IN THE SUPREME COURT OF APPEAL OF SWAZILAND
JUDGMENT
Appeal Case No.65/2012
In the matter between:-
MESHACK LANGWENYA Appellant
and
SWAZI POULTRY PROCESSORS
(PTY) LTD Respondent
Neutral citation: MershackLangwenya v Swazi Poultry Processors (PTY) Ltd (65/2012) [2013] SZSC 20 (31 May 2013)
Coram: S. A. MOORE JA, DR. S. TWUM JA, and B.J. ODOKI JA
Heard: 10 May 2013
Delivered: 31 May 2013
Summary: Civil Appeal – Incomplete record – Also not certified by Registrar – Subsequent refiling of complete record –No application for condonation for late filing of record – Appeal deemed abandoned struck out with costs.
JUDGMENT
ODOKI J.A.
[1] The appellant appealed to this Court against the decision of the court a quo dismissing his claim for damages for breach of contract.
[2] When the appeal was called for hearing learned Counsel for the respondent raised a preliminary point that the appeal was deemed abandoned as the appellant failed to file a certified record in time and had not applied for condonation of late filing of the record. Learned Counsel for the appellant readily conceded the preliminary point. The Court ruled that in terms of Rule 30 (4) of the Rules of the Supreme Court, the appeal is deemed to have been abandoned. It was accordingly struck out with costs. We reserved the reasons for our judgment which we now give.
[3] The appellant filed a notice of appeal on 17th September 2012. On 31st October 2013, the appellant filed a record of appeal which was incomplete. This fact was brought to his attention by the respondent’s Attorney. On 4th April the appellant attempted to file another record of appeal which was not certified by the Registrar. Subsequently the appellant filed heads of arguments on 24th April 2013.
[4] On 30th April 2013 the respondent filed an application for condonation of late filing of heads of argument. The application was supported by a founding affidavit sworn by Mr. Earl John Henwood, the Attorney for the respondent. On 30 May 2013 the respondent filed its heads of argument.
[5] At the hearing of the appeal, the respondent argued first its application for condonation of the late filing of its heads of argument. In that application the respondent had also raised the preliminary point that this appeal is not properly before the Court and had in fact been deemed to be abandoned.
[6] The application for condonation of late filing of heads of argument was not opposed by the appellant and was granted the by Court.
[7] The respondent then proceeded to argue its preliminary point. The respondent relied on the founding affidavit sworn by its Attorney. The affidavit outlines the chronology of events surrounding the filing the record of appeal and the communication between the Attorney and the Counsel for the appellant.
[8] In the affidavit, the Attorney deposes inter alia as follows:
“2. I am the attorney of record of the Respondent in an appeal which is currently pending before this Honourable Court.
3. On or about the 17th of September 2012, pursuant to a judgment that was issued by the High Court per the Honourable Otta J, the Appellant filed an appeal against a judgment which had effectively dismissed a claim that the appeal had brought against the Respondent.
4. On the 31st of October 2013, the Appellant filed a record. Upon perusal of the record, it became clear to me that it was incomplete in that:
4.1 It had not been certified in terms of the provisions of Rule 30 (2);
4.2 The pleading had been excluded;
4.3 The record was incomplete as the examination of the witnesses recorded on page 173 to page 177 had been inserted at a wrong place.
5. On the 4th of December 2012 by way of a letter a copy of which is annexed marked “EJH 1”, I informed the Appellant’s Attorneys of the errors in the record and advised that in my view the appeal was deemed to be abandoned for none compliance with Rule 30.
6. Rule 30 (3) provides that a record may not be re-lodged for certification without leave of the Chief Justice or the Judge who presided at the hearing of the matter in the Court aqua, the Appellant did not so.
7. The Appellant’s Attorney simply ignored the letter of 4 December 2012 and even up today, has not responded thereto.
8. On the 22nd of March 2013, it was brought to my attention that this matter had been set down for hearing on the 10th of May 2013.
9. In view of the fact that the record was defective, it was impossible for me to commence my preparations for the appeal and such, I then contacted the Appellant’s Attorney who conceded that the record was defective and he then informed me that the appeal would be withdrawn. With that knowledge, I took no further steps.
10. To my complete and utter surprise, on the 4th of April 2013, the Appellant’s Attorneys attempted to file yet another record in complete disregard to the Rules of this Honourable Court. I addressed a letter to them a copy of which is annexed marked “EJH 2” in terms of which I recorded my surprise at the fact that the record had in fact been filed, noted that it was once again uncertified and that there was no compliance with Rule 30 (3) of the Rules of this Honourable Court as leave of the Chief Justice or the Honourable Otta J who heard the matter at the Court aquo was not sought. The Appellant once again simply ignored that letter.
