Prime Minister of Swaziland & 2 Others v Vilakati (30/2012) [2013] SZSC 34 (31 May 2013);

group

Full judgment

IN THE SUPREME COURT OF SWAZILAND

JUDGMENT

Civil Case No.30/12

In the matter between

THE PRIME MINISTER OF SWAZILAND 1^ST APPLICANT

THE COMMISSIONER OF POLICE 2^ND APPLICANT

THE ATTORNEY GENERAL 3^RD APPLICANT

and

CHRISTOPHER VILAKATI RESPONDENT

Neutral citation : The Prime Minister of Swaziland and Others v

Christopher Vilakati (30/12) [2013] SZSC 34

(31 MAY 2013)

Coram : A. M. EBRAHIM J.A., S .A. MOORE J.A.,

and E.A.OTA J.A.

Heard : 20 May 2013

Delivered : 31 May 2013

Summary : Application for reinstatement of appeal struck

off the roll at last session of the Supreme Court – Appeal struck off, inter alia, because this Court refused appellant’s application for Condonation – Application to amend grounds of appeal by adding an additional ground struck off the roll at last session of this Court – Application to argue High Court judge was in error in judgment from which appeal was struck off the roll at last session of this Court – All applications refused.

JUDGMENT

MOORE J. A.

Introduction

[1] By ‘Notice of Application in terms of Rule 16, 17, 18, and 33 of the Rules of the Supreme Court’, the appellant sought the following orders:

Reinstating the Appellant’s appeal under Supreme Court case number 30/12.

Condoning the failure by the Appellant to file the record of proceedings of the Court a quo within two (2) months of noting the appeal.

Allowing the Appellant to amend its grounds of appeal by including the following ground of appeal.

The learned judge in the Court a quo erred in reviewing and setting aside the decision of the disciplinary board in a disciplinary matter involving the Respondent.

Further and/or alternative relief.

[2] A founding affidavit was sworn by Ms. Bonisile Simelane who is currently employed by The Royal Swaziland Police as Director of Legal Services. A confirmatory affidavit was filed by Mr. Vusi Kunene who was employed by the Swaziland Government as Senior Crown Counsel. The thrust of the application is set out in paragraphs 7 and 11 (bis) of Ms. Simelane’s affidavit. At paragraph 7 this affiant avers that:

“…the Applicants seek the Honourable Court’s indulgence to grant the Applicants leave to reinstate the appeal matter back into this Honourable Court’s roll for May 2013, and to condone the Applicants’ late filing of the record for the appeal which led to the appeal being struck off the roll in November 2012. Emphasis added.”

[3] The expression (bis) has been employed because the relevant segment of the sequential numbering of Ms. Simelane’s affidavit in attempted arithmetic progression is as follows: 10, 11, 12, 11, 12, 13, 14, 15, 14. (Bis) has been employed to refer to the second 11 and to distinguish it from its earlier counterpart. No explanation for this peculiar pattern of numbering can be discerned from the papers.

[4] In paragraph 11, for the second time of asking, paragraph (11 bis), the deponent declared that:

“...Applicants seek the Court’s indulgence in allowing the Applicants to proceed with the appeal as it would be a grave injustice if the following orders were maintained.”

The last six words in the above quotation foreshadowed a reproduction of the orders complained about. Instead, paragraph 11 (bis) is divided into sub-paragraphs 11.1 – 11.5 and is replete with references to evidence, the provisions of the police Act 1957, the attributes of a disciplined force, and argumentative criticisms of the respondent’s conduct in making the purchase he allegedly did in the case decided by M.C.B. Maphalala J. The draftsperson was evidently innocent of the material which could properly be included in an affidavit: and more so, of the detritus which must be excluded.

[5] The Orders of Maphalala J to which the deponent was, seemingly, attempting to refer were:

“The application to review and set aside the decision of

the respondents dismissing the applicant as a police officer pursuant to his disciplinary hearing is hereby granted.

The respondents are directed to reinstate the applicant as

a police officer forthwith with effect from the date of dismissal on the 30^th August 2007.

The respondents are directed to pay the applicant his

arrear salary from the date of dismissal on the 30^th August 2007.

The second respondent is directed to pay costs of suit to

the applicant on the ordinary scale.”

[6] Sub paragraphs 1.1 to 1.3 of the Respondent’s Heads of Argument explain the background to the application before us. They read:

“On 19^th September 2012, the Appellants moved an application for condonation for late filing of the record. That application was considered by this Honourable Court in its November 2012 session. The finding by the above Honourable Court was that the Application for condonation must fail.

