Mlotshwa & Another v Chairperson – Elections and Boundaries Commission and Others (96/2018) [2019] SZHC 3 (01 March 2019);

 

 

IN THE SUPREME COURT OF ESWATINI

 

JUDGMENT

 

 

                                                                     Civil Appeal Case No: 96/2018

 

In the matter between:

 

FLOYD MLOTSHWA                                                 1^ST APPELLANT

WEBSTER LUKHELE                                                         2^ND APPELLANT

And

CHAIRPERSON – ELECTIONS AND BOUNDARIES

COMMISSION                                                           1^ST RESPONDENT

MACFORD WELCOME SIBANDZE                      2^ND RESPONDENT

THE ATTORNEY GENERAL                                3^RD RESPONDENT

 

 

Neutral citation:   Floyd Mlotshwa & Another vs Chairperson – Elections and Boundaries Commission and Others (96/2018) [2019] SZHC 3 (2019)

 

 

Coram:                JUSTICE M. C. B. MAPHALALA, CJ

                             JUSTICE M. J. DLAMINI, JA

                             JUSTICE J. P. ANNANDALE, JA

 

Heard         :        11^th February, 2019      

 

 

Delivered    :        1^st March, 2019   

     

 

SUMMARY

 

Civil Procedure – application for condonation in terms of Rule 17 of the Court of Appeal Rules for the late filing of heads of argument and a list of authorities – the legal requirements for the granting of an application for condonation are two-fold: firstly, reasonable explanation for the delay in complying with the Rules of Court, and, secondly, prospects of success on the merits;

 

Held that the applicants have failed to satisfy the legal requirements for condonation;

 

Accordingly, the application is dismissed – no order as to costs

 

 

 

JUDGMENT

 

 

 

M. C. B. MAPHALALA, CJ:

[1]     It is common cause that the first and second appellants lodged an application on the 30^th August, 2018 challenging the nomination and subsequent election of the second respondent as the candidate for Member of Parliament of Makholweni Umphakatsi under Manzini North Inkhundla.  The respondents’ contention is that the second respondent is no longer a resident of the Inkhundla; and, that consequently he could not contest elections under the Inkhundla.

                    

  [2]   Subsequently and before the main application could be heard, the appellants lodged an interlocutory application for the recusal of Justice M. R. Fakudze; and, the application for recusal was heard on the 19^th September, 2018.  The basis of the interlocutory application was that the Learned Judge had previously worked for the first respondent as the Deputy Chairman of the Commission.  The appellants argued that there was a likelihood that the Learned Judge could decide the matter in favour of the first respondent to their prejudice.  The interlocutory application was dismissed after the hearing on the same date; and, an ex tempore judgment was issued.  The Learned Judge indicated that the reasons for the ex tempore judgment would follow in due course.

[3]     The Judge a quo delivered his written judgment on the 9^th October, 2018.  After analysing the authorities on the recusal of Judges, His Lordship came to the conclusion that the appellants had failed to establish the existence of actual bias or the apprehension of bias.  The Learned Judge a quo quoted with approval the judgment of Her Ladyship Justice Mumcy Dlamini in Alan Alexander McGregor v. Robert Crabtree and Three Others[1] where she had this to say:

 

                   “22.   The principle of our law on bias reflects that it is a                       two-fold objective test:  Firstly, the litigant alleging                     bias must be reasonable and secondly, the                                       apprehension of bias itself must also be reasonable.”

 

  [4]   The appellants noted an appeal on the 8^th November, 2018 against the judgment of Justice M. R. Fakudze delivered on the 19^th September, 2018; and, the reasons thereof were delivered on the 9^th October, 2018.  The record of proceedings was filed on the 20^th December, 2018; however, the appellants did not file the Heads of Argument and list of authorities timeously as required by the Rules of Court.

[5]     Generally, an appellant is required to file a Notice of Appeal within four weeks of the delivery of the written judgment[2].  An appellant is further required to prepare and lodge the record of proceedings with the Registrar of the High Court for certification as correct within two months of the date of noting the appeal.[3]  Thereafter, the appellant is required to file Heads of Argument together with a list of authorities with the Registrar of the Supreme Court not later than twenty-eight days before the hearing of the appeal.[4]

 

[6]     The appellants lodged the application for condonation on the 5^th February, 2019 for the late filing of the Heads of Argument and the list of authorities.  The Court of Appeal Rules allow a litigant to apply for condonation[5] for the late filing of a record of proceedings as well as a list of authorities or any default in compliance with the Rules of Court:

 

                   “17.   The Court of Appeal may on application and for                         sufficient cause shown excuse any party from                                compliance with any of these rules and may give such                            directions in matters of practice and procedure as it                      considers just and expedient.”

