IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CIV. APPL. NO 1778/09
In the matter between:
MKHONDVO AARON MASEKO Applicant
And
THE COMMISSIONER OF POLICE 1st Respondent
THE ATTORNEY-GENERAL 2nd Respondent
Date of hearing: 01 December, 2010
Date of judgment: 17 January, 2011
Mr. Attorney O.J. Nzima for the Applicant
Mr. Attorney B. Tsabedze for the Respondents
J U D G M E N T
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Civil Practice - Urgent application for a mandament van spolie. Requirements to be met by applicant for such relief. Non-joinder of a necessary party and proper order to be issued if a necessary party is not joined. Need for all parties to abide by the dictates of the rule of law and how taking of the law into their own hands by police negates the rule of law. Need for attorneys to promote their duty to the Court. Exemplary costs on the punitive scale. Result – application granted with costs on punitive scale.
MASUKU J.
[1] This is an opposed application for the grant of a mandament van spolie. It was brought to Court under a certificate of urgency.
[2] The applicant claims that the charges of the 1st respondent based at Pigg’s Peak police station and led by the Desk Officer, one Mbazo Dlamini, came to his home at Sihhoye on 25 May, 2009 and there seized and removed 32 herd of his cattle from his kraal. As a result, he seeks the return of the aforesaid cattle accompanied by a punitive order for costs.
[3] It is trite law that for an applicant to be granted relief in terms of the above mandament, he or she must satisfy two requirements ad seriatim; namely that (i) he or she was in possession of the property forming the subject matter of the application and (ii) that he or she was despoiled or illicitly ousted from the possession of the said property without an Order of Court. See Magalela Ngwenya v National Agricultural Marketing Board Case No. 1977/01; Nino-Bonino v de Lange 1906 T.S. 120 at 122; Zulu v Ministry of Works, KwaZulu Natal and Others 1992 (1) S.A. 181 (D); Daniel Didabantu Khumalo v Mafelenkhosini Khumalo and Another Case No. 4004/00.
[4] The facts giving rise to the present application are pretty straightforward and have been foreshadowed in the contents of paragraph [2] above. The applicant claims that he is a resident of Sihhoye area in the Hhohho District. During the morning of 25 May, 2009, the police, fully armed to the teeth, came to his home and there removed 32 herd of cattle from his kraal. They claimed that these cattle were stolen and belong to His Majesty the King. The cattle were loaded in some trucks and taken away. It is the applicant’s case that he was not served with or shown an Order of Court authorizing the removal of the cattle in question by the police officers. There are other facts which are pertinent but which I intend to narrate at the appropriate juncture.
[5] Although the respondents have pleaded over on the merits, they have at the same time raised a point of law in limine, namely, the non-joinder of one Macaleni Dlamini, whom they claim is the actual person who removed the cattle in question from the applicant’s home. They allege that the police were present there for one and one purpose only – to maintain law and order during the removal process.
[6] It is this point of law that I am enjoined to deal with in the first instance, save to necessarily state that the respondents claim that the said Macaleni is a necessary party in the sense that the Order of Court, which may be issued cannot be carried out successfully because it affects Macaleni or his interests. The respondents, it must be added, have applied for the application to be dismissed for non-joinder as they see it.
Non-joinder
[7] The learned authors Herbstein and van Winsen, The Civil Practice of the Supreme Court of South Africa, 4th ed, 1997, at page 170 state as follows regarding joinder of parties:
“If a third party has, or may have, a direct and substantial interest in any order the court might make in proceedings or if such order cannot be sustained or carried into effect without prejudicing that party, he is a necessary party and should be joined in the proceedings, unless the court is satisfied that he has waived his right to be joined. Such person is entitled to demand as of right that he be joined as a party and cannot be required to establish in addition that it is equitable or convenient that he should be joined as a party. In fact, when he is a necessary party in this sense the court will not deal with the issues without a joinder being effected, and no question of discretion or convenience arises. As an alternative to joinder, the court may order that judicial notice of the proceedings be served on the party and will then be prepared to proceed in the absence of the party if, in response to the notice, there is clear evidence of waiver by the party of his right to join the proceedings.” (Emphasis added).
