HIGH COURT OF SWAZILAND
OF POLICE & ANOTHER
Case No. 2719/97
S.B. MAPHALALA – J
the Plaintiff ADVOCATE L.
(Instructed by Q.M. Mabuza) For the Defendants MR. P. MSIBI
to re-open the defence case after judgment was reserved)
is an extra-ordinary application where the Defendants apply to be
allowed to make late discovery of statements of one Mdabula Mazibuko
and Mpembe Simelane after the court has heard arguments and reserved
judgment in a long trial where Plaintiff is suing Government for
application is for the following relief namely;
the Applicant/Defendant to make a late discovery of the statements
of Mdabula Mazibuko and Mpembe Simelane, so that two statements can
be part of
record of trial.
the policemen who recorded the statements to hand in the statements
to the Honourable Court.
the makers of the statements to come to court and verify their
signatures on the said statements
Further/or alternative relief.
Defendants in the trial were represented by the late Advocate E.
Thwala who filed the present application and also deposed to the
founding affidavit therein. In the affidavit he deposed that the
application was being brought in terms of Rule 35 (5) of the High
Court Rules. He makes the following averments from paragraph 2 to 4
of the founding affidavit, thus:
the year 2002 I was assigned the present case during my short tenure
as special state counsel in the Attorney General Office.
of things I noticed as being unusual and would eventually lead to
some problems was the fact that two statements which positively
Finger the Respondent/Plaintiff as having been seen carrying a gun
during the fight were not discovered during the discovery process and
this worried me.
later tried to negotiate with my learned fried Advocate Lucas Maziya
not to oppose an application for late discovery and he refused on the
grounds that the late discovery is advantageous to me. I deny that
and I say it is advantageous to the administration of Justice.
then reminded me of the fact that in this case I had opposed his
application for late discovery of a document he said would show how
much Bhembe earned from his so called Commercial Farming. He did not
then say that the documents would also show
transaction with the bank in Nhlangano on the 16th February 1996. He
is on record telling the court that be is surprised that I am saying
his client has failed to prove a vital part of his alibi i.e. that he
withdrew from the bank in Nhlangano on the 16th February 1996 a sum
of El, 300-00. I have told him and the court that I did know that the
document contained such information and I would be a fool to oppose
such an application for a matter, which goes to the root of the
matter. In any case he never gave me the document to peruse and make
up my mind. In any event I have told Mr. Maziya through the court
that he can bring the document anytime before judgment. I still stand
by this submission/undertaking.
Plaintiff opposes the granting of the application on two grounds.
Firstly, that the opening of the case at this stage would greatly
prejudice the Plaintiff in that the statements which are sought to be
discovered are at the root of the case. Secondly, a technical point
was advanced that the founding affidavit deposed to by the late
Advocate Thwala was defective ab initio. The point taken in this
regard is that the said affidavit was deposed to before a Desk
Officer and thus in view of the ratio decidendi in the case of the
Director of Public Prosecutions vs The Law Society of Swaziland Civil
Appeal No. 28/1995 (unreported) the Commissioner of Oath is an
interested party in the proceedings. Consequently, the said affidavit
is a nullity.
they came for arguments Mr. Msibi who then appeared for the
Defendants submitted that the interest of justice in the present case
demand that the case be reopened. On the issue of the affidavit
he contended that the deponent thereto has died therefore the court
should invoke the doctrine of necessity and receive the said
affidavit irregardless of its imperfections.
is clear therefore that there are two issues for determination in
this case viz whether the Defendant has made a case to be allowed to
discover in terms of Rule 35 and whether the founding affidavit by
Advocate Thwala is valid in law. It appears to me that the second
question determines the first.
thus proceed to examine the admissibility of the said affidavit. The
affidavit forms the basis the application by the Defendants. The
Defendants' application stands or falls on this affidavit.
is common cause that the affidavit was deposed to before the Desk
Officer of the 1st Defendant. The former is a Police Officer under
the Commissioner of Police. The question therefore is whether the
affidavit sworn in before the Desk Officer as Commissioner of Oaths
is admissible evidence. A case in point is that of the Director of
Public Prosecutions vs The Law Society of Swaziland (supra) where a
similar question was decided by the Court of Appeal. In that case the
then President of the Law Society Mr. Paul Shilubane deposed to the
founding affidavit in the application. The said affidavit was
attested to by an attorney who was a professional assistant in the
office of the President of the Law Society. The question came for
decision before the Court of Appeal in the form of a point in limine
where the contention was made that the affidavit of Mr. Shilubane was
inadmissible in law as the affidavit was not properly attested to.
