Khang v Mokuku and Others (Case 10 on the Roll C of A (CIV) No.19 of 2002)

Media Neutral Citation: 
[2003] LSHC 44
Judgment Date: 
14 April, 2003


note for Court delivering judgment]

Case 10 on the Roll C of A (CIV) No.19 of 2002





Coram Steyn P Crosskopf JA Plewman JA

Church dispute relating to the revocation of appellant's licence in May 1988. Proceedings for review instituted in 1996.

Costs. Notice of Appeal filed late and record totally defective (a certificate certifying its correctness notwithstanding.) Duties of attorneys and advocates in relation to procedural shortcomings and breaches of the rules of court discussed -Authorities and ongoing nature of the problem despite frequent directives by this Court referred to. Award of costs de bonis propris against appellants legal representatives made.


C of A (CIV) No.19/2002

In the appeal of:





(Diocese of Lesotho) Third Respondent


Summary Condonation of late filing of notice of appeal - necessity for a proper explanation of the delay - Court record - necessity for proper preparation of records - duty of counsel and attorneys in regard thereto - Costs de bonis propriis ordered.

7 April-14 April 2003


Coram Steyn P Grosskopf JA

Plewman TA

1. There are a number of procedural difficulties with this appeal. I will commence, however, by recording that the appellant was ordained as a priest of the Church of the Province of Southern Africa (Diocese Lesotho) and that in March 1988 his licence to be so recognised was revoked with effect from 30 May 1988. His complaints relate to this revocation or termination of his status, though it was only on 7 May 1996 that he approach the High Court for relief on motion and in the form of a review. He obtained an order in the absence of the other parties but this led to applications for a stay of a writ issued pursuant to the order made and a successful application for recission of the original judgment. All of this took some time. After the reinstatement of his application it was fully argued and on 14 February 2001 the application was dismissed with costs. He was refused relief mainly on the ground of his delay in launching the proceedings.

2. One would have imagined that the risk inherent in delay (in any respect) would then be present to appellant's mind (and to that of any adviser whose assistance he invoked). However it was only on 16 August 2002 that a notice of appeal was prepared. This appears to have been served on 26 or 27 August 2002. At this time appellant seems to have been represented by Mr. T. Maieane, as attorney and Advocate E.K. Mosito, as

3 counsel.

3. It is not really necessary to point out that in terms of Rule 3(1) of the Court of Appeal Rules the notice of appeal should have been filed within six weeks of the date of judgment. Further in terms of Rule 8(1) a breach of this (or indeed any other rule) renders an appeal liable to being struck off the roll. The notice of appeal was thus months not days late.

4. On 28 August 2002 an application for condonation was filed. It is supported by an affidavit by appellant and formal supporting affidavits by Advocate Mosito and an Advocate K. Mahase. In paragraph 3 of appellant's affidavit this Court is referred to the "papers filed of record" where (so it is asserted) the explanation for the initial delay in bringing the proceedings is explained. I will return to the condonation application in due time but I must now direct attention to the state of the record itself. The originating notice of motion and the entire founding affidavit in the records presented to this court are (with the exception of one letter annexed thereto) completely illegible. So too is a later "Replying affidavit" in one of the subsidiary applications. This renders not only the hope expressed in paragraph 3 of the condonation application futile but indeed it renders it impossible for this Court to deal with the appeal at all.

5. Appeal Records have to be certified as a "true and correct record of the proceedings in the court a quo". The record in the present case is accompanied by such a certificate signed by Advocate Mosito. It reads:


" I certify that this is a checked and correct copy of the proceedings in this case".

How that assertion could be made when regard is had to the state of the record is beyond understanding. The record could certainly not have been checked. It must of course be remembered that five copies of the record of the proceedings of the High Court have, in terms of Rule 3(7), to be filed with the Registrar of this Court within three months after the filing of the notice of appeal.

6. This Court has in recent times been compelled on a number of occasions to comment on the unsatisfactory records presented to it. I need only refer in this regard to a judgment of this Court in April 2001 in the case of Tsotang Pelea v Rex C of A (CRI) No.2 of 2000. That it is the duty of the attorney or attorneys of an appellant to peruse the appeal record and to correct errors and shortcomings therein is both trite and a universal rule. See Venter vs Bophuthatswana Transport Holdings (Edms) BPK 1997(3) SA 374 (One may note the warning in this report that practitioners who fail in their duty run the risk of punitive costs orders) - This is also the case in this Court. This decision also provides a useful reminder that counsel too have a duty with regard to the record. It is recorded in the (translated) head note that -

"Counsel ought not to accept such a record or argue the appeal without sending the unacceptable record back to the appellant's attorneys and insisting on a properly corrected record. Counsel are indeed, just as attorneys are, responsible


for the maintenance of those high standards which are the ultimate guarantee of the legitimacy of the South African system of justice. The time may well arise when the appellant's counsel should, together with his instructing attorney, forfeit some of his fees for such a dereliction of duty, especially so when there has been more than sufficient time to correct the record after counsel had been briefed to prepare heads of argument."

