Mofihli Noosi & Ano. V Paul Lesholu & 3 Others (C of A (CIV) 60/2024) [2025] LSCA 25 (2 May 2025)

LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C of A (CIV)60/2024 CIV/APN/265/2021 In the matter between MOFIHLI NOOSI 1ST APPELLANT PASTOR NOOSI 2ND APPELLANT VS PAUL MOHANOE LESHOLU HIS WORSHIP MAGISTRATE THAMAE 2ND RESPONDENT CLERK OF COURT ATTORNEY-GENERAL 1ST RESPONDENT 3RD RESPONDENT 4TH RESPONDENT CORAM: CHINHENGO AJA MATHABA AJA DAMASEB AJA HEARD: DELIVERED: 2 MAY 2025 11 APRIL 2025 FLYNOTE, Civil Procedure – Leave to appeal – Section 17 of the Court of Appeal Act 1978 – Whether leave to appeal required from decision of High Court in review matters – Distinction between appellate and original jurisdiction – Decision in Ntoetsi Tau-Tona v Maphoka Ramoea overruled – Application for leave struck off roll – No order as to costs. This was an application by the applicants for leave to appeal against a judgment of the High Court dismissing their review application for want of prosecution. The respondents, and the High Court, had proceeded on the basis that leave to appeal was necessary pursuant to section 17 of the Court of Appeal Act 1978. That understanding was premised on this Court’s earlier decision in Ntoetsi Tau-Tona v Maphoka Ramoea, which held that such leave was required even in cases where the High Court exercised review jurisdiction. Held, that the High Court had exercised its original jurisdiction in hearing a review application from a magistrate’s decision, and not its appellate jurisdiction. Accordingly, section 17 did not apply and the applicants were entitled to appeal as of right. The decision in Ntoetsi Tau-Tona v Maphoka Ramoea was wrongly decided, as it failed to distinguish between appellate and original review jurisdictions. The present application for leave to appeal was unnecessary and misconceived. The Court accordingly struck the application off the roll on the understanding that the applicants were free to prosecute their appeal as of right in the next session. Given that all parties had proceeded on an erroneous but settled precedent, no order for costs was made. JUDGMENT CHINHENGO AJA: - Introduction [1] This is an application by notice of motion for leave to appeal against a decision of the High Court handed down by Hlaele J on 16 July 2024 after the order therein was made on 15 December 2023. It means that the judge took 6 months to give written reasons for the order she had handed down. [2] The applicants, Pastor Noosi and Mohlili Noosi, and the 1st respondent were involved in litigation in the Small Claims Court in case No. SC: 135/2019. The applicants were held liable to pay damages of M9 250.00 arising from a road traffic accident occasioning in damages to 1st respondent. [3] The presiding officer in the Small Claims court was Magistrate Rabelese. Dissatisfied with the decision of the Small Claims Court they appealed to the magistrate’s court in Maseru. The matter came before Magistrate Thamae, 3rd respondent herein. That appeal was dismissed on 9 July 2021 for lack of prosecution in the absence of the applicants who did not attend the proceedings on that day. [4] The applicants were again dissatisfied with the decision of Magistrate Thamae. They lodged a review application to the High Court on 29 July 2021. On 20 April 2022, the 1st respondent notified the applicants of the name and address of his legal representatives but did not file a notice of opposition to the review application. The applicants misconstrued the 1st respondent’s notice of representation, the one appointing a lawyer to represent him, as a notice of opposition when a notice of opposition was in fact not filed at all or served upon them. On 28 April 2022, 1st respondent’s legal representative was served with the record of proceedings. On 25 October 2022 the Clerk of the magistrate’s court was directed to submit the record of proceedings to the High Court. [5] On 23 May 2022, the 1st respondent’s legal representative advised the applicants that they did not oppose the review application and that it could be set down on the unopposed roll in June or July 2022. They wrote another letter to the applicants on the same lines on 22 June 2022. There was no reaction of any sort from the applicants and no movement from their side. [6] Following up on the matter after about 5 months of inaction on the part of the applicants, the 1st respondent applied for the dismissal of the review application for want of prosecution on 10 October 2022. The dismissal application was heard on 20 September 2023 and an order dismissing the application for review for want of prosecution was granted on 15 December 2023, with the written judgment thereon delivered electronically on 16 July 2024. [7] The applicants’ argument against the dismissal application before Hlaele J was that, instead of applying for dismissal for want of prosecution, the 1st respondent should have acted in terms of Rule 8(13) of the High Court Rules 1980 and should have set the matter down. That rule provides- “Where no answering affidavit nor any notice referred to in sub-rule 10(c) has been delivered within the period referred to in sub-rule 10(b) the applicant may within four days of the expiry of such period apply to the registrar to allocate a date for the hearing of the application. Where an answering affidavit or notice is delivered the applicant may apply for such allocation within four days of the delivery of his replying affidavit or if no