Lesotho Police Staff Association V Tanki Ratsiu & 5 Others (C of A (CIV) No.38/2025) [2025] LSCA 62 (7 November 2025)

LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C of A (CIV) 38/2025 CIV/APN/0030/2024 In the matter between: LESOTHO POLICE STAFF ASSOCIATION 1ST APPELLANT AND TANKI, (TUMILE) RATSIU 1ST RESPONDENT SEAPEHI NONYANE 2ND RESPONDENT KHAUTA KOLOBE 3RD RESPONDENT POLICE BURIAL BENEFIT 4TH RESPONDENT COMMISSIONER OF POLICE 5TH RESPONDENT ATTORNEY GENERAL 6TH RESPONDENT CORAM: MOSITO P SAKOANE CJ MUSONDA AJA HEARD: 14th OCTOBER 2025 DELIVERED: 7th NOVEMBER 2025 FLYNOTE Appeal — Punitive Costs — Misjoinder — Audi Alteram Partem — Judicial Discretion — Appellate Intervention 1. Condonation — A satisfactory explanation for delay in filing an appeal, supported by good prospects of success, warrants the exercise of judicial discretion in favour of condonation. A corporate body cannot act without a valid resolution, and the absence thereof provides a reasonable justification for delay. 2. Punitive Costs — Such costs are exceptional and may be imposed only where the conduct of a litigant is shown to be vexatious, frivolous, or an abuse of process. A party that has fully discharged its legal obligations and merely defends itself against unfounded claims cannot properly be branded a vexatious litigant. 3. Audi Alteram Partem — A court may not, mero motu, impose a punitive costs order without first allowing the affected party to be heard. The failure to do so constitutes a material misdirection and renders the order unsustainable. 4. Misjoinder — Parties joined unnecessarily or nominally should not be burdened with costs. The citation of an entity which had already fulfilled its obligations is improper and inequitable. 5. Appellate Review — An appellate court will intervene where the trial court’s findings are manifestly unsound, where probabilities are overlooked, or where there has been a breach of procedural fairness. Held: (1) The High Court misdirected itself in characterising the appellant as a vexatious litigant and in imposing punitive costs without hearing it. (2) The appellant had discharged its obligations promptly and had been improperly joined to the proceedings. (3) The appeal was allowed with costs and the order of the High Court set aside. JUDGMENT MUSONDA AJA INTRODUCTION [1] This appeal arises from a decision of the High Court (Mahase J). The first respondent, who had been the applicant before that Court, instituted motion proceedings on 20 February 2024 seeking several forms of relief. In essence, he prayed that the third and fourth respondents be directed to effect immediate payment to the appellant as the named beneficiary under the late Mampitle Nonyone’s employment policy. He further sought an order compelling the first and second respondents to facilitate or otherwise ensure the expeditious payment of that amount by the third and fourth respondents, together with costs in the event of opposition and such further or alternative relief as the Court might deem appropriate. Factual Background: [2] The first respondent was the husband of the late police officer, Mampitle Nonyane, who passed away on 9 January 2019. Following her death, a dispute arose between him, on the one hand, and the deceased’s daughter and uncle, on the other, concerning the custody of the matrimonial property and the deceased’s employment-related benefits. [3] In consequence of that dispute, the first respondent approached the High Court (Moahloli J) on an urgent basis and obtained an interim order against the stepdaughter and the deceased’s uncle. The Court dispensed with the ordinary rules governing service and time limits owing to the urgency of the matter. It issued a rule nisi, returnable on 5 May 2023, calling upon the respondents to show cause why the relief sought should not be made final. Pending the return date, the interim order directed that the respondents restore forthwith to the applicant the leases or title documents relating to the Ha-Majara and Ha-Leqele properties, together with the vehicle registration papers. It further required the second respondent to refrain from any interference with the applicant’s peaceful enjoyment of those leasehold rights and granted the first respondent leave to visit or reside at her mother’s home with the applicant whenever she wished. Two passages from the first respondent’s founding affidavit merit citation in full, for reasons that will become apparent in due course. [4] In the first, he deposed that the parties had accumulated matrimonial property during the subsistence of the marriage, including certain insurance policies that required timely action to avoid forfeiture. He averred that the respondents had since purged their contempt and surrendered the relevant title documents. Both he and the first respondent, he said, were beneficiaries under the Lesotho Police Association scheme, which required their joint presence before the third and fourth respondents could effect payment following a