Sello Buti t/a Classic Distributors V Standard Lesotho Bank & 2 Others (C of A (CIV) 51/2024) [2025] LSCA 20 (2 May 2025)

LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU In the matter between C of A (CIV)No. 51/2024 CCT:149/2013 SELLO BUTI t/a CLASSIC DISTRIBUTORS APPELLANT VS STANDARD LESOTHO BANK 1ST RESPONDENT REGISTRAR OF HIGH COURT 2ND RESPONDENT DEPUTY SHERIFF 3RD RESPONDENT CORAM: MOSITO P MUSONDA AJA CHINHENGO AJA HEARD: 10 APRIL 2025 DELIVERED: 2 MAY 2025 FLYNOTE its original inconsistent with Civil Procedure – Condonation – Appeal – Functus officio – Execution – Whether High Court may set aside writ of execution judgment – Application to amend writ – Delay in lodging appeal – Reasonableness of explanation – Prospects of success – In duplum rule – Legal finality. The appellant obtained judgment in the High Court entitling him to a refund of M78,338.55 from the respondent bank, with interest at 18.5% per annum. A writ of execution was subsequently issued claiming over M1 million in interest, and the respondent paid M678,338.55 under threat of execution. Upon legal advice, the respondent applied to set aside the writ as irregular, contending that only simple interest had been awarded and the total exceeded the judgment and the limits imposed by the in duplum rule. The High Court (Chaka-Makhooane J) granted the application, ordered repayment of the excess, and interdicted execution. Over five years later, the appellant sought condonation for the late noting of appeal and filing of heads of argument, contending inter alia that the judge was functus officio in granting the latter order. Held, dismissing the applications: (1) A court remains competent to entertain an application to set aside or amend a writ of execution which does not conform to the judgment it purports to enforce; such an application does not entail reviewing or altering the judgment itself and does not offend the functus officio principle. (2) The writ in question reflected an amount vastly exceeding that ordered and was rightly set aside as unlawful and irregular. (3) The appellant’s reliance on functus officio and cited authorities was misplaced, as the issue before the High Court concerned enforcement, not variation of the prior judgment. (4) The appellant’s explanation for the excessive delay in lodging the appeal, rooted in poor legal advice and financial constraints, was unconvincing and lacked candour. (5) No reasonable prospects of success on appeal had been shown. The condonation applications were without merit and fell to be dismissed. Applications for condonation refused; appeal struck off; costs awarded to first respondent. JUDGMENT CHINHENGO AJA: - Introduction [1] The applicant has made two applications to this Court – on 30 August 2024, for condonation of late filing of the record of proceedings of appeal and on 8 April 2025 for condonation of late filing of heads of argument. The facts underlying these applications are common cause. Background [2] The applicant, as client of 1st respondent, became indebted to the 1st respondent in 2000 arising from an overdraft facility extended to him. He surrendered to the 1st respondent as security for the due payment of his indebtedness or the overdrawn amount, an insurance policy he held with Momentum Life Insurance company in South Africa. In April 2000, the 1st respondent excused against the security or realised therefrom the sum of M98 246.00. This was after suing the applicant for the balance of the overdrawn amount in the sum of about M18 300.00 and obtaining judgment. The M98 246.00 was apparently the value of the policy on early cancellation because of 1st respondent’s action or what one may call the surrender value of the policy at that time. Of the amount realised from the policy, the 1st respondent was only entitled to the amount outstanding on the overdraft and not the whole amount. The 1st respondent should therefore have paid to the applicant the sum M78 338.55 being the difference between what it recovered upon cancellation of the policy and the amount owed to it. To recover the difference, the applicant instituted an action in the High Court (Case No. CCT/149/2013). The court made the following order in his favour on 26 May 2017 – “Judgment is entered in favour of the Plaintiff in the main claim as prayed for in the summons.” [3] The main claim was for – “1. Payment by Defendant [1strespondentnt herein] of M78 338.55 as a refund to the Plaintiff of the claim made by the Defendant of Plaintiff security held with Momentum Life Insurance. 2. Payment of interest at the rate of 18.5% per annum from the year 2000 to the date of payment. 3. Costs of suit.” [4] In his declaration in the High Court action applicant had, in the alternative, also claimed for – “1. Payment by Defendant of M125 728.00 as the surrender value of Plaintiff’s policy held with Momentum Life Insurance which was erroneously cashed by the Defendant to Plaintiff. 