IN THE HIGH COURT OF ESWATINI
Held at Mbabane Case No.: 25/2019
In the matter between
MESHACK MAKHUBU 1ST Applicant
SCHOOL COMMITTEE OF ENHLANGANISWENI
HIGH SCHOOL 2ND Applicat
REGIONAL EDUCATION OFFICER FOR
HHOHHO REGION 1st Respondent
THE ATTORNEY GENERAL 2nd Respondent
Neutral Citation: Meshack Makhubu & Another Vs Regional Education Officer for Hhohho Region & Another (25/2019)  SZHC 70 ( 11th April 2019)
Coram: Hlophe J.
For the Applicant: Mr L. Dlamini
For the Respondent: Mr S. Hlawe
Date Heard: 4th April 2019
Date Judgement Delivered: 11th April 2019
Application Proceedings – Leave to execute pending appeal – When relief granted – Whether the circumstances favour its grant.
 On the 1st March 2019 this court handed down a judgement in which it granted the reliefs sought by the applicant effectively setting aside a decision of the first Respondent terminating the applicant’s chairmanship and membership of the 2nd applicant school committee.
 Claiming to be dissatisfied with the said judgement, the Respondents noted an appeal to the Supreme Court. The effect of noting an appeal to a judgement of a court is settled in this jurisdiction. It automatically suspends execution of the Judgement. It is equally settled that a party who intends to execute the judgement notwithstanding the noted appeal, is required by law to apply to the court that issued the Judgement and there ask for leave to execute it pending the noted appeal. These positions have been covered in numerous judgments of this court and the Supreme Court such as :- Lindimpi Wilson Ntshangase and Others Vs Prince Tfohlongwane and Others Supreme Court of Appeal Case No. 01/2007; Msimisi Dlamini Vs Prince Mahlaba Dlamini and 3 Others High Court Case No.660/2012 as well as Ntombifuthi Phindile Dlamini and Another Vs Nondumiso Magongo High Court Civil Case No.396/2018.
 In an attempt to remove the suspension in the operation of the judgement which came with the noting of the appeal, the applicant instituted the current proceedings seeking an order of court allowing it leave to execute the judgement in question notwithstanding the appeal noted and pending its determination.
 The thrust of the applicant’s application is that the Respondent’s appeal has no merit and that it has been noted merely with the intention of ensuring that the applicant is prevented or delayed from enjoying the fruits of the Judgement issued in his favour. Alongside this contention, the applicant alleges how he was initially prevented from carrying out his mandate as an elected member and chairman of the 2nd Applicant in line with the judgement of this court only for that to be followed with a notice of appeal when he kept on insisting on performing his duties as the chairman of the School Committee.
 Although they did not file an answering affidavit, the Respondents raised points in limine which sought to show that the applicant was not entitled to the reliefs sought. Initially several points had been raised ex facie the Notice To Raise Points Of Law. It was clarified as a preliminary issue during the hearing that only three such points were being pursued. These are the following:- (i) The relief sought has a final and definitive effect (so much so that it could not be sought on an interim basis); (ii) The reliefs sought were incompetent to seek in a matter like the present and (iii) lastly, that the applicant had failed to meet the requirements of an application for leave to execute pending the hearing of an appeal.
 The point on there being no urgency in the proceedings was consciously abandoned by the Respondent’s Counsel who advised that given the stage we had since reached in the proceedings, that particular point was no longer being pursued. I can only say I could do no more than respect the decision of the Respondent’s Counsel in this regard as I believe it was taken in exercise of a professional discretion the applicant has in the conduct of matters. Otherwise my views no longer matter at this point.
A. The Relief Sought Has a Final and Definitive Effect (i.e. It Could Not Be Sought on an Interim Basis.)
 It was argued that the applicant was not entitled to the relief sought on an interim basis given that it had a final and definitive effect in its application. At prayers 2 and 3 of the notice of application or motion, the applicant had sought the following reliefs:-
“(2). Granting the applicant leave to execute the judgement in his favour granted by His Lordship Justice N.J. Hlophe on the 1st day of March 2019 in the above matter pending the hearing of the appeal noted by the Respondents against the same.
(3). Pending finalization of prayer 2 above that the Applicant be allowed to exercise his rights and execute his duties as chairman o the 2nd Applicant with interim and immediate effect.”
 Whereas prayer 2 as cited above seeks to be allowed to execute the judgement pending the outcome of the appeal, it is obvious that this is sought to happen after the current application would have been heard and determined in its merits. This however is not the same thing as that in prayer 3 of the application. Clearly this prayer seeks to have the main relief as set out in prayer 2 above, granted on an interim basis. That is, without the merits of this application themselves being determined until the entire application would have been heard and finalized. In other words it seeks that the prayer sought, namely to be allowed to execute the judgment pending the hearing of this application, be decided as a rule nisi with immediate and interim effect pending the outcome of prayer 2.
