IN THE HIGH COURT OF SWAZILAND
JUDGMENT
Case No. 231/2015
In the matter between:
SIBONISO DLAMINI 1st Applicant
SIPHAKAMISO DLAMINI 2nd Applicant
And
ANASTANCIA MBONISWAYINI DLAMINI 1st Respondent
MAGISTRATE D.R. MAZIBUKO N.O. 2nd Respondent
NATIONAL COMMISSIONER OF POLICE 3rd Respondent
THE ATTORNEY GENERAL 4th Respondent
Neutral citation: Siboniso Dlamini and Another v Anastancia Mboniswayini Dlamini & 3 Others (231/2015) [2015] SZHC 205
(20 November 2015)
Coram: T. DLAMINI J.
Heard: 03 November 2015
Delivered: 20 November 2015
Summary: Civil Procedure – Review proceedings – Review as opposed to appeal – No irregularity committed – Held: Application for review fails.
JUDGMENT
[1] The Applicants moved an application for review and setting aside of a decision of the Manzini Magistrate’s Court. The decision issued by the court is a peace binding order. The Applicants also sought an order staying the execution of the decision that was sought to be reviewed and set aside. Given that the peace binding order required the 2nd Applicant to vacate the homestead where he was living and constructing his own house, an order was sought allowing him to stay in his ‘lilawu’ for a reasonable period until he finishes constructing his house. An order for costs was also sought in the event that there was opposition to the application.
[2] The reasons for seeking to review and set aside the decision of the Magistrate’s court are found in paragraphs 11,12,13 and 14 of the Founding Affidavit deposed to by the 2nd Applicant. Below is what he states in the founding affidavit.
11.
“The Court Order seeks to evict me from the entire home whereas it was said in the Umphakatsi and during the hearing of the matter at the Magistrate’s Court that I should desist from using my mother’s house.
12.
I have since stopped using my mother’s house and stay at my lilawu which I built for myself. I am currently building a house in another place I have obtained. I am to relocate to that home when I have finished building my house.
13.
While I was still building my home, the respondents seek to have me evicted from the whole home.
14.
I humbly submit that at the Umphakatsi I was never told to vacate the home and there was no evidence to that effect was led but I was told not to use my mother’s house anymore.”
[3] Counsel for both parties raised points of law. My approach in deciding this matter is to first deal with the points of law and then determine the merits of the matter as well.
[4] Counsel for the Applicants was the first to make submissions. He raised two points of law. The first point of law is that the Attorney General cannot represent the 1st Respondent and the appearance of the Attorney General is opposed or challenged. The second point is that the Respondent filed their notice of intention to oppose late and were out of time and without first seeking condonation from the court.
[5] In motivating the first point of law, Counsel for the Applicants submitted that this matter is between the Applicants and the 1st Respondent who is not one of the categories of persons to be represented by the Attorney General as provided in section 77 (3) (c) and (5) (c) of the Constitution of the Kingdom of Swaziland Act, 2005. The relevant subsections of section 77 of the Constitution provide as follows:-
“(3) The Attorney General shall –
(a) …
(b) …
(c) represent chiefs in their official capacity in legal proceedings.
(5) Without prejudice to the general functions under subsection (3), the functions of the Attorney – General shall be to –
(a) …
(b) …
(c) represent the Government in courts or in any legal proceedings to which the Government is a party;”
[6] Counsel for the Respondents submitted that the application before court is for review of a peace binding order that was issued by the 2nd Respondent who is and must be represented by the Attorney General.
[7] I fully agree with the submission by Counsel for the Respondents. The 2nd Respondent whose decision is sought to be reviewed is a Magistrate who has been cited in his nominal capacity. There is no doubt that he is to be represented by the Attorney General because he has been cited and brought to court in his capacity as a Magistrate of the government of Swaziland.