In its judgment, the above Honourable Court went on to consider the record that had been filed. The Court was unimpressed with the record. The end result was that the appeal noted by the Appellants was struck off the roll.

Based on the fact that the appeal was struck off the roll and not dismissed, the appellant has once again revived its application for condonation and included an application to reinstate the appeal which had been struck off.”

The Order of this Court, delivered on the 30^th November 2012, reads:

“It is the Order of this Court that the appeal be and is hereby struck from the roll with costs.”

[7] The issue of condonation was fully addressed by this Court in its judgment of the 30^th November 2012. That Judgment speaks for itself in the relevant section reproduction hereunder:

‘CONDONATION

[4] On the 19^th September 2012 the appellant filed an “Application for condonation for late filing of record”. A founding affidavit in support was filed by Vusi Brian Kunene in which he deposed that “the record has filed after eight (8) weeks, (sic) which is the stipulated period for filing in terms of the Rules of this Honourable Court.” The flimsy reason underpinning the request for condonation is set out in paragraph 9 of the affidavit. It reads:

“The reason for the late filing is that the disciplinary record of proceedings that was conducted by the police against the Respondent got misplaced due to the death of the officer who had authority over the record. The other reason for the late filing is that even the tape recordings in this regard were also misplaced and as such it took a long time to find it and re-transcribe it.”

[5] An answering affidavit was filed on the 23^rd October 2012. Its predictable response to paragraph 9 of the founding affidavit reproduced above is:

“6.1 First I wish to point out that the reasons advanced for the late filing of the record are demonstrably false in the highest order, if regard be had to the following.

6.1.1 The disciplinary record of proceedings has been available from way back in 2009 when I instituted the review application.

6.1.2 In his judgment, Justice M.C.B. Maphalala referred to the record and quoted certain extracts thereof as appears on page 8 of the judgment. However, the record filed by the Applicant has left out the relevant 2 pages which contain the extracts which Justice Maphalala quoted from the record. This appears at paragraph 17 to 18 of the judgment. For the sake of completeness, I annexed the full judgment appealed against and is marked “A”.

6.1.3 The following has not been disclosed about the police officer who it is alleged had authority over the record:

a) The name of the Police Officer.

b) The date of his/her passing on.

6.1.4 Nothing is stated about how the tapes got missing, when and by whom and where they were eventually found. How long it took to transcribe the record, and who did the transcription. All these questions have not been fully disclosed to enable this Honourable Court to conclude whether there exists sufficient cause to condone the late filing of the record.

6.1.5 The affidavit fails to give detailed particulars of (a) when did the deponent become aware that the record was not filed (b) what steps were taken to ensure that the record is filed.

6.1.6 The Applicant has not stated or disclosed to this Honourable Court that an application for leave to execute was instituted on 12^th June 2012, and argued on 18^th September 2012 and judgment reserved.

6.1.6.1 It is from arguments made in court on 18^th September 2012 that the deponent realized the need to file a record from what Justice Dlamini raised. The record was subsequently filed on 19^th September 2012, a day later, together with the hastily prepared application for condonation.

6.1.7 The question of prospects of success then also arises. The affidavit does not deal with that at all. In any event, given the well reasoned findings by the learned Judge, it is difficult to see how the applicant could establish prospects of success. The procedure followed at the hearing violated the basic tenets of natural justice.

6.1.8 The grounds of appeal do not attack the core findings. The record shows that there was evidence led at the disciplinary hearing that I was not aware and did not know that the vehicle was stolen. In fact the record does show that if I had known that the vehicle was stolen, I would have arrested the person in possession of same.

[6] No replying affidavit has been filed on behalf of the appellant refuting the foregoing assertions. The application for condonation must accordingly fail for the above reasons as well as for those set out in the following paragraphs.

THE RECORD

[7] A written judgment was delivered by M.C.B. Maphalala J on the 30^th April 2012. A notice of appeal was dated the 29^th May 2012. This means that the appellant should have prepared the record of appeal and, by the 28^th July 2012, lodged a copy with the Registrar of the High Court for certification as correct. Sub-rule (4) of Rule 30 of the Rules of the Supreme Court is of the greatest importance. It provides that, subject to rule 16 (1), which allows for an extension of time, if an appellant fails to submit or re-submit the record for certification within the time provided by the rule, the appeal shall be deemed to be abandoned.