 Under normal circumstances, this would have been contemplated to occur on the first day the matter was mentioned in court. That is on the day when the parties were given time limits for filing what papers inclusive the allocation of a hearing date for the urgent application. In so far as that did not occur on the said date (it was not insisted upon so as to warrant its determination then) it simply means that that aspect of the matter was overtaken by events unless court found it still relevant to decide because the interests of justice so demand.
 When Respondent’s Counsel tried to argue this point in limine during the hearing of the main application namely that the order sought was final and definitive in effect and therefore not competent to be sought at this stage of the proceedings, the Applicant’s Counsel Mr Dlamini, was quick to clarify the court that prayer 2 was no longer pursued as it had already been overtaken by events.
 In my view, this concession by the applicant’s counsel put paid to the interim relief sought. In other words, no order was being sought that the leave to execute the judgement appealed against be granted pending the hearing of this application in its merits. When this point was accepted by the Respondents as they had to, it meant that it had been resolved and that it was no longer an issue before court. It was therefore no longer necessary for the court to try to resolve it as it would have tried to issue an order that could not be enforced as it by law should not issue orders that cannot be enforced as such orders are considered brutum fulmen.
B. The Orders Sought, were Incompetent To Seek In A Matter Like The Present because the Judgement appealed against had not said what should happen to the matter after setting aside the judgement.
 It was argued on behalf of the Respondents that whereas it was usual in review proceedings for the court to not only set aside the decision being challenged on review but to also direct that the matter was either being referred to the structure whose decision was being reviewed for rehearing or that it was substituting its decision on what should happen since it was setting aside that decision, nothing of the sort had been said by the court. Since the Court had neither referred the matter back to the structure whose decision was being reviewed nor did it substitute its decision for that of the said structure, it was argued, it meant that it was not competent for the applicant to seek to be allowed to execute its duties because following the review and setting aside of the decision by the structure concerned, the court never directed that he be allowed to perform his duties nor did the structure concerned so found after review and setting aside of the initial decision by the court.
 Supporting this argument the Respondent captured what was stated by the court in Nompumelelo Tsabedze V The Minister of Labour and Social Security and Four Others (1195/17)  SZHC to the following effect:-
“Although the Court will, in the case of a successful review, generally refer the matter back to the particular body entrusted by the legislature with certain or special powers rather than make the decision itself, it will not merely do so when the end result is a foregone conclusion and a reference back will only waste time, when a reference back would be an exercise in futility or where there are cogent reasons why the court should exercise its discretion in favour of the Applicant and substitute its decision for that of the Respondent.
 Whatever merit there could be in the Respondent’s contention, the point in this matter is that the applicant was, prior to the review, exercising certain power as the chairman of the school committee. The decision by the Respondent is the one that stopped him from exercising that power. It does not seem proper to me to argue that the applicant could, after the order or decision that prevented him from exercising that power had been set aside, still require an order of the structure to allow him to exercise the same power he had been prevented from exercising which the court had set aside. It seems to me a necessary consequence that if an order or decision preventing him from exercising such power had been set aside, then nothing prevented him from exercising reverting to the status quo ante as prevailed before the decision set aside by the Court. This means that he means that he automatically resumed his duties as the Chairman unless that was appealed against.
 That being the case therefore I am convinced, in the circumstances of the present matter, that the setting aside of the decision preventing him from exercising the Chairmanship power, meant an immediate resort to the status quo immediately preceding the decision that had been set aside. I therefore do not think that the fact that there was no directive accompanying the order setting aside the decision in question meant that he has no power to act in terms of the hitherto status quo. That set up operated in an appropriate and deserving matter of which this one is not. In other words that would be where there would be some uncertanity as to the effect of the judgement that reviewed the decision complained of. Similarly this point in limine cannot succeed as well.
C. The Applicant has failed to meet the requirements of an application for leave to Execute a Judgement pending an appeal.
 The Applicant contended in limine as well that the applicant has not met any of the requirements of an application for leave to execute a judgement of a court pending an appeal. Whereas the Respondent acknowledges that it is competent for a party in whose favour a judgement issued to approach court for leave to execute such judgement pending an appeal, such leave is not there for the asking as certain appropriate requirements have to be met.
 On what these requirements are this Court was referred to South Cape Corporation (PTY) LTD V Engineering Management Services (PTY) LTD 1977 (3) SA 534 (A), where Corbet JA put the position as follows at 545 C – G:-
“ The Court to which application for leave to execute is made has a wide general discretion to grant or refuse leave…In exercising this discretion the Court should, in my view, determine what is just and equitable in all the circumstances and, in doing so, would normally have regard, inter alia, to the following factors;
(1) The potentiality of irreparable harm or prejudice being sustained by the appellant on appeal, (Respondent in the application) if leave to execute were to be granted;
(2) The potentiality of irreparable him or prejudice being sustained by the respondent on appeal, (applicant in the application) if leave to execute were to be refused;
(3) The prospects of success on appeal including more particularly the question as to whether the appeal is frivolous or vexatious or has been noted not with the bona fine intention of seeking to reverse the judgement, but for some indirect purpose e.g. to gain time or to harass the other party, and
(4) Where there is the potentiality of irreparable harm or prejudice to both appellant and respondent, the balance of hardship or convenience as the case may be.”
