IN
THE COURT OF APPEAL OF SWAZILAND HELD AT MBABANE
CIVIL
APPEAL NO. 28/95
In
the matter between
THE
DIRECTOR OF PUBLIC PROSECUTIONS Appellant
and
THE
LAW SOCIETY OF SWAZILAND Respondent
Coram:
Schreiner
JA
Leon
JA
Browde
JA
JUDGMENT
Browde
JA:
On
the 20th of October 1995 the Respondent was granted an order on
urgent application in terms of which the present Appellant and the
Commissioner of Police (the Respondents in the application) were
called upon to show cause on 24 October 1995 why:-
2
the
Respondents or their agents or their employees should not be
interdicted from arresting any member of the Applicant in connection
with an alleged contempt of court and/or defeating the ends of
justice that allegedly, occurred at the Manzini Magistrate's Court
on the 9th October 1995.
Respondent
should not be ordered to pay the costs of the application.
The
Respondents in the application duly filed answering affidavits in
which certain points in limine were raised as well as allegations on
the merits of the matter. On the return day, and after the filing of
replying affidavits by the Applicant the matter came before Dunn ACJ
(as he then was) and on 3rd November 1995 the Rule Nisi granted on
20th October was confirmed with an amendment which is not material to
this judgment. It is against the confirmation of the Rule Nisi that
this appeal has been brought by the Director of Public Prosecutions
hereinafter referred to as the Appellant against The Law Society of
Swaziland hereinafter referred to as the Respondent.
3
There
is no material dispute on the facts of the matter. On 11 October 1995
the Principal Magistrate at Manzini Mr Maphalala addressed a
memorandum to the Registrar of the High Court referring to a
newspaper report of October 1995 regarding an incident which occurred
at the Magistrate's Court, Manzini on 9 October 1995. The relevant
portion of the memorandum reads as follows:
...
The true position is that last week on Thursday we arranged . with
Senior Magistrate Mr Bwononga that we were going to alternate weekly
in doing civil work in this magistracy. We adjusted our diaries
accordingly and was I (sic) to draw up the roll. The 9/10/95 was his
turn and I had advised the Clerk prior to making proper arrangements
;
On
9/10/95 at 10.30 a.m. I was in my office doing some administrative
work when I heard some people talking in loud voices outside. I went
out to investigate where I was confronted by a large group of
lawyers numbering between 10 to 20 demanding a Magistrate. I could
gather from their mood that they did not want to appear before Mr
Bwononga. On assessing the situation I beckoned them to my chambers
with a view to solve the problem in private to protect the dignity
of the Court, I must say that the group was rowdy. They were led by
Attorney Mr Thulani Masina to my office and I was walking leading
the way. A large group entered my chambers and I asked them what
their problem was whereupon they told me that they are not prepared
to place their cases before Mr Bwononga as they expressed doubts
about his competence in both criminal and civil matters. We had a
short discussion where I tried to reason but could not make headway.
Mr Masina purported to be the group's spokesman. I could gather that
the rest were acting in concert.
At
this point I decided to attend to these cases in order to protect
the dignity of the Court.
4
Moreso,
it was then 11.00 a.m. way past the scheduled time for the Court
sitting at 9.30 a.m. and Mr Bwononga had not arrived. Just before
1.00 p.m. Mr Bwononga came to Mazini and I appraised him of what had
transpired and he explained that the reason he was late is that he
had to attend on his residence permit at the Ministry of Home
Affairs.
I
hope the above account will help clearing the air in this rather
unfortunate incident."
It
appears that this memorandum was brought to the notice of the
Appellant on 11 October 1995 but it is not clear under what
circumstances that occurred. However, on 17 October 1995 the
Appellant wrote the following memorandum to the Commissioner of
Police:
"PROTEST
BY A GROUP OF LAWYERS AT MANZINI MAGISTRATE'S COURT ON 9TH OCTOBER
1995.
Enclosed
hereto is a copy of memorandum to Acting Registrar of the High Court
by the Principal Magistrate Mr S.B. Maphalala to the Acting Registrar
of the High Court (sic). It is an account of certain events that
occurred at Manzini Magistrate (sic) Court premises on the 9th
October, 1995, which were given wide publicity and coverage by the
mass media in the country and abroad. It gives an account of a rowdy
behaviour by a group, which behaviour cannot be condoned in any way.
In fact if any act unlawfully and intentionally violated the dignity,
repute or authority of the judiciary in this country, that was it.
The
said conduct by this mob should be investigated and the alleged
perpetrators brought to book as a matter of urgency. I hereby direct
you to open investigations to find the persons who were involved in
this shameful conduct which has brought the administration of justice
into disrepute and submit a docket to me for prosecution.
5
At
least the alleged leader and spokesman of the group, a certain Mr
Thulani Masina, is clearly identified in Mr Maphalala's report. The
identity of the rest of the group should also be established, after
which they should all be arrested and charged jointly and severally
with Contempt of Court, and alternatively, with Defeating or
Obstructing the course of justice. The docket should then be
forwarded to me without delay for prosecution.
Kindly
expedite action.
A.K.
Donkoh
Director
of Public Prosecutions".
Mr
P.M. Shilubane the President of the Respondent Society deposed to the
founding affidavit in the application. He stated that he had been
informed of the impending arrest of 20 members of the Respondent and
that it was his opinion there was no basis for arresting them. He was
supported in the affidavit by Mr Thulani Masina who, after giving his
version of the incident at the office of the Principal Magistrate,
stated that at no stage was it intended to show any contempt to the
Court nor was the conduct of the attorneys calculated to defeat the
ends of justice.
As
I have said there were several points in limine raised by the
Appellant one of which is contained in paragraph 3.1 of the answering
affidavit which reads as follows:
6
"The
contents of paragraphs 4 (four) and 5 (five) of his Affidavit (i.e.
the affidavit of Mr Shilubane) are inadmissible in law and the
Affidavit is not properly attested to. Application would (sic) be
made at the hearing hereof to strike it off."
In
regard to this particular point Mr Kilukumi, in his very able
argument on behalf of the Appellant, informed us that despite
protestations by him in the Court a quo he was initially not
permitted to argue the question of the validity of the attestations
and the effect thereof on the admissibility of the affidavits filed
on behalf of the Respondent society. It appears from the record of
the proceedings in the Court a quo that the learned judge was anxious
to deal with the merits of the matter. In this regard there appears
the following exchange between judge and counsel:
"Judge:
Well, that is it, that ... he is giving the directives, he is the
person who has to be joined with the Commissioner, it is on his
instructions, that turns on an interpretation of the letter. That is
the point that I say is one on the merits. It is a matter on the
merits, in which event I will not hear you on this point in limine
which you have raised. All that I will hear is the application on the
merits.
Crown:
Your Lordship, we have raised six questions of law, and if your
Lordship is not inclined on hearing the first one . . .
7
Judge:
No ...no ...we get straight into the merits. We get straight into the
merits of it all."
It
then appears that the learned judge, albeit reluctantly, heard
arguments on certain of the preliminary points including the question
of the authority of Mr Shilubane to bring the application, the locus
standi of the Respondent in the application and the question whether
the Respondent was acting ultra vires its objects and functions as
set out in the Legal Practitioners Act. Ultimately Mr Kilukumi
informed the Court a quo that he also wished to argue the question as
to whether the application was based on inadmissible evidence or not.