2. Payment of interest at the rate of 18.5% per annum from the year 2000 to date of payment. 3. Costs of suit.” [5] In defence of the applicant’s action in the High Court, the 1st respondent contended that the applicant had ceded all his right, title and interest in or to the policy and the proceeds thereof to 1st respondent and that applicant could not have had any claim arising from the policy against 1st respondent or the insurance company. It also contended that applicant had, accordingly, no standing to sue, and that the claim had in any event prescribed. The 1st respondent failed in its defence hence the order of the court. It is to be noted that the applicant did not pursue the alternative claim in the High Court, and that alternative claim was, obviously, not dealt with in the High Court, as is clear from the order granted. Issuance of writ of execution [6] Buoyed up by success in the High Court, the applicant caused a writ of execution to be issued against the 1st respondent for an amount that exceeded the amount granted in the judgment. That writ of execution, dated 10 November 2017, directed to the Deputy Sheriff, 3rd respondent herein, to attach 1st respondent’s property. It reads - “You are hereby directed to attach, execute and remove movable property belonging to Standard Bank Lesotho Limited (herein referred as Defendant) and pay the sum of (seventy-eight thousand three hundred and thirty-eight Maloti fifty-five Lisente) M78 338.55 to Plaintiff being the judgment debt. Plus, one million ninety-five thousand three hundred and thirty-seven Maloti (M1 095 337.00) being the interest at the rate of 18.5% from 2000 to 2017. This judgment was granted on the 11th August 2016, in the above-mentioned case. Further pay to the Plaintiff or it’s Attorney the sum due to it with costs above mentioned, and for doing so this shall be your warrant. And return you this Writ with what you have done thereupon.” Payment of amount more than judgment debt and recovery thereof [7] In response to the warrant of execution and threatened attachment in execution of its property, the 1st respondent’s officers paid the sum of M678 338.55 believing that the whole amount due in the writ was due to the applicant, that is to say, the capital sum plus compound interest at 18.5% per month from the date of judgment to the date of full payment. Thereafter, 1st respondent consulted its legal practitioners and was advised that the correct amount was less than the amount that 1st respondent had paid and far less than the amount in the writ of execution: first because only simple interest per annum was granted by the court and, second, the in duplum rule does not ordinarily permit the payment of interest that exceeds double the capital amount. The amount that 1st respondent should have paid was M156 667.10. [8] The 1st respondent’s legal representatives wrote two letters on 30 November 2017 and on 15 January 2018 to the applicant and his legal representatives drawing their attention to the erroneous warrant of execution. The applicant’s legal representatives replied on 24 January 2018 and maintained their position that the full amount in the warrant of execution must be paid, and no further negotiations would be entertained. This constrained the 1st respondent to apply to High Court to set aside of the warrant of execution “as irregular, unlawful and contrary to the order of that court”, and for the applicant to pay back to 1st respondent M521,661.45, being the amount paid to him in excess of what was due to him. The 1st respondent sued the applicant, the Registrar of the High Court as 2nd respondent and the Deputy Sherrif for this relief. The Registrar and the Deputy Sherrif did not oppose the 1st respondent’s application, nor have they filed any papers in the present application. [9] On 26 October 2018 the High Court (per Chaka-Makhooane J) granted the following order in favour of the 1st respondent: “1. The 1st and 3rd respondents are interdicted and restrained from executing a warrant of execution issued by the 2nd respondent on the 10th November 2017, or any re-issue thereof, to recover the amounts of M78 338.55 and M1 095 337.00 from the Applicant. 2. The above warrant of execution issued by the legal representatives of the 1st respondent be set aside as irregular, unlawful and contrary to the order of this Honourable Court dated 26th day of May 2017 on the grounds set out in the founding affidavit. 3. The respondent is directed to repay the amount of M521 661.45 to the applicant. 