Nhlabatsi v Attorney General NO and Others (01/11) [2011] SZSC 1 (31 May 2011);

 

 

IN THE SUPREME COURT OF SWAZILAND

 

 

HELD AT MBABANE                            CIVIL APPEAL CASE NO: 01/11

 

In the matter between:

AUSTIN BONGINKOSI NHLABATSI                   APPELLANT

 

AND

 

ATTORNEY GENERAL                                        1^ST RESPONDENT

THE PUBLIC PENSION FUND                                       2^ND RESPONDENT

THE REGISTRAR OF THE HIGH COURT           3^RD RESPONDENT

 

 

CORAM:                                                               RAMODIBEDI, CJ

                                                                             TWUM, JA

                                                                              FARLAM, JA

 

 

FOR APPLICANT                                                 MR. S.C. SIMELANE

FOR 1^st RESPONDENT                                       MR. V. KUNENE

FOR 2^nd RESPONDENT                                                MR. K. MOTSA

 

Summary

 

Retirement of police officer from the service.  Application for payment of his total contributions to the Public Service Pension Fund.  Joinder of Attorney General and Commissioner of Police to “main application”.  Failure to amend “main application” to effectuate joinder.  Costs order obtained against Attorney-General and the Public Service Pension Fund.  Applications against costs order and for rescission.  Rescission granted. Application for leave to appeal against order for rescission. Application for leave withdrawn. Appropriate order for costs in the circumstances.

 

 

 

JUDGMENT

 

 

DR. S. TWUM  J.A.

[1]    This is an application for leave to appeal against the judgment of the High Court delivered on 7^th December, 2010.

 

 [2]   The facts

On the 18^th January 2010, Austin Bonginkosi Nhlabatsi filed an application for an order that the Public Service Pension Fund should calculate and pay to him his pension contributions upon his retirement from the Police Service.  This was referred as “main application” in the court a quo.

 

[3]    On 29^th January 2010, the application was granted in the following terms:

 

“(1)   That the respondent  be ordered to pay to the applicant or his attorney, such sums being the applicant’s contributions to the respondent, together with such amounts as were credited as interest on the aforesaid contributions to date.

 

1. That the respondent pays the costs of this application.”

 

[4]    At the time the order was made, the only respondent was the Public Service Pension Fund.  Over time a number of applications, particularly rescission applications, were made by various parties who were subsequently joined to the action. Thereafter it became quite bewildering to determine who was being described as “applicant” or ‘1^st respondent” or “2^nd respondent”, etc. In these circumstances in this judgment, and in order to obviate any further confusion, I will refer to the applicant in the “main application” as “Austin”; the Public Service Pension Fund will be referred to, simply as “the Fund”; the Commissioner of Police as the “Commissioner”; and the Attorney General will be known as such.

 

[5]    On 3^rd February, 2010, the Fund filed a rescission application against the cost order of 29^th January, 2010 but before it could be heard, the parties reached an agreement that that order should be abandoned and that the Commissioner of Police should be joined as “2^nd respondent.”

 

[6]    Subsequently, Counsel for Austin filed a motion to join the Commissioner of Police and the Attorney General to the “main application” as 2^nd and 3^rd respondents, respectively.  The motion further stated that the respondents would pay the cost of the application if they opposed it; provided, of course, that the application was successful.  The motion was not opposed.  The Commissioner and the Attorney-General did not attend the hearing of the application and the following order was made:

 

“The respondents are hereby joined as second and third respondents, respectively in the main application.”

 

[7]    It is common cause that apart from the order for joinder, no other relief was asked for by Counsel for Austin and none was made.

 

[8]    After the joinder had been granted, notwithstanding the promptings of Counsel for the Fund that Counsel for Austin should amend the “main application” to particularize what relief was being sought from the Fund and the Attorney General, Counsel for Austin spurned that advice.  Rather, he went to court and took an order for costs dated 23^rd April, 2010, against the Fund and the Attorney General.  He then served them with notice of set down (taxation) on 15^th July 2010.

 

[9]    It was common cause that Austin was employed by the Swazi Government as a Police Officer.  The Head of the Service was the Commissioner of Police.  Administratively, it was his ultimate responsibility to submit Austin’s file timeously to the Fund to enable it to compute his said contributions.