 During the hearing of this application I enquired several times from the Respondent’s Counsel whether there was any irreparable harm or prejudice his client stood to suffer if the application was granted and I must say I struggled to get a straight forward response. Be that as it may, and noting that it is a matter for a wide general discretion, I tried to take it upon myself to look for any possible irreparable harm the Respondent stood to suffer on the other hand. As I did this I was alive to the following passage from the South Cape Corporation (PTY) LTD V Engineering Management Services (PTY) LTD ( Supra) at 545 B-C on the purpose of the suspension of the right to execute a judgement after an appeal has been noted:-
“The purpose of the rule as to the suspension of a judgement on the noting of an appeal is to prevent irreparable damage from being done to the intending appellant, either by levy under a writ of execution or by execution of the judgement in any other manner appropriate to the nature of the judgement appealed from.”
 All the Respondent’s Counsel could say in trying to answer me was that whatever the applicant would do once the court grants him the leave would not be reversible if after hearing the appeal court would uphold it. Clearly this is not a strong consideration because whatever the Applicant would have done, which would be after satisfying the court there would be no irreparable harm, would not need to be reversed after the appeal hearing as it would have been found by the court to be appropriate to do in those circumstances. Clearly no irreparable harm was shown as going to be suffered by the appellant.
 Similarly the applicants themselves could not show me any irreparable harm they stood to suffer if the court did not grant them the execution pending the hearing of the appeal. All the applicant’s counsel could say was that their client was in office by election for a fixed term and that if he was not allowed to execute the judgement concerned there was a likelihood his term of office could get finalized without him having served it.
 Asked why they did not then move an urgent appeal in terms of the rules their answer was that they had an option to make and they had chosen to apply for execution of the judgement pending an appeal. I took it that the reasons put forward by the applicant to insist on execution were not so different from those of the respondent in asking for an order rejecting the applicant’s application. This meant that I had to consider whether there were any prospects in the appeal which is, put differently, an ascertainment whether or not the application was noted with any bona fide intention of seeking to reverse the judgement or it was aimed at an indirect purpose to for instance gain time.
 The Respondent’s argument on this point was divided into two: the procedural points and the substantive ones. These in my view were attended by different possible outcomes. It would depend on whether the Supreme Court would find it advisable to decide the matter on the procedural issues or on the substantive ones. On the procedural issues, the Respondent contended inter alia that there was a point on non- joinder of an important party, the head teacher of the school in the proceedings, which it claimed should have been upheld given that the order from that application could not be carried into effect without the head teacher being adversely affected.
 Of all the grounds of appeal, this is the one I am not certain about its outcome before the Supreme Court as it will depend on whether that Court would want to confine itself to such a procedural issue which if it does, the appeal cannot be said to be having no merit or it would want to concentrate on its substance.
 I do not believe that the judgement can ever be assailable on the result of a failure to give a party a hearing before terminating his chairmanship as authority is abound that where a hearing has not been given when it should have, the decision taken is a nullity. See in this regard the judgement of the Court of Appeal in the Swaziland Federation of Trade Unions And Others V The President of The Industrial Court And Others Court of Appeal Case No 11/97  SZSC 8 (1 January 1998).
 These two extremes make it difficult for this court to say whether or not there are prospects of success on the appeal and it would rather leave that question for determination by the Supreme Court itself.
 I do not think that the balance of convenience favours this court allowing the execution of the judgement pending the appeal. This is because the applicant had a more direct option of approaching the Supreme Court on an urgent basis for it to hear and determine the appeal once and for all but chose to come to this court for leave to execute. Instead I have found that none of the parties stands to suffer worse harm than the other. I am convinced therefore that this is not a matter in which I would exercise the general discretion I have towards allowing an execution pending an appeal. I would rather allow the appeal process to take its toll because the work of the School Committee will not stop simply because the Applicant is not there. The constitution does provide for a way out in such situations.
 Although costs would normally follow the event, I will not order that to be the case given that in the judgement under appeal I had decided not to award costs. I can only be consistant if I order similarly even at this stage.
 Consequently the applicant’s application shall not succeed for the foregoing reasons and I for the sake of clarity make the following order:-
1. The Applicant’s application for leave to execute the judgement of this court pending appeal does not succeed and it is dismissed.
2. For the sake of consistency with the judgement under appeal on the question of costs, each party will bear its costs.
N. J. HLOPHE
JUDGE – HIGH COURT