[8] The appellant’s application for condonation for the late filing of the record admits in paragraph 8 that it was out of time as has already been noted in paragraph [4] above. It has been submitted by the respondent that the bald and un-particularized assertions in paragraph 9 of the appellant’s affidavit do not show sufficient cause for excusing the appellant’s non-compliance with the rules of court. Furthermore, the respondent contends forcefully and persuasively that the unfortunate passing of the officer who had authority over the record did not amount to sufficient cause meriting the grant of condonation. The work of the Police Force as an institution and that of its surviving members could not be stymied by the death of a single one of its officers.’

[8] The applicants’ case is based substantially upon the founding and confirmatory affidavits. It is therefore necessary to examine those documents to see to what extent they disclose good and substantial reasons for the grant of the applicants’ prayers. Both affidavits are singularly lacking in specificity. They are both open to the trenchant criticisms which were leveled against the affidavits in the excerpt from this Court’s judgment reproduced above. The basic rule is that affidavits, particularly those dealing with contentious issues, should not contain un-particularized and empty statements or estimates, such as of time or distance, where accurate information is readily available. Examples of unsatisfactory aspects of the affidavits upon which the applicants rely are set out below in tabular form:

Excerpts From Affidavit of Ms. Simelane

Comment

Paragraph 8: The commissioner of Police received the request for the record of the disciplinary proceedings…very late.

Paragraph 9: Mr. Kunene ‘has been always labouring under the impression’.

The record has been misplaced or got mixed with files that were being taken to the archives and we were informed that looking for it would take an even longer period.

Paragraph 10: sometime in 2010…it was already late

Paragraph 11: taking too long to arrive

Paragraph 12: Attempts were made

File…taken to the archives in 2010

We were later informed

Both our office and that of the AttorneyGeneralwere under the impression that thereview application had been abandoned

Three different law firms have represented the Respondent

Excerpts from affidavit of Vusi Kunene

Paragraph 3: I was under the impression

When I had four (4) weeks to file it (the record) that I discovered that it had disappeared or lost.

I was informed (by the police) that it might take some (sic) due to the fact that their recording system has been upgraded and to transcribe the record needed another soft- ware which might take some time (sic) get.

The date, or at least an approximate date of receipt, should have been stated.

Mr. Kunene was under a duty to ascertain the true position by diligent enquiries in the Registry or elsewhere. Labouring under the impression is not an acceptable reason for his failure to do so.

This explanation is totally unacceptable. The source of the information is not disclosed. Not even an estimate of the imprecise phrase ‘an even longer period’ is given.

No precise dates given.

Imprecise. No time frame given.

No particulars of attempts given.

Too imprecise in the context of the case.

Source of information not stated

Both offices should have checked to determine the correctness or otherwise of their impressions.

This can hardly be a good and substantial reason for tardiness.

Comment

Unsatisfactory to rely upon an impression without making necessary checks to ascertain the true position.

Having foreseen impending delay, common prudence should have prompted this affiant to seek an extension before the time expired.

References to time are imprecise. Some reliable estimates of time should have been ascertained and a timely application for an extension made. The upgrading of soft- ware is not an acceptable reason for delay. Alternative methods of preparing the record should have been found.

[9] The comments in the above table mirror the critical dicta of their Lordships of the Privy Council in the Bahamian case of Walker v Lundborg [2008] UKPC 17 under the heading The Exercise of Discretion. At paragraph 69, that Court restated the age old truism that “the need for finality in litigation is an important general principle.” See Ampthill Peerage Case [1977] AC 547. The need for finality means that the court starts with a disinclination to reopen concluded transactions. A certain Mrs. Walker had the burden of excusing and explaining her delay. She swore in her affidavit that ‘she was “aware of the March 2004 order” but she did not say when she became aware of it.’ At paragraph 75 their Lordships noted that “it was for Mrs. Walker to satisfy the court, by a full and detailed explanation, that it should show exceptional indulgence to her. Her affidavit did not do that. Her affidavit left many questions unanswered.” The Privy Council’s final pronouncement on this aspect of the matter at paragraph 77 was that “Mrs. Walker, as a litigant asking for an extraordinary exercise of discretion in her favour, failed to act sufficiently promptly and failed to provide the court with a full and frank explanation of her delay.” Those remarks are both apposite to and dispositive of the application before us.

[10] In Swissborough Diamond Mines v Government of the RSA 1999 (2) SA 279 at pages 323 F to 324 F, Joffe J sitting in the Transvaal Provincial Division laid down the law relating to affidavits generally in these highly persuasive terms which this Court adopts in their entirety.