It appears from the record that the learned judge was under the
impression that what was intended to be argued was that the
application was based on hearsay evidence. Mr Kilukumi attempted to
inform the Court that he was not dealing with hearsay at which point
he was cut off by the learned judge saying "look, let me inform
you. I can condone that if necessary, call the people who are
mentioned, or call on the Law Society to put those in the witness box
now and verify whatever is said here. It is not my intention to
prolong the action by that. Let's get to the merit of this action. "
8
After
argument on behalf of the Respondent society the Crown was called
upon to reply and it was in that reply that Mr Kilukumi advanced the
argument that the affidavits filed on behalf of the Respondent namely
those of Mr Shilubane, Mr Maphalala and Mr Masina, were all attested
to by one J.M. Mavuso who was a professional assistant at the office
of the attorney of record for the Law Society. Counsel submitted that
all the affidavits were inadmissible in law because the attestation
of those affidavits "violates a basic rule that a deponent
cannot swear an affidavit before his attorney, a professional
assistant of that attorney or a clerk of that attorney". In his
judgment Dunn ACJ referred to the authorities which were placed
before him in the following terms:
"In
the case of Magagula v Town Council of Manzini & Others 1979-81
SLR page 291 Nathan CJ held that in regard to the attestation of
affidavits there is no statutory provision to the effect that a
Commissioner of Oaths shall not administer an oath or affirmation
relating to a matter in which he has an interest. In the later case
of F.N. Dlamini v J.N. Dlamini 1982-1986 Vol. II SLR page 416, Hannah
CJ held that affidavits sworn before the Respondent's own attorney or
agent, partner or clerk of that attorney, are not admissible in
evidence. A ruling on these two decisions will be no doubt necessary
by an appropriate Court. It is not necessary for me to deal with the
issue in this application for both sides are guilty of the same
error. "
9
It
is common cause that the attorney who attested the affidavits filed
on behalf of the Respondent society was a professional assistant in
the office of Mr Shilubane whose office was cited in the application
as being the attorney for the applicant. It seems to me that if the
submission that this rendered those affidavits inadmissible is
correct it is no answer to say that because both sides are guilty of
the same error it is not necessary for the Court to decide the
matter. If the affidavits were inadmissible then there was no proper
application before the Court and the application should then have
been either dismissed or struck from the roll. In my view the fact
that the Respondent's affidavits might have suffered from the same
defect could not, in the circumstance of the case, make the
Respondent's position weaker than it would have been had no answering
affidavits been filed at all. It therefore becomes necessary to
decide whether or not the Respondent society's affidavits were
admissible in evidence.
The
admissibility of evidence in civil trials {which would include an
application brought on notice of motion) is governed by the Civil
Evidence Act, 1902 which I refer to below as "the Act". The
Act has no express provision dealing
10
with
admissibility in relation to the attestation of affidavits. Section
43, however, provides:
"In
any case not provided for in this Act, the law as to admissibility of
evidence ... in force in the Supreme Court of Judicature in England
shall be followed in like cases by the Courts of Swaziland".
Since,
as I have said, the question of the admissibility of evidence with
which we have been confronted is not a case expressly provided for in
the Act, it seems that what we must look at is the law in force in
England at the relevant time unless it can be shown that the Act
should not be applied. In this regard Mr Fine, who represented the
respondent, has referred us to the Commissioner of Oaths Act which
came into force in Swaziland on 3 July 1942. Section 4 of that Act,
after laying down the powers and jurisdiction of Commissioners of
Oaths, adds the proviso "that (the Commissioner of Oaths) shall
not administer an oath or take a solemn or attested declaration in
respect of any matter in which he has not, or does not believe
himself to have, cognizance or authority". Mr Fine submitted
that since that section deals specifically with the powers and
jurisdiction of Commissioners of Oaths there was no need for this
Court to consider the ambit and effect of section 43 of the 1902 Act.
11
I
cannot agree with that submission. The Commissioner of Oaths Act does
not, either expressly or by implication, deal with the question of
the admissibility in evidence of affidavits attested before a
Commissioner of Oaths. It is therefore necessary, in my view, to
apply the law applicable in the Supreme Court of Judicature in
England. It appears that that law did not change materially if at all
between 1902 when the Act was passed and the present day, which makes
it unnecessary to decide whether to apply the English law as it was
when the Act was passed or as it was when the application was brought
in casu.
See,
however, in this regard -
S
v Wagner 1965 (4) SA 507 (A) at 513;
Van
der Linde v Calitz 1967 (2) SA 239 (A);
Gentiruco
AG v Firestone SA (Pty) Ltd 1972 (l) SA 589 (A) at 617.