 

        It was also common cause that indeed the Commissioner caused Austin’s file to be sent to the Fund on 12^th February 2010.

 

        It is also common cause that the Commissioner was joined to the proceedings on 25^th February 2010, some 13 days after the file had been transmitted to the Fund.

 

        It also transpired that prior to the hearing of the main application on the 16^th April 2010, the Fund paid Austin’s contributions to him.

 

[10]  In view of the matters aforesaid, Austin’s Counsel abandoned the taxation notice.  The Fund and the Attorney-General assumed that Austin’s Counsel had abandoned the order for costs as well.  In that, they were wrong.   Counsel for Austin was adamant that the order for costs had not been abandoned.

 

[11]  Not unnaturally, the Fund and the Attorney General took exception to that.  On 21^st July 2010, the Attorney General filed an application to:

 

(1)  Stay “the taxation for  the  bill of costs of the 1^st

Respondent dated 9^th July 2010, pending finalization of the matter.”

 

1. The costs order issued on the 23rd of April 2010 be rescinded and set aside.

 

1. Costs of this application against the Respondents (i.e. Austin).

 

This application was listed for hearing on 23^rd July 2010.

The Fund filed a similar application.  The main thrust of

the  case  for  the rescission was that as Austin’s counsel

had  refused  to amend  the  papers filed in respect of the

“main application”, on the papers of record, there was no

relief  sought  against  them  on behalf of Austin and they

therefore could not have been expected to appear in court

to  oppose  any  further hearing of the “main application”,

merely because  they  had  been  ordered  to  be joined to

that application.

 

 

[12]  The Judgment

After a very careful consideration of the two motions, the affidavits of the parties, the exhibits and the relevant law, the quintessential holding by the court a quo was that Austin’s counsel failed or refused to amend and serve the papers comprising “the main application” on the Attorney  General and the Fund.  It emphasized that that was an error.  The effect of that failure, the court held, was that the un-amended application pursuant to the joinder, was rendered ineffective.  Consequently, it was erroneous for the court to have proceeded to award costs against the Attorney General and the Fund.

 

[13]  The final order of the court a quo was that

(1) The order issued on the 23^rd of April 2010, jointly and severally against the 1^st and 2^nd applicants (i.e. the Attorney General and the Fund (see page 157 of the record)) is hereby rescinded and set aside.

 

(2)    Costs  of  these  applications  be  borne  by 1^st

Respondent (i.e. Austin). In plain language, this final order of the court a quo absolved the Attorney General and the Fund from paying the costs of the “main application” but not the Commissioner. Austin was, however, ordered to bear the costs of the applications launched by the Attorney General and the Fund.

 

[14]  The Application for Leave of Appeal

On 24^th January 2011 Counsel for Austin filed “Notice of Application for Leave to Appeal” against the Judgment of the High Court dated 7^th December 2010 pursuant to Rule 9 of the Court of Appeal Rules.

 

The grounds of the application were:

 

1. The learned judge in the court a quo erred in law

and in fact when holding that the first respondent’s notice of application for rescission was not a nullity and that the affidavits in support thereof had been properly commissioned.

 

1.     The learned judge in the court a quo erred in law when holding that the first respondent’s application for rescission has been properly moved as an urgent application within the ambit of Rule 6 (25) (b) of the Rules of the High Court of Swaziland.

 

1. The learned judge in the court a quo erred in law when holding that the question of urgency had been overtaken by events, and that the matter was urgent.

 

1. The learned judge in the court erred in law when holding that the law governing the issues in the present case was to be found in the provisions of Rule 28 (5) of the High Court Rules, in complete ignorance of the provisions of Rule 10 of the High Court rules, which govern the joinder of parties and causes of Action.

 

1. The learned judge in the court a quo erred in law when holding that the first respondent was not bound by the process of the main application, even though it had been properly joined in the proceedings, by order of the High Court.

 

1. The learned judge in the court a quo erred in law and in fact when holding the court process of the main application was not effective against the first respondent.

 

1. The learned judge in the court a quo erred in law and in fact when holding that the respondent had established sufficient grounds for the application for rescission to be granted.
2. The learned judge in the court a quo erred in law and in fact when holding that the 2^nd respondent had made out a case for rescission.

 

1. The learned judge in the court a quo erred in law and in fact when holding that the order for costs to be paid jointly and severally had been erroneously granted.

