IN THE SUPREME COURT OF SWAZILAND
HELD AT MBABANE
CIVIL APPEAL No. 05/2011
In the matter between
MALCOS BHEKUMTHETHO
SENGWAYO APPELLANT
AND
THULISILE SIMELANE FIRST RESPONDENT
THE REGISTRAR OF BIRTHS,
MARRIAGES AND DEATHS SECOND RESPONDENT
THE ATTORNEY GENERAL THIRD RESPONDENT
CORAM : RAMODIBEDI, CJ
MOORE, JA
DR. S. TWUM, JA
HEARD : 5 MAY 2011
DELIVERED : 31 MAY 2011
SUMMARY
Husband and wife – The appellant husband seeking to declare his civil marriage to the first respondent null and void after almost 10 years of marriage on the ground that he had previously been married to another woman by customary rites – The respondent wife counter-claiming for damages, maintenance and further relief – The court a quo granting orders in favour of the respondent pedente lite– Appellant filing an appeal out of time – No condonation sought – The orders appealed against interlocutory and therefore not appealable without leave – Appeal accordingly struck off the roll with costs.
RAMODIBEDI, CJ
[1] The dispute in this matter, an extremely acrimonious dispute for that matter as will be seen shortly, originated in the High Court under case No. 1349/2008 which was filed with the High Court on 14 April 2008. In that case, which is admittedly still pending in the court a quo, the appellant brought an application on notice of motion seeking the following relief against the first respondent:-
“1. Declaring the marriage in community of property entered into by and between Malcos Bhekumthetho Sengwayo and Thulile Simelane on the 30th July 1988 to be null and void.
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Directing the Registrar of Births, Marriages and Deaths to cancel all entries in the Marriage Register concerning the above marriage.
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Custody of the minor children be granted to applicant.
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Costs of suit against 1st Respondent in the event the application is opposed.
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Further and/or alternative relief.”
[2] Not to be outdone, on 26 November 2008 the respondent, as plaintiff, filed summons in the High Court against the appellant in case No. 4519/2008 for relief in the following terms:-
“(a) Payment of the amount of E8 800 000.00;
(b) 9% interest from date of issuing of summons to date of final payment;
(c) Costs of suit;
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Further and/or alternative relief.”
[3] On 1 December 2008, and under case No.1349/08 the respondent launched a notice of application against the appellant for the following relief:-
“1. That the proceedings pending before this Court under case No.1349/2008 be stayed and be determined simultaneously with the action proceedings instituted under case No.4519/08 involving the same parties.
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That the Court may [make] any order as it deems fit with regard to the further procedure, and may give one judgment disposing of all matters in dispute in the said actions.
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That the First Respondent be interdicted from transferring and/or encumbering the following properties, pending the final determination of the proceedings instituted both under case No.1349/2008 and 4519/08.
3.1 CERTAIN: Portion 100 (a portion of portion 85) of Farm No.1117, situate in the Mbabane urban area, District of Hhohho, Swaziland;
MEASURING: 541 (Five Four One) square metres;
HELD: Under Deed of Transfer No.1/1990;
3.2 CERTAIN: Lot No.502 situate in the NhlanganoTownship, ExtensionNo.3, situate in Shiselweni District, Swaziland;
MEASURING: 1519 (One Thousand Five Hundred and Nineteen) square metres;
HELD: under Deed of Transfer No.263/1993;
3.3 CERTAIN: Portion 815 (a portion of portion 254) of Farm Dalriach No.188 situate in the Mbabane urban area, District of Hhohho, Swaziland;
MEASURING: 4001 (Four Zero Zero One) square metres;
HELD: under Deed of Transfer No.57/1999;
3.4 CERTAIN: Lot No.609 situate in Mathendele Township, Extension No.6, District of Shiselweni, Swaziland;
MEASURING: 400 (Four Zero Zero) square metres;
HELD: under Deed of Transfer 428/2002.
4. That the First Respondent be ordered to pay maintenance pendent lite to the Applicant in the sum of E3 000.00 (Three Thousand Emalangeni) per month.
5. That the First Respondent contributes E100 000.00 (One Hundred Thousand Emalangeni) towards the attorney client costs of Applicant to enable her to defend the current proceedings.
6. That the First Respondent’s employer Tibiyo TakaNgwane be interdicted from paying out any retirement benefits to the First Respondent, pending the final determination of the action proceedings instituted by the Applicant against the First Respondent, under case No.4519/08.
