IN THE SUPREME COURT OF SWAZILAND
Case No. 09/2011
In the matter between
BANI E. MASUKU Appellant
MARIO MASUKU 1st Respondent
SAFA INVESTMENTS (PTY) LTD 2nd Respondent
MAQBUL & BROTHERS INVESTMENTS
(PTY) LTD 3rd Respondent
Neutral citation: Bani E. Masuku v Mario Masuku & Others (09/2011)  SZSC 17 (31 May 2013)
Coram: RAMODIBEDI CJ, MOORE JA and DR. TWUM JA.
Heard: 8 May 2013
Delivered: 31 May 2013
Summary: Appeal to Supreme Court struck off the roll; security for costs not tendered; application for relistment; no application for condonation of late filing of security; good and substantial reasons required; appeal itself admitted to be moot by appellant; abuse of court’s process to prosecute moot appeal; inherent jurisdiction of court not to stultify itself by entertaining moot appeal; relistment application dismissed.
DR. TWUM J.A.
 On 31st August 2012, the appellant applied to this Court by Notice of Motion for Reinstatement of an appeal which was struck off the roll of this Court on 9th November 2011 for failure to pay or deposit security for costs. The Respondents duly filed Notice of Intention to Oppose.
 The appellant admitted in an affidavit in support of the application that his Attorney did advise him about posting security for costs. He added that the matter had been enrolled in the November 2012 session of this Court. It so happened, (he continued) when the matter was due to be heard, he did not have legal representation as the Swaziland Attorneys were engaged in a stay-away from the courts. That explained why he appeared in person at the hearing.
 In one moment of candour, the appellant/applicant deposed in that affidavit that even though the appeal had somewhat become moot, he was still desirous of prosecuting it to finality because of the order of costs that was made by the court a quo. (underlining is mine). He added that the security for costs had then been made.
 It is worth pointing out that at the hearing of 9th November 2011 when the appeal was struck off the roll Mr Yunus Patel, director of the 2nd and 3rd respondent companies, informed the Court that the property, the subject-matter of much of the litigation between the parties, had actually been sold and bought at an auction and that the purchaser’s title had been registered.
 In my view the substratum of the litigation between the parties disappeared; confirming the appellant/applicant’s view that his appeal under Case No. 9/2011 had somewhat become moot.
 In my view, this application suffers from two (2) major impediments:-
(i) There is no application for condonation of the late payment of costs or deposit of security for costs.
An application for relistment of an appeal which has been struck off the roll, is not simply for the asking. The failure to pay deposit for costs may mean that the applicant may be unable to satisfy an order for costs when the appeal goes against him. The payment of deposit is therefore an important consideration which may weigh with the court when exercising its discretion to grant or refuse a relistment application. Good reasons must be given.
(ii) The second, and perhaps the more serious, impediment is a vice inherent in the appeal itself. The appellant/applicant has admitted that the appeal he is praying to have relisted on the roll is moot. Judges preside over courts not merely to see to it that the rules are complied with. Of course, that is important. But courts are there to do substantial justice between litigants. Judges are sworn to do justice between all manner of persons, without fear or favour, affection or ill-will. If, in the course of any judicial adjudication, it becomes clear that the judicial process is being used for oblique motives – such as a determination of moot points, it becomes an abuse of the court’s process and the court has an inherent jurisdiction not to stultify itself by issuing a judgment thereon which will really be brutum fulmen.
 In the present application for relistment of the appeal which was struck off the roll the applicant says even though the appeal is clearly moot, for the sake of the costs which were awarded by the court a quo against him, he would like to fight the appeal to finality.
 If indeed that is really the only reason why the appellant wishes to pursue the appeal to finality, then a further issue may well arise whether or not the appellant does not need leave to appeal against only a costs order. Even if I am wrong in this view, in all the circumstances, I am persuaded that the appellant has not shown good and substantial reasons why the appeal should be put back on the roll.
 The application is accordingly dismissed with costs to the respondents.
DR. SETH TWUM
JUSTICE OF APPEAL
I also agree.
JUSTICE OF APPEAL
For Appellant : Mr S.C. Dlamini
For Respondent : Mrs. Boxshall-Smith