Msimuko v Pefile (14/2013) [2013] SZSC 18 (31 May 2013);

 

 

IN THE SUPREME COURT OF SWAZILAND

JUDGMENT

Civil Appeal Case No. 14/2013

             In the matter between     

 

JAPHET  MSIMUKO                                                                    APPELLANT                                                                    

And    

                                               

SIBONGILE LYDIA PEFILE N.O                                              RESPONDENT       

Neutral citation:     Japhet Msimuko vs Sibongile Lydia Pefile N. O (14/2013)

                                    [2013] SZSC 18 (31May 2013)

Coram:                      M.M.  RAMODIBEDI CJ, A.M. EBRAHIM J.A, E.A. OTA J.A.     

Heard                                    10  MAY 2013         

Delivered:                 31 MAY 2013

Summary:                 Civil Procedure: Condonation of late filing of appeal: guiding principles; no bona fides in application; conduct of Appellant and his counsel lacking of candor and deserving of the Court’s disapprobation; application for condonation as well as appeal dismissed.  

 

 

JUDGMENT

 

 

OTA JA

 

 

[1]       INTRODUCTION

            This is an appeal against the judgment of the High Court per S.B. Maphalala PJ, delivered on 21 December 2012.

 

[2]       The pivot upon which this appeal oscillates is an agreement of sale entered into by the Appellant and the Respondent’s husband, one Dr Simon Pefile (Dr Pefile),who is alleged to be very sick, and in respect of whom the Respondent sought and obtained an order by the Court a quo on 17 October 2008, to represent as Curator ad litem and/or Curator bonis, for the purposes of managing and running his affairs.  It was on the authority of this order that the Respondent instituted the proceedings a quo.

 

[3]       DRAMATIS PERSONAE

            The facts of this case which are predominantly common cause are that sometime in 1999 the Appellant and Dr Pefile entered into an agreement of sale of immovable property described as Certain remaining extent of Portion 38 of Farm No. 75 (Waterford Park), situate in the Hhohho District Swaziland, measuring 5972 (Five Nine Seven Two) Square meters, which consists of a four bedroom house with a double garage and two buildings; a guest cottage and servants quarters (the property).

 

[4]       The property which is owned by Dr Pefile was duly advertised by him for sale in a local newspaper.  The Appellant put up an offer and option for purchase of the said property which was accepted by Dr Pefile.  These facts formed a prelude to the agreement of sale in which the parties assented to a purchase price of E350,000 for the property.  The agreement was conditioned upon the Land Control Speculation Board giving its consent to the transfer of the property sold to the Appellant.  In the event such consent was not obtained before 1^st July 1999, the agreement was to be rendered null and void and be of no force or effect

 

[5]       The agreement of sale remained unsigned by the parties.  The consent of the Land Control Speculation Board to transfer the property to the Appellant was neither obtained before the 1^st of July 1999 as envisaged nor thereafter.

 

[6]       Notwithstanding the aforegoing facts, the Appellant took possession of the property and moved into it with his family in 1999 and continued to pay the purchase price of E350,000 to Dr Pefile in terms of the agreed mode of payment, the last payment being made in 2001.  After full payment for the property had been made, Dr Pefile handed over to the Appellant the Title Deed of the property; its Rates Clearance Certificate as well as his own Income Tax Clearance Certificate.

 

[7]       It appears that Appellant and his family occupied the property and paid all the municipal bills, which included rates, from 1999 to 2007, when the Appellant left for Zambia on an international assignment and obviously put other people in possession thereof.

 

[8]       Relations between the parties remained cordial until sometime in 2010, when Dr Pefile and the Respondent began to make frantic efforts to dispossess Appellant of possession of the property on grounds that the agreement of sale was rendered void and of no force and effect by reason of the fact that it remained  unsigned in contravention of Section 31 of the Transfer Duty Act 1903 and for non-compliance with Section 8 of the Land Speculation Control Act 1972, which requires consent of the Land Speculation Control Board to effect transfer of the property in the name of the Appellant.  This generated a debate between the parties which saw the Appellant maintain an intransigent position refusing to budge.