replying affidavit has been delivered within four days of the expiry of the period referred to in sub-rule 11. If the applicant fails to apply for such allocation within the appropriate period as stated aforesaid, the respondent may do so immediately upon expiry thereof. Notice in writing of the date allocated by the registrar shall forthwith be given by the applicant or respondent, as the case may be, to the opposite side.” Decision of High Court [8] The learned judge correctly concluded that Rule 8(13) has no application where a respondent has not opposed an application. I agree with her. It is only where pleadings in application proceedings have been closed, and the applicant has not applied for a date of hearing that a respondent may, in terms of Rule 8(13), take the initiative to have the matter enrolled for a hearing. If the respondent does not do so, then the application remains in abeyance and may eventually be the subject of an application for dismissal for lack of prosecution, as happened in this case. The obligation to set down the matter was on the applicants. They did nothing in the absence of any opposition to their application until the 1st respondent applied for dismissal of the review application for lack of prosecution, 5 months later. Whilst the 1st respondent had not opposed the review application, clearly indicating that he was amenable to any decision that the court would make, he nonetheless was prejudiced by any inordinate delay to the finalisation of the review application, which would inform him whether he could enforce the judgment in his favour. The applicants on the other hand stood to benefit from a delay in the finalisation of the matter because, for so long as the matter was not finalised, they did not have to meet the liability imposed upon them by the decision of the Small Claims Court. [9] In reaching her conclusion the learned judge relied on Liquidator Lesotho Bank v Flora Selloane Seleso 1 which sets out the requirements of a dismissal of a case for want of prosecution – being an inordinate delay, its inexcusability and prejudice to the respondent or defendant. She also referred to Cassimjee v Minister of Finance2, which is to the same effect. The learned judge reckoned that the period of over one year from the time the applicant should have acted and set down the review application for hearing to the date on which the 1st respondent applied for dismissal of the application was not only inordinate but also inexcusable because, in respect of the latter, nothing was placed before her to show that the applicants acted diligently. To the contrary what emerged, as found by the learned judge, is that the applicants remained inactive or passive in regard to the progression of the case. Consistent with her finding that the delay was inordinate and inexcusable the learned judge also found that the 1st respondent suffered prejudice occasioned by the long period over which he was excluded form enjoying the benefit of an award 1 CIV/T/158/2002 2 (455/11) [2012] ZASCA 101; 2014 (3) SA 198 (SCA) (1 June 2012) of damages in his favour. I agree with her conclusion. She also bemoaned the cost escalation which the matter has occasioned, granted the order dismissing the application for want of prosecution and awarded costs against the applicants on attorney and client scale. [10] In consequence of the order of 15 December 2023 and the written judgment of 16 July 2024, the applicants remained undaunted. They lodged an application in the High Court on 12 March 2024 for leave to appeal to this Court against the judgment dismissing the leave application. The leave application was heard on 12 June 2024 and an order handed down on 28 August 2024 dismissing the leave application. The written judgment thereon was made available to the parties on 5 September 2024. It is against this background that on or about 24 September 2024 the applicants lodged the present application to this Court for leave to appeal. [11] In the High Court two issues were considered by the court in answering the main question whether the applicants had reasonable prospects on appeal and therefore entitled to the grant of leave. These two issues are clearly set out by the learned judge in her reasons for the order she made- dismissing the application for leave to appeal. The applicants took issue with the judge’s conclusion that Rule 8(13) is not applicable to the facts as they unfolded in the matter before her. They also took issue with the order of costs on attorney and client scale. On both these issues the applicants contended that the Court of Appeal may reach a different decision from that of the High Court, thereby establishing that the applicants had reasonable prospects of success on appeal. In a well-reasoned judgment, the learned judge concluded that the applicants’ contentions had no merit and dismissed the application for leave to appeal. [12] In the course of her judgment the learned judge considered the applicability of s 17 of the Court of Appeal Act which provides for the circumstances in which a person may appeal to the Court of Appeal a decision of the High Court in its appellate jurisdiction. She did not interrogate the scope and meaning of the section and came to the conclusion that the application was properly before her. She relied on Lesotho Union OP Bank v Standard Bank Limited3 for the test whether leave should be granted, and on Mohale v Mahao4, for the meaning of s17, to wit, that “The plain meaning