[8] The learned author and Judge, L.T.C. Harms, Civil Procedure In The Supreme Court, 10th Issue (July 1995) Butterworths, after analysing joinder as plaintiff and joinder as defendant, opines the following about when joinder is necessary:
“If a party has a direct and substantial interest in any order the court might make in proceedings, or if such order cannot be sustained or carried into effect without prejudicing that party, he is a necessary party and should be joined in the proceedings unless the court is satisfied that he has waived his right to be joined. Citing with approval the cases of Standard General Insurance Co LTD vs Gutman 1981(2) SA 426 (c), Dunlop SA LTD vs Metal & Allied Workers Union 1985 (1) SA 177 (D). Where the party is a necessary party, the court will not deal with the issues until joinder has been effected.”
The writer continues:-
“The term ‘direct and substantial interest’ means an interest in the right which is the subject-matter of the litigation and not merely a financial interest which is only an indirect interest in the litigation.” See Henri Viljoen (Pty) Ltd vs Awerbuch Bros 1953 (2) SA 151 (O) andAwamp vs Nel N.O. 1991 (1) SA 220 (O) @ 233.
[9] The question for determination, in the circumstances is whether the Court should, in the event it finds that a necessary party in the sense described above, has not been joined, dismiss the application for the reason of the non-joinder. The respondents contended that that is the proper course. In relation to the issue of joinder as of necessity, the Court was referred to the following judgments:- Sabelo Mduduzi Masuku N.O. v Meridien Recoveries (Pty) Ltd Appeal Case No. 24/00; Sikhatsi Dlamini and Ten Others In Re: Municipal Council of Mbabane And Three Others v The Chairman of the Commission of Enquiry into the Operations of the Municipal Council Of Mbabane And Two Others Case No. 1356/08; Mfomfo Nkambule v The Government of Swaziland And Two Others Case No. 1956/06 and to Martin Gordon v Department of Health: KwaZulu-Natal Case No. 337/03, a judgment of the Supreme Court of Appeal of South Africa.
[10] All the above cases, including the Gordon judgment, in my view correctly establish the principles that are applicable in matters of joinder as of necessity. They endorse the principles as quoted from Herbstein and Harms (op cit). The only point of departure, it would seem to me, and which does not appear to have been authoritatively decided in the authorities I have consulted, is what order should follow in cases where the Court is of the view that a necessary party has not been joined.
[11] Regrettably, in the above local cases, this Court issued two different orders on the above question. In the Mfomfo Nkambule case, the Court dismissed the application for non-joinder whereas in the Sikhatsi Dlamini case, the Court afforded the applicants therein an opportunity to serve the relevant parties with the originating papers and to file their own papers if so advised. I further note necessarily that from a close reading of both judgments, the proper order to follow in that event, does not appear to have been argued or considered in any depth in both cases.
[12] I am inclined to the view that the Court should ordinarily not dismiss the proceedings in the event it finds that a necessary party has not been joined. What the Court ought to do in my opinion, unless it is properly satisfied that the said party has waived its right to be joined, is to stay the proceedings or order that the said party be joined and that the notice of the proceedings is properly brought to the attention of such a party. In that event, the Court would not proceed with the matter but would postpone or stay the same and make an appropriate order as to the costs which have been occasioned by the postponement or stay, necessitated by the non-joinder.
[13] A cue as to the proper order to grant in circumstances where a necessary party has not been joined is to be found in the works of Herbstein (supra) at page 187, where the learned authors state that the defence of non-joinder or misjoinder “being merely dilatory, must be taken initio litis before issue is joined. . . Where such a plea is upheld the action is not dismissed but is stayed until the proper party has been joined.” (Emphasis added).