legitimate claim. He further asserted that the late Mampitle Nonyane had expressly designated him as her successor in those policies, as evidenced by annexure “ADM.” [5] In the second, he stated that, acting on advice from the staff of the fourth respondent, he had duly complied with all requirements necessary to perfect the claim, which had been approved. However, he was informed that, notwithstanding the regularity of his claim, he was required to appear together with the first respondent, as both were adults and co-beneficiaries. Counsel for both parties, he continued, had attempted to devise a mutually beneficial arrangement, and following the delivery of the disputed title documents, a draft deed of settlement was prepared to record the parties’ respective positions and interests. A copy of that deed marked “DES,” was annexed. He concluded that these efforts had come to nought, prompting his apprehension and compelling him to seek relief from the Court. The affidavits filed in the court below reveal that both beneficiaries were required to be present before the fourth respondent to facilitate payment under the policy. Their failure to approach the fourth respondent timeously stemmed from disputes between themselves, not from any default or obstruction on the part of the insurer. In paragraph 5.2 of his founding affidavit, the first respondent expressly acknowledged that the staff of the fourth respondent had guided and assisted him in submitting a successful claim. There was, however, no allegation that those officials had frustrated or impeded him in any way that might warrant judicial intervention. [6] The answering affidavit was deposed to by Ms Makatleho Mphetho, the Secretary-General of the fourth respondent. She contended that the first respondent’s founding affidavit did not substantiate any of the relief sought in his notice of motion. She explained that, following the death of Mampitle Nonyane, the first respondent had been issued with a funeral claim form on 12 February 2019, which he duly completed and submitted. Payment was effected three days later, on 15 February 2019, directly into his account at Nedbank (Account No. 12990018934). Copies of the claim form and proof of payment were annexed as exhibits “C” and “D.” [7] Ms Mphetho further averred that, despite having received full payment, the first respondent nonetheless instituted proceedings against the appellant. She urged the court to mark its disapproval of this abuse of process and the apparent fraudulent intent by visiting him with punitive costs. In his replying affidavit, the first respondent did not dispute that the fourth respondent had discharged its financial obligations to him. It became evident that the third and fourth respondents had been cited merely in a nominal capacity, while the substantive claim, as formulated in prayer one of the notice of motion, lay properly against the fifth respondent. Their joinder to the proceedings was therefore both unnecessary and inelegant. [8] Notwithstanding this, the learned judge a quo proceeded to hold that the first respondent should be compelled to effect payment forthwith to himself as the beneficiary of his late wife’s estate and directed the first and second respondents to deliver, assist, and cause the expeditious payment by the third and fourth respondents. [9] In her judgment, the learned judge a quo questioned the foundation upon which the fourth respondent had sought a punitive costs order. She observed that the fourth respondent had, on the one hand, raised a plea of misjoinder and pointed out that no specific relief had been sought against it, yet, on the other hand, had proceeded to participate in the proceedings as if it were a substantive party. The court accordingly inquired from where the fourth respondent derived the authority, or locus standi in judicio, to act as it had done. [10] The learned judge concluded that the fourth respondent’s conduct amounted to an attempt to “blow hot and cold” in relation to its role and obligations in the matter. She held that its participation in the proceedings constituted an abuse of the court’s process and was vexatious. She further reasoned that, although it was not apparent from the pleadings in what capacity the fourth respondent had been joined, that uncertainty did not entitle it to file written submissions in support of the first respondent or to take an active defensive stance. On that basis, the court dismissed the fourth respondent’s defence and ordered it to pay costs on a punitive scale. The tenor of the reasoning was that the fourth respondent ought not to have defended itself at all. [12] Dissatisfied with that decision, the appellant—who had been the fourth respondent in the court below—advanced two principal grounds of challenge to the judgment. Condonation [13] The appellant sought condonation for the late filing of its appeal, explaining that, following receipt of the High Court’s judgment, its National Executive Committee needed to convene to authorise the institution of the appeal. However, a quorum could not be timely constituted to pass the requisite resolution. The appellant contended that this accounted for the delay and that it had furnished a reasonable explanation, further submitting that the appeal enjoyed good prospects of success. [14] In support of its application, the appellant referred the Court to the principles governing condonation as restated in CGM Industrial (Pty) Ltd v Adelfang Computing (Pty) Ltd1, where this Court reaffirmed the approach laid down in Melane v Santam 1 C of A (CIV) NO.17 of 2002, 2005- 2006 LAC 326 CA Delivered 18th April 2003 Insurance Co Ltd 1962 (4) SA 531 (A) at 532C–F, and subsequently applied in Motlatsi Adolph Mosaase v Rex C of A (CRI) No. 12 of 2023 (unreported). Under those principles, the Court must exercise a judicial discretion, having regard to all relevant considerations — including the degree of lateness, the explanation therefor, the prospects of success, and the importance of the matter. [15] In the present case, the explanation advanced by the appellant is entirely satisfactory. As a corporate body, it could not act without a valid resolution authorising litigation; absent such authority, it would have lacked locus standi to file the appeal. The delay was therefore both understandable and excusable. Moreover, the appellant had been drawn into the proceedings below and compelled to defend itself to avoid a default judgment. The imposition of a punitive costs order in such circumstances was, on its face, open to serious doubt. The appeal, accordingly, bears strong prospects of success. The respondent neither filed answering papers nor appeared at the hearing. In those circumstances, and the application being unopposed, condonation is duly granted. [16] On the prospects of success, the first ground of appeal assails the learned judge’s decision to dismiss the appellant’s defence despite uncontroverted evidence that it had already paid the first respondent the insurance benefits due under the Police Staff Fund. The second ground challenges the award of punitive costs, which was made without justification. In Leseteli Malefane v Rona Valley Co-operative Society and Others2, this Court held that 2 C of A (CIV) 8 of 2016 [2016] LSCA 34 (28TH October 2016) punitive costs cannot be sustained where the record discloses no irrelevant or vexatious conduct. Similarly, in Mphaphathi Qhobela and Others v Phiri Nkoe and Others3, at paragraph 24, the Court emphasised that although a court may consider such costs mero motu, it is improper to do so without first affording the affected party an opportunity to be heard. [17] Applying those principles, it is clear that the decision a quo to impose punitive costs without inviting submissions amounted to a misdirection. The condonation application therefore succeeds, and the appeal is properly before this Court. The issues [18] Two issues arise for determination in this appeal. The first is whether, on the facts as they stood before the court a quo, it was competent for that court to characterise the appellant as a vexatious litigant and to sanction it with a punitive costs order. The second concerns the propriety of the learned judge’s intervention: whether it was justified for her to raise, of her own motion, the question of punitive costs, and, having done so, whether it was procedurally proper to make such an order without first allowing the appellant to be heard. The Law [19] It is well settled throughout the Commonwealth that an appellate court will not lightly interfere with a trial court’s findings of fact. The principle of judicial restraint in this regard is 3 2020 LSCA 26 (30th October) firmly established: interference is warranted only where the court below has clearly erred or where compelling reasons make intervention necessary. [20] The classical exposition of this principle is found in R v Dhlumayo and Another 1948 (2) SA 677 (A), a decision of the South African Appellate Division which has been repeatedly endorsed and applied in Lesotho. In Dhlumayo, the Court articulated several guiding considerations: first, that the trial court enjoys the distinct advantage of seeing and hearing the witnesses; second, that an appellate court should be slow to depart from such findings unless there has been a material misdirection; third, that where the record reveals that the trial court has overlooked probabilities or made findings inconsistent with the evidence, appellate intervention is justified; and fourth, that where the findings rest purely upon inferences drawn from undisputed facts, the appellate court is as well placed as the trial court to reach its own conclusion. [21] These principles — often referred to as the Dhlumayo guidelines — have been consistently adopted in Lesotho jurisprudence. The earliest application appears in R v Motlomelo LAC (1955) 126, where the Court stressed the need for caution before interfering with findings of fact. In Makara v Rex C of A (CRI) 7/2006, this