IN THE HIGH COURT OF SWAZILAND
Civil Case No. 241/2017
In the matter between
MDUDUZI GIFT BUTHELEZI 1ST APPLICANT
ALPHA INNOVATIVE SOLUTIONS (PTY) LTD 2ND APPLICANT
BHEKITHEMBA DLAMINI 1ST RESPONDENT
STANDARD BANK SWAZILAND LIMITED
VEHICHLE ASSET FINANCE 2ND RESPONDENT
NATIONAL COMMISSIONER OF POLICE 3RD RESPONDENT
THE ATTORNEY GENERAL 4TH RESPONDENT
Neutral citation: Mduduzi Gift Buthelezi and Another v Bhekithemba Dlamini and 3 Others (241/2017)  SZHC 200 (28 September 2017)
Coram: MAMBA J
Heard: 14 July 2017
Delivered: 28 September 2017
 Civil law and Procedure – Appeals – a court decision or ruling which does not decisively settle the real dispute between the parties is generally non appealable.
 Practice and Procedure – two appeals filed before the same court on the same issue and same case and heard separately. Second appeal irregular – court may not revisit its own decision.
 This is an appeal against a decision of the Mbabane Magistrate’s Court. In the notice of Appeal, the Appellants state their grounds of appeal as follows:
The court a quo
1. ---erred in law and in fact in holding that the matter was not urgent and that the Appellants had failed to show explicitly the circumstances that render the matter urgent.
2. ---erred in law and in fact in holding that the First Respondent had acted lawfully and that the execution of the order (interim order) was legal.
3. ---misdirected itself in eschewing the determination of the validity of the appointing instrument filed of record by the 1st Respondent. The determination of the validity of the said instrument would have revealed that the 1st Respondent had no authority to execute the court process.’
I observe here that there are other two so-called grounds of appeal stated in the said notice, however, these points are in my judgment a mere amplification of the ground of appeal stated in 2 above. The central complaint by the Appellants is that the First Respondent had no authority to execute the interim order, and, the decision of the court a quo that he had such authority was erroneous. (This is of course apart from the issue of urgency stated under 1 above).
 By notice of motion dated the 20th day of January 2016, the appellants sought inter alia, the following orders in the court below:
‘1. Dispensing with the Rules of the Honourable Court as to time frames and manner of service and hearing the matter as one of urgency.
2. Ordering or compelling the 1st respondent to forthwith hand over the Applicants’ following vehicles: ---.’
 In support of prayer 3 above, the 1st Applicant stated that the motor vehicles in question were removed or attached from his custody and possession by the First Respondent at Mbabane on 30 December 2016. He stated that the First Respondent was ostensibly acting on the strength of a court order issued by the court a quo. The said court order authorised the messenger of that court to attach and seize the relevant motor vehicles. The First Appellant stated further that he was, however, advised on 19 January 2017 that the First Respondent was not a messenger of the said court and was therefore not entitled in law to execute the relevant court order. That was the nub or crux of the application.
 In response, the First Respondent stated that he was duly appointed as a messenger of the said court by the Late Senior Magistrate of the court on 12 March 2008 and further exhibited his letter of appointment (annexure BD1). The said letter of appointment simply states that the First Respondent is being appointed as ‘Acting Messenger of court to effect service of court process.’ It further notes that the Senior Magistrate was acting in terms of Section 10 (3) of The Magistrate’s Court Act 66 of 1938 (hereinafter referred to as the Act).
 Section 10 (3) of the Act provides as follows:
‘(3) If in any matter objection is made to the service or execution of process by the messenger or his deputy by reason of the interest of either of them in such matter or of the relation of either of them to a party to such matter or of any other good cause of challenge, or if by reason of the illness or absence of the messenger, it is necessary to appoint an acting messenger, the presiding officer may appoint a person so to act.’