“It is trite law that in motion proceedings the affidavits serve not only to place evidence before the Court but also to define the issues between the parties. In so doing the issues between the parties are identified. This is not only for the benefit of the Court but also, and primarily, for the parties. The parties must know the case that must be met and in respect of which they must adduce evidence in the affidavits. In Hart v Pinetown Drive-Inn Cinema (Pty) Ltd 1972 (1) SA 464 (D) it was stated at 469C-E that:

‘where proceedings are brought by way of application, the petition is not the equivalent of the declaration in proceedings by way of action. What might be sufficient in a declaration to foil an exception, would not necessarily, in a petition, be sufficient to resist an objection that a case has not been adequately made out. The petition takes the place not only of the declaration but also of the essential evidence which would be led at a trial and if there are absent from the petition such facts as would be necessary for determination of the issue in the petitioner’s favour, an objection that it does not support the relief claimed is sound.’

An application must accordingly raise the issues upon which it would seek to rely in the founding affidavit. It must do so by defining the relevant issues and by setting out the evidence upon which it relies to discharge the onus of proof resting on it in respect thereof.”

See Prokureursorde van Transvaal v Kleynhans 1995 (1) SA 839 (T) at 849B in regard to a constitutional issue. Joffe J continued:

The more complex the dispute between the parties the greater precision that is required in the formulation of the issues. See in regard to actions Imprefed (Pty) Ltd v National Transport Commission 1993 (3)SA 94 (A) at 106-7. Although this dictum relates to pleadings in an action it is equally applicable to affidavits in motion proceedings.

The facts set out in the founding affidavit (and equally in the answering affidavit and replying affidavit) must be set out simply, clearly and in chronological sequence and without argumentative matter: see Reynolds NO v Mecklenberg (Pty) Ltd 1996 (I) SA 75 (W) at 781. A distinction is drawn between primary facts and secondary facts.

‘Facts are conveniently called primary when they are used as the basis for inference as to the existence or non-existence of further facts, which may be called, in relation to primary facts, inferred or secondary facts.’

See Willcox and Others v Commissioner for Inland Revenue 1960 (4) SA 599 (A) at 602A. In the absence of the primary fact, the alleged secondary fact is merely a conclusion of law. Radebe and Others v Eastern Transvaal Development Board 1988 (2) SA 785 (A) at 793D.

[11] In the Fifth Edition of Herbstein & Van Winsen’s Civil Practice of the High Courts of South Africa, the Editors set out the law relating to some of the things which affidavits must not contain in this way at pages 444 – 445 of their acclaimed work:

“As a general rule, subject to the provisions of the Law of Evidence Amendment Act, 1988, hearsay evidence is not permitted in affidavits. It may accordingly be necessary to file affidavits of persons other than the applicant who can depose to the facts. Indeed, this is very often done. Alternatively, when a deponent includes in an affidavit facts in respect of which he does not have first-hand knowledge a verifying affidavit may be annexed by a person who does have knowledge of those facts.

In interlocutory matters (as distinct from matters in which the rights of the parties concerned are finally decided) where urgency or other special circumstances appear to justify its doing so, the court has allowed the deponent to state that ‘he is informed and verily believes’ certain facts on which relief is relied. In such cases, however, the applicant is required to set out in full the facts upon which the grounds for the belief are based and how the information was obtained. The source of information must be disclosed with a degree of particularity sufficient to enable the opposing party to make independent investigations, including, if necessary, verification of the statement from the source itself.

The failure of the applicant to disclose the source of the information constitutes an irregularity, which, in accordance with the general rule against new matter in reply, is not cured by the filing of a replying affidavit setting out the required information.”

[12] This Court has discussed the subject of affidavits as fully as it has, because of the difficulties which the draftspersons of the affidavits in this case, as well as in others which have come before us recently, appear to have experienced in constructing affidavits for use by the superior courts. It is hoped that this restatement of well-established principles may result in the appearance, from this point on, of affidavits which are reflective of these principles, and which avoid the pitfalls which were encountered in this case.

[13] Counsel for the respondent concluded his heads of argument pithily when he wrote:

“Given the clear order of the Court Judgment of November 2012, the Appellant is clearly abusing the process of Court. The Application for condonation was dismissed and there is no basis for reinstating same.”

For the reasons set out in the foregoing paragraphs, it follows ineluctably that the application for Condonation having failed for the second time, the application for restatement of the appeal also fails. The Orders sought by the applicant at items 3, 4 and 5 must accordingly, also be refused.

ORDER

It is ordered that: