IN
THE APPEAL COURT OF SWAZILAND
Appeal
Case No. 5/86
HOLDEN
AT MBABANE
In
the matter of
MAMISA
MAHLALELA
vs
MBHAKELANE
MAHLALELA
CORAM
: MELAMET,
J.P.
:
SCHREINER,
J.A.
:
HANNAH,
CJ.
JUDGMENT
(12.10.89)
Melamet,
J.P.
The
appellant comes on appeal to this court against the judgment of the
High Court of Swaziland in terms whereof the appeal against judgment
of the National Higher Court of Appeal succeeded and the judgment of
the court was set aside. The appellant in that appeal is the
respondent in this appeal and the respondent in that appeal is the
appellant in the present appeal. The respondent in that appeal was
ordered to hand over to the appellant nearly one hundred and two head
of cattle.
The
respondent (hereinafter called the plaintiff) brought an action
against the appellant (hereinafter called the defendant) in the Swazi
National Court at Siteki in 1983 for one hundred and two head of
cattle. The defendant was sued in his capacity as the sole and
universal heir of his late
2
father.
The plaintiff and defendant are half-brothers from a common father.
The defendant was appointed the sole and universal heir by the
Mahlalela family. The plaintiff based his claim to the said cattle on
a verbal agreement entered into between him and his late father prior
to the latter's death. Defendant disputed the existence of any such
agreement.
I
shall deal with the facts later because the dispute has been pursued
through various courts culminating in the present appeal and save and
except in the High Court of Swaziland evidence was led in each of the
courts. In each court a little was added to the evidence which had
previously been given. Whether this is competent in terms of the
Swazi Courts Act No.18/1950 is not necessary for the decision of the
present appeal. It would appear however that this is a recognised
practice and in this connection I refer to the case of SHOSHO
NKAMBULE v R reported in the Swaziland Law Reports 1979/81 at page
147. At page 150 the Acting Chief Justice said:
"Before
giving any specific grounds of appeal I quote I wish to reiterate my
remarks made in the
case of LUKHELE v MKHONTA 1977 - 1978 SLR 47 in which I dealt with
the approach to issues
of fact by the court in its appellate jurisdiction against the
findings of the traditional courts.
At 50 I said, inter alia: In any event in the instant matter we are
not concerned with the findings
of an 'intermediate appellate court'. Here three courts presided over
by three different court
Presidents and assisted in all by eight assessors have all come to
the same conclusion on
the factual issues, and I do not think that this can be disregarded
by me, more especially, as
I have tried to indicate earlier, because of the
3
traditional
and informal manner of giving evidence in the National Courts and the
expected lack
of accuracy and fulness in the recording of such evidence. I consider
that an appellant in order
to succeed in this court must clearly show why the lower court was
wrong. Naturally when
a matter has been heard in three traditional courts with witnesses
testifying in each of these
courts there must be some confusion as to what actually took place.
But the persons who
sat and listened to the evidence were much more able to appreciate
and understand this confusion
than a court of this kind. Although I do not have to go so far I
would say that this court
would be extremely reluctant to disturb the findings of fact by any
National Court and in my
view would only do so in extreme cases, e.g. where it is shown that
the judgment was palpably
wrong or that the triers of fact had acted arbitrarily."
It
would seem therefore that the procedure followed is in accordance
with practice that has developed.
I
would recommend that rules as to the procedures in these courts be
formulated and promulgated by the relevant authorities. I appreciate
the possible difficulty in this regard but it would lead to clarity
and uniformity.
In
1983 the Swazi National Court in Siteki found agaisnt the defendent
and ordered him to pay one hundred and two head of cattle to the
plaintiff as claimed and further two beasts as costs. The order
should presumably have been to deliver the one hundred and two cattle
claimed by the plaintiff. The judgment was based on a letter which
was allegedly written by the parties' late father in which it was
allegedly said that the plaintiff was to be appointed the heir to the
father. This was not the basis of the claim which as set out above
was an alleged verbal agreement entered into
4
between
the father and himself. Not until the grounds of appeal in the
present appeal was the claim of the defendant that he had been
appointed sole and universal heir to his late father's estate
challenged.
The
defendant appealed against the judgment to the National Court of
Appeal at Lozitha and that court in November 1984 considered the
appeal and confirmed the judgment of the Court of First Instance. No
reasons for judgment were furnished.
The
defendant appealed to the National Higher Court of Appeal who on 19th
March, 1985 upheld the appeal and varied the judgment ordering the
plaintiff to leave the one hundred and two head of cattle with the
defendant who was appointed by the Mahlalela family (lusendvo) to be
the deceased's heir (inkosana). The Higher Court of Appeal purported
to try the matter afresh, and finding the defendant to be the duly
appointed sole and universal heir ordered that the one hundred and
two head of cattle be left with him.
The
plaintiff then appealed to the High Court of Swaziland, which on 7th
November, 1986, upheld the appeal and set aside the judgment of the
National Higher Court of Appeal. It ordered the defendant to hand
over to the plaintiff the one hundred and two head of cattle. This
judgment was based on the assumption that the plaintiff had not been
given the opportunity to rebut the evidence of two witnesses whose
evidence had been led on behalf of the defendant. It was found that
the President of the National Higher Court of Appeal in so doing had
acted contrary to the principles of natural justice and that the
proceedings were tainted with irregularities. There is no basis set
out in the evidence or judgment for such conclusion. The matter comes
on appeal to this court some three years later and this inordinate
delay is a matter which should be investigated. As set out
5
above
the plaintiff's action is based on an alleged verbal agreement
between plaintiff and his father.
