THE
HIGH COURT OF SWAZILAND
Civil
Case No.995/04
In
the matter between:
CYPRIAN
MFANUZODLANI GULE Applicant
And
MPHEZENI
VILAKATI 1st Respondent
THEMBA
DLAMINI 2nd Respondent
CORAM
: MASUKU J.
For
the 1st Applicant : Mr S. Nsibande
For
the 1st Respondent : Mr S. Bhembe
For
the 2nd Respondent : No appearance
JUDGEMENT
19th May 2004
Relief
Sought
In
this application, filed under a Certificate of Urgency, the Applicant
prays for the following relief;
Dispensing
with the normal forms of service and normal time limits as provided
by the Rules of this Honourable Court and having this matter heard
as one of urgency,
An
order directing the Sheriff or his lawful Deputy to attach and
remove nine herd of cattle from the 1st or 2nd and/or any other
person in possession thereof being the cattle attached and removed
on the 1st April 2004, from the Applicant's farm.
2
3.
That the said nine (9) herd of cattle be placed back to the
possession of the Applicant pending finalisation of an appeal filed
by Applicant in the main action.
4.
Directing the 1st and 2nd Respondent to pay costs on the Attorney and
own client scale one paying the other to be absolved.
Background
It
is apparent that there is a convoluted history behind this matter and
to which it is necessary to refer in order to place this application
in its proper historical perspective. I shall refer to the parties as
they appear in the above citation, for purposes of convenience.
The
Applicant, by Combined Summons, dated 28th August, 2001, sued the 1st
Respondent for delivery of three (3) herd of cattle at the value of
E2, 950.00 each or failing delivery of the said cattle, payment of an
amount of E8, 850.00, interest thereon and costs of the suit. A
judgement by default was entered in the Applicant's favour on the
12th October, 2001, followed by an execution process which resulted
in the attachment of fourteen (14) herd of cattle belonging to the
1st Respondent.
The
1st Respondent launched an urgent application for rescission of the
default judgement on the 12th February, 2002. A consent Order,
endorsed by Sapire CJ. (as he then was) and dated 22nd February 2002,
was granted. In terms of that Order, the default judgement was
rescinded; the Deputy Sheriff who attached the cattle, was
interdicted from selling or disposing of that herd of cattle, pending
finalisation of the matter.
The
1st Respondent, thereafter approached this Court on an urgent basis,
for an Order directing the Deputy Sheriff, who had attached the
cattle, to release the same to the 1st Respondent. I dismissed that
application with costs by a written judgement, dated 10th May, 2002.
The
main action, which the 1st Respondent eventually defended, was heard
by Shabangu A.J. on the 20th October, 2003. Shabangu A.J. granted
absolution from the instance in the 1st Respondent's favour with
costs and proceeded on the same day, to issue an Order for the
release of the attached cattle. The Applicant noted an appeal against
the said judgement on the
3
following
day i.e. the 21st October, 2003, claiming that the trial Judge, in
granting absolution, erred in respects that I need not venture into.
On
the 1st April, 2004, the applecart was upset by the 1st Respondent,
who, in the company of the 2nd Respondent, a duly appointed Deputy
Sheriff for the District of Lubombo, attached and removed 9 herd of
cattle from the Applicant to the 1st Respondent. They claimed that
they were armed with an Order of Court to that effect.
The
Applicant alleges that the removal of the cattle from his farm was
unlawful for the reason that by virtue of noting his appeal,
execution was thereby automatically stayed and that it was therefor
not open to the Respondents to execute upon the Order of Shabangu
A.J., in the absence of an Order setting aside the stay of execution.
It is for that reason that the Applicant seeks the relief set out in
full above.
Urgency
There
is an argument that Mr Bhembe sought to advance in limine and this
relates to the question of urgency. I however found that this point
had fallen away and had been overtaken by events since the matter was
enrolled and the Respondents were afforded time within which to file
their papers in opposition to the relief sought. Nothing further
therefor needs be said regarding this point.
Locus
standi in judicio
There
is however a legal point raised by Mr Bhembe, on the merits, which I
however consider proper and prudent to consider ahead of the
Applicant's case. I do so for the sole reason that if upheld, it has
the potential to decide and dispose of the matter even at this stage.
This related to the question of the Applicant's locus standi in
judicio or his lack of it.