[14] I need to point out that although the above quoted authors were dealing with action proceedings, there is no reason in law, logic or common sense why this position should not apply as well to application proceedings such as the present one. In any event, it is clear from the provisions of Rule 6 (27) that the provisions mentioned therein, i.e. Rules 10, 11 and 12 (which include that relating to joinder), apply mutatis mutandis to application proceedings. For that reason, it would stand to reason that the interpretation given thereto in respect of action proceedings should likewise apply mutatis mutandis to application proceedings as well.
[15] The decision to order a dismissal of the proceedings pursuant to non-joinder, it would appear to me, with respect, to be harsh in the extreme. I say so for the reason that the policy of the Court ought, as far as possible, to ensure that its interlocutory orders conduce to a speedy, fair, cheap and effective disposal of cases before it on the merits. In the event that a postponement is granted it would seem to me, none of the parties suffer unjustly as the necessary party will be ordered to be so joined and the matter proceeds most likely on the same papers.
[16] A dismissal, on the other hand, heralds more serious consequences. In that event, the erring party has to launch new proceedings altogether and serving same on all the affected parties. Furthermore, the erring party will invariably be mulcted with an adverse costs order as a result of the dismissal as opposed to wasted costs. Dismissal of the application with the concomitant adverse costs order is in any event onerous and one that may tend to discourage the guilty party in respect of the non-joinder when that party may otherwise have a legitimate right to vindicate its rights.
[17] I need not deal exhaustively with this point more than I already have in any event in the light of the approach taken by the applicant in the present matter. The first thing that the applicant points out is that Macaleni, even if he had not been personally cited as a party or served with the papers, did become aware of the proceedings. This is eminently correct. I say so for the reason that Macaleni did depose to a supporting affidavit on behalf of the respondents. Secondly, if he was of the view that he is a necessary party; was not cited nor served with the proceedings but would be prejudiced by the order likely to be made, he has a right in terms of the law to intervene and seek to be joined in the proceedings as a party in terms of Rule 12, which he did not do. See also Dumisa Sugar Corporation v Attorney-General And Two Others Civ. Case No. 867/97, per Dunn J.
[18] It is clear that although he was aware of the proceedings and that he would, on the submissions made, be affected by the order the Court was likely to make, he did not, as indicated above, seek to intervene in the proceedings. As further stated above, he in fact filed an affidavit in which he spelt out his role in this debacle and generally made common cause with the respondents, claiming in part on his own account, that this Court has no jurisdiction to deal with this matter because the issue in contention relates to the office of the Ingwenyama. The latter point was not pursued in argument and I shall not for that reason deal with it, save to point out that the matter at hand is a legal matter within the Court’s common law and constitutional jurisdiction and competence as envisaged in section 140 (2) of the Constitution of Swaziland dealing with judicial power in Swaziland.
[19] A party who is aware of proceedings in which he contends he is a necessary party cannot, in my view, effectively participate in the same, with full knowledge of the proceedings and the rights and interests that will or are likely to be affected thereby; file affidavits on the merits therein; seek that the application be dismissed with costs and at the same time, particularly with the same voice, claim that the application is bad because he was not served or cited in the proceedings. This is further compounded if he, in view of the information at his disposal, does not intervene in the proceedings as a party. Were the Court to give in to the ambivalent entreaties of such a party, it would, in my view, be taking a highly fastidious approach which unnecessarily runs up costs without seeking in any meaningful way to bring the proceedings to finality in a cheap, speedy, effective and less cumbersome manner.
[20] I should also mention that the applicant, in response to Macaleni’s affidavit, denies that Macaleni was ever present during the removal process. He depones that only the police were present and that no person known as Macaleni was or introduced himself. He states that he saw Mbazo and the police officers removing the cattle from his kraal. This therefore raises a dispute of fact which cannot, for obvious reasons, be decided on the papers, save to say that the applicant’s version would, if proved, show that he did not intentionally or negligently run roughshod over Macaleni’s rights (if any), by not joining him as a party. I need not deal with the dispute for reasons to which I move presently.