This extract is applicable in all respect in this Kingdom.

The same concern was expressed in the judgment of this Court in the case of Lesotho Brake and Clutch vs Sachs SA (Pty) Ltd [1999-2000] L.L.R 260 (LAC) at p 266/7. See also Southern Cape Car Rentals CC t/a Budget Rent a Car v Braun 1998(4) SA 1195 (SCA) at 1195 F-I and Premier, Free State and Others v Firechem Free State 2000(4) SA 413 at 433D-434D. In the light of these admonitions there can be no excuse by either the appellant or his advisers for the state of the present record. In the form in which it is found it is obvious that the rules of this Court have been breached.

7. This brings me back to the condonation application. In his affidavit appellant offers some perfunctory explanations for the delay which occurred. His explanation is bald in the extreme - no dates or names are given nor is there anything to suggest that he pursued his rights with any urgency, effort or determination. He says in effect (only) that his attorney at the time has died which, so it is suggested, occasioned a delay in obtaining the attorney's file - so as (presumably) to instruct another


attorney. What is not explained is why after judgment (which he does not dispute came to his knowledge) he did not immediately instruct a new attorney. There was, for the purposes of noting an appeal, no need to procure his previous attorney's file. The Court record could have been perused at any time - as any competent and diligent attorney or counsel would have known. Read as a whole the appellant's affidavit fails to satisfactorily explain the delay or to provide a satisfactory excuse which eliminates the element of blame on his or his new adviser's part therefor.

As far as the two supporting affidavits go they add nothing. In neither Adv. Mosito's affidavit or Adv. Mahase's affidavit is the slightest effort made to set out matters such as when they were instructed and what steps (if they indeed took any) they took to expedite matters and avoid, if they could, breaches of this Court's rules.

Their duties were and are those set out in the extract from Venters case (supra). No effort at all has been made to explain how they attempted to discharge these duties. Both are to be censured for this. They seem to have acted on the assumption that condonation is a mere annoying formality. In the circumstances there has clearly been a serious breach of this Court's rules.

8. There is one further comment to be made. It is incumbent on a party seeking condonation of any breach of the rules governing appeals to demonstrate that the appeal has some prospects of success. This the present condonation application has singularly failed to do. Dealing with


what is legible in the record it is clear from the answering affidavit that a review on the basis of there having been no regard paid to the audi alteram partem rule was unlikely to succeed. In motion proceedings and in accordance with the Plascon Evans rule the averments in the answering affidavit would carry the day. What is perhaps even more damaging to appellant is that there is (in legible form) a letter by him which indicates a clear acceptance of the termination of his position.

Finally there is the question of delay - a delay of eight years. The prejudice to the Respondents is manifest both from the judgment and the legible parts of the record. In review proceedings the proceedings must be brought within a reasonable time. It is enough for present purposes to refer to the treatment of this topic in the work The Civil Practice of the Supreme Court of South Africa Fourth Edition by Van Winsen, Cilliers and Loots p. 955-957 and the cases there referred to. On any version of the facts the appellant's appeal was bound to fail on this ground - as indeed it did in the Court a quo.

9. In all these circumstances it is appropriate to act in terms of Rule 8(1) and to strike the appeal off the roll.

10. What remains is the question of costs. The matters outlined above are such, in my view, that a punitive order is called for. While I have found no grounds for extending any sympathy to the appellant himself it is obvious that his advisers must bear the major blame for his situation. I


consider that an appropriate order will be that the respondents' cost of appeal be paid on an attorney and client scale by Adv. E Mosito and appellant's attorneys of record - the one paying the other to be absolved.

I then order :-

1) The appeal is struck off the roll.

2) The respondents' costs of appeal are to be paid on the attorney and client scale and are to be paid de bonis propriis by appellant's counsel and appellant's attorneys the one paying the other to be absolved.

Delivered at Maseru this 14th day of April 2003.


I agree.


I agree.