of this section is that any person who intends to appeal against the judgment in its appellate jurisdiction, as here, must first seek and obtain the leave of the High Court or of this Court. Furthermore, leave may be sought only on a question of law.”5 [13] At the hearing of this application, the issue arose, at the instance of the Court, whether on the facts of this case, the applicants required leave from the High Court or from this Court before they could appeal against the decision of the High Court. The question that exercised our minds was whether, when the 3 (C of A(CIV) 13 of 1984) [1995] LSCA 25 (29 January 1995) 4 (C of A(CIV) 22 of 2004) [2005] LSCA 10 (20 April 2004) 5 At para 4 and at para 6 High Court became ceased with this matter for the first time, was it called upon to exercise original jurisdiction or appellate jurisdiction. [14] On the facts as they appear in the record of proceedings, the High Court was called upon to decide a review application against Magistrate Thamae’s decision in exercise of its original review jurisdiction of a decision of an inferior court. It was not hearing an appeal from Magistrate Thamae but a review application against his decision. Thus, the High Court was called upon to exercise an original review jurisdiction and not appellate jurisdiction. In our view, s 17 of the Court of Appeal Act therefore had no application. For this reason, the applicants were entitled to an appeal as of right from the decision of the High Court dismissing their application for want of prosecution. They did not have to seek leave from the High Court or from this Court. The present application for leave to appeal as I demonstrate in some detail below, was an exercise in futility. Focus of argument and heads of argument by parties [15] In heads of argument and in oral submissions before us the applicants focused on the period of delay which they contended was wrongly computed by the judge a quo. Instead of reckoning the period of delay from the time that the matter was allocated to her on 18 December 2022, they argued she erroneously computed that period from the time that the review application was lodged in the High Court on 21 July 2021, hence her conclusion that there was an inexcusable delay of one year and three months. The second contention was that the judge a quo did not afford them a hearing of the application on the merits in circumstances which show that had she done so, she would have seen that they have reasonable prospects on appeal. [16] On 1st respondent’s behalf, counsel argued in favour of the findings made by the judge a quo, particularly in respect of the non-applicability of rule 8(13) of the High Court Rules to the facts of the case and the inordinate delay. He also submitted, in the alternative that the applicants failed to comply with Rule 3(2) of the Court of Appeal Rules 2006 by failing to deliver the notice of motion and other necessary documents within twenty-one days of the delivery of judgment or order of the High Court, a matter he had earlier raised in that court. In doing so he was submitting on two issues that he identified as arising in the matter before us, namely “Whether the applicant complied with Rule 3(2) of the Court of Appeal Rules” and “Whether the applicants made a case warranting the granting of leave to appeal.” Section 17 of Court of Appeal Act [17] Returning to the interpretation of s 17 of the Court of Appeal Act, counsel on both sides, as did the judge, proceeded on the understanding that leave to appeal was required. In this connection they referred us to this Court’s decision in Ntoetsi Tau- Tona v Maphoka Ramoea6, which, on similar facts, concluded that leave to appeal was required. [18] The similar facts of Ntoetsi Tau-Tona were that a review application was lodged in the High Court sitting as the Land Court. The Land Court decided in favour of the applicant, who then noted an appeal to the Court of Appeal without obtaining leave to appeal. In its judgment this Court stated the following in relation to the leave application – “[5] It is essential to begin with a consideration of the appeal by indicating that on the date of the hearing of this matter, Advocate Tlapana brought to the court’s attention that he had been in doubt regarding whether he should have applied for leave to appeal regard being had to the fact that the proceedings in this matter started in the District Land Court. There was an appeal to the Land Court, which was never finalised, However, the present first respondent brought the application for review before the Land Court and ultimately to this Court. [6] However Advocate Tlapana’s attitude was that it was unnecessary to apply for leave to appeal to this Court because what served before the Land Court and culminated in the present appeal was an application for review. Thus, the learned counsel submitted that, an application for review was filed in the Land court where a matter started in the District Land Court, and the matter ended up on appeal before this Court, there was no need to apply for leave to appeal. [7] Advocate Kao-Theoha, for the first respondent, held a different view. She submitted that where the matter began in the District Land Court and later served at the Land Court on review, the applicant needs to have 6 C of A (CIV) 23 of 2023 delivered 17 November 2023. applied for leave to appeal. … Suffice to point out at this stage that once this Court finds that leave was necessary, the appeal would have to be struck off the roll for failure to comply with section 17 of the Court of Appeal Act 1978.” [19] The Court set out the facts in more detail and proceeded: “[14] In this matter it will be apposite to begin by examining the law on whether the appellant is obliged to seek leave of this Court to appeal against the High Court (Land Court’s) judgment where the High Court (Land Court) was exercising its review jurisdiction. ..