[21] Mr. Nzima, learned Counsel for the applicant, pertinently drew to the Court’s attention another related matter, which was a sequel to the present proceedings. The parties therein were Joseph Mandla Dlamini And Others v Almon Msibi And Three Others Case No. 2533/09. In that case, Dlamini, a deputy sheriff of this Court, serving as such in the Shiselweni District, moved an application for contempt of Court against the respondents therein for the reason that in response to this present application, this Court, per Mr. Justice S.B. Maphalala, on 26 May, 2009, authorized the deputy sheriff for Shiselweni, on an interim basis, pending the return date of a rule nisi, to seize and attach the cattle previously seized by the police from the applicant’s home.
[22] It is common cause on the papers that the deputy sheriff went to execute the Order and seized the cattle at Khubutha, where they were kept. On the way back, the respondents, being officers from Hlathikhulu police station, intercepted the cattle and took them away from the deputy sheriff’s lawful possession. I must not, by reference to this matter, be understood to be making judgment regarding the merits of that matter. Those have not been argued in so far as I am aware.
[23] The importance of this case is that from the papers filed by the respondents therein, it is clear that they do not contest the fact that they stopped the Deputy Sheriff from fully executing the Court Order and that they took the cattle from the Deputy Sheriff. It is clear for that reason and I say this as an alternative to my earlier conclusion, that Macaleni was not a necessary party and that it was the Commissioner of Police, as head of all police officers, who was responsible for the removal of the cattle and ultimately for the failure to fully execute the terms of the Court order issued.
[24] This action, it is also not questioned on the papers, was done in the scope of and during the course of duty. For that reason, I am of the considered view that Macaleni is not a necessary party as the cattle were in the final analysis seized and taken by the police. For that reason and those stated earlier, the point relating to non-joinder be and is hereby dismissed.
[25] It must be recalled in any event that the present proceedings are not about the ownership of the cattle in question and where the issue of interest is likely to loom large. For the cattle to be returned by the police who took them, Macaleni need not be joined. The present issue is about the return of the cattle ante omnia and the question of whether the applicant is or is not the owner of the cattle is a matter for another day. What is clear on the papers is that the police took the cattle in question without an order of Court as will be apparent in the course of this judgment.
Requirements for a mandament van spolie
[26] I now turn to deal with the question whether the applicant has succeeded in satisfying the requirements for obtaining the relief he seeks. In this regard, I will deal with the first requirement i.e. that of possession. It is not, on the papers disputed that the applicant was in possession of the cattle mentioned in the notice of motion. From the uncontested evidence, these cattle were, at the time of their removal, kept at and by the applicant at his aforesaid homestead, particularly in his kraal. For that reason, it becomes clear that the element of possession has been ineluctably proved and I hold same for a fact. Any other conclusion would be perverse in the extreme.
[27] Regarding the issue of whether the respondents had an order of Court which authorized them to take possession of the cattle in question, it is clear from the affidavits that the respondents had no such order. What the respondents do contend though is that the cattle in the respondent’s kraal and which they seized belonged to the King and that these cattle had been stolen by the applicant and “his friends”. The identity of these friends who allegedly participated in the theft alleged is not disclosed to the Court, I must perforce mention.
[28] The respondents further rely on a letter that is attributed to the Chief Officer at the King’s Office. Since the respondents purport in the main, to derive their authority to remove the said cattle from the contents of this letter, it would be desirable to quote its contents in full. It reads as follows:
THE KING’S OFFICE
P.O. Box 1
Kwaluseni
Kingdom of Swaziland
7th March, 2009
Chief Madzanga Ndwandwe
Bulandzeni
Dear Sir,
I have been commanded by His Majesty King Mswati III to inform you that you hand over all his cattle that are at Bulandzeni some of which are with Mkhondvo Maseko and Aaron Zulu. The cattle will be fetched by Libandla letinkhomo, which is led by Macaleni Dlamini and Samson Nkwanyana together with Royal Swaziland Police members.
The cattle will be taken to Khubutha Tibiyo. The said cattle were removed from kaGeorge Farm by Maseko, Zulu and others.