[8] The Attorney General is himself the 4th Respondent in this matter. The Commissioner of Police is the 3rd Respondent. These offices are represented by the Attorney General in all legal proceedings. It is the norm and practice that when the Attorney General receives court processes he seeks and receive instructions from the relevant offices. It is my finding that this inevitably led the Attorney General to find himself dealing with a matter that involves Umphakatsi whose Acting Chief had to depose to an affidavit and file it in court. The Applicants are therefore misconceived to hold the view that the Attorney General is representing the 1st Respondent. The 1st Respondent submitted evidence on affidavit and the Attorney General is at liberty to use and rely upon that evidence. This point of law therefore fails and is dismissed.
[9] The second point of law raised by the Applicants is that the Respondents filed their notice of intention to oppose inordinately late and that there was no application for condonation. Where a party acts in the manner as averred by Counsel for Applicants, the proper step to take is to act in terms of Rule 30. That step having not been taken by the Applicants, this court is not inclined to disregard the Answering Affidavit of the Respondents notwithstanding that it was filed late. Furthermore, given that this point was raised at the hearing of the matter when all the papers were already before court, this court is of the view that upholding this point of law would constitute a technicality that becomes an injustice to the matter. See Shell Oil Swaziland Ltd v Motor World (Pty) Ltd t/a Sir Motors, Case No. 23/2006 unreported at page 23.
[10] The first point of law raised by the Respondents is that of non-joinder of the Zombodze Umphakatsi or Royal Kraal. Although the parties say it in different ways, their versions came to one position and conclusion, that the court order enforces a decision of the Umphakatsi. The Applicants plead in their papers that “the court order seeks to evict me from the entire home whereas it was said in the Umphakatsi and during the hearing of the matter at the Magistrate’s Court that I should desist from using my mother’s house.” This averment is in paragraph 11 of the 2nd Applicant’s founding affidavit.
[11] Herbstein and Van Winsen, “The Civil Practice of the Superior Courts in South Africa, 3rd edition, at page 168, states the following:-
“It has, however, been held that even in those cases where the court has a discretion where the matter of joinder of a party is raised, it must be at least be shown that the party is a necessary party in the sense that he is directly and substantially interested in the issues raised in the paragraphs before the court and that his rights may be affected by the judgment of the court. Where this is established the court will then proceed to determine the matter of joinder in accordance with the requirements of convenience and common cause.
[12] The averments stated in paragraphs 11 and 14 of the 2nd Appellants founding affidavit summarise the issue that has been brought before court for determination. The issue, fundamentally, is whether or not the 2nd Applicant was ordered by the Umphakatsi to vacate the entire home or to simply stop using his mother’s house.
[13] I am of the considered view that the Umphakatsi has a direct and substantial interest in the matter because it concerns a determination of a decision that was made by the Umphakatsi. Any decision that the court will arrive at will directly affect the Umphakatsi because that decision would either approve or decline the enforcement of the Umphakatsi’s decision. This court, however, takes the view that since the Umphakatsi’s interests were fully represented, it will not uphold this point of law. The Acting Chief of the Umphakatsi Timothy Velabo Mtsetfwa and two other witnesses filed confirmatory affidavits, and the interest of the Umphakatsi was represented at the hearing by the Attorney General.
[14] The second point of law raised by the Respondents is that the Applicants’ founding affidavit is inadmissible because it was attested to by a Commissioner of Oaths who works for the Applicants’ attorneys of record. The Commissioner of Oaths is said to be an attorney employed in the law firm that represents the Applicants. Counsel for the Applicants conceded to this submission and informed the court that efforts to find an independent Commissioner of Oaths were unsuccessful yet the matter was urgent. He also emphasized that condonation was sought from the court and that there is no prejudice that has been suffered or to be suffered by the Respondents.
[15] In the replying affidavit that has been referred to as Applicant’s Answering Affidavit in the filing certificate, the Applicants state at paragraph 5.4 that “I could not find any other Commissioner of Oaths and the matter was urgent. I humbly affirm that the averments contained in the affidavit contain my sworn statement. I respectfully apply for the court’s condonation and indulgence, and that my founding affidavit is admitted.”
