PHINDILE GWEBU v REX (4 of 2017) [2024] SZSC 154 (1 August 2024)

# PHINDILE GWEBU v REX (4 of 2017) [2024] SZSC 154 (1 August 2024) [ __](https://api.whatsapp.com/send?text=https://eswatinilii.org/akn/sz/judgment/szsc/2024/154/eng@2024-08-01) [ __](https://twitter.com/intent/tweet?text=https://eswatinilii.org/akn/sz/judgment/szsc/2024/154/eng@2024-08-01) [ __](https://www.facebook.com/sharer/sharer.php?u=https://eswatinilii.org/akn/sz/judgment/szsc/2024/154/eng@2024-08-01) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://eswatinilii.org/akn/sz/judgment/szsc/2024/154/eng@2024-08-01) [ __](mailto:?subject=Take a look at this document from EswatiniLII: PHINDILE GWEBU v REX \(4 of 2017\) …&body=https://eswatinilii.org/akn/sz/judgment/szsc/2024/154/eng@2024-08-01) [ Download DOCX (100.2 KB) ](/akn/sz/judgment/szsc/2024/154/eng@2024-08-01/source) Toggle dropdown * [Download PDF](/akn/sz/judgment/szsc/2024/154/eng@2024-08-01/source.pdf) Report a problem __ * Share * [ Download DOCX (100.2 KB) ](/akn/sz/judgment/szsc/2024/154/eng@2024-08-01/source) * [Download PDF](/akn/sz/judgment/szsc/2024/154/eng@2024-08-01/source.pdf) * * * * * Report a problem __ ##### PHINDILE GWEBU v REX (4 of 2017) [2024] SZSC 154 (1 August 2024) Copy citation * __Document detail * __Related documents * __Citations 5 / - Citation PHINDILE GWEBU v REX (4 of 2017) [2024] SZSC 154 (1 August 2024) Copy Media Neutral Citation [2024] SZSC 154 Copy Court [Supreme Court of eSwatini](/judgments/SZSC/) Case number 4 of 2017 Judges [MD Mamba JA](/judgments/all/?judges=MD%20Mamba%20JA) Judgment date 1 August 2024 Language English * * * Skip to document content 9 **IN THE SUPREME COURT OF ESWATINI** **JUDGMENT** **HELD AT MBABANE CASE NO. 04/2017** In the matter between **PHINDILE GWEBU APPELLANT** AND **REX RESPONDENT** **Neutral Citation:** _PHINDILE GWEBU v REX (04/2017) [2024] SZSC (……… AUGUST, 2024)_ **Coram : M. D. MAMBA JA.** **Heard : ………………., 2024** **Delivered : ……. AUGUST, 2024** **MAMBA JA.** [1] The Appellant is Phindile Gwebu, together with 11 other persons, were indicted before the High Court on 6 counts. Two of these counts were for bribery whilst the other four were for fraud. These crimes were allegedly committed between November 2005 and March 2006 in Mbabane. The Appellant was the 12th Accused in the Court _a quo_ and was duly represented by Counsel throughout the trial. I set out hereunder the six charges that were preferred against them and as it would appear from these charges, the Appellant was not charged for the bribery alleged in Count 3. It was, however, alleged that she was the bribe on this count. 1.1 _Count 1:_ Accused No 1, 2, 3, 4, 5, 10, 11 and 12 are guilty of FRAUD. In that during the period November 2005 to March 2006, and at or near Mbabane in the Hhohho Region, the said Accused persons acting individually and/or jointly and in furtherance of a common purpose, did unlawfully, falsely and with intent to defraud, give out and pretend to the Treasury Department and/or the Swaziland Government that: (a) The Accused were mandated to run the job creation project; (b) That they had the responsibility to commit E50 Million of Government funds to the Capacity Building Exercise; and (c) They cunningly requested the officer from the ministry of Enterprise and Employment to sign the payment vouchers thus creating an impression to the unsuspecting Treasury Department staff members that the payment batches were prepared by the Ministry of Enterprise and Employment and did then and there and by means of he aforesaid misrepresentation, induce the said Treasury Department and/or Swaziland Government, to its actual and/or potential prejudice to. (a) Process the payment vouchers, and/or, (b) Effect payments to the amount of E50 Million. The Accused(s) said conduct had the resultant effect of undermining the Government Job Creation Policy and Flouting the Tender procedures. Whereas and when the Accused made the aforesaid misrepresentations they well knew or ought reasonably to have known that in truth and in fact. (a) The Ministry of Enterprise and Employment ought to have been the one running the project, in the sense of issuing the tender invites, checking the accredited service providers, researching the viability of the proposed business, supporting the up and coming entrepreneurs, monitoring the progress of the project and originating the payment vouchers, and/or (b) They knew that the Ministry of Finance neither had the capability nor the ability to successfully run the Job Creation Project, and/or (c) Only E10 Million was allocated for Capacity Building and not the entire E50 Million. (d) That they had deliberately not disclosed their personal and financial interests in the project, And thus the Accused commit the crime of FRAUD. 1.2 _Count 2:_ Accused No. 1, 2, 3, 4, 5, 10, 11 and 12 are guilty of the crime of FRAUD. In that upon or about the period November 2005 to March 2006 and at or near Mbabane in the Hhohho Region, the said Accused each or all of them acting jointly and in furtherance of a common purpose did lawfully and with intent to defraud misrepresent to the Treasury Department and/or the Government of Swaziland that a company by the name of SWAZI ENTERPRISES (PTY) LTD (Accused No.2) was duly incorporated in terms of the Company Laws and had been propyl awarded a tender to conduct the capacity building exercise I terms of Government policy, and/or that the company, after incorporation, had he means and ability to conduct such exercise and/or failed to disclose, in circumstances where there was a duty to disclose, the true state of affairs and did by means of the aforesaid misrepresentation induce the Treasury Department and/or the Government of Swaziland to its actual or potential prejudice to pay, by various cheques in the total amount of E3,286 980.00 (Emalangeni Three Million Two Hundred and Eighty Six Nine Hundred and Eighty) to the said Swazi Enterprises (Pty) Ltd and otherwise accepted the misrepresentation or acted on the non-disclosure and thereby subvert the policy of the Government as determined by the Cabinet of the Government of Swaziland. Whereas at the time the Accused made the aforesaid misrepresentation and/or non-disclosure the Accused well knew that SWAZI ENTERPRISES (PTY) LTD had not been lawfully incorporated as a company and/or that it did not have the means or ability to conduct a capacity building exercise and hat ordinarily and procedurally it would not be granted a Government tender to conduct such exercise, more especially as its only directors and shareholders, via Accused 5 and 10, were Government employees, and thus the Accused did commit the crime of Fraud. 1.3 _Count 3:_ Accused N0.6 and 7 are guilty of the crime of BRIBERY (BRIBER). In that upon or about the period November 2005 and March 2006 and at or near Mbabane area in the Hhohho Region, the said Accused persons, each or all of them acting jointly and in furtherance of a common purpose did unlawfully, intentionally and corruptly officer PHINDILE GWEBU (Accused 12) a Civil Servant in the Treasury Department and as such a State Official, the sum of E754 000 00 (Emalangeni Seven Hundred and Fifty Four Thousand) as a reward in consideration or the favour undertaken by the said PHINDILE GWEBU in processing payments for the Accused persons for the Capacity Building Exercise within the job creation initiative and thus the Accused are guilty of the crime of Bribery. 1.4 _Count 4:_ Accused No.12 is Guilty of the crime of BRIBERY (BRIBEE). In that upon or about November 2005 and March2006, at or near Mbabane area, Hhohho Region, the said Accused person who was at all material times an Accountant in the Treasury Department of the Swaziland Government and as such a State Official, did unlawfully, and intentionally and corruptly from Inhlava Consultants (Pty) Ltd. And SEBENZILE TANGO, Accused 6 and 7 respectively, the sum of E754 000 00 (Emalangeni Seven Hundred and Fifty Four Thousand) as consideration for processing payments for the Capacity Building and Training Exercise, and thereby commit the crime of BRIBERY. 1.5 _Count 5:_ Accused No.1, 5, 7, 8, 9, 11 and 12 are guilty of FRAUD. In that upon or about November 2005 and March 2006 at or near Mbabane area, Hhohho Region, the said Accused persons, each or all the them acting jointly and in furtherance of a common purpose did unlawfully and with intent to defraud, misrepresent to the TREASURY DEPARTMENT and/or the Government of Swaziland that trainees under MANZINI NORTH and NKWENE INKHUNDLA did attend a training whereas at the time of the aforesaid misrepresentation, the Accused persons well knew that no such training was conducted and that no trainees attended any training for the Capacity Building Exercise, and did by means of the said misrepresentation cause actual prejudice and loss to the Government of Swaziland in the sum of E880 400.00 (Emalangeni Eight Hundred and Eighty Thousand Four Hundred) and did thereby commit the crime of FRAUD. 1.6 _Count 6:_ Accused No.1, 5, 6, 7, 8, 9. 11 and 12 are guilty of the crime of FRAUD. In that upon or about the period of November 2005 to March 2006 and at or near Mbabane in the Hhohho Region, the said Accused, each or all of them acting jointly ad in furtherance of a common purpose, did unlawfully and intent to defraud, misrepresent to the TREASURY DEPARTMENT and/or the GOVERNEMNT OF SWAZILAND that trainees at LUDZELUDZE INKHUNDLA and MKHIWENI INKHUNDLA did attend training on the Capacity Building, whereas at the time the Accused made the aforesaid misrepresentation they well knowing that: (i) There were no trainees from Ludzeludze Inkhundla that attended training under Mkhiweni Inkhundla; (ii) There were trainees from Mkhiweni Inkhundla that attended training under Ludzeludze Inkhundla, And did my means of the aforesaid misrepresentation, induce the said TREASURY DEPARTMENT and/or the GOVERNMENT OF SWAZILAND to its actual and/or potential prejudice in the sum of E3,462, 000.00 (Emalangeni Three Million Four Hundred and Sixty Two) and thus the Accused did commit the crime of FRAUD. [2] The Crown led 25 witnesses in support of its case whilst the Appellant neither testified nor called any witnesses to give evidence on her behalf. Three (3) of the Crown witnesses gave evidence on the commission as they were resident in Witbank in the Republic of South Africa and had amongst other things expressed their fears of physically attending Court in Eswatini. The trial took over 2 years to be finalised. [3] The High Court handed down its judgment on 15 December, 2016. The Court found Appellant not Guilty on Counts 1 and 2 but Guilty as charged on Counts 4, 5 and 6. After due mitigation, sentence was handed down on the 9th of February, 2017. On Count 4 and 5 the Appellant was sentence to six years imprisonment of which a period of 2 years was conditionally suspended for a period of 3 years. The Appellant was sentenced to a term of 10 years imprisonment on the 6th Count. This sentence was ordered to run concurrently with those imposed on Counts 4 and 5, which were also ordered to run concurrently. Therefore, effectively, the Appellant was ordered to serve a period of 10 years of imprisonment. Additionally, the Court ordered that ‘[35] Any period spent by each one of the Accused person I custody at whatever stage of these proceedings, shall be taken into account in computing the appreciated sentences. . . . 35.3 As against the [Appellant], the period to be factored in the calculation of the appropriate sentence shall be the 21st January 2007 to the 28th January, 2007.’ [4] It is common cause that the Appellant filed or noted an appeal against the judgment of the Court _a quo_ on 28 February, 2017. Subsequent thereto, she lodged an application for bail pending appeal. This application was dismissed by the said Court on 20 April, 2017. It is, however, common cause that her appeal to this Court against the said judgment was successful and she is currently out on bail. Regrettably, we have not been given a copy of the judgment by this Court on the bail appeal. Mr. Hlathwayo, Counsel for the Appellant undertook to furnish us with such judgment but has to date, failed to do so or to give an explanation for his failure. This judgment became relevant in this appeal because Mr. Hlatshwayo argued during the application for the Condonation of the late filing of the heads of argument by the Appellant, that this Court; in the bail appeal, had already found that the Appellant’s appeal had reasonable prospects of success. I shall return to this issue later in the judgment. [5] In her Notice of Appeal, the Appellant makes the following challenges: ‘2. The Court _a quo_ erred both I fact and I law in convicting the [Appellant] on Count 4 (bribery) when the Crown, had not proven beyond reasonable doubt that when the Appellant received the amount of E754,000.00 from [Inhlava Consultancy (Pty) Ltd and Sebenzile Thango] it was a consideration of processing payments for the Capacity Building and Training Exercise. 3\. The Court _a quo_ erred in fact and in law in convicting the [Appellant] on Count 5 (Fraud) when it had not been proven beyond reasonable doubt that the [Appellant] acted jointly and in furtherance of a common purpose to defraud the Eswatini Government of the sum of E80,400.00. 4\. The Court _a quo_ erred in fact and in law in convicting [the Appellant] on Count 6 (Fraud) when it had not been proven beyond reasonable doubt that the Appellant acted jointly and in furtherance of a common purpose to defraud the Eswatini Government of the sum of E3,462,000.00. 