Mr
Bhembe, argued that the consent Order of the 22nd February, 2002,
authorised the Deputy Sheriff to continue holding the cattle under
attachment. It was his argument therefor that if for any reason, that
Order was contravened, only the Deputy Sheriff had the right to
approach the Court with a view to maintaining the integrity of that
Order. Not even the Applicant, in whose
4
farm
the herd of cattle was attached and kept, had a right to bring this
application independently of the Deputy Sheriff, so the argument ran.
In
the judgement of LAWYERS FOR HUMAN RIGHTS (SWD) AND ANOTHER VS THE
ATTORNEY-GENERAL OF SWAZILAND AND ANOTHER, CIVIL APPEAL CASE
NO.34/01, Beck J.A. stated the following at page 3 to 4 of the
judgement regarding the issue of locus standi in judicio: -
"The
extent of an interest in the subject matter of the litigation that
must be evident in order to clothe a litigant with locus standi has
been considered in many reported cases. It must be a direct interest
and not an interest that is too remote-Dalrymple and Others v
Colonial Treasurer 1910 T.S. 372 at 390. It must be a direct and
substantial interest in the subject matter of the litigation which
could be affected by the judgment of the court-United Watch and
Diamond Co. (Pty) Ltd v Disa Hotels 1972 (4) S.A. 409. In order to be
a direct interest it must be more than the sort of interest which all
citizens might have in the subject matter of the
litigation-Roodepoort-Marisburg Town Council v Eastern Properties
(Prop.) Ltd 1933 A.D. 87."
In
my view, the question to be determined in casu is whether the
Applicant has a material interest in the subject matter in issue and
has a special grievance to himself or he can only be described as a
busy body or a crank, entangling himself in matters that have no
connection or sufficient connection with him. The question, posed
differently, in view of Beck J.A.'s rendering later in the aforesaid
case, is whether it can be said of the Applicant, that he is
intervening in this matter for no other cause than his curiosity in
the relief sought or in the facts on which the matter is based?
In
answering the above question, it is imperative to consider firstly,
that the Applicant from the very first proceedings, was the dominis
litis. The default judgement was in his favour and so was the
attachment at his behest. The Deputy Sheriff, in effecting
attachment, did so in execution of the Order in the Applicant's
favour. Clearly, at the end of the execution process, the Applicant
was the main beneficiary. The flip side of the coin is that if the
Order for attachment was for any reason defied or contravened, and as
result of which the cattle were removed from attachment, then
clearly, the Applicant's hopes of tasting the fruits of success would
become like a mirage.
5
Secondly,
the Deputy Sheriff kept the cattle at the Applicant's farm. If
anyone, would therefor come and remove the cattle from attachment,
without a valid Order of Court surely, the Applicant has a right to
stop that even if he was not the dominis litis. If he did not, the
Deputy Sheriff could understandably hold him accountable for the
breach of the Court Order as the custodian of the attached cattle.
The Applicant therefor satisfies the criteria set out in the Court of
Appeal judgement above. I am of the considered view that the
Applicant could not fold his hands in idleness, resting on the
forlorn hope that the Deputy Sheriff would act unilaterally to
safeguard the Applicant's interests by launching remedial
preventative proceedings. It was incumbent upon the Applicant, given
the totality of the facts and the material interest that he had in
the matter, to launch the present proceedings.
In
the circumstances, I am of the view that the Applicant has the locus
standi in judicio to launch these proceedings and Mr Bhembe's point
fails. This then leads me to consider sustainability or otherwise of
the points raised by Mr Nsibande in the application, subject of
course to the argument raised au contraire by Mr Bhembe.
In
dismissing the 1st Respondent's point in limine, I must point out
that prayer 3 of the Notice of Motion, read together with paragraph 6
of the Applicant's Founding Affidavit, create the erroneous
impression that the Order of the 22nd February, 2002, was for the
Applicant to keep the cattle under attachment. This is clearly
incorrectly understood for it explicitly was an Order for the Deputy
Sheriff to hold the cattle under attachment. The Deputy Sheriff in
his wisdom and absolute discretion kept the cattle at the Applicant's
farm. This, however, did not amount to nor can it be equated to or
construed to be an order that the Applicant was to keep the cattle.
The dismissal of the point relating to locus standi above, was
therefor based on the common cause facts and not on the misleading
and erroneous understanding propagated by the Applicant in the
aforesaid paragraphs and which finds no support from the previous
proceedings.
Propriety
of executing upon a judgement appealed against.