4. Directing the 1st respondent to pay the costs of this application on an ordinary scale.” [10] The record of proceedings does not contain the reasons for the order given by Chaka-Makhooane J. She has since long passed on. The parties, particularly the applicant herein, who intends to appeal against the order, had no option but to proceed based on the record as it is. He filed the notice of appeal on 30 August 2024, a period of more than 5 years after the date of the order, 26 October 2018. His grounds of appeal are two in number, namely – “1. The learned judge in the court a quo erred in granting the court order in favour of First Respondent dated 26th October 2018, after she had prior entered the judgment in favour of the Appellant [Applicant] on 26 May 2017. She was functus officio. The court had already pronounced a final judgment or order, it has itself no authority to correct, alter or supplement it. 2. The learned judge a quo erred in reviewing her order of the 26th May 2017 and substituting it with the impugned order of the 26th October 2018. She was not competent to review herself.” Applications for condonation [11] The first application before this Court, as earlier stated, is for condonation of applicant’s “late lodging of the appeal in case no. CCT/149/2013” and costs of suit. The facts narrated above show that indeed the applicant took an inordinately long time to note his appeal. [12] What explanation does the applicant give for the delay? He states that his erstwhile legal representatives made a fatal mistake, which he describes as “a strange application” when they applied for a stay of execution of the final judgment granted against him on 26 October 2018 and for leave to appeal that judgment.1 The application was inevitably dismissed with costs by Mohkesi J on 23 December 2023. Applicant states that this ill-conceived application partially contributed to the delay in noting the appeal. Thereafter his legal representatives, the same who had filed the strange application, promised that they would file the appeal by 5 January 2024. By July of the same year, they still had not. Applicant retrieved his file from them. He said the file did not contain the full record of the proceedings to that date. By this time, he did not have sufficient funds to mount the appeal. He sold some of his assets in August 2024 and was then able to give instructions to his current legal representative to pursue the appeal. [13] For the above stated reasons applicant avers that his failure to note the appeal was not wilful. He says- “I have acted under the belief that my erstwhile lawyers had lodged the appeal timeously as it is prescribed by law… my delay to file has to be visited at the door of my erstwhile lawyers being Nathane Chambers, because had I known that they had not lodged the appeal I could have sought other lawyers in time, but for them, I failed to do so.” 2 1 Para 3.4 of founding affidavit 2 Paras 5 and 7 of founding affidavit [14] As a convincing reason for the delay, the above averment falls short. The applicant was aware of the delay in noting the appeal. After he was misled into making an application for stay and for leave to appeal, as he confessed, he had no funds to secure the services of another legal practitioner. The applicant’s current legal representative takes personal responsibility for the failure to file the heads of argument on time and offers to pay “all wated costs” occasioned thereby. His explanation for the failure is simple: he assigned the filing of the heads to a trainee assistant who did not live up to expectation and resigned just before the record of proceedings could be lodged. He does not disclose if the assistant was merely to file the heads of argument or to both prepare and file them. On his part the legal representative, due to pressure of work did not become aware that the heads of argument had not been filed until it “was extremely late”, hence the condonation application. [15] Before this Court the parties did not pre-occupy themselves with the application relating to the heads of argument. They must have appreciated, as is apparent, that the fate of the heads of argument depended on the decision on the failure to note the appeal within the time provided for in the rules of court. [16] An explanation for the delay in lodging an appeal or heads of argument must be reasonable and truthful or bona fide. But even then, it is but only one of the requirements for a successful application for condonation. The other is a demonstration of reasonable prospects of success in the appeal. See Mosaase v R.3 In this regard to such prospects, the applicant devotes one small paragraph which reads- “I believe I have prospects of success if this appeal could be heard because late (sic) court a quo could not review its own order. The court had issued an order in my favour on the 26th May 2017 and the same court again issued another order in favour of the first