 

[9]       Obviously irked by the Appellants uncompromising stance, Respondent as Applicant, approached the Courta quo  by way of Notice of application filed on 24 January 2012, under a suit styled Case No. 134/12 for several orders, the relevant ones of which are, declaring her the owner of the property as well as costs.

 

[10]     [11]    The application was ferociously contested by the Appellant who was Respondent a quo via his answering affidavit; the sum of which is that the Respondent was not entitled to the order sought by reason of the conduct of the parties, evidenced by his taking possession of the property from 1999; paying the full purchase price which was accepted by DrPefile who also gave him all the documents for the property; as well as payment of rates for same; notwithstanding the statutory breaches  complained of.

 

[11]     Suffice it to say that at the close of pleadings and before the application could be heard, the Appellant as Applicant launched an application dated 13 September 2012, contending inter alia for the following reliefs:-

 

“1.       Directing that the application proceedings in the main application under Case No. 134 be hereby stayed pending determination of the action proceedings brought by Applicant against the Respondent.

            2.         Consolidating the application proceedings and the action proceedings.

3.         The Honourable Court gives directives as to filling of further pleadings and future conduct of the proceedings.

            4.         Costs of this application in the event of unsuccessful opposition hereto.

            5.         Further and/or alternative relief.”

 

[12]     The crux of this application as evidenced by the affidavit in support, is that Appellant instituted action proceedings a quo, against the Respondent for restitution of the purchase price of the property together with interest thereon which he alleged the Respondent had failed to tender.  He prayed the Court to consolidate the two actions, thus enabling his claim proceed simultaneously and be determined as a counter claim to the main application, to ensure that his interest in the transaction between the parties is protected.

 

[13]     It appears that this application was not opposed as there is no record of any opposition to same.

 

[14]     There is also nothing in the record evidencing whether the orders sought were ever granted or refused; or what transpired in the intervening period between the date the application was filed and 21 December 2012 when the Courta quo rendered judgment in this case.

 

[15]     It is important to also note here that the action proceedings purportedly launched by the Appellant is also not exhibited in the record.

 

[16]     What is apparent from the record is that the Courta quo in its written judgment found that the only issue for decision was whether the Appellant, who was Respondent a quo, was entitled to mora interest because the parties had agreed on the other substantial issues in the application.  In the final analysis, the Court held that the Appellant can only be entitled to interest a tempore morae and not mora interest and so it was ordered.  It is this order that gave birth to the present appeal.

 

[17]     THE APPEAL

            The Notice of Appeal embodies the following grounds:

            1.         The learned judge a quo erred in law and in fact in granting the         orders sought without an order for restitution to the Appellant.

2.         The learned judge a quo erred in law and in fact in holding that the Respondent was also only entitled to pay interest a tempore morae and not mora interest.

            3.         The learned judge a quo erred in law and in fact in granting an          order for costs against the Appellant.

 

[18]     The Appellant gave notice that he will seek leave to amplify his grounds of appeal as follows:-

1.         The learned judge a quo erred in its appreciation, understanding and formulation of the central issue between the parties.  The primary and central issue on the papers is whether the sale agreement is valid and enforceable or whether it is null and void of no effect because it was not signed by the parties.

 

2.         The Court below erred in holding that the Respondent was the owner of the property and proceeded to grant the order as prayed for by Respondent.  The Court a quo did not take into consideration that the Title Deed was given to Appellant and Appellant had paid purchase price.

 

 

[19]     CONDONATION

            The Registrars stamp affixed to the Notice of Appeal evidences that it was filed on 19 March 2013.  This puts it outside the four weeks period for noting of such an appeal as statutorily prescribed by Rule 8 of the Court of Appeal Rules of 1971, which is couched in the following terms:-

 

            (1)        “The notice of appeal shall be filed within four weeks of the date of the      judgment appealed against;

Provided that if there is a written judgment such period shall run from the date of delivery of such written judgment.

And provided further that if the Appellant is in goal, he may deliver his notice of appeal and copy thereof within the prescribed time to the officer in charge of the goal, who shall thereupon endorse it and the copy with the        date of receipt and forward them to the Registrar who shall file the original and forward the copy to the Respondent.