Court reaffirmed that intervention is appropriate only when the evaluation of the trial court is clearly wrong or unsupported by the evidence. Likewise, in Mamonaheng Phakoe v Rex C of A (CRI) 09/2018, the Court held that appellate interference is permissible only where the conclusion reached below is one which no reasonable court, properly directing itself, could have reached. [22] Turning to the question of costs, this Court has repeatedly emphasised that costs are intended primarily to compensate the successful litigant and to deter frivolous or abusive claims. In Phoolo v The Law Society of Lesotho, punitive costs were awarded where the litigation was found to be unnecessary and pursued in bad faith. Similarly, in Molapo v Letsie4, the Court held that it is the party who vexatiously initiates baseless proceedings, not the innocent respondent compelled to defend them, who should bear the sanction of costs. That remains the settled position in both Lesotho and South Africa. [23] Finally, an adverse costs order imposed without affording the affected party an opportunity to be heard constitutes a breach of the audi alteram partem principle and cannot stand. This Court has consistently reaffirmed that rule in Molapo v Letsie (Supra), Phoofolo v The Law Society of Lesotho5, and Rathabile v Principal Secretary, Ministry of Justice6. The appeal [24] Turning to the merits of the appeal, it is common cause that the appellant was haled before the court a quo despite having promptly fulfilled its financial obligations to the first respondent. The first respondent’s own founding affidavit acknowledged the cooperation and assistance he had received from the appellant’s 4 (2008) LSCA 25 (17th October 2008) 5 C of A (CIV) 45/2011 6 C of A (CIV) 49 of 2015 (6th November 2015) staff throughout the claims process. On any fair reading, those averments could not sustain the relief sought in prayers one and two of the notice of motion. The appellant appeared merely to defend itself against unfounded allegations and placed before the court documentary proof that payment had been effected into the first respondent’s account within two days of submission of the claim. In those circumstances, the question naturally arises: on what conceivable basis was it taken to court at all? [25] It is deeply disquieting that a party which had discharged its obligations in good faith should have been branded a vexatious litigant and burdened with a punitive costs order. Even the first respondent’s own counsel subsequently conceded, in correspondence, that the citation of the appellant was the product of inelegant drafting and that it had been joined only in a nominal capacity. [26] This Court stands in as good a position as the court below to determine the issue, the record being complete and the facts uncontested. Indeed, the correspondence referred to constitutes an implicit acknowledgement that the appellant should never have been drawn into proceedings. [27] In these circumstances, we are compelled to intervene. The finding that the appellant was a vexatious litigant cannot stand. On the contrary, it was the first respondent who, by instituting baseless litigation, engaged in vexatious conduct deserving of censure. Moreover, the court a quo's failure to afford the appellant an opportunity to be heard before imposing a punitive costs order was a clear misdirection. The audi alteram partem principle is not a procedural nicety but a cornerstone of the rule of law; its breach renders the order unsustainable. Disposal [28] The learned judge’s evaluation of the facts was, with respect, fundamentally unsound. The appellants were before the court merely to defend themselves against a claim—relating to pension benefits—that properly lay against the fifth respondent, not them. The imposition of an unspecified punitive costs order in those circumstances was wholly without justification. In making such an order, the learned judge inadvertently lent support to a vexatious litigant rather than upholding the proper administration of justice. Costs [29] The rationale for a punitive costs order, it was explained, is not merely to register the court’s disapproval of careless litigation and disregard for procedural rules, but also to ensure that an innocent party is not left out of pocket as a consequence of an opponent’s negligence or procedural indifference. In the present case, the appellant was similarly compelled to devote energy and expense to defending frivolous proceedings before the court a quo. Before this Court, however, the respondent has chosen not to oppose the appeal. Order [30] For the reasons set out above: [a] The appeal is allowed with costs. [b] The order of the court a quo is set aside. ___________________________________ P MUSONDA ACTING JUSTICE OF APPEAL I agree: ___________________________________ K E MOSITO PRESIDENT COURT OF APPEAL I agree: _________________________________ P SAKOANE CHIEF JUSTICE FOR THE APPELLANT: ADV T. V. MASASA FOR THE RESPONDENT: NO APPEARANCE