[16] It is a well established rule that an affidavit that is sworn to before an attorney of the party on whose behalf the affidavit is to be used or before any agent, partner or clerk of that attorney is not admissible. This is an English law principle and has been adopted in South Africa. Browde AJA in the case of The Director of Public Prosecutions v The Law Society of Swaziland, Civil Appeal No. 28/95, quote with approval the learned Judge in Louw v Riekert 1957 (3) SA 106 at 111 who stated as follows:-
“According to English law, affidavits sworn before a Commissioner of Oaths, who was the clerk of the attorney of the litigant, who intend to use such affidavits, were not admissible as evidence from as far as 1754.”
[17] Browde AJA went on to state as quoted below:-
“and it seems to me correctly, that the Court requires the security of an independent Commissioner of Oaths and that no attorney who is a member of the firm which is the attorney of record can be said to be completely independent.” (page 11)
[18] On the basis that the founding affidavit of the Applicants has been attested to by a Commissioner of Oaths who is an attorney and an employee of the attorneys of record of the Applicants, the founding affidavit is held by this court to be inadmissible. The application for review is therefore dismissed on that basis.
[19] For completeness, I have decided to address the other issues notwithstanding that the application has now been dismissed. The third point of law raised by the Respondents relates to urgency. Counsel for the Respondents submitted that the application does not comply with Rule 6 (25) (a) and (b) of the rules of this Court in that it does not explicitly state on the affidavit why the matter is urgent and why the Applicants feel that they cannot be afforded substantial relief in due course. In the alternative, Counsel submitted that the urgency is self created because the order that is sought to be reviewed was issued in July 2014.
[20] In my view this point of law has been overtaken by events. Acting Judge Mdladla, as he then was, enrolled the matter on the urgency basis and even issued an interim order on the 29th September 2015. This point of law fails and is dismissed.
[21] In determining the merits of this matter, I find it necessary to first bring to light the circumstances under which a review can be sought as opposed to an appeal. I find this approach necessary because Counsel for the Applicants submitted to this court that in review proceedings the court seeks recourse only to the record of the proceedings and that no evidence outside the record is to be admitted.
[22] Nathan CJ, as he then was, in the case of R v Mkhabela 1970 – 1976 SLR 408 at 410 states as follows:
“Before dealing with these matters I should mention briefly the difference between review and appeal proceedings. Proceedings by way of review – I am not here referring to automatic review – are resorted to where there has been some gross irregularity in the conduct of the case. An appeal is appropriate where the judgment is attacked as, for example, being bad in law, or against the weight of evidence, or where the sentence is submitted to be excessive.”
[23] Innes CJ, in the matter of Johannesburg Consolidated Investment Co. v Johannesburg Town Counsil 1903 TS 111 at 114 – 115 states as follows:
“Notably there is this distinction between the two that an appellant comes into court upon a record of the case in the court below, and by that record is bound; he cannot take advantage of any circumstance which does not appear on the record. The litigant who seeks to have a case reviewed depends upon irregularities which need not necessarily appear on the face of the record. If they do not so appear, he is at liberty by affidavit to bring the facts upon which he relies to the notice of the Supreme Court. He is not bound by the record in the way in which an appellant is.” (own emphasis)
[24] It is therefore clear from the above cited authorities that an application for review is based on irregularities. The Applicants must accordingly point to an irregularity that they allege to have been committed by the lower court. Given that irregularities need not necessarily appear on the face of the record, the Applicants are at liberty to file an affidavit in order to bring to the notice of the Appellate Court those facts they rely upon.
[25] The reason that the Applicants advance as a basis for seeking to have the decision of the court a quo reviewed and set aside is that it evicts the 2nd Applicant from the entire home yet the Umphakatsi informed him that he should desist from using his mother’s house. The 2nd Applicant adds that even at the hearing of the matter in the court a quo no evidence to the effect that he should vacate the entire home was led.