The
next question, for determination, is whether it was proper and
legally correct for the Respondents to execute upon the judgement of
Shabangu A.J., notwithstanding that an appeal was properly and
timeously noted against the said judgement by the Applicant.
6
Mr
Bhembe argued that the 1st Respondent was perfectly entitled to do so
because, not withstanding the timeous noting of the appeal, the
Applicant failed to timeously lodge the record of proceedings within
the time set out in the Court of Appeal Rules, 1954, as amended. In
particular, reference was made by Mr Bhembe to the provisions of Rule
30 (1), read with Rule 30 (4) of the aforesaid Rules and which
provides the following: -
"The
appellant shall prepare the record on appeal in accordance with
sub-rules (5) and (6) hereof and shall within 2 months of the date of
noting of the appeal lodge a copy thereof with the Registrar of the
High Court for certification as correct."
Rule
30 (4), on the other hand reads as follows: -
"Subject
to Rule (16) (1), if an appellant fails to note an appeal or to
submit or resubmit the record for certification within the time
provided by this Rule, the appeal shall be deemed to be abandoned."
Sub-Rules
(5) and (6) of this Rule, mentioned in Rule 30 (1) are of no
relevance in the question for determination. Rule 16 (1), headed
"Extension of time", referred to in Rule 30 (4), quoted
above reads as follows: -
"The
Judge President or any Judge of appeal designated by him may on
application extend any time prescribed by these Rules:
Provided
that the Judge President or such Judge of Appeal may if he thinks fit
refer the application to the Court of Appeal for decision."
The
import of these Rules, read together, in my view, is that the appeal
is deemed to be abandoned if it is not noted within the period
prescribed or if so filed, the record is not submitted within the
time prescribed in the Rules. The appeal is however, deemed to have
been abandoned, subject to the extension of time in terms of Rule 16.
It is common cause that in casu, no application for the extension of
time was lodged by the Applicant, for consideration and determination
by the Court of Appeal, whenever that Court is reconstituted.
7
Mr
Bhembe argued that in the absence of an application for the extension
of time under Rule 16 (1), the 1st Respondent was entitled to execute
upon the judgement as soon as the deeming provision came into effect
after the lapse of the period within which the record was to be
lodged. In his argument, Mr Bhembe, stated that the 1st Respondent
was entitled to do so without more, and particularly without any
notice or declaratory Order in his client's favour being necessary.
Mr
Nsibande argued that the course advocated by Mr Bhembe introduces a
startling proposition in the sense that it entitles the successful
party in this Court to take the law in its own hands, based on its
own interpretation of the Rules of Court and its computation of the
time limits, without subjecting the correctness of either conclusion
to the rigorous test of the Courts.
Rule
40, of the Rules of the Appeal Court, as amended, was repealed by
Legal Notice No. 132 of 1999. The import of the repeal of the said
Rule is to bring our law into conformity with the law in other
jurisdictions on the effect of an appeal on the proceedings. This
therefore means that an appeal now automatically stays execution,
whereas Rule 40 provided otherwise. The onus to reverse this position
therefor lies on the successful party, on application, ably
demonstrating to the Court that in the circumstances, it is proper
for execution to ensue. The alternative, is for that party to pay
security to the satisfaction of this Court, which the Court, upon
satisfaction, may allow execution to ensue.
This
position, in my view, shows the importance of the Courts being in
control of appeals. This element of control that this Court,
particularly in the absence of the Court of Appeal, which obtains at
the writing of this judgement, must exercise, ensures that the
successful party does not rely on its own interpretation of the Rules
and its own computation of the time limits. If it is of the view that
due to the Appellant's failure to lodge the record timeously the
deeming provision comes into play, I am of the view that it should
seek a declaratory Order, in the present circumstances, from this
Court.
It
is in that application that this Court can rule upon the correctness
of the successful party's interpretation that the deeming provision
is in operation and whether its computation of time is in keeping
with the Rules of Court. To leave these crucial decisions to the
whims of the parties and to allow them to implement the same without
the sanction of the Court would in my view
8
be
untenable and would yield grave injustices, which it may not be
possible to redress later, particularly where an application for the
extension of time is subsequently made to the Court of Appeal and
there are cogent and compelling reasons why the appeal was not noted
in time or the record was not lodged timeously. To endorse this line
of reasoning, would in my view be a species of taking the law into
one's own hands, which is otherwise impermissible. I therefor agree
with Mr Nsibande on this score.