[ S 17 is here quoted]… Purposive interpretation enjoys statutory imprimatur the Interpretation Act 1977 provides that every enactment must be deemed remedial and be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects. This provision prescribes a purposive approach to interpretation. this country. Section 15 of in to seek jurisdiction civil appellate [15] Thus the primary purpose of section 17 of the Court of Appeal Act is to provide a legal avenue for individuals or parties dissatisfied with the High Court’s decision in its further consideration of its case. It ensures that individuals can challenge decisions made by the High Court. This is a crucial gatekeeping mechanism to manage the case load of the higher court. It allows appeals on ‘any ground of appeal which involves a question of law but not on a question of fact.’ This means that the Court of Appeal will primarily consider appeals that challenge the legal interpretation and application of the law by the High Court rather than re-evaluating factual findings. In addition to obtaining leave from the Court of Appeal, the section allows for an alternative route to appeal. Suppose the judge who heard the initial appeal in the High Court issues a certificate indicating that the case involves a question of law. In that case this certificate can serve as a basis for proceeding with the appeal. This certificate is a way to fast-track the process in cases where it is clear that a legal issue needs further consideration. [16] The first question is, what does the section mean by ‘its civil appellate jurisdiction’? Does the phrase include the review jurisdiction over proceedings in a lower court. The phrase its appellate civil jurisdiction typically refers to the authority or power of a higher court (such as an appellate court) to review and hear appeals from decisions made by a lower court (such as a trial court) in civil cases. In summary, civil appellate jurisdiction does indeed include the review jurisdiction over proceedings of a lower court, but it pertains explicitly to civil cases rather than criminal cases.” [20] The Court referred to Sello Khechane v Semonkong Urban Council7 which, unfortunately for present purposes, was a clear case where there was an appeal from the District Land Court to the Land Court and a further appeal to the Court of Appeal. No leave to appeal to the Court of Appeal had been sought as required by s 17 and the Court correctly pronounced that the appeal was incompetent. In that case, the Court also referred to Mohale v Mohao (supra) as a case elucidating on the meaning of s 17. The Court embarked on a lengthy explanation of the rationale of s 17 at paragraphs [19] to [21] and concluded thus: “[22] Given the situation, this Court has addressed the more immediate issue as a threshold question. Therefore, we rule that this appeal is improper before this Court. That being so, it is unnecessary to go into the issues raised by the appellant. [23] Considering the preceding discussions, the appeal is, therefore, a nullity and cannot be entertained by this 7 (C of A (CIV) 36/2022 Court. Dismissal is not appropriate when an appeal fails other than on the merits. A dismissal extinguishes the right of appeal. The proper order against an incompetent appeal is to strike it off the roll. However, as a specialised court, the Land Court may likely have its own rules and procedures for appeals in land related matters in the future. Without such rules, there is no reason why section 17of the Court of Appeal Act should not apply to appeals from the Land Court to the Court of Appeal. [24] The appeal is struck off the roll, with costs.” [21] It is my view that in Ntoetsi Tau-Tona this Court misconstrued the factual position to which s 17 applies and failed to distinguish between a situation where the High Court or Land Court sits as a court of appeal from a decision of a lower court and its decision is then taken on appeal to the Court of Appeal, and a situation where the High Court or Land Court sits to hear a review application from a lower court decision. The first situation is clearly one to which s 17 applies. Not so the second situation. When the High Court or Land Court is asked to review a decision of a lower court, it is not exercising appellate jurisdiction but original jurisdiction as the first court to which any review application lies. So, when the High Court or Land Court decision on review is taken to the Court of Appeal, no second appeal is involved and, accordingly, a party dissatisfied with that court’s decision is not required to seek leave to appeal and may appeal as of right. Section 17 provides- “Any person aggrieved by any judgment if the High Court in its civil appellate jurisdiction may appeal to the Court with leave of the Court or upon the certificate of the judge who heard the appeal which involves a question of law but not a question of fact.” [22] The section clearly means that a person may not appeal the second time from the High Court to the Court of appeal unless he obtains