There
is no evidence as to where and when the alleged agreement was
concluded. All that is said is that he and his father were alone at
the time. There is no evidence as to where the alleged one hundred
and two cattle were or whether there were in fact other one hundred
and two head of cattle.
There
is no evidence as to when the parties' father died. There is no
evidence whatsoever that the defendant in his capacity as sole and
universal heir or in his personal capacity ever took possession of
the one hundred and two head of cattle. There is evidence that in
1945 he was given five head of cattle by his late father and it would
appear that he received thirty-six head of cattle in his capacity as
heir although this was not canvassed with him. There is no evidence
that the thirty-six head of cattle were part of the one hundred and
two head of cattle claimed.
It
would appear that during the father's life, the plaintiff left the
homestead to build his own homestead in another area whilst the
defendant remained at his father's homestead until his father's
death. It was only after the defendant had been appointed that the
plaintiff brought the action.
As
set out above the plaintiff claimed that he was alone with his father
when the agreement between them was reached. There is no
corroboration of this and he seeks corroboration in an alleged letter
written by his father before his death in which he disinherited the
older brother and appointed him as heir. There is evidence that the
late father could not read or write and the author of the alleged
letter was not called nor was it handed in. The alleged circumstances
under which it came to light some time after - the period is not
disclosed - are also open to some doubt.
I
am of the opinion that it has not been proved in any of the courts
that the defendant either in his personal
6
capacity
or in his capacity as sole and universal heir is or was ever in
possession of the alleged one hundred and two head of cattle claimed
by the plaintiff. There is no proof further that at the time of the
death of the father he was in fact in possession of the one hundred
and two head of cattle. In the circumstances I am of the opinion that
the plaintiff has failed to prove his claim against the defendant.
In
the circumstances the appeal should succeed and the judgment in the
original court should be altered to one of absolution from the
instance. The appellant is ordered to pay the costs of the appeal.
Hannah,
CJ.
I
agree: and as this case is apparently unique in that we are informed
that it is the first time that a case emanating in a Swazi National
Court of first instance has reached the pinnacle of the court system,
that is to say the Court of Appeal, I would like to add a few
observations on that part of the judgment of the learned judge of the
High Court which dealt with the procedure which was adopted in the
Swazi Higher Court of Appeal and also in the Swazi Court of Appeal.
The learned judge appears to have considered that the procedure in
the Swazi Appeal Courts whereby parties present their respective
cases anew was irregular and it seems to me on reading his judgment
that this was a factor which influenced him in his decision to
reverse the findings of the Higher Court of Appeal.
The
difficulty I have with the view expressed by the learned judge in the
court a quo is that subject to any rules made by the Ngwenyama the
practice and procedure of Swazi Courts is regulated in accordance
with Swazi law and custom. See
7
section
21 of the Swazi Courts Act, 1950. So far as I am aware no such rules
have been made, certainly Mr. Lukhele has been unable to refer this
Court to any, and therefore the position must be that the practice
and procedure of Swazi National Courts is regulated in accordance
with Swazi law and custom; and I ask myself what evidence was there
before the High Court that the practice and procedure which is
followed by Swazi Appellate Courts is not in accordance with Swazi
law and custom? The answer to that question is that there was none
and presumably in this regard the learned judge simply took account
of the submissions made to him by Mr. Lukhele and the advice tendered
to him by the two assessors who sat with him. But if this be so the
judge did not set out in his judgment the advice tendered by the
assessors and it is therefore impossible to test such advice.
It
is of course unusual for an appellate court to hear witnesses afresh
but that is a practice which is not completely without precedent. In
England the Crown Court sitting on appeal from decisions of
magistrates hears witnesses afresh including witnesses who were not
called in the magistrate's court.
That
is an invariable practice in that country and I see no reason why it
might not also be the position under Swazi law and custom. Counsel,
as I understand it, concedes that it has been the general practice in
Swazi National Courts since their inception some forty years ago to
rehear cases as they go on appeal but Mr. Lukhele contends that such
practice does not normally extend to calling new witnesses. As My
Lord, the Judge-President, pointed out in the course of argument
there seems to be very little difference in principle between the
situation where a new witness is called and the one where he is not.
The principle involved is whether or not there should be a full
rehearing.
8
I
recognise that the procedure of allowing parties to present their
cases anew on appeal is open to criticism. It is a cumbersome
procedure and a procedure which permits a party perhaps to tailor his
case to fit the evidence adduced by his opponent in the court below:
but whatever the criticisms may be, my own view is that it was wrong
for the High Court to decide that such a practice is contrary to
Swazi law and custom without first hearing some evidence on the
point. Relying on assessors alone is, in my view, insufficient
particularly when it is borne in mind that the assessors who sit in
the High Court are usually drawn from the Swazi National Courts. It
is difficult to see how the opinion of two such assessors should hold
any greater sway than the opinion of their colleagues who have
apparently operated the procedure in question for many, many years.
For
these, and also for the reasons given by My Lord, the
Judge-President, I would allow this appeal.
Schreiner,
J.A.
I
agree with both judgments.
