No: 
CXV/APN/172/03
Media Neutral Citation: 
[2004] LSHC 107
Judgment Date: 
3 September, 2004

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CXV/APN/172/03

IN THE HIGH COURT OF LESOTHO


In the matter between:


RALEBOLELO KAIBE APPLICANT

AND

TEFO MOFELI RESPONDENT


JUDGMENT


DELIVERED BY THE HONOURABLE MRS JUSTICE K.J. GUNI ON THE 3rd SEPTEMBER, 2004


[1]

This is an application for condonation of late filing of Notice in terms of RULE 52 (1) HIGH COURT RULES. The applicant herein is RALEBOLELO KAIBE. The respondent is TEFO MOLEFI. These two parties are the same parties in 1C. 70/01.


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In the JUDICIAL COMMISSIONER'S COURT, the matter between these two parties, was decided in favour of the respondent. The applicant must have noted an appeal against that judgment.


[2]

Once an appeal has been noted, the party noting that appeal, may apply in writing to the Registrar for a date of hearing. The relevant provision of the HIGH COURT RULES - RULE 52(l)(a) reads as follows:-


"when an appeal has been noted from a judgment or order of a subordinate court the app

ellant may within four weeks after noting of the appeal apply in writing to the Registrar for a date of hearing"


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[3]

The Judicial Commissioner's Court has a problem producing court records for the appeals noted thereat. This problem is notorious. It is common knowledge that there are no typists at the judicial Commissioner's Court. The notority of the said state of affairs, entitles this court to take the judicial notice of the same.


For a long time the applicant/appellant sought without success the copy of the record of the proceedings in that matter. He also applied for a certificate of leave to appeal to the High Court. It was only issued after six months. At that time of an indefinite waiting, this matter to the parties, seemed to be in limbo that is to say that the parties have been waiting for an uncertain period for the resolution of this dispute.


This sad state of affairs forced this applicant to seek the services of the legal practitioner who filed this application acting on his instructions.


In his affidavit filed in support of this application the applicant avers that he had to engage at this late stage the services of the legal practitioner which he has not been able to finalise. Now that the legal practitioner has filed this application, this kind of allegation made in support of this application, regarding the legal practitioner's engagement, seems to suggest that he has not been paid to his satisfaction although he is already acting on this applicant's behalf.


BACKGROUND HISTORY OF THE CASE


[4]

In the matter between these two parties at the Judicial Commissioner's Court, the judgment was delivered on the 6th January, 2003.


4


On the 9th January, 2003, the appellant - applicant herein, applied for a certificate for have to appeal to the High Court. The certificate to appeal was only issued on the 22nd June, 2004. In the interim period - between the date of the delivery of the judgment at the Judicial Commissioner' s court and the hearing today of this application the uncertainty and confusion resulting from the none production of the Judicial Commissioner's court's record of proceedings and the issuance of the certificate of leave to appeal, made the parties take various steps in an attempt to protect their interests.


For example, another application in terms of RULE 52(l)(a) was filed by TEFO MOLEFI - respondent herein, asking this court to declare the appellant's appeal in JC 70/2001 to have lapsed for failure to comply with HIGH COURT RULE 52(1). This application was not filed with a Founding and/or Supporting Affidavit.


5


A Notice of Intention to Oppose was filed by T. HLAOU & CO., attorneys of record of this applicant. No affidavit opposing the granting of the application accompanied that Notice of Intention to Oppose. It would appear that despite the judgment against him the appellant/applicant herein continued to use the property subject matter of the dispute between the parties. The appeal was not proceeding and the frustration began to wear the respondent who in fact had the judgment in his favour which this applicant had not yet succeeded to have set aside. To him that judgment was in effect not worth the paper it is written on. His confidence in courts and over justice system, must be ebbing towards its lowest point.


His attorneys of record V.V. KOTELO & CO. filed another application -seeking the restraining order against the appellant/applicant from continued use of the property the subject matter of the dispute in 1C. 70/2001. This application too was filed without Founding or Supporting Affidavit. T. HLAOLJ & CO. appellant's attorneys also filed a Notice of Intention to Oppose without any Opposing or Answering


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Affidavit. The state of pleadings in this matter is appauling. One wonders what was going on? The pleadings were being filed uncompleted! This clearly shows an intention not to pursue the matter to a final conclusion.


No court could deal with uncompleted pleadings. The respondent's attorneys made a few attempts to have the matter heard but without success. Since all other subsequent applications, no pleadings were complete, this is the only one that can be determined by this court. The appellant/applicant herein seems to have enjoyed undisturbed the continued use of the property despite having judgment against him. He and his attorney never bothered to have the matter brought to a finality. The noting of the appeal as far as they are concerned seems to have ended the matter. That appeal was not prosecuted. It is the respondent who is always setting the matter down for hearing.


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CAN THIS MATTER COME TO A FINALITY


In the light of the state of the pleadings in this matter, this court can only order the hearing of the appeal in order to resolve the dispute once and for all.


The difficulties experienced by the Judicial Commissioner's Court in the production of its court records for matters on appeal to the High Court has cause real prejudice to some parties. The other parties have taken advantage of that unfortunate circumstances. Since it was through no fault of any of the parties that the record of the proceedings and the certificate for leave to appeal, were not produced timeously, now that they are available, the matter must proceed to its finality.


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ORDER


THEREFORE IT IS ORDERED THAT ANYONE OF THE PARTIES MAY APPROACH THE REGISTRAR TO OBTAIN A DATE OF HEARING OF THE APPEAL IN 3.C. 70/2001. THE COSTS ARE IN THE CAUSE OF ACTION.


KJ. GUNI

JUDGE


FOR APPELLANT : MESSRS V.V.M. KOTELO

FOR RESPODENT : MESSRS T. HLAOLI


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