 

[7]     The Rules of Court further provide for applications for the extension of prescribed times:[6]

 

                   “16.   (1)     The Judge President or any Judge of Appeal                                 designated by him may on application extend                               anytime prescribed by these rules:

 

                                                Provided that the Judge President or such                                     Judge of Appeal may if he thinks fit refer                                               the application to the Court of Appeal for                                               decision.

 

                             (2)     An application for extension shall be supported                                     by an affidavit setting forth good and                                            substantial reasons for the application and                                    where the application is for leave to appeal the                                     affidavit shall contain grounds of appeal which                                    prima facie show good cause for leave to be                               granted.”

 

[8]     It is well-settled in our law that a litigant upon realising that he has not complied with the Rules of Court should apply for condonation without delay with a view to remedy his default.[7]  In Johannes Hlatshwayo v. Swaziland Development and Savings Bank[8], Justice Ramodibedi CJ, as he then was, had this to say:

 

                   “It requires to be stressed that the whole purpose behind    Rule 17 of the Rules of this Court on condonation is to enable the Court to gauge such factors as (1) the degree of        delay involved in the matter, (2) the adequacy of the           reasons given for the delay, (3) the prospects of success on appeal and (4) the respondent’s interest in the finality of the    matter.

 

[9]     The appellants contend that the reason for the delay in filing the heads    of argument and list of authorities timeously is that the appellants ran         out of money to finance the litigation.  They further contend that the     Senior Counsel whom they had engaged to argue the matter in the    court a quo declined to settle the heads of argument and list of   authorities on appeal on the basis that he had not been paid his fees for   his previous appearance in the court a quo.  The instructing        Attorney Mr Zakhele Dlamini has deposed to an affidavit where he      contends that he has since settled the heads of argument and list of authorities, and, that he was seeking leave to file them.

 

[10]  The reasons given by the appellants for the delay in filing the heads of argument and list of authorities are not reasonable and do not constitute a reasonable explanation for the delay.  Mr Dlamini is a Senior Attorney, and, he was capable of settling the heads of argument and list of authorities if Counsel did not accept the brief to take the matter on appeal.  The record of proceedings was filed on the 20^th December, 2018, and, the appellants had sufficient time to settle the heads of argument and list of authorities. 

 

[11]  It is apparent from the evidence that the delay in filing the heads of argument and list of authorities was caused by the negligence of the appellants’ Attorney, who wilfully disregarded the Rules of Court.  His Lordship Justice Steyn CJ delivering a unanimous judgment of the Appellate Division on condonation in Saloojee & Another v. Minister of Community Development,[9] had this to say:

 

                   “        .  .  .  it has not at any time been held that condonation                will not in any circumstances be withheld if the blame                            lies with the Attorney.  There is a limit beyond which                                   a litigant cannot escape the results of his attorney’s                                lack of diligence or the insufficiency of the                                               explanation tendered.  To hold otherwise might have                                  a disastrous effect upon the observance of the Rules of                         this Court.  Considerations ad misericordiam should                                      not be allowed to become an invitation to laxity.  In                               fact this Court has lately been burdened with an                            undue and increasing number of applications for                         condonation in which the failure to comply with the                              Rules of this Court was due to neglect on the part of                                    the attorney, after all, is the representative whom the                                 litigant has chosen for himself, and there is little                                     reason why in regard to condonation of a failure to                                  comply with a Rule of Court, the litigant should be                              absolved from the normal consequences of such a                                       relationship, no matter what the circumstances of the                                   failure are.”

 

[12]  In addition the application for condonation does not deal with prospects of success on appeal.  It is trite law that there are two main legal requirements for the granting of an application for condonation.  Firstly, the applicant must present a reasonable explanation for the delay in complying with the Rules of Court.  Secondly, he must satisfy the Court that he has prospects of success on the merits.  The appellants have failed to satisfy both requirements for condonation.

 

[13]   Accordingly, the following order is made:

 

                   (a)     The application for condonation for the late filing of the                                     heads of argument and a list of authorities is hereby                                  dismissed

 

                   (b)     The appeal is struck off the roll and may not be reinstated                                 without leave of Court

 

                   (c)      No order as to costs

 

 

 

 

 

 

 

 

For Applicants                                  :       Attorney Zakhele Dlamini

 

 

For First and Third Respondents         :      Crown Counsel Khethokuhle                            Nxumalo

 

 

For Second Respondent                    :       Attorney Ntobeko

                                                                                Philiso

                                       

 

 

 

         

JUSTICE M. C. B. MAPHALALA

CHIEF JUSTICE

 

 

I agree                                               ______________________

JUSTICE M. J. DLAMINI, JA

 

 

I agree                                               ______________________

JUSTICE J. P. ANNANDALE, JA