In
1902 in England there was in force the Commissioner of Oaths Act,
1889. In that Act it was provided specifically "that a
Commissioner for Oaths shall not exercise any of the
12
powers
given by this section in any proceeding in which he is solicitor to
any of the parties to the proceeding, or clerk to any such solicitor,
or in which he is interested." In dealing with this section
Halsbury's Laws of England 4th Ed. contains the statement that this
section and a similar section in the Solicitors Act 1974 section
81(2) mean that no affidavit is sufficient if sworn before the
solicitor of the party on whose behalf the affidavit is to be used or
before any agent, partner or clerk of that solicitor. It refers,
inter alia, to the cases of Ross v Shearman (1820) 2 Coop temp Cott
172 and Duke of Northumberland v Todd (1878) 7 ChD 777. In the latter
case objection was taken to the admissibility in evidence of
affidavits attested to by a partner in the firm of solicitors of
record who, so it was submitted, had nothing to do with the case. It
was held that the basis of the objection was not confined to the
solicitor himself but extended to his clerk or agent. At page 779
Hall VC said:
"My
present impression is that the objection must be sustained and these
affidavits are within the principle acted upon by the Court of
Chancery with reference to the necessity of having the evidence taken
before persons who are unbiased in the matter. That conclusion is
fortified by the Rules of Common Law referred to in argument . . .
and I think the case is within the principle of the rule that the
Clerk of the Solicitor on the Record cannot be allowed to be the
Commissioner to take the evidence."
13
Later
Hall VC reaffirmed his view that the affidavits could not be admitted
in evidence and referred to the case of Ross v Shearman (supra). In
that case reference is made to authorities dating back to the 18th
Century in England and it is stated that "it is a rule as old as
Lord Hardwicke's time, that an affidavit, sworn before the solicitor
of the party in the cause, cannot be used. The rule prevails in all
the Courts of Westminster Hall." It then goes on to say that the
reason for this rule is "sufficiently obvious". I take this
"obvious reason" to be the crucial requirement that a
person attesting an affidavit must be completely objective and have
no interest of any kind in the contents or import of that affidavit.
It is of passing interest to note that very early in the 19th Century
a Court in England found in the case of The King v Wallace (referred
to in a footnote to Ross v Shearman and undated) that if it were
possible to make any distinction in cases in which affidavits were
attested before an attorney who had an interest the Court should be
more ready to admit them in the case of habeas corpus because the
Court was particularly called upon to preserve the liberty of the
subject by every means in its power. But, so it was held, the rule
was invariable, and was founded on the "wisest and most obvious
principle" . This principle has been adopted in South Africa in
several cases to which we have been referred by Mr Kilukumi. In Louw
v Riekert 1957 (3) SA 106 at 111 the learned judge said:
14
"According
to English law, affidavits sworn before a Commissioner of Oaths, who
was the clerk of the attorney of the litigant, who intended to use
such affidavits, were not admissible as evidence from as far back as
1754; see Re Thomas Hogen (1754) 3 Atk 813. The reason for the rule
appears from the judgment of Kay J in the case of Bourke v Davis
(1889) 44 Ch.D. 110 at p. 126 where he remarked as follows:-
'The
Commissioner's duty before he administers the oath is to satisfy
himself that the witness does thoroughly understand what he is going
to swear to; and he should not be satisfied on this point by anyone
but the witness himself. For this reason it has been the rule since
the time of Lord Hardwicke that the Court does not accept an
affidavit sworn before the solicitor in the cause, nor his clerk,
although he may be a Commissioner.
The
learned judge then went on to say that he had not been referred to
nor had he been able to find any authority in the English law which
would justify the Court in drawing a distinction, based on the nature
of the clerk's employment, in applying the rule that no affidavit is
acceptable as evidence if sworn before a clerk of the party's
attorneys. He stated, and it seems to me correctly, that the Court
requires the security of an independent Commissioner of Oaths and
that no attorney who is a member of the firm which is the attorney of
record can be said to be completely independent.