Section 10 (1) of the Act authorises the Minister for Justice to appoint a messenger of court. The powers granted to a presiding officer to appoint an acting messenger of court are in respect of a particular or specified case where the substantive messenger is for whatever reason unable to act in that particular case. It is not a blanket or all-embracing authority. For this reason, I do not think that the said appointment by the late Learned Magistrate covered the case under consideration herein. I am of the view that it was ultra vires the powers granted to the said Magistrate inasmuch as or insofar as the appointment purported to grant the First Respondent unlimited or unfettered jurisdiction or authority to act as a messenger of the court.
 In dealing with the above objection, the court a quo ruled that it could not make a declaratory order that the First Respondent had not been lawfully appointed because there was no prayer by the applicants to this effect. It ruled that the court had not been asked to make such a declaration or finding and therefore could not rule thereon. (See page 60 of the Book of Pleadings).
 Whilst it is true that there was indeed no prayer for the said declaration, I do not think that the Learned trial Magistrate was correct in her assessment and determination of the issue before her. The reasoning and approach adopted by the court was, with respect, simplistic, casuistic and legally not sound. The approach was too technical and not geared to dispense justice between the litigants. It may have been in accordance with the strict letter of the law but definitely not in accordance with justice. In my judgment, the said declaration could have been at least granted under further and alternative relief. The averments in the Founding Affidavit fully supported such a prayer or relief.
 On the question of urgency, the Appellant stated that he had learnt of the First Respondent’s lack or want of authority to execute the court order on 19 January 2017 and had filed or launched the application on 20 January 2017. The Appellants stated that they had been unlawfully deprived of possession of the vehicles in question and this illicit deprivation needed to be urgently corrected by the court. Any unlawful act in my view deserves the court’s urgent attention or intervention. An act of spoliation is an apt example in this connection. The First Respondent stated as follows, in justifying the matter being brought on a certificate of urgency:
‘Prior to being unlawfully dispossessed of the motor vehicles by the First Respondent, I and the 2nd Applicant were in lawful possession of same, hence we have a right to restoration of possession which was taken from us unlawfully.
With each passing day the motor vehicles being in the possession of the First Respondent, the unlawful deprivation of possession of the motor vehicles is being perpetrated and continued. ---I am not aware of First Respondent’s financial standing and whether he is insured, hence I fear that should the motor vehicles be damaged e.g. by fire or storm or stolen, I may not be able to recover the value thereof from the First Respondent.’
 From the above, I am of the firm judgment that the Learned Magistrate was again in error in her ruling on the issue of urgency. The allegations by the applicants were sufficient to justify the matter being heard on an urgent basis.
 It would appear that the First Respondent was allowed to defend the main application after his interlocutory application had been dismissed. Following the final order of the court a quo, the 2nd Respondent successfully filed an appeal before this court. The judgment in that appeal was handed down on 31 May 2017 and is recorded as Standard Bank Swaziland Limited, Vehicles and Asset Finance v Mduduzi Gift Buthelezi & 4 Others (155/2017)  SZHC 90 (31 May 2017). That judgment is final.
 This court having pronounced itself on the issues in the said appeal, the present appeal by the Appellants herein was inappropriate or irregular. This court cannot revisit the dispute between the contending parties. In any event, the application by the Appellants in the court a quo was interlocutory in nature. It is therefore doubtful whether that ruling or decision is appealable.
 I have already discussed above the technical manner the court a quo treated or dealt with the appellants’ application and concluded that it was too formalistic and perhaps unrealistic too. Ironically, the appellants had, themselves approached the court or matter between them and the bank on a purely technical way or manner. They sought to score a technical but temporary victory based on the lack or want of authority by the First Respondent to execute the court order. The application did not address the real issue or merits of the application filed by the bank (2nd Respondent). The outcome was a technical one. This is testimony to the injunction that litigants should always endeavour to address real and meaningful issues between them rather than to score cheap and less than meaningful points against each other.
 The appeal was thus dismissed/struck-off the roll with costs.
FOR THE APPELLANTS: MESSRS NKOMONDZE ATTORNEYS
FOR THE SECOND RESPONDENT: MESSRS ROBINSON BERTRAM