(2)        The Registrar shall not file any notice of which is presented after the         expiry of the period referred to in paragraph (1) unless leave to appeal out of time has previously been obtained”.

 

[20]     The tone of this legislation which is peremptory, gives the Registrar no quarter on this issue.  It unequivocally precludes him from filing any such notice of appeal unless leave to appeal out of time has been previously obtained; which leave to appeal Rule 9 (1) also mandates “shall be filed within six weeks of the date of the judgment which it is sought to appeal against”

 

[21]     The Appellant failed to seek leave to launch this appeal out of time as required by the Rules.   It is by reason of this fact that Mr S.V.  Mdladla who appeared for the Respondent contends, that no appeal lies before the Court in these circumstances and that the attitude of the Appellant in simply filing his heads of argument on the merits of the condonation application is tantamount to condescension as though this procedure is a mere formality.  Mr S. P Mamba who appeared for the Appellant for his part contended replicando that the application for condonation is based on Rule 17 of the Rules of this Court. 

 

[22]     It seems to me that by approaching the Court for condonation in this way and manner, the Appellant is obviously invoking the remedy provided in Rule 17 of the Rules of this Court, which states as follows:-

 

“The Court of Appeal may on application and for sufficient cause shown, excuse any party from compliance with any of these rules and may give such directions in matters of practice and procedure as it considers just and expedient”

 

[23]     It follows that though Rule 8 (2) prohibits the enrolment of an appeal filed out of time without the previous leave of the Court being sought and obtained, Rule 17 in broad terms, affords a leeway of escape from the ominous consequences of Rule 8 (2) in the face of “sufficient cause” shown for such an escape.  This is a laudable effort by the legislature towards substantial justice which is the universal trend.  Its modus operandi is that the spirit of the law does not reside in forms or formalities or in technicalities; justice can therefore only be done if the substance of the matter is considered in appropriate cases.  Reliance on technicalities renders justice grotesque and even leads to outright injustice.  The Court will not thus ensure that technical rules introduced as a handmaid to justice, should work a wrong contrary to the real truth and substance of the case before it.  Therefore, where “sufficient cause” is shown, the Court will enlarge the time for the late noting of an appeal.

 

[24]     Being a discretionary power, this procedure has its guiding principles.  As such, it is not an arbitray exercise, but a judicial and judicious one predicated on facts and circumstances which demonstrate that it is just and equitable to grant such an indulgence.

 

[25]     The lawgiver itself gives no definition or explanation as to the meaning of the phrase “sufficient cause,” which jurisprudence also demonstrates has defied any precise or comprehensive judicial elucidation.  What can however be extrapolated from the compass of a plethora of case law is that this term carries with it certain elements, which are underscored by the principles of fairness, which the Applicant for condonation must at least demonstrate convincingly and with a degree of forthrightness, to be entitled to relief.  These factors include the following:-

 

1.         The reason for the delay in noting the appeal and if applicable, in launching the application for condonation.  The latter is borne out     of the cardinal principle of law that condonation must be applied for as soon as the party concerned realizes that it is required.  This          is in the interest of fairness.  It also acts as a check and balance for unscrupulous litigants who may wish to engage the Rule 17    procedure as an engine of fraud and in the process defeat the administration of justice.

            2.         The bona fides of the Applicant.

            3.         The Applicants degree of participation in the delay.

            4.         The prospects of success of the appeal.  This condition is of   paramountcy.  This is to prevent the court from engaging in an      academic exercise by condoning an appeal which has no or only an             exiguous chance of success.

 

[26]     As Ebrahim JA correctly propounded in the case of Okh Farm (Pty) Ltd v Cecil John Littler N.O and Four Others, Appeal Case No. 56/08 at page 15.

“as a rule, an applicant who seeks condonation will need to  satisfy the Court that the appeal has some chance of success on the merits-----.  A Court will not exercise its power of condonation if it comes to the conclusion that on the merits there are no prospects of success, or if there is one at all, the prospects of success are so slender that condonation would not be justified”

 

[27]     It is important to observe also that in certain compelling circumstances where the prospects of success of the appeal is evident, the Court may shut its eyes to all the other factors in the interest of substantial justice.  See Usutu Pulp Company v Swaziland Agricultural And Plantation Workers Union Civil Appeal No. 21/11.  Unitrans Swaziland Limited v Inyatsi Construction Limited unreported decision of the erstwhile Court of Appeal of Swaziland delivered on 7 November 1997, Malcos Sengwayo v Thulsile Simelane and Others Civil Appeal No. 5/2011

 

[28]     Invariably, what will qualify as “sufficient cause” would depend on the peculiar facts and circumstances of each case, which the court must put through forensic perusal in order to distill its efficacy and substantiality as such, in the interest of fairness to the parties; as well as the administration of justice.  This is to ensure that the spirit of Rule 8 which is a realization of expeditious justice, is not defeated.

 

[29]     BONA FIDES OF THE CONDONATION

            Testing this application against the rigours of the aforegoing principles, I note straight away, that the papers of record smack of the Appellants lack of candor in launching this application.  Mr Mdladla vociferously decried the gimmicks of both the Appellant and his attorney Mr Mamba in this regard and I can sympathize with this sentiment.

 

[30]     In an attempt to put this lack of candor in perspective, it is imperative that I commence this inquiry at the very beginning by looking at why the Appellant and Mr Mamba allege that this appeal was filed out of time.

 

[31]     To this end, Appellant averred as follows in paragraphs [5] to [10] of his founding affidavit:-

“5        I state that this matter was heard by the High Court and judgment was delivered on the 21^st December 2012 by His Lordship Maphalala PJ.

6.         On the 21^st December 2012 when judgment was granted the High Court was already in recess.  My present attorney’s offices were closed.

7.         On the 30^th January 2013 my attorneys were served with a Court order.  A search ensued for the copy of the judgment, my attorneys got a copy of the judgment on 5^th March and same was emailed to me since I stay in Zambia.  This was the first time I was aware of the said judgment.

8.         I have been in and out of my work station since I work for an international agency.  Further the communication breakdown was a result of poor network occasioned by heavy rains.

                        9.         Had I been aware of the judgment earlier, I would have filed my                        notice of appeal timeously as I have done now.

10.       I state that the Respondent will suffer no prejudice in having the Honourable Court granting the condonation for a fair administration of justice to the Appellant who was not aware of the judgment until the 05^th March 2013 when it was availed to my attorneys.

11.       I state that I have prospects of success in this matter as stated on my notice of appeal hereto attached.  It is my honest believe that the Court erred in fact and in law in granting the orders in its judgment”

 

[32]     Mr Mamba filed a confirmatory affidavit in support of the above allegations of fact, the relevant portions which state the following:-

“2.1     I hereby confirm that I have read the affidavit of Japhet Msimuko and confirm same in so far as relates to me and my legal practice.  In particular I confirm that judgment in the Court a quo was delivered on the 21^st December 2012 when the High Court was in recess in terms of the directive by his Lordship the Chief Justice.

                        3.         I became aware about a Court order on the 30^th January 2013.  I                                     searched for the judgment and only got it on the 5^th March 2013                            wherein same was forwarded to the appellant for further                                         instructions”

 

[33]     When this application was heard, Mr Mamba sought to embellish these allegations via oral exhortation.  In pursuit of this enterprise, he told the Court that he was attorney of record for the Appellant when the impugned decision was delivered and he was not aware or informed of the judgment until 30 January 2013, because when judgment was delivered the High Court was in recess, closed and no business was in progress.

 

[34]     Counsel also suggested that perhaps delivery of the judgment was shrouded in mystery; cryptic or in privacy or camera, as he contended that it was not delivered in open Court.  Section 21 (11) of the Constitution of Swaziland Act 2005, decrees that all proceedings of every Court or adjudicating authority shall be held in public.  Implicit from Mr Mamba’s proposition therefore, is that the Court a quo violated this constitutional provision.  These aspersions cast on the Court a quo are certainly outrageous, they are not borne out of the record  nor did Mr Mamba bother to raise them in any of the papers filed in this appeal.  I hold the view that such un-substantiated allegation should never be hauled at any judicial officer; moreso the judge a quo, who is one of the longest serving in the land, a man of repute; who has conducted himself with utmost dignity and respect and is worthy of high esteem.