respondent.”4 [17] It is the duty of legal practitioners to read and carefully digest decisions of the courts, particularly the superior courts. And this is so where one wishes to appeal against a decision of a superior court. Had the applicant read, digested and understood Mokhesi J’s judgment of 14 December 2022, he would not have lodged the present applications or attempted to appeal against Chaka- Makhooane J’s decision. That judgment addresses what the applicant believes constitutes reasonable the prospects of success on appeal. Mokhesi J said the following – “[5] The 1st respondent paid to the applicant’s former counsel an amount of … (M678 338.55) as part payment of the amount owed as reflected in the writ of execution. Before the full amount could be paid a dispute arose regarding the irregularity 3 LAC (2005-2006) 206 4 Para 6 of founding affidavit of the writ of execution … The dispute could not be resolved, as a result, the 1st respondent lodged an urgent application interdicting the applicant and the Sheriff of the Court from executing the disputed writ of execution to recover the amounts M78 338.55 and M1 095 337,00 from 1st respondent pending determination of the application, and a further review of the impugned writ of execution on account of its irregularity, unlawfulness and for being contrary to the order of this court dated 26 May 2017, and a further order that on finding that the writ was irregular, unlawful and contrary to its order, an order that the current applicant to repay an amount of M521 661.45 being the difference between what the 1st respondent paid and what it ought correctly to have paid. [6] Judgment was later entered in favour of the 1st respondent, effectively rendering the current applicant to repay the amounts claimed for having been paid to it by the 1st respondent, erroneously. The 1st respondent, consequently, issued a writ of execution against the current applicant on the 26 November 2018 for an amount of M521 661.45 and taxed costs on the attorney and client scale. The applicant waited until 16 September 2020 to lodge current proceedings claiming the reliefs articulated in the preceding paragraphs of this judgment. [14] … The argument of the applicant is that when Chaka-Makhooane J granted the reliefs sought by the 1st respondent, that is, setting aside the writ of execution as irregular, she was effectively reviewing her order of 26 May 2017. [15] As I see it, the 1st respondent has queries about what it considered to be the inflated amount reflected on the writ of execution, and in terms of which it had already paid a substantial amount towards satisfaction of the judgment debt. At first blush, it may appear that the 1st respondent sought and was granted the setting aside of the writ, he instead of amending it. … [16] I do not agree with the applicant’s submission that the court effectively reviewed its order. I must confess I am operating in the dark trying to understand the thinking behind the order of my late Sister Chaka-Makhooane J because there are no reasons for the order. In my judgment, the court did not review itself, it was merely adjusting the sum reflected on the writ to reflect the correct amount. This was an amendment though not sought and granted in clearest terms. The inelegance in drafting and the terms of the order of court create confusion.” [18] The learned judge considered the legal position, with reference to Dunlop Rubber Co. v Stander5, that a debtor is not entitled to have a warrant issued against it for more than what it owes and that the proper approach where this has happened is to amend the writ by adjusting the sum reflected to the correct one. He went on, by way of guidance or advice to the applicant, to say Chaka-Makhooane J’s judgment was final in nature and the only resort against it was an appeal to the Court of Appeal within the 6 weeks provided in Rule 4 of the Court of Appeal Rules 2006. He accordingly dismissed with costs applicant’s application for stay of execution and leave to appeal. Disposition [19] The applicant is at it again in this appeal, regurgitating the same argument that was rejected by Mokhesi J, and contending that he has prospects of success on appeal arising from the fact that Chaka-Makhooane J not only reviewed her own decision, but also that she was also functus officio. Nothing can be further from the correct legal position. Chaka-Makhooane J had before her an application for amendment of a writ of execution. She amended the writ so that it reflected the correct amount of the judgment debt with the result that the applicant had to pay back to 1st respondent an amount paid more than what was due to him. No issue of reviewing one’s own judgment arose, neither was Chaka- 5 1924 CPD 431 at 459 Makhooane J functus officio in relation to the application to amend the writ of execution. This being the position the applicant cannot contend that he has any prospects of success, let alone reasonable prospects of success on appeal. His application for condonation of late noting of the appeal cannot succeed. It is pointless to say anything about the application for condonation of late filing of heads of argument. That one falls away. [20] In argument before this Court and in the heads of argument filed of record, the applicant properly refers to Melane v Santam Insurance Co. Ltd6 for the principles that guide a court in exercising its discretion and deciding an application for condonation – the degree of lateness, the explanation therefor, the prospects of success and the importance of the case,7 and that these factors are, in most cases, interrelated and not individually decisive. He properly referred to other decisions – Mahanoe v Mahanoe & Anor8 to the effect that a judge of the High Court may not review and overturn his own order or judgment, Mahase v Kh’ubeka & Ors9 also on impermissibility of a judge reviewing and overturning his or her own judgment, and Masaile v Masile10 on the law relating to a judge becoming functus officio in relation to a final judgment or order that he has given. The applicant’s failure was to apply the correct principles of law set out in the cited cases to the facts of his case. As was very ably set out by Mokhesi J in the application 6 1962 (4) SA 531 (A) at 532C-D 7 Regarding these requirements, see also the cases referred to by 1st respondent’s counsel at para 4 of heads of argument - Koali v Nkosi 1990- 1994 LAC 631; Mothuntsane & Ors v Selomo & Anor 1990 - 1994LAC 571 at 572B-F (headnote thereof) 8 (CIV/APN/160/12) [2014] LSHC (12 August 2014 9 LAC (2005 2006) 426 10 (CIV/T/26/85) [1987] 11 (19 January 1987). for stay of execution and leave to appeal, the matter before Chaka- Makhooane J was a stand-alone application for amending the warrant of execution so that it reflected the correct amount of the judgment debt and for the repayment of the amount erroneously paid to the applicant. It was clearly distinguishable on its facts to the cases referred to by applicant. The applicant has therefore no reasonable prospects of success on appeal. The other requirements for granting condonation pale into insignificance or are simply unsound as a basis for applicant’s success. For instance, regarding the importance of the case, applicant has this to say – “It is clear from the papers that have been filed in this matter that the case is very important to the [applicant] as it will unjustly affect his financial status as a businessman which could lead to his bankruptcy. The case is also important as it will define the principle of functus officio.”11 [21] The mere fact that the application if not successful will adversely affect applicant financially cannot, by any stretch of the imagination, render the application important in the ordinary sense of the word. Every person adjudged by an order of court to be legally liable to pay money to another in discharge of a debt, suffers a diminution of his property. The reasons that applicant gives for the delay from 2108 to 2024 to lodge the appeal are equally not convincing and stand to be rejected. The lack of reasonable prospects on appeal is so glaring that a refusal to 11 Para 3.3 of applicant heads of argument condone the late noting of the appeal, and with it, a refusal to condone the late filing of heads of argument, cries out loud as the right conclusion for this Court to make. In this connection 1st respondent’s counsel states that the applicant had from May 2018 to appeal against Chaka-Makhooane J’s order and that, even if the application for stay and leave to appeal placed before Mokhesi J had caused an understandable delay, the applicant should have noted the appeal in January 2023. The delay to 30 August 2024 is unreasonable even if looked at in light of the excuse given that applicant was without funds to pursue the appeal. At the end of the hearing, however, counsel for the applicant graciously conceded that condonation should not be granted. In a generous gesture 1st respondent’s counsel only prayed for costs on a party and party scale. [22] In the result – (a) Both applications brought by way of notice of motion for condonation of late noting of the appeal and late filing of heads of argument are dismissed. (b) The applicant’s appeal is struck off from the roll. (c) The applicant shall pay 1st respondent’s costs. ________________________________ MH CHINHENGO ACTING JUSTICE OF APPEAL ________________________________ KE MOSITO PRESIDENT OF THE COURT OF APPEAL I agree I agree ________________________________ P MUSONDA ACTING JUSTICE OF APPEAL FOR APPELLANT: ADV K MOLATI FOR 1ST RESPONDENT: ADV T MPAKA 19