Thanking you in advance.
Yours faithfully,
Bhekie R. Dlamini
Chief Office(Sic)
[29] Before I can deal with the contents of this letter and to determine whether it possessed and therefor conferred on the respondents the requisite authority for the removal of the cattle in question from the applicant’s kraal, it is important to note that the letter stated in very clear terms that the police would be involved in the removal exercise, together with the two gentlemen mentioned, namely, Dlamini and Nkwanyana.
[30] The letter did not, as the respondents appear to state, confine the police to the peripheral role of maintaining peace during the removal process. Indeed the letter appears to lend credence to the very case made by the applicant of the active role of the police in the removal process. It would appear to me that the applicant’s version must be believed on a preponderance of probability for it has support from the very documents filed by the respondents themselves.
[31] I should also pertinently observe that if the letter was lawful authority for the removal of the cattle, an issue I advert to shortly, the said letter did not identify and describe the cattle or the number of them that were in the applicant’s illegal or tainted possession, in order for the respondents to specifically remove same. The letter had enormous consequences for the applicant and if it was purported that the said letter constituted authority for the said removal, it was necessary for the contents of the letter to be strictly construed and for it to have set out in clear terms the full description of the cattle to be removed and their number in order to enable the applicant to know that those executing the “removal order” did not act beyond the scope of their authority. In that event, the applicant would have had to be given a copy of the removal letter with the original letter having been exhibited to him.
[32] Can the above letter properly serve as an order of Court or an equivalent, such as to entitle the respondents to act in the way they did? If indeed the position is that the cattle in the possession of the said individuals belonged to His Majesty the King as alleged, and were taken unlawfully by the applicant and his “friends” as further alleged, why was the due process of the law not followed in the recovery of the cattle?
[33] The cattle, it is clear from the papers, were not seized as exhibits in terms of section 52 of the Criminal Procedure and Evidence Act, 1938, as amended, in contemplation of instituting criminal proceedings nor were any civil proceedings, it would appear, contemplated or instituted for the recovery of the cattle. The removal, it would appear was a final end in and of itself. It was not a precautionary move in anticipation of an end. In any event, even if it were to be precautionary, it is my considered view that it would have had to be done lawfully and there are available remedies at law that would lawfully and adequately serve to preserve interests of persons in Macaleni’s position in the interregnum.
[34] I do note that in the answering affidavit, the respondents alleged that there were some cattle that were stolen and which it is alleged belonged to His Majesty the King. A list of some cattle and the suspects was compiled and it would appear that some people, including the applicant were charged with the theft of some of the cattle mentioned therein. No conviction appears to have been returned in respect of those cattle, which I must necessarily point out, have on the papers before Court, no or sufficient bearing on the cattle which are the subject matter of the current proceedings. Furthermore, there was no Court order issued pursuant to criminal proceedings disposing of the said cattle to Macaleni, Nkwanyana or the indeed the police even on an interim basis, if it is sought to be argued that those cattle are the ones removed from the applicant and there is no evidence that they are.
[35] It is also unacceptable for the respondents to boldly and definitively proclaim that the said cattle were “stolen” by the applicant and others in the absence of a properly returned certitude of guilt and one properly returned by a competent Court of law. This is particularly so in view of the presumption of innocence enshrined in section 21 of the Constitution of Swaziland.
[36] In reply to the applicant’s assertion that he was in peaceful and undisturbed possession of the cattle in question, the respondents merely recorded a bare denial and purported to rely for their aforestated action, on the letter from the King’s Office. I am of the firm view and conviction that the said letter from the King’s Office, an office for which this Court has utmost reverence, is not and cannot be the lawful basis for carrying out the acts that the respondents did. Theirs was a clear unlawful act carried out in the absence of an order of Court and without having followed the due process of the law, which is a prerequisite in this day and age, particularly since the advent of the Constitution. The putative defence of superior orders to conduct what is clearly an unlawful and anarchical crusade cannot avail the respondents.