 

[35]     Such  unfortunate allegation is not worthy of condescension; it is certainly deserving of this courts disapprobation; as it all together constitutes a lethal weapon, one that is universally recognized as capable of bringing the administration of justice into disrepute among reasonable members of the society.

 

[36]     In any case, it does not lie in the mouth of Mr Mamba to say whether or not judgment was rendered in open Court a quo.  This is because his proposition that he was Counsel of record when judgment was rendered a quo is not borne out of the record.

 

[37]     The judgment itself and the supplementary heads of argument which Appellant employed in arguing this matter a quo, parade Mr S.C. Simelane as such.  When we interrogated Mr Mamba on this state of affairs, he quickly abandoned this line of argument, flipped over and emerged with a new proposition, which is that though he was attorney of record he merely instructed Mr Simelane to represent him.

 

[38]     An appeal being a re-hearing on the record, this Court is constrained to the record of appeal, which shows up Mr Mamba’s proposition as seriously flawed; quick sand; absolutely lacking of support.

 

[39]     I say this because there is a Notice of Appointment and Substitution of Attorneys which is dated 2 October 2012, which appears in the book of pleadings filed on 8 May 2013.  This process states the following in clear and unambiguous language:-

“TAKE NOTICE that the Respondent appoints the offices of S.C  Simelane as its attorney of record in the above matter in place of S. P. Mamba and whose mandate herein has been terminated.

                                                                                                            (emphasis added)

 

 

[40]     The aforegoing process delivers a violent and incurable blow to Mr Mamba’s assertions in this regard.  Moreso as there is no confirmatory affidavit from Mr S.C.  Simelane in support of Mr Mamba’s position.

 

[41]     It appears to me therefore, that there is much force in Mr Mdladla’s contention that the Appellant was duly represented when judgment was rendered a quo.  When Mr Mamba was re-engaged as Appellant’s attorney is not decipherable from the record.  The fact remains that he was re-engaged and on the state of the pleadings, I am inclined to accept Mr Mdladla’s representation that he became aware that judgment was delivered in this case on 18 January 2013 when he was telephonically informed of same by Mr Mamba.  This state of affairs knocks the bottom off Mr Mamba’s averment that he became aware of the judgment when a Court order was served on him on 30 January 2013.  I will now proceed to demonstrate why I say so.

 

[42]     In paragraph 10 of the affidavit in opposition of the application for condonation the Respondent avers as follows:

 

“The matter before Court was argued by Mr S.C. Simelane and judgment was reserved. On or about the 18^thJanuary 2013 Respondent’s attorney, Mr Sidumo Mdladla called Mr Mamba to discuss about other matters.  Mr Mamba mentioned to Mr Mdladla that the judgment had been delivered in December 2012.  Mr Mdladla was not aware of this development. He requested Mr Simanga Mamba to send him a copy of the judgment and Mr Mamba promised to do so.  I am             advised that Mr Mdladla later confirmed that the judgment had been delivered”.

 

[43]     Mr Mdladla filed a confirmatory affidavit, paragraph 2 of which demonstrates the following:-

 

“I hereby confirm that I have read the affidavit of Sibongile Lydia Pefile and confirm same in so far as same relates to me.  In particular I confirm that Appellant and or his attorney knew as far back as 18^th January 2013 that judgment of the matter in Court a quo had been delivered on the 21^st of December 2012 as I was advised by Appellants attorney  Mr             Simanga Mamba of this development.  It is therefore not true that Appellant became aware on the 5^th of March 2013 when the Court order was served on his attorneys”.

