IN THE HIGH COURT OF ESWATINI
Case No. 42/18
In the matter between:
SIPHO SHONGWE Applicant
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS Respondent
Neutral citation: Sipho Shongwe and The Director of Public Prosecutions [42/18] [2018] SZHC 119 (8th June, 2018)
Coram: FAKUDZE, J
Heard: 4th and 7th June, 2018
Delivered: 8th June, 2018
RULING ON POINT OF LAW
[1] On the 22nd May, 2018 the Applicant filed an Application on a certificate of urgency seeking the following:-
(a) That the Respondent’s Notice of Appeal filed on 6th April, 2018 under Supreme Court Case No. 5/2018 attached hereto and marked “SS1” be set aside as the judgment appealed against was never issued and no appeal lies against a non-existent judgment and therefore the Notice constitutes a nullity;
(b) That the Respondent’s Leave to Appeal filed on 6th April, 2018 under Supreme Court Case No. 5/2018 attached hereto and marked “SS2” be set aside as the leave to appeal has no prospects of success but merely a delaying tactic by the Respondent and therefore the Notice constitutes a nullity.
ALTERNATIVELY:
That leave be granted to allow the ex-tempore judgment of the above Honourable Court delivered on the 6th April, 2018 under the above High Court Case No. 42/2018 to be carried into operation and effect and to be executed and the bail application be proceeded with and finalised pending the appeals filed by the Respondent.
(c) Costs of suit including the costs of counsel as certified in accordance with High Court Rule 68 (2), such costs to be punitive costs on the scale as between attorney and own client; and
(d) Granting further and/or alternative relief.
[2] The Respondent filed an Answering Affidavit in which it also raised a point of law to the effect that this court is now functus officio by virtue of the fact that the Ruling of 6th April, 2018 has been appealed against.
[3] This court has been called upon to decide this point of law before it deals with the merits of the Application.
RESPONDENT’S ARGUMENT
[4] The Respondent states that this court is now functus officio and as such, it cannot set aside a matter that is pending before a Superior Court. It is further submitted by the Respondent that this court made a factual finding in the main application, where it had no jurisdiction. This caused the Respondent to file the Notice of Appeal in the Supreme Court under case No. 5/2018.
[5] The Respondent submits that the above mentioned court made a specific finding that the Respondent had failed to prove that the Applicant was fraudulently released from Barberton Maximum Centre. It is therefore not open to the same court to set aside its own finding. The Supreme Court case of Maxwell Mancoba Dlamini and Another V Rex, Supreme Court Case No. 14/2014 was quoted in support of the Respondent’s argument. The Supreme Court Case of Sibusiso Bonginkosi Shongwe V Rex, Criminal Appeal No. 91/15 was also referred to.
APPLICANT’S ARGUMENT
[6] The Applicant, in reply to the point of law, states that throughout the Answering Affidavit, the Respondent contends that the order cannot be executed as the High Court is now functus officio. The Application is still pending before the High Court. The High Court is still yet to hear arguments on the bail application.
[7] The Applicant further states that the Maxwell Dlamini and the Sibusiso Bonginkosi Shongwe cases are different from the present case because they deal with concluded bail applications. All that the Applicant is seeking is leave to execute the Ruling of the 6th April, 2018 so as to enable the bail Application to be continued and all the aspects of it to be considered.
ISSUE FOR DETERMINATION
[8] The issue for determination is the effect of noting an Appeal. This issue was dealt with in the case of Msimisi Dlamini V Prince Mahlaba Dlamini and Others, High Court Case No. 660/2012 where His Lordship Hlophe J. observed at paragraph 7 as follows:-
“[7] The Applicant reacted to this latter Order or Judgment by noting an Appeal to the Supreme Court. It having been noted, this appeal is pending before the Supreme Court and I am of the view that there is little this court can do about it irrespective of what its merits or demerits are. Of course the position can only change if the First Respondent were to file an Application to execute the judgment or court order notwithstanding the Appeal noted. Short of this, this court cannot do much where there is noted an appeal as the merits or de- merits of it including its propriety can only be dealt with by the Supreme Court.”
[9] I am persuaded to follow the reasoning in the Msimisi (Supra) on the effect of noting an Appeal for purposes of determining this Application. The bail application pending before the High Court can wait for the decision or finding of the Supreme Court. The same applies to the alternative prayer seeking leave to execute the Ruling of the High Court pending Appeal. According to the Applicant, the execution pending appeal will have the effect of continuing the pending bail Application in the High Court. I am of the humble view that whatever the Supreme Court rules on appeal will have a bearing on the entire bail application.
[10] I have also taken into account the fact that the Appeal challenges the jurisdiction of the High Court to probe the issue of the extradition. The point of law in the Appeal is premised on the fact that the court should not have at all enquired into the circumstances surrounding the release of the Applicant. The net effect, according to the Respondent, is that the whole process was a nullity including the Ruling by the Learned Judge.
[11] I therefore order that the High Court matter should wait for the determination of the Appeal noted by the Respondent and it is so ordered.
____________________
M.R. FAKUDZE
JUDGE OF THE HIGH COURT
APPLICANT: S. MNISI
RESPONDENT: A. MAKHANYA