The
consideration raised by Mr Bhembe, to the effect that recourse to the
Courts for a declarator would indulge the successful party in further
unnecessary costs, is not in my view sufficient to lightly jettison
the question of taking the law into one's own hands. An appropriate
Order for costs in favour of the successful party can always be
prayed for, since it would be that unsuccessful party's neglect that
would render the declarator necessary in the first place. In like
manner, it would be the successful party that would have to bring an
application for execution to ensue, once the provisions of Rule 40
come into operation by the noting of an appeal
Both
parties' representatives referred me to the judgement I made in SWAZI
PHARM WHOLESALERS (PTY) LTD VS RANBAXY (SA) (PTY) LTD t/a RANBAXY
LABORATORIES AND ANOTHER in re: RANBAXY WHOLESALERS (SA) (PTY), LTD
VS. SWAZI PHARM WHOLESALERS (PTY) LTD CIV APPL. 1878/03
(unreported),
regarding the question under scrutiny. The one distinguishing factor
between that case and the present one is that in the former case, the
successful party did put the unsuccessful party on notice by letter
that in its view, the appeal was deemed abandoned in the light of the
failure to lodge the record timeously. That letter spurred the
unsuccessful party to move an application before this Court, staying
the intended execution of the judgement. That approach is in my view,
the necessary and mandatory modicum of courtesy that an Appellant is
entitled to. In a profession like law, sudden surprises, which do not
allow the other party to remedy whatever needs to be remedied are
frowned upon. In point of fact, there is a plethora of examples that
the parties normally reserved the question whether or not an appeal
is deemed abandoned to the Courts for determination, particularly the
Appeal Court, when still constituted. See MUSA MAGONGO V SWAZILAND
DEVELOPMENT AND SAVINGS BANK AND ANOTHER APP. CASE NO. 27/2000 and
ANDRIES STEPHANUS VAN WYK AND ANOTHER V BRL a division of BARLOWS
CENTRAL FINANCE
9
CORPORATION
CIV. APP. NO. 44/2000, both being unreported judgements of the Court
of Appeal.
It
is fitting to also consider, at this juncture, that in the unreported
judgement of the Court of Appeal, in UNITRANS SWAZILAND LIMITED V
INYATSI CONSTRUCTION LIMITED, a judgement delivered by that
Honourable Court on the 7th November, 1999, the Court seems to have
been persuaded that even in circumstances where the deeming provision
has become operative, that Court, can on application, revive the
appeal in order to prevent any injustice. This, it will be seen, is
not a matter that the Appeal Court decided definitively. This is
because the Court held that it was unnecessary so to do in view of
the approach that the Court took in that matter.
There
is a related argument raised by Mr Bhembe, to the effect that the
consequence of prayer b) of the Order dated 22nd February, 2002, was
that once that application was finalised, then the Order fell away.
The said prayer b) reads as follows: -
"The
Second Respondent (i.e. Deputy Sheriff of Lubombo District) is
interdicted and restrained from selling or disposing of the fourteen
(14) herd of cattle attached on the 6th day of December 2001 pending
finalization of this matter. "
"This
matter" referred to in this Order, cannot be said relate to the
application, because that Order of the 22nd February, marked the end
of the rescission application, after which the plea, discovery and
other pre-trial procedures, culminating in the actual trial occurred.
In my view, the proper construction of the Order was that the cattle
were only to be released at the end of the action as there was no
other proceeding then anticipated. This, in my view included an
appeal. In that event, Mr Bhembe's contention cannot be upheld. I am
therefor of the view that following the noting of the appeal, it
could not be said that the "finalisation of the matter" had
been reached. It is only after the disposal of the appeal, or if this
Court dismisses this application that it can properly be held that
the matter is finalised. The latter event would however be subject to
the Applicant filing an appropriate application in terms of the
provisions of Rule 16 of the Court of Appeal Rules.
Mr
Bhembe, not to be outdone, had another string up his bow. He argued
that the cattle initially seized were fourteen and that only a herd
of nine (9) was released after the judgement
10
of
Shabangu J.A., leaving a balance of five (5) beasts in the
Applicant's farm. He argued that the beasts left under attachment
were sufficient to cover the costs and the judgement in the event
that the Applicant's appeal is upheld by the Court of Appeal. It was
his contention that there would be no prejudice accruing to the
Applicant in view of the five beasts still under attachment.