 

 

[44]     In paragraph 9 of his replying affidavit the Appellant met the aforegoing allegations with the following:-

 

                     “AD PARAGRAPH 10

                        Contents herein are denied.   I am not aware of these contents.  I state that I was advised by my attorneys that the offices will be closed from the 14^th December, the High Court was also in recess and the session began in February 2013.  I only received communication from my attorneys in     March that judgment had been delivered.  This was after numerous emails from my attorneys which I was unable to receive due to network problems.  After receiving the copy of the judgment it became apparent to (sic) that the Court a quo had erred on aspects raised in the notice of appeal”.

 

[45]     Mr Mamba filed a confirmatory affidavit, paragraph 2.2 thereof, is apposite to the issue at hand.  It states:

 

“I deny that I became aware of judgment in December.  However, I did write a letter to Mr Mdladla to discuss a map forward in view of the fact that the Court order was silent on the issue of restitution and interest.  It was upon receiving the written judgment that it became apparent that these issues were never considered at all hence the appeal”

 

[46]     I note straightaway that Mr Mamba failed to answer the allegation that he informed Mr Mdladla on 18 January 2013, in a telephone conversation that judgment had been rendered a quo.  He became obtuse and evasive in his answer.  He refused to take the Court into his confidence.  The duty rested squarely on Mr Mamba to confirm the Appellants allegation in this regard.  He failed to do so.  The law on this subject matter is clear.  Where a party who is served with an affidavit fails to reply to a material allegation in the affidavit of his opponent, the allegation is taken as admitted and established.

 

[47]     I am fortified in my view on this issue by a “WITH (SIC) PREJUDICE” letter written by S. V Mdladla and Associates to Mamba attorneys, dated 26 March 2013.   The content of this letter is germane to these circumstances and I set it forth in extenso.

 

[48]                 “          “WITH (SIC) PREJUDICE”

 

                        Dear Sir,

 

                        RE:  SIBONGILE LYDIA PEFILE/JAPHET MSIMUKO

 

 

                        1.         We refer to the above matter and make particular reference to                             your application for condonation for late filling of the Appeal.

 

2.         Whilst we note your client’s right to note an appeal, we have also noted with disappointment the lack of condor (sic) which has been exhibited by your client.  We are tempted to believe that your offices are part of the plot given the manner in which this matter has been handled.

 

3.         The Supreme Court of Appeal is the highest Court in the land and it deserves a lot of respect, condor (sic) and it should be treated with integrity. This is obviously lacking in the Application for condonation which you have filed.  This, we say for the following reasons:-

 

(a)        Your Mr Mamba knew in December 2012 that judgment had been delivered. That the judgment was delivered was communicated to us by Mr Mamba, the attorney for the Appellant.  A copy of the judgment was sent to our offices by Mr Mamba.  This is as far back as January 2013.  We are therefore of the view that it is inconceivable that your client did not know about the judgment.

 

(b)        Your client, through your offices, requested an indulgence to

             give him time to move his items from the premises.  We gave your client the indulgence.  For the last 3 months after judgment had been delivered, your clients have continued to collect the rent and no appeal was filed.  The only concern raised was that of the money (sic) is due to your client.

 

4.         In light of the above, we realise that there is serious lack of bona fides and we strongly oppose the abuse of the highest Court in the land.  For that reason, we would like to advise yourselves that if this application is not withdrawn, we will prepare our opposing affidavit and we will instruct Counsel and we will insist on costs at attorney and own client scale, as we truly believe that this is a typical case wherein there is a lack of condor (sic).

 

5.         We will await your responses and if we do not have same by the end of business day the 28^th day of March 2013, we will prepare our affidavit and file same”.

                                                                                                                        (emphasis added)

 

[49]     It is common cause that Mr Mamba did not reply to this ominous letter.  When we inquired of him why he failed to reply, he gave the Court no plausible reason.  It appears to me that Mr Mamba knew about the judgment not on 30 January 2013 as he alleges, because Courts were on recess, but by the most conservative or economical calculation, at least on 18 January 2013, on which day it has been established that he informed Mr Mdladla of same.

 

[50]     I take judicial notice of the fact that the High Court is open for business during the recess period.  The Registrars, Assistant Registrars and other surbordinate staff are at work.  Processes are filed and served; urgent applications are entertained and determined by duty judges and most importantly, this period affords the judges on vacation the relevant time to attend to cases which they could not dispose off during the session as well as to prepare and deliver judgments.