[37] It would be a sad day for this Kingdom if acts like those perpetrated by the respondents, particularly carried out by the force of arms and not the law, would be countenanced because people in this country would thereby informed that they have no security whatsoever over their property and which property can be literally plundered from them at any time using the agencies of the State, purportedly based merely on a letter, without the full sanction of the law. This would be certain to do this country’s image as a possible destination for investors, a shattering blow. It is accordingly clear to me that the actions by the respondents are nothing less than the brazen and unlawful action of taking the law into their own hands which cannot and should not be allowed, whatever the circumstances alleged or real may be.
[38] What is particularly disturbing is that police officers, who are expected to be enforcers of the law, were party, if not directly involved in the perpetration of the illegal acts. This is to be deprecated and condemned in the strongest possible terms. Police officers cannot and should not under any circumstance, take any action which is not sanctioned by law. Theirs is to act professionally at all times and to act in a manner that is consistent with the rule of law about which so much has been said, seen and experienced in this Kingdom. There is certainly no need and there should be no desire on any sane person’s part, to revert to the situation that prevailed in this Kingdom from November, 2002, where the rule of law and the authority of the Courts was unabashedly denigrated, the effects of which are well documented in judgments of this and the then Court of Appeal.
[39] In short, the answer that I am bound to return in this connection is that the letter from the King’s Office is not and cannot be an order of Court nor did it, from its contents purport to be. What it directed to be done in respect of the applicant’s cattle, was to carry out illegal acts which are not sanctioned by the law, particularly as in this case where the applicant clearly denies that the cattle in question belong to His Majesty, an issue that need not even be delved into at this stage in view of the evident self-help perpetrated by the respondents.
[40] If the respondents or Macaleni did have evidence or proof that the cattle indeed belonged to the King, they ought to have sought a necessary order from a competent Court for the removal of the cattle, allowing the applicant, if so advised, to challenge same. In my considered view, and I say this with respect, the King’s Office, like all other institutions in this Kingdom, is governed by the rule of law and cannot do or authorize others to act in contravention of the law, whether the Constitution, legislation or the common law.
[41] This office is particularly prone to close scrutiny in respect of its actions and utterances for the reason that it works very closely with and can be considered as His Majesty’s hands, feet and in some cases, his mouth-piece. Any illegal actions it takes or irresponsible utterances it makes may be imputed to and have adverse consequences for the institution of the Monarchy, which should at all times be above reproach and not associated with any illegal, dishonourable or opprobrious act. It should be a model and epitome of sagacious, judicious, lawful and exemplary behaviour.
[42] It would indeed be surprising if His Majesty would have directed as alleged that the applicant’s cattle should be seized at all and as it was, under the barrel of the gun without any due process of the law. I say so considering His Majesty’s public remarks, of which this Court can take judicial notice, such as during the recent opening of the Hluti Magistrate’s Court and the police station on or about 28 September, 2010, where he stated unequivocally in the presence of inter alia:the Judiciary, Executive, Parliamentarians and the police that the Swazi people must avoid taking the law into their own hands. The actions of the police and Macaleni in this context, are in direct contradiction to His Majesty’s directive to the people of Swaziland and it would be hard to imagine let alone accept and thus incomprehensible that His Majesty could conceivably speak with a forked tongue, saying one thing to his people and then authorizing his officers to do the opposite. I reject this notion as totally inaccurate and wrong, and which cannot be properly apportioned to the venerated office of His Majesty.
[43] I should, however, mention that if the allegations that there are some people, including the applicant, who steal or have stolen His Majesty’s cattle, that is an unfortunate and callous transgression that should be nipped from the bud. This Court cannot stand by and condone the purloining of any property. It will use its machinery to punish those properly adjudged to have caused an infraction of the law. No sane Swazi should involve him or herself in theft of property, let alone that which belongs to His Majesty.