[26] Counsel for the Respondents submitted that the court a quo was simply
enforcing a decision of the Zombodze Umphakatsi. He further submitted that the Zombodze Royal Kraal (Umphakatsi) ordered the 2nd Applicant to vacate the Zombodze Royal Kraal and not just the 2nd Applicant’s mother’s house. He also submitted that according to the affidavit of the 1st Respondent, and more particularly that of the Acting Chief of Zombodze Umphakatsi who is also the Acting Indvuna of Ludzidzini Royal Residence Timothy Velabo Mtsetfwa, the 2nd Applicant had become a law unto himself and even disrespected, threatened and insulted the Acting Chief of Zombodze Royal Kraal.
[27] Counsel for the Applicants submitted that the submissions by counsel for the Respondents were not made during the hearing at the Magistrate’s Court and as such the order of the Magistrate was irregular because there was no evidence submitted to that effect. This court is not inclined to believe this version of the 2nd Applicant’s evidence because relevant evidence of the 1st Respondent was unchallenged and was not controverted by any evidence either. This unchallenged evidence is found on the third paragraph at page 21 of the Book of Pleadings, and is quoted below:
“I approached the Indvuna and told him that I am approaching the court since applicants have not fulfilled the order of the meeting. The matter was heard by the 2nd respondent who requested to see the inner council; two members of the inner counsel came to court to confirm what was said in the meeting. (own emphasis)
[28] The record of the court a quo show that on the 7-07-14 the Applicants, who were Respondents in the court a quo, had their rights to legal representation fully explained to them. They opted to conduct their own defence. On the day the decision of the court a quo was issued, the record, although it does not show the evidence that was led, reflects that Elijah Mthethwa who was a member of bandlancane (the Inner Council), and Amos Motha who was umgijimi (the Chief’s runner) were also present.
[29] I am therefore of the considered view that these representatives of the Umphakatsi gave evidence that is consistent with that of the Acting Chief of Zombodze Umphakatsi Timothy Velabo Mtsetfwa.
[30] The Acting Chief of Zombodze Umphakatsi deposed to a confirmatory affidavit and stated that from two separate meetings it was concluded that the Applicants should vacate the Royal Residence (Umphakatsi) where the 1st Respondent stays because they threaten and abuse her. He further states that the Applicants were told to stop building a house since the house is within the Royal Residence which they have been ordered to vacate. Lastly, the Acting Chief of the Umphakatsi states that the Applicants were told that if they are not happy with the decision of the Umphakatsi, they can appeal to higher Royal Authorities in particular His Majesty who own the Umphakatsi that they are ordered to vacate. This is the aspect of the decision of the court a quo that the Applicants are challenging.
[31] This decision that the court a quo issued is consistent with the decision of the Umphakatsi as confirmed to this court by the Acting Chief of the Umphakatsi in his affidavit. This court therefore finds it as a fact that the court a quo was enforcing a decision of the Umphakatsi.
[32] I wish to mention that counsel for the Applicants insisted during the hearing that submissions by the parties should be limited to the evidence that is on the record of the court a quo. He submitted that this is an application for review of the decision of the court a quo and therefore the review is to be based on the record of the court a quo only. For that reason, he even objected to the use of the affidavits that were filed by the Respondents. On this issue, I refer to the quotation of Innes CJ in the matter of Johannesburg Consolidated Co. (supra) at paragraph 23 above.
[33] In light of the aforegoing reasons, the court finds that there is no irregularity that was committed by the court a quo. The rule that was granted by this court on the 29th September 2015 is accordingly discharged. The application is accordingly dismissed with costs.
________________________
T. DLAMINI
JUDGE OF THE HIGH COURT
For Applicants: B. Dlamini
For Respondents: V. Kunene