 

[51]     It is certainly preposterous to suggest that the entire machinery of justice is shut down because Courts are on recess.  This proposition flies in the face of the established and well recognized operational mode of the High Court during recess, which I am bound to state here, also applies in contemporary jurisdictions.

 

[52]     It is also worth mentioning that in their transactions preceding the judgment a quo, and before the appeal which precipitated the letter, the parties had agreed to tax the bill of costs and Mr Mamba had specifically written a letter dated 5 March 2013 to S. V  Mdladla and Associates thanking them for their indulgence; confirming that the Appellant will vacate the premises on or before 30 March 2013 and enquiring as to when the Respondent would refund the purchase price because they have pressure on that from the Appellant.   This shows that the parties went into negotiations to execute the judgment a quo, and that the negotiations commenced prior to 5 March 2013.  This negotiation appears to me to be the more probable cause of the delay in noting the appeal or applying for condonation of the late filing of same.  This will not however suffice. As the Court held in the case of Unitrans Swaziland Ltd v Inyatsi Construction Ltd (supra).

 

“---the question of a possible settlement does not explain at all the delay. It cannot in fact be taken into account as a mitigating factor in relation to the conduct of the Appellant’s attorney”.

 

[53]     In any case, even if I were out of the abundance of caution, to accept the proposition that Mr Mamba became aware of the judgment when a Court order was served on him on 30 January 2013, his contention that he then waited until 5March 2013 to obtain a written judgment to enable him to file an appeal is not sustainable and will not avail him.  I say this because a diligent attorney, out of respect for the Rules of this Court, and knowing that time is of the essence and was fast running out, was expected to immediately launch an appeal together with application for condonation of the late filing of same.  He, as is the practice, could always supplement the appeal with additional grounds after having had sight of the written judgment and obtaining instructions from his client.  He also still had the option to withdraw the appeal if his client instructed to the contrary.  Mr Mamba did none of these.  He folded his arms and waited until 5 March 2013 when he allegedly obtained the written judgment.  Thereafter, it took him another two weeks to file the appeal which the Registrar’s stamp affixed thereon shows was filed on 19 March 2013.  This further delay, both Appellant and Mr Mamba attribute to poor net work which they say completely failed them because of heavy rains rendering them incommunicado.

 

[54]     It is all well and good to blame it on the weather.  These factors to my mind, are nothing but fanciful allegations which cannot lie to hoodwink this Court into granting the condonation sought.  As the case lies, the entire contraption urged by the Appellant as reasonable explanation for delay in noting this appeal has fallen flat on its face for lack of bona fides.

 

[55]     The conduct of both the Appellant and his counsel has left much to be desired.   Whilst appreciating that much of the blame must be laid at Mr Mamba’s door; and it is a general principle that a litigant is not to be punished for the negligence or dilatoriness of his attorney except where it can be shown that he contributed to that; it is also the overwhelming judicial accord that there is a limit beyond which a litigant can escape the dilatoriness or lack of diligence of his attorney.  This principle was approved by this Court in the case of Usutu Pulp Company v Swaziland Agricultural and Plantation Workers Union (supra) with reference to the pronouncement of the Court in the case of Saloojee and Another v The Murder of Community Development 1965 (2) SA 135 (a) AT 141 C-E per Steyn CJ, where the Court said the following:-

 

“There is a limit beyond which a litigant cannot escape the results of his attorney’s lack of diligence or the insufficiency of the explanation tendered.  To hold otherwise might have a disastrous effect upon the observance of the rules.  Considerations ad misericordiam should not be allowed to become an invitation to laxity”.

 

[56]     This is such a case.  See the cases of Malcos Sengwayo V Thulisile Simelane and Others (supra) and Unitrans Swaziland Limited v Inyatsi Constructions Limited (supra).