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Costs in the event this application is opposed.”
[4] On 9 December 2010 the High Court (Ota J) granted all the prayers sought by the first respondent herein with the exception of prayers 5 to 7. It is instructive to observe, however, that the court granted those orders pending the finalisation of the litigation between the parties. The present appeal is brought against those orders.
[5] The undisputed facts show that the parties were married to each other by civil rites and in community of property on 30 July 1988. As can be seen, they had lived as husband and wife for almost ten years when the appellant sought to have the marriage declared null and void. His ground for doing so was that at the time of the marriage in question he was already allegedly married to one Patricia Zanele Mndzebele by Swazi law and custom.
[6] It is common cause that two minor children were born of the marriage namely, (1) Bhekumthetho, a boy born on 29 May 1989 and (2) Siphosakhe Mondli, a boy born on 16 February 1994.
[7] At the hearing of this appeal two issues were raised for determination, namely:-
(1) a point of law raised by the first respondent to the effect that the appeal in this matter was filed out of time and
(2) a point raised by the Court mero motu whether the orders appealed against were interlocutory and, if so, whether an appeal lies to this Court without leave.
[8] As will be demonstrated shortly, these issues are, in my view, determinative of this appeal in the circumstances of this case. It is thus strictly unnecessary for this Court to express a concluded view on the merits of the main contentions by each party at this stage. Such an exercise will have to await the final outcome of the matter pending before the High Court. I proceed then to determine the issues raised in the preceding paragraph, seriatim.
Whether the appeal is out of time
[9] As will be recalled, the orders appealed against were granted in a written judgment delivered on 9 December 2010. The notice of appeal was, however, filed on 24 February 2011, which was admittedly a period of more than four weeks of the date of judgment appealed against.
[10] Now, Rule 8(1) of the Court of Appeal Rules provides in part as follows:-
“8. (1) The notice of appeal shall be filed within four weeks of the date of the judgment appeal against:
Provided that if there is a written judgment such period shall run from the date of delivery of such written judgment.”
[11] It is plain, therefore, and this is not disputed, that the notice of appeal in the matter was filed out of time after the period of four weeks laid down in Rule 8(1) had expired.
[12] It is common cause that the appellant has failed to make an application for condonation of the late filing of the notice of appeal in terms of Rule 17 of the Court of Appeal Rules. Nor has he applied for extension of time within which to appeal in terms of Rule 16. No acceptable explanation has been furnished for this flagrant disregard of the Rules of this Court. The conclusion is inescapable in these circumstances that the appellant has treated the Rules of this Court with disdain. See, for example, Johannes Hlatshwayo v Swaziland Development and Savings Bank and Others, Civil Appeal No.21/06 (and the cases cited therein).
It follows, in my view, that the appeal should be struck off the roll with costs.
Whether the orders appealed against were interlocutory and, if so, whether an appeal
lies to this Court without leave
[13] As pointed out in paragraph [4] above, the orders appealed against were specifically made “pending the finalisation of litigation between the parties.” The litigation in question was the very proceedings under case numbers 1349/2008 and 4519/2008 as consolidated. It follows, in my view, that the court a quo’s order of 9 December 2010 appealed against was merely interlocutory. It was not a final judgment. See, for example, Pretoria Garrison Institutes v Danish Variety Products (Pty) Limited 1948 (1) SA 839 (A); South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A); The Minister of Housing And Urban Development v Sikhatsi Dlamini And 10 Others, Case No.31/08.
[14] Now s14 of the Court of Appeal Act provides in part as follows:-
“14. (1) An appeal shall lie to the Court of Appeal –
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from all final judgments of the High Court; and
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by leave of the Court of Appeal from an interlocutory order, an order made ex parteor an order as to costs only.”
The parties are indeed on common ground that the appellant did not seek and obtain leave to appeal to this Court.
[15] In light of these considerations I have come to the conclusion that the appeal ought to be struck off the roll on this ground as well. Strictly speaking, there is no proper appeal before this Court.
[16] Accordingly, the order of the Court is that the appeal is struck off the roll with costs.
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M. M. RAMODIBEDI
CHIEF JUSTICE
I agree ______________________________
S.A. MOORE
JUSTICE OF APPEAL
I agree ______________________________
DR. S. TWUM
JUSTICE OF APPEAL
For Appellant : Mr. N. Manzini
For Respondent : Miss L. Maphalala