leave to do so from the Court of Appeal or from the High Court upon a judge thereof issuing a certificate on a point of law, not fact, to be determined by the Court of appeal. When the High Court is asked to review a decision of a lower court, it exercises its review powers as provided in s 7 of the High Court Act 1978, which reads- “(1) The High Cout shall have full power, jurisdiction and authority to review proceedings of all subordinate courts of justice in Lesotho and if necessary to set aside or correct the same. (2) This power, jurisdiction and authority may be exercise in open court or in chambers in the discretion of the judge.” [23] Section 7 of the High Court Act grants the High Court first instance jurisdiction to review decisions of inferior courts and tribunals. Any person aggrieved by its decision as a court of first instance in review matters has a right, without seeking leave to appeal to the Court of Appeal, to appeal from any such decision. The High Court is the only court vested with review powers in exercise of original jurisdiction and a dissatisfaction with the exercise of that power or result thereof entitles a litigant to appeal as of right to the Court of Appeal. The decision in Ntoetsi Tau-Tona is therefore wrong and ought not to be followed as precedent. The decision herein has been advised to the President of this Court. He agrees with it. Present application [24] In the present application two issues arise– whether the applicants’ delay in prosecuting their review application was so inordinate that the High Court was correct in dismissing it for that reason and whether the applicants for leave have reasonable prospects of success to warrant the grant of such leave. The grounds of appeal on which the applicants rely as providing reasonable prospects of success on appeal are set out in the founding affidavit as follows – “6.1 The Court a quo failed to properly exercise its discretion to dismiss the Applicants review application for want of prosecution in that the delay in prosecuting the review application was not at all inordinate as to constitute an abuse of court process. The delay was at best for a period of three (3) months excluding when the high court is on winter vacation. Had the Court a quo focused on the three (3) months of Applicants’ inactivity it would have found the delay to be not inordinate and condoned the said delay in terms of Rule 59 of the High Court Rules 1980. The Court a quo took account of irrelevant factors in coming to the conclusion that the delay was inordinate. 6.2 The Court a quo erred in finding that the review application was never opposed and therefore making a finding that the notice of appointment served and filed by the 1st Respondent's attorneys could not be characterized as an intention to oppose. Further that the 1st Respondent's attorneys of record ought to have moved in terms of Rule 8(13) when taking a further step. 6.3 The Court a quo erred in taking into consideration the various postponements that occurred in the Small Claims Court as an indication that the Applicants had at all material times never intended to prosecute their appeal nor the review application. The Court a quo partially heard the review application only to pick matters that aligned with the 1st Respondent's case without giving the Applicants a hearing on the issue. 6.4 The Court a quo erred in dismissing the leave to appeal application on grounds that no other court would come to a different conclusion from that which the court a quo had arrived at, therefore missing the test that the applicants for leave to appeal need only demonstrate the prospects of success on appeal.” [25] If the grounds were accepted as valid the applicants would be granted leave to appeal against the High Court decision. They basically raise three issues - whether the delay in prosecuting the review application was so inordinate or so unreasonable as to justify a dismissal of the application for want of prosecution; whether the court a quo erred in finding that the respondent did not signify any intention to oppose the review application and, for this reason, further failed to invoke rule 8(13) of the High Court Rules 1980 and find that the respondent had infringed the procedure for seeking a dismissal of the application, and, finally, whether it erred in applying the test for granting leave to appeal. [26] It is not necessary to deal with the issues raised by the applicants because of the conclusion I have reached that the applicants did not have to seek leave to appeal regard being had to s 17 of the Court of Appeal Act. The applicants, as of right, may appeal from the decision of the High Court without having to obtain leave to appeal. In light of this conclusion, the applicants may now proceed to prosecute their appeal by filing the necessary documents. The matter will have to be heard, ceteris paribus, during the next session of this Court. The present application must therefore be removed from the roll. Since the applicants and the respondent were guided by Ntoetsi Tau-Tona, there will be no order of costs against either party. [27] In the result the application is struck off the roll, with no order as to costs. I agree I agree ______________________________ MH CHINHENGO ACTING JUSTICE OF APPEAL _______________________ PT DAMASEB ACTING JUSTICE OF APPEAL ________________________ R MATHABA ACTING JUSTICE OF APPEAL FOR THE APPLICANTS: ADV. MP TLAPANA FOR THE RESPONDENT: ADV. R LESHOLU 18