In
my view, the question of prejudice must not be allowed to enter the
equation, thereby obfuscating the issues. The question is whether the
nine (9) herd of cattle was properly removed from the attachment and
by an Order of a competent Court. A negative finding, which appears
inevitable in the circumstances, renders the issue clearly caedit
quaestio. This argument cannot therefor be sustained and is
accordingly not upheld.
There
is yet another related question, which requires an answer and this is
in respect of whether the filing of the record was in any event due,
regard had to the provisions of Rule 8 of the Appeal Court Rules.
The
relevant portion of Rule 8(1), headed "Time for filing notice of
appeal", reads as follows;
"The
notice of appeal shall be filed within four weeks of the date of the
judgement appealed against;
Provided
that if there is a written judgement such period shall run from the
date of delivery of such written judgement;"
There
appears to be a dispute regarding whether the trial Judge did or did
not give reasons for the Order he gave in respect of the absolution.
The Applicant's position was that the trial Judge gave the Order and
undertook to furnish written reasons in due course. Mr Bhembe on the
other hand, indicated that some oral reasons were handed down. An
attempt to obtain the Judges' original file inexplicably drew a
blank. The file would have resolved this quandary, as the trial Judge
would most probably have contemporaneously recorded on the file what
he did and ordered on that day.
I
am however of the view that the absence of the file is of no moment,
in relation to the noting of the appeal in a case where written
reasons are to be delivered. I say so for the reason that
11
"judgement"
is described in Rule 2 of the Court of Appeal Rules, as including
"decree, order, conviction, sentence and decision."
As
seen above, this includes an Order, which renders the question of the
delivery of reasons in relation to the noting of an appeal not
crucial. This is however not to be construed in isolation and
oblivion of the concerns raised and directions given by the Court of
Appeal in previous cases regarding the desirability and
imperativeness of this Court giving its reasons for any Order or
judgement it hands down. The handing down of reasons, it was said,
places the litigants and the Appeal Court in a position to know and
to evaluate the propriety and correctness of the reasons. I refer, in
this regard to ANDRIES STEPHANUS VAN WYK (supra) at page 2 and
RECKSON MAWELELA V M.B. ASSOCIATION OF MONEY LENDERS AND ANOTHER CIV.
APP. CASE NO, 43/1999, at page 5.
Conclusion
and Order
In
view of the conclusions I have reached above, I am of the view that
the Respondents were not entitled to remove the cattle at the time
they did and for the reasons proffered. An Order of Court in that
regard, authorising the release of the cattle was in my view a sine
qua non. The relief sought by the Applicant is therefor granted in
terms of prayers 2 and 3 of the Notice of Motion.
Costs
No
case has in my view been made for the mulcting of the Respondents
with costs on an attorney and own client scale. It would appear that
the Respondents were of the belief that the appeal had been abandoned
and that they were entitled to the release of the cattle, a position
that has been pronounced to be erroneous. Costs be and are hereby
granted against the Respondents on the ordinary scale.
Observation
An
issue that cries out for mention however, relates to the apparent
lack of clarity regarding the identity of the cattle to be returned
to the Applicant. A full and accurate description of the cattle,
their colour, gender and other peculiar and distinguishing features
should have appeared
12
ex
facie the Notice of Motion. A Notice of Motion, it must be recalled,
is the draft Order that the Court is moved to grant and it must
therefor be clear and precise in its terms, leaving no room for doubt
or vagueness. A wide and vague Notice of Motion as the one under
scrutiny, should not ordinarily be allowed to stand as is. I do,
however, grant the Applicant leave, in the Order of Court to be
issued in pursuance of this judgement, to fully and properly describe
the cattle in question, as should appear in the 2nd Respondent's Writ
of Attachment or whatever document he used to record the identity of
the cattle released on the 1st April. 2004.
This
matter is an indication and pointer to the urgent need to
reconstitute the Court of Appeal. This Court, in the absence of the
Appeal Court, is being called upon to determine issues and to extend
justice where it is due in matters that would, in the ordinary
course, all things being equal, be determined by the Court of Appeal.
The sooner that Court is reconstituted, the better for the proper
administration of justice, not to mention the relief to litigants, in
both civil and criminal causes, whose right to enter the final lap of
justice, has been held in abeyance for a long time. Justice delayed,
so the adage goes, is justice denied.
JUDGE