[44] If, however, such an act is done or suspected to have been committed on reasonable grounds, it is only proper that the ordinary dictates of the law should be followed and to the letter. It sets an ugly spectacle and example for the King’s Office to be seen acting contrary to or in oblivion of the law that sets it up and which underpins and cements the very fibre of this Nation. If such behaviour is allowed to take root, this grandiose edifice will, like a house of cards fall to the ground, dragging His Majesty’s name in that painful and embarrassing episode. This is an eventuality we can ill-afford and hence need to avoid like a plague.
[45] It will be seen that the relief sought by the applicant is special and far-reaching in that it does not allow the Court to investigate the respective cases of the parties, particularly that of the respondent. Once it is established that the applicant was in possession of the property in issue and which possession was undisturbed and that he was ousted from that possession illicitly, then cadit quaestio - the order for restoration of the despoiled property follows without further enquiries.
[46] Before I deal with the issue of costs, I must caution those in charge of Government and other institutions of note about the deleterious consequences of taking the law into one’s own hands has on the moral and legal fibre and body politic of this nation. This must be avoided at all costs, regardless of whatever perceived transient exigencies or conveniences of the moment may subjectively appear to warrant. I say so because the results may be irreversible and grave. This is particularly an issue of concern where a government ministry or department or for that matter an office like the King’s Office is at the fore of such illegal action. In this regard, I quote from the wise injunctions that were powerfully delivered by Mr. Justice Brandeis of the United States in Olmstead v The United States 227 US 438 (1928).
[47] In that case, the learned Justice said:
“Our government is the potent, the omnipotent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a law-breaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of criminal law the end justifies the means – to declare that the government may commit crimes in order to secure a conviction of a private criminal – would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.”
I do hope that the above words will not fall on thorny ground or along the wayside, but will take root and be taken in the most serious light so as to guide the policy and behaviour of Government and its operatives, national offices and all other institutions, and by extension, the entire populace. Furthermore, it must be made manifest that this Court will “resolutely set its face” against such unwarranted behaviour, as it should.
[48] I now turn to the issue of costs. The applicant has prayed for the award of costs on the attorney and client scale. The proper cases in which such an award can be made has been the subject in Stanlib (Pty) Ltd And Others v Sibandze [2010] SZSC 20 (Appeal No. 65/2009, where Moore J.A., after a careful analysis of the applicable principles referred to a judgment by the legendary Holmes J.A. in Ward v Sulzer 1973 J 701 (A).
[49] In dealing with the proper cases in which such costs should be awarded, the learned Judge of Appeal, in further reference to the Ward case, said at paragraph 35 of the electronic judgment:
“He (Holmes J.A.) set out in extenso the excerpt from the judgment of the court a quo which he described as the trenchant denunciation of the conduct of the appellant which was so egregious as to warrant the award of costs to be paid on the attorney-and-client scale. I reproduce this judgment because it describes the kind of conduct which warrants a punitive costs award. I do so because of late, unmeritorious demands for punitive costs orders have been made in the most trifling circumstances as if such orders should be granted as a matter of course.”
In conclusion on the subject, the learned Judge of Appeal quoted from Herbstein (supra) where the learned author described circumstances in which such an award can be granted as being where the conduct of the respondent has been deplorable and highly contemptuous of the judgment.
[50] Epithets which meet the criterion, although they by no means claim to be exhaustive, include vexatious, unscrupulous, dilatory, mendacious conduct and which render it unfair for the harassed opponent to be out of pocket in the matter of his own attorney-client costs.
[51] It will be seen that Courts have traditionally awarded such a punitive order for costs in matters of spoliation for the reason that such conduct, if proved, amounts to self-help and which bodes ill for the lawful and orderly conduct of affairs in society and which has the ugly potential to bring the society back to the state of nature or the survival of the fittest, where the law plays no part but the muscular and the armed have their way. This cannot be. There is no reason why any different Order should issue in this matter, particularly considering that the culprits in the instant matter are those who are charged with ensuring that members of the public act properly in terms of the law. Where they act in contravention of the ideals which they are to promote and safe-guard, great and exemplary must be their punishment. A punitive costs order reflects the Court’s disapproval and disdain of such conduct.