Browde JA giving the judgment of the Court after an extensive review
of the authorities pertinent in such cases embraced the ratio
decidendi by Hannah CJ in the case of F.N Dlamini Vs J.M. Dlamini
1982 -1986 Vol. IIS. L. R. 416. In the latter case it was held that
affidavits sworn before the Respondent's own attorney or agent,
partner or clerk of that attorney, are not admissible in evidence.
learned Judge of the Court of Appeal stated the following at page 15
in fin 17: and I quote: (per Browde JA):
is now necessary to deal with the two relevant cases which have been
decided in the courts in this country and which were referred to by
the learned Judge a quo namely Magagula vs Town Council of Manzini &
others (supra) and F.N. Dlamini vs J.M. Dlamini (supra). It appears
that in the former case Nathan CJ held that an affidavit sworn to
before a Commissioner of Oaths who may have had an interest in the
matter should not be excluded as being inadmissible. The learned
Chief Justice was not, however, dealing with a case in which the
Commissioner having an interest in the matter was the deponent's own
attorney firm. To that extent the case is clearly distinguishable
from the present one and was the basis for the distinction drawn by
Hannah CJ. in the Dlamini case. At page 418 of the report Hannah CJ.
in dealing with Section 43 of the Act, refers specifically to the
necessity for looking at the English law in order to decide the
admissibility of evidence. After referring to Section 13 of the
Commissioner of Oaths Act 1889 which provides that a Commissioner of
Oaths or a solicitor must not administer any oath or take any
affidavit in any proceeding in which he is solicitor to any party to
the proceeding or clerk to any such solicitor or in which he is
interested, the learned Chief Justice stated that:
result of the statutory prohibition is that the Supreme Court of
Judicature refuses to accept as sufficient any affidavit which is
sworn before the solicitor of. the party on whose behalf the
affidavit is to be used or before any agent, partner or clerk of that
then referred to Order 41, Rule 8 of the rules of the Supreme Court
of England which is to the same effect. It seems to me that F.N.
Dlamini vs J.M. Dlamini is a case directly in point in the instant
matter, and that it was correctly decided. In the result, therefore,
in my judgment the affidavits of the Respondent society should have
been held to be inadmissible and that the application brought by the
society should have been dismissed on that ground".
would appear to me that the facts in the Law Society case (op cit)
are at all fours with the present case. The Desk Officer has an
interest in this matter and therefore the affidavit attested before
him constitutes inadmissible evidence. It follows therefore that if
the affidavit is inadmissible then there is no proper application
before court and the application should then be dismissed. I also
find that the doctrine of necessity has no application in the present
case as the admissibility of affidavits is governed by a statute viz
Section 43 of the Civil Evidence Act, 1902, and the court cannot act
ultra vires the said statute. Even if I had found that the affidavit
was admissible the Defendants would not succeed on the merits of the
application. I say so because there would be irreparable prejudice
visited on the Plaintiff if leave is granted to receive these
statements at this stage in the proceedings. The scenario in the
present case is governed by Rule 35 (4) of the High Court Rules.
sub-rule provides as follows:
document not disclosed as aforesaid may not, save with the leave of
the court granted on such terms as to it may seem meet, be used for
any purpose at the trial by the party who was obliged but failed to
disclose it, provided that any other party may use such documents".
to Erasmus, Superior Court Practice, Juta at B1 - 257 by the phrase
"save with the leave of the court" it has been held that
leave should not be lightly granted for the use of documents not
properly discovered. Leave should be granted only where there is no
prejudice and the defaulting party has given adequate and
satisfactory reasons for its failure to make discovery in compliance
with the rules (see also Mlaula vs Marine and Trade Insurance Co,
1978 (I) S.A. 401 E).
the present case as I have already mentioned there would be
irreparable prejudice if the Defendants were allowed to introduce new
documents at this stage. The introduction of these documents will
mean the trial will have to be started afresh. The two statements go
to the root of the matter. All in all in this regard I agree with the
submissions made by Mr. Maziya for the Plaintiff.
follows therefore from the afore-going that there is no proper
application before the court and the application ought to be
dismissed, and it is so ordered.
issue of costs to stand over for arguments by the parties.