11. On the 24th of April 2013, the Appellant’s Attorneys then filed heads of arguments. It is noteworthy that the heads had been prepared on the 22nd of April but only served on the 24th of April.
12. The Appellant’s heads of arguments had been filed way out of time and without due regard to the provisions of Rule 31 nor the directive of this Honourable Court which require that the Appellant’s heads be served and filed by the 18th of March 2013.
13. The Appellant’s Attorneys have simply conducted the appeal as if the Rules of this Honourable Court do not exist and have not paid any regard thereto. Furthermore, there has been no application whatsoever for the condonation of the late filing of the heads of argument let alone proper compliance with Rule 30 regarding the record. To date, both records which have been served on my office have not been certified by the Registrar.”
[9] It is clear from paragraph 4 of the founding affidavit that the record filed by the appellant on 31 October 2012 was defective as it was not certified by the Registrar, and the record was incomplete as it excluded the pleadings and the examination of the witnesses on pages 173 to 177 had been inserted at a wrong place.
[10] These defects were brought to the attention of Counsel for the appellant who attempted to file yet another uncertified record without seeking condonation of late filing of the record.
[11] Learned Counsel for the appellant conceded that the record had not been certified by the Registrar nor had be obtained condonation of late filing of the record. He expressed regret that he had not had the courtesy to respond to the communications from his learned brother, the Attorney for the respondent.
[12] The preparation and filing of records of appeal in this Court are governed by Rule 30 of the Rules of this Court. The appellant must prepare the record on appeal in accordance with Sub – rules (5) and (6) of Rule 30 and must within two months of the date of noting of the appeal lodge a copy of the record with the Registrar of the High Court for certification as correct.
[13] If the Registrar of the High Court declines to certify the record he must return it to the appellant for revision and amendment and then the appellant must relodge it for certification within 14 days after its receipt.
[14] It should be noted that thereafter the record may not be relodged for certification without leave of the Chief Justice or the Judge who presided at the hearing of the court a quo.
[15] More importantly, Sub – rule (4) provides that subject to Rule 16 (1), if an appellant fails to note an appeal or to submit or resubmit the record for certification within the time provided by this Rule, the appeal shall be deemed abandoned.
[16] With regard to the preparation of records, Rule 30 (6) provides in detail that the requirements are as follows,
“All copies of the record shall be clearly typed on one side of the paper only on stout foolscap paper, double – spaced in black ink, and every tenth line of each page of the record shall be numbered, and at the top of each page there shall be typed the name of the witness whose evidence is recorded thereon. Photostats of original documents are permissible only if they be clearly legible. The pages of the record must be consecutively numbered, and at the top of each page there shall be typed the name of the witness whose evidence is recorded thereon. Photostats of original documents are permissible only if they be clearly legible. The pages of the record must be consecutively numbered. The record must be properly indexed and securely bound in suitable covers. Bulky records must be divided into separate conveniently sized volumes.”
[17] In The Prime Minister of Swaziland and two others vs Christopher Vilakati, Civil Case No. 30/2012, this Court decried the poor quality of many records that reach this Court. The Court emphasized that all the requirements in Rule 30 (6) are cumulative and must all be observed.The Court called for preparation of records using modern technology to improve their quality. Moore JA, (sitting with Ebrahim JA and Ota JA,) had this to say:
“These Rules are to be found in Act 54/74 –nearly two decades ago. Meanwhile time and technology continue marching on. Modern records, besides observing all of the above Rules are indexed, tabulated and paginated and covered in ring – binder or lever – arch file which, besides meeting all the above requirements of suitable cover, allow for ease of handling, and of reference to its contents. Several records have been presented recently in ring – binder or lever – arch files which appear to be readily available upon the local market. There is therefore no good reason for the submission of records which do not conform with the Rules and keep up with modern technological developments.”
[18] It is important that Counsel preparing records of appeal take extra care to ensure that the records are correctly compiled and certified within the prescribed time in accordance with the Rules of this Court. This is the only way the efficient, fair and expeditious disposal of appeals can be achieved. Unfortunately this was not done in this appeal by the appellant with the result that it was not possible for the Court to finally dispose of the appeal on the merits.
[19] For the foregoing reasons, this appeal was deemed abandoned and was struck out with costs to the respondent.
__________________________
B. J.ODOKI
JUSTICE OF APPEAL
__________________________
I agree: S. A. MOORE
JUSTICE OF APPEAL
__________________________
I agree: DR. S. TWUM
JUSTICE OF APPEAL
For the Appellant: Mr. M. S. Dlamini
For the Respondent: Mr. E. J. Henwood