 

1. The learned judge in the court a quo erred in granting the first and second applicant’s applications for rescission in the circumstances.

 

1. The learned judge in the court a quo erred in law and in fact when ordering the appellant to pay the costs of the rescission applications yet such costs ought to have been paid by the respondents as they were the ones seeking an indulgence.

 

Before the merits are considered it should be noted that this application was no ordinary application for leave to appeal against an interlocutory order.  This is because, in casu, the substratum of the applicant’s complaints in the “main application” i.e. the payment of his contributions, had disappeared by the Fund paying same to him.  The only issue left unresolved in this long drawn-out saga was the costs for the “main application”.  This is confirmed by a cursory glance at the grounds of appeal. Paragraphs 1, 2, 7, 8, 9, 10 and 11 of these grounds complain against the order of the court a quo rescinding the order of the costs made in the “main application” against the Attorney General and the Fund.

 

[15]  It must always be borne in mind that all courts exist for the settlement of concrete disputes, controversies and actual infringement of rights, not to pronounce upon abstract questions, or to advise upon differing contentions, however important.  A fortiori, it is an essential quality of an appeal that there should exist between the parties to the appeal a matter in actual controversy which the court undertakes to decide as a living issue. (See Viscount Simon, L.C. in Sunlife Assurance Company of Canada v. Jervis (1944) All ER (H.L.) at 471 A-B.

       

[16]  Where an appeal is launched in respect of costs only, no concrete dispute exists between the parties with regard to their rights or infringements which the appellate court is called upon to decide.  Costs do not enter into the equation for the solution of the dispute or controversy between the parties on the merits.  Costs are estimated after the court has decided the dispute or controversy.  It is simply the measure of compensation the court considers the victorious party deserves for his expense, time, anxiety and even fortitude in vindicating his claim in court.

 

[17]  The application for leave to appeal against the rescission order was brought under rule 9 (1) of Court of Appeal Rules, 1971.  It provides:

 

(i)     That  the  application  for  leave  should be filed within six (6) weeks of the date of the judgment which is sought to be appealed against.

(ii)    The reasons for the application should be stated shortly.

 

1. Where facts are alleged they should be verified by affidavit.

 

[18]  One limb of rule 9 (1) states that the reason for the application should be stated shortly.  This is not what happened with this application. Some eleven (11) grounds of appeal were noted. The bundle of documents filed by the applicant in support of the application ran into 197 papers.  That was not warranted by rule 9 (1), aforesaid. It meant that a long period of time disproportionate to the importance of the dispute would have to be spent on the application.  This undermines the modern notion of justice that courts should strive to do substantial justice justly, expeditiously and inexpensively.  One other matter. The judgment of the court a quo did not deny Austin his costs for the “main application”.  It held that the Commissioner should pay the applicant’s costs.  In those circumstances, there was no valid reason why he should pursue the Attorney General and the Fund for his costs.  In any event, in my opinion, the court a quo was justified in holding that as Counsel for Austin had failed or refused to amend the “main application” after the order for joinder, both the Attorney General and the Fund were not bound by the unamended “main application” and the order for costs made against them was therefore made in error.  The court properly made the rescission order.

 

 [19]The Costs

During the hearing of the leave application, to his credit, even if he acted rather belatedly, Counsel for Austin withdrew the application.   After some hesitation, he informed the court that in all the circumstances he would forgo his own costs against his client.  He then asked for a short adjournment to enable him consult counsel for the Attorney General and the Fund about their costs.  Upon resumption, he informed the court that he would pay the respondents’ costs out of his own pocket.

 

[20]  The order of the Court is that:

(1)    The   application   for   leave   to  appeal  against  the rescission order is withdrawn as prayed and is accordingly dismissed.

(2)    Counsel  for  Austin   undertakes   to  forgo  his  own costs against his client.

(3)    Counsel for Austin would pay the respondents’ costs out of his own resources.

 

DELIVERED IN OPEN COURT AT MBABANE THIS 31^ST DAY OF MAY 2011.

 

 

 

                                                                              DR. SETH TWUM

                                                                              JUSTICE OF APPEAL

 

 

 

I agree:                                                                  M.M. RAMODIBEDI

                                                                              CHIEF JUSTICE

 

 

 

I agree:                                                                  I.G. FARLAM

                                                                             JUSTICE OF APPEAL