Sizwe Medical Services (Pty) Ltd & Another v Registrar of Insurance and Retirement Funds (36/11) [2011] SZSC 51 (30 November 2011);

 

IN THE SUPREME COURT OF SWAZILAND

 

 

HELD AT MBABANE     CIVILAPPEAL CASE NO: 36/11

 

In the matter between:

SIZWE MEDICAL SERVICES

(PTY) LTD                                                1^ST APPELLANT

 

SIZWE ADMINISTRATORS

(PTY) LTD                                                2^ND APPELLANT

 

AND

 

REGISTRAR OF INSURRANCE &

RETIREMENT FUNDS                             RESPONDENT

 

 

CORAM:                                  EBRAHIM, JA

                                                MOORE, JA                                                                     M.C.B. MAPHALALA, JA

                                                               

FOR APPELLANT                                    NO APPEARANCE

                                       

FOR RESPONDENT                                 SABELO ZWANE         

 

HEARD ON 14^TH NOVEMBER 2011

DELIVERED 30^TH NOVEMBER 2011

 

Summary

Civil Appeal – Attorneys of Record not present in court – no heads of argument filed in terms of Rule 31 – No Security for costs deposited in terms of Rule 37 – No declarations filed by litigants in terms of Rule  11 for their non – appearance in court- appeal struck off.  

 

 

JUDGMENT

 

M.C.B. MAPHALALA  J.A.

 

[1]    The appellants, who were respondents in the court a quo, filed a Notice of Appeal on the 12^th July 2011 against a judgment of the High Court delivered on the 17^th June 2011.  The Notice of Appeal sets out the grounds of appeal which are numbered concisely in accordance with Rule 6 (4).  The Notice of Appeal was filed timeously in accordance with Rule 8; hence, there was no need to file an application for condonation in terms of Rule 17.

 

[2]    The Registrar after obtaining directions from the Chief Justice issued the Roll for the November 2011 Session in terms of Rule 14; the said Roll was served upon the parties, and the matter was set down for hearing on the 14^th November 2011.

[3]    The appellant did prepare the Record in accordance with Rule 30 and lodged a copy thereof with the Registrar of the High Court for certification as correct; the Registrar duly certified the Record as correct on the 30^th August 2011 after satisfying himself that the Record contained only those documents which are relevant to the subject-matter of the appeal. The Registrar further satisfied himself that the pages were consecutively numbered, the record properly indexed and securely bound in suitable covers.  The appellant further lodged with the Registrar the required copies of the Record.

 

[4]    However, the appellants failed to comply with Rule 31 (1) and (2) which requires them to file Heads of Argument and a list of authorities not later than twenty eight days before the hearing of the appeal to both the Registrar and the respondent.  Similarly, the respondent has not complied with Rule 31 (3) which requires that he files Heads of Argument and a list of authorities eighteen days before the hearing of the appeal with the Registrar and serve a copy with the appellants.

 

[5]    Similarly, the appellants have failed to comply with Rule 37 which requires them to deposit with the Registrar of the High Court E200.00 (Two hundred emalangeni) or give security by bond with one or more sureties for the prosecution of the appeal in respect of payment of costs which they may be ordered to pay at the conclusion of the appeal.  Rule 38 provides that if the appellants fail to comply with Rule 37, the Registrar of the High Court should inform the Registrar of the Supreme Court; and, the Supreme Court may order that the appeal be dismissed with or without costs.

 

[6]    During the hearing of this appeal, the Attorneys representing the parties did not appear in court.  Similarly, the parties did not appear in court.  Only an employee of the appellant by the name of Sabelo Zwane appeared in court and applied for a postponement of the matter to the next session on the basis of the court boycott by lawyers.

 

[7]    It is imperative to mention that neither the Attorneys nor the litigants notified the court in advance that they would not appear at the hearing in accordance with Rule 11.  This rule provides the following:

 

“The appellant or in the case of a civil appeal the respondent may, not less than ten days before the date on which the appeal has been set down for hearing, file with the Registrar a declaration in writing that he does not wish to be present in person or by counsel on the hearing of the appeal, and shall at the same time submit to the Registrar four copies  of argument as he desires to submit to the Court of Appeal and serve a copy of such declaration and a copy of his argument on the other parties to the appeal.”

 

[8]    In the circumstances the appeal is struck off.  No order as to costs.

 

DELIVERED IN OPEN COURT ON 30^TH NOVEMBER 2011.

 

 

 

                                                        M.C.B. MAPHALALA

                                                        JUSTICE OF APPEAL

 

 

 

I agree:                                             A.M. EBRAHIM

                                                        JUSTICE OF APPEAL

 

 

 

I agree:                                             S.A. MOORE                                                            JUSTICE OF APPEAL