15
In
Papenfus v Transvaal Board, Peri Urban Areas 1969 (2) SA 66 the Court
drew a distinction between, on the one hand, the power of the
Commissioner of Oaths in that particular case to attest the
affidavits and, on the other hand, whether such affidavits were
receivable in evidence. While holding that the "interest"
of the Commissioner of Oaths in that case was too remote to fall
within the general prohibition that "no Commissioner of Oaths
shall attest any affidavit or declaration relating to a matter in
which he has any interest" that the affidavit so attested would
not be admissible in evidence since the Commissioner of Oaths must be
independent of the office in which the affidavit to be attested by
him is drawn. He cannot be regarded, so it was found, as independent
if his partner, employee or employer is the draughtsman or deponent.
I agree with that view.
It
is now necessary to deal with the two relevant cases which have been
decided in the Courts of this country and which were referred to by
the learned judge a quo namely Magagula v Town Council of Manzini &
Others (supra) and F.N. Dlamini v J.M. Dlamini (supra) . It appears
that in the former case Nathan CJ held that an affidavit sworn to
before a Commissioner of Oaths who may have had an interest in the
matter should not be excluded as being inadmissible. The
16
learned
Chief Justice was not, however, dealing with a case in which the
Commissioner having an interest in the matter was the deponent's own
attorney or was a member of his attorney's firm. To that extent the
case is clearly distinguishable from the present one and was the
basis for the distinction drawn by Hannah CJ in the Dlamini case. At
p. 418 of the report Hannah CJ, in dealing with section 43 of the
Act, refers specifically to the necessity for looking at the English
law in order to decide the admissibility of evidence. After referring
to section 13 of the Commissioner of Oaths Act 1889 which provides
that a Commissioner of Oaths or a solicitor must not administer any
oath or take any affidavit in any proceeding in which he is solicitor
to any party to the proceeding or clerk to any such solicitor or in
which he is interested, the learned Chief Justice stated that:
"The
result of the statutory prohibition is that the Supreme Court of
Judicature refuses to accept as sufficient any affidavit which is
sworn before the solicitor of the party on whose behalf the affidavit
is to be used or before any agent, partner or clerk of that
solicitor."
He
then referred to Order 41, rule 8 of the Rules of the Supreme Court
of England which is to the same effect.
17
It
seems to me that F.N. Dlamini v J.M. Dlamini is a case directly in
point in the instant matter, and that it was correctly decided. In
the result, therefore, in my judgment the affidavits of the
respondent society should have been held to be inadmissible and that
the application brought by the Society should have been dismissed on
that ground.
Mr
Kilukumi has asked for the costs, not only of the appeal but also of
the application in the Court a quo. In deciding this question I think
it is permissible to look at the circumstances in which the
application was brought and the facts giving rise thereto. Without
going into detail it seems to me that the Appellant seriously
over-reacted to the memorandum of the Principal Magistrate of
Manzini. His reference to "a mob" and his direction to the
police to arrest members of the Respondent Society were uncalled for
since it would have been the simplest matter to call upon the members
of the Society to appear in Court and show cause why they should not
be found guilty of contempt of Court.
While
not in any way wishing to appear as condoning the conduct of the
members of the Society, the order to arrest them reveals a
relationship between the Director of Public Prosecutions and the Law
Society which is most unfortunate and which can
18
only
be inimical to the interests of the administration of justice in this
Kingdom. Because the matter was brought on an urgent basis and
because I am prepared to assume, without deciding, that the learned
judge a quo was correct in finding that the affidavits of the
Appellant suffered from the same defect as those of the Respondent,
that it would be fair that both in this Court and in the Court a quo
there should be no order as to costs. I would therefore uphold the
appeal and alter the order of the Court a quo to read "the
application is dismissed". There will be no order as to costs
either in the Court a quo or in this Court.
BROWDE
AJA
I
agree and it is so ordered
Schreiner
Ja
I
agree
LEON
JA
DELIVERED
AT MBABANE ON THE DAY OF MAY 1996.
