Masuku v Masuku & 2 Others (09/2011 ) [2013] SZSC 17 (31 May 2013);

 

 

 

 

 

 

IN THE SUPREME COURT OF SWAZILAND

 

JUDGMENT

                                                                                     

                                                                   Case No. 09/2011

 

In the matter between

 

BANI E. MASUKU                                           Appellant

 

and

 

MARIO MASUKU                                             1^st Respondent

 

SAFA INVESTMENTS (PTY) LTD                           2^nd Respondent

 

MAQBUL & BROTHERS INVESTMENTS

(PTY) LTD                                                                    3rd Respondent

 

Neutral citation:            Bani E. Masuku v Mario Masuku & Others (09/2011) [2013] 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.

JUDGMENT

 

 

DR. TWUM J.A.

 

[1]     On 31^st 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 9^th November 2011 for failure to pay or deposit security for costs.  The Respondents duly filed Notice of Intention to Oppose.

 

[2]     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.

 

[3]     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.

 

[4]     It is worth pointing out that at the hearing of 9^th November 2011 when the appeal was struck off the roll Mr Yunus Patel, director of the 2^nd and 3^rd 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.

 

[5]     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.

 

[6]     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.

 

[7]   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.

 

[8]   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.

 

[9]   The application is accordingly dismissed with costs to the     respondents.

 

 

 

                                                                              _____________________                                         

                                                                   DR. SETH TWUM

                                                                    JUSTICE OF APPEAL

 

          I agree.                                    

 

____________________

                                                                   M.M. RAMODIBEDI

                                                                   CHIEF JUSTICE

 

 

 

I also agree.                                               

 

____________________

                                                                   S.A. MOORE

                                                                   JUSTICE OF APPEAL

 

COUNSEL:

For Appellant      :                                     Mr S.C. Dlamini

For Respondent   :                                     Mrs. Boxshall-Smith