 

[57]     It remains for me to emphasise, that the legal professional is one of dignity and honour; highly revered.  It is generally regarded as a formidable cult; one that is beyond reproach; supporting the weights of justice in consortium with the Courts.  It thus places a duty of respect and forthrightness on its members in their dealings with the Court to facilitate the administration of justice.  That is the mark of their high calling.  As Moore JA observed in the case of Malcos Sengwayo v Thulisile Simelane (supra) para 18, with reference to the case of Rondel v Worsley  (1966) 3 WLR 950 at 962-63 per Lord Denning MR:-

 

“[The advocate] has a duty to the Court which is paramount.   It is a         mistake to suppose that he is the mouth piece of his client to say what he wants: or his tool to do what he directs.  He is none of these things.  He owes allegiance to a higher cause.  It is the cause of truth and justice.  He      must not consciously mis-state the facts.  He must not knowingly conceal the truth---.  He must produce all the relevant authorities; even those that are against him.  He must see that his client discloses, if ordered, the relevant documents, even, those that are fatal to his case.  He must disregard the most specific instructions of his client, if they conflict with his duty to the court.  The code which requires a barrister to do all this is not a code of law.  If he breaks it, he is offending against the rules of the profession and is subject to its discipline”

 

[58]     This application is sadly lacking of these compliments.  In these circumstances, any success that may be perceived in the appeal cannot save it.

 

[59]     PROSPECTS OF SUCCESS OF APPEAL

            For the sake of completeness, let me note that I see no prospects of success in this appeal to warrant the condonation sought.

 

[60]     The record does not reflect that the restitution and mora interest which the Appellant contends for in this appeal were ever claimed for a quo.  We must not lose sight of the cardinal principle, which is of hallowed and universal application, that a Court cannot grant reliefs not specifically claimed before it.  See Correctional Services v Ntsetselelo Hlatshwako Civil Appeal No. 67/2009 Ezishineni Kandlovu v Ndlovunga Dlamini and Another Civil Appeal No. 58/2012.

 

[61]     Mr Mamba admitted that the suit initiated by the Appellant for which he sought consolidation with the main application a quo was never urged on the Court a quo, neither was the consolidation ever granted.  This, he says is because the parties had agreed that the Respondent tenders the purchase price of E350,000 leaving outstanding the issue of interest which was argued a quo.

 

[62]     This proposition is not borne out of the record of this appeal which conveys the impression that nothing was agreed upon a quo and which is vehemently opposed by the Respondent who maintains that she had tendered restitution of the purchase price right as the outset of litigation a quo.  All that the impugned judgment tells us is that the parties had agreed on the other substantial issues in the matter.  What those substantial issues entail and what was the tenure of the agreement in relation thereto, are not borne out of the record.  This is because, as correctly observed by Mr Mamba, the record of this appeal is not complete.  The record falls short of the requirement of Rule 30 (1) of the Rules of this Court which casts the burden of preparing a proper record and lodging a copy with the Registrar of the High Court on the Appellant.

 

[63]     This Court is a Court of record.  Its business is by way of a re-hearing on the record.  The record is inadequate for use by the Court in determining the appeal.  The Court cannot engage in conjecture or surmise.

 

[64]     There is therefore no dancing around the matter to perceive any success of an appeal where there is in essence no record.  No justification exists for the condonation sought.  The Appellant on the whole is the architect of his own woes.

 

 [65]    ORDER

            On these premises, I make the following orders

 

1.         The application for condonation of the late filing of Civil Appeal No. 14/2013 be and is hereby dismissed.

 

            2.         Civil Appeal No. 14/2013 against the judgment of the High Court     rendered on 21 December 2012 is deemed abandoned and is     accordingly dismissed.

 

3.         Costs of the Appeal to the Respondent on the scale as between party and party.

                                                                                   

 

 

 

 

 

 

 

 

_____________________                                                                                                 E.A.  OTA

                                                                                    JUSTICE OF APPEAL

 

                                                                                    _____________________

I agree                                                                       M.M.  RAMODIBEDI

                                                                                    CHIEF JUSTICE

 

 

                                                                                    _____________________

I agree                                                                       A.M.  EBRAHIM

                                                                                    JUSTICE OF APPEAL

 

 

 

For Appellant:                     S. P.  Mamba           

For Respondents:                S. V.  Mdladla