[52] I also find myself in duty bound as I close, to comment adversely on the conduct of the Respondents’ representatives in this and a few other cases that have come before me in recent months. I have noted of late that there has developed a tendency from the Law Office to prosecute in defence of the Government and its other clients, in some cases the indefensible. It would appear that some Crown Counsel have relegated their duty to Court below that which they owe to their client.
[53] Faced with an inevitable barrage of questions from the Court, in view of the hopeless cases they sometimes prosecute, they do not and cannot have the courage to stand by their papers and they wimp out and capitulate, showing that they have never had the belief in the sustainability and plausibility of their clients’ case from inception and that they were merely going through the motions, possibly to please or even appease the client. This is to be deprecated, coming as it does, from the office of the first among equals in the ranks of legal practitioners in this Kingdom.
[54] This approach unfortunately serves to embarrass the particular Crown Counsel in the eyes of the Court and lowers her or him in the Court’s estimation in so far as appropriate ethical behaviour is concerned. More importantly, it also has the potential to expose the taxpayer to costs or in other cases punitive scales of costs which could, with prudence, shrewdness and/or legal sagacity, have been avoided or at the least mitigated.
[55] The impression that one gathers from the aforesaid conduct of the Law Office in this regard, is that some of the lawyers in that office are bent on transferring the blame from themselves in properly advising their clients and saying that if there is any blame the client or other interested persons heaps for the result, it will be at the door step of the Court, far from the “hallowed” chambers of the Law Office. This impression, if accurate is very worrying and needs to be attended to and quickly.
[56] In this regard, I quote the following words that were uttered in Barlow Rand Ltd v Lebos And Another 1985 (4) S.A. 341 (T.P.D.) at 347-8:-
“The duty on the part of an attorney is not a servile thing; he is not bound to do whatever his client wishes him to do. However much an act or transaction may be to the advantage, profit or interests of a client, if it is tainted with fraud or is mean, or in any way dishonourable, the attorney should be no party to it. . .The law exacts from an attorney uberrima fides – that is, the highest possible degree of good faith. He must manifest in all business matters an inflexible regard for the truth. There must be meticulous accountancy, a minute high sense of honour and incorrigible integrity. . . He must not act in a case that he knows from the beginning to be unjust and unfounded. He must abandon it at once if it appears to him to be such during its progress.” (Emphasis added).
The above remarks apply mutatis mutandis to attorneys in the public service and should be taken note of. Whilst the Court cannot prescribe that Crown Counsel should act or not act in any matter, the prosecution of indefensible matters becomes a cause for concern to the Court, particularly where the Court’s questions draw a furrowed brow from Counsel and he or she starts over-heating right from inception of argument, showing that he does not believe in that case and becomes of no assistance to the Court in presenting any useful argument thereon.
[57] In the result, I am of the view that the following order is competent in the instant matter:
57.1The 1st Respondent be and is hereby ordered and directed to return forthwith to the Applicant herein possession of the thirty-two herd of cattle seized from his home at Sihhoye on 25 May, 2009, together with their progeny, if any.
57.2The 1st Respondent be and is hereby ordered to pay costs of this application on the punitive scale of attorney-and client.
[58] I have, as justice clearly demands, granted the Applicant an additional but incidental prayer relating to progeny for the reason that the matter came to Court, as earlier stated, via a certificate of urgency some 19 months ago and has not been heard, it would appear, through no fault of the applicant’s. This lengthy period does not present a positive and comely picture regarding the speed of the wheels of justice in the disposal of urgent cases and only injustice may result from such inordinate delays. It is most likely that the passage of time has yielded some progeny which should lawfully accrue at this juncture at any rate, to the Applicant herein.
DELIVERED IN OPEN COURT IN MBABANE ON THIS THE 17th DAY OF JANUARY, 2011.
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T.S. MASUKU
JUSTICE OF THE HIGH COURT
Messrs. Nzima & Associates for the Applicant
Attorney-General’s Chambers for the Respondents