5\. The Court _a quo_ erred in fact and in law in sentencing the . . . Appellant to an effective sentence for 10 years imprisonment when the alleged offences occurred on the same dates and when the amounts allegedly misappropriated had not been proven in the said bank accounts. The Honourable Court _a quo_ should have sentenced the Appellants to 6 years of imprisonment in respect of Count 6 and ordered it to run concurrently with the sentences on Counts 4 and 5.’ [6] Attorneys Linda Dlamini, who were the then attorneys of record for the Appellant, received the record of the proceedings from the office of the Registrar on 10 October, 2022. This was after the said record had been duly certified as correct by the Registrar of the High Court, on 26 September, 2022. The appeal was subsequently enrolled for hearing on 07 November, 2022. On 01 November, 2022 the Appellant’s attorneys of record filed and served the Notice of Withdrawal as such attorneys. This application was formally moved in Court on 07 November, 2023. It was granted by the Court and so was an application by the Appellant for a postponement. The Appellant was granted the postponement to allow her to brief or instruct new attorneys to prosecute her appeal. The Appellant was then able to brief her present attorneys who agreed to handle the appeal on a _pro bono_ basis, that is to say, free of charge for their services. [7] It is noted that when the matter served in Court on 07 November, 2022, the Appellant has not filed her heads of argument. These heads ought to have been filed by . This is governed by Rule 31 of he Rules of this Court. Where, however, there has been a failure to comply with any of the rules of Court, the party in default has the right or chance to rectify such default by applying for Condonation as provided in Rule 17 of the 1971 Rules of this Court. One has to emphasise that the Rules of Court are largely, if not entirely procedural in nature or are there for the smooth expeditious, inexpensive, uniform and efficient operation or running of the Court. As stated by the Court in _Dumisa Dlamini v Mbango Matsenjwa App. Case 3/91_ (judgment delivered on 30 September, 1992), “. . . this Court remains the master of its own procedure and retains its overriding power to condone the Appellant’s non-compliance . . . of the Rules of Court .’ having said that, the Courts have consequently cautioned that ‘. . . parties and their legal advisors should not be encouraged to become slack in the observance of the Rules, which are an important element of the machinery for the administration of justice. But on the other hand technical objections to less than perfect procedural steps should not be permitted, in the absence of prejudice, to interfere with the expeditions and if possible, inexpensive decision of cases on their real merits.’ (_Trans-African Insurance Co. Ltd v Maluleka 1956 (2) SA 273 (A)_ quoted with approval by this Court in _Shell Oil Swaziland (Pty) Ltd v Motor World (Pty) Ltd t/a Sir Motors (23/2006)[[2006] SZSC 11](/akn/sz/judgment/szsc/2006/11) (21 June 2006). _See also _Swaziland Electricity Company v Gideon Gwebu and Another (36/2018)[[2018] SZSC 25](/akn/sz/judgment/szsc/2018/25)_ (29 May, 2019) and the case therein cited). [8] In _Madvubadle Investments (Pty) Ltd v Heavy Plant Centre (Pty) Ltd (94/2022)[[2023] SZSC 48](/akn/sz/judgment/szsc/2023/48) (27 November, 2023), _this Court pointed out that ‘[6] Rule 17 of the rules of this Court has been the subject of numerous judgments by this Court. All these judgments are consistent on the requirements and applicability of the provisions of the Rule. This is a procedural rule rather than one of substantive law. It is perhaps because of this characterisation that the Court is given a very wide discretion, to be exercised judiciously and judicially upon a consideration of the relevant facts in a given case. Ultimately, it is a discretion grounded on fairness and justice. In deciding whether to condone non-compliance with the rules, the Court would take into consideration issues including, the degree or extent of non-compliance, the excuse or explanation proffered for such lack of compliance, the importance of the case to the parties and to the general scheme of the law, the respondent’s interest in having the matter finalised, the prospects of success on appeal, the avoidance of any unnecessary delay in the administration of justice and the functioning of the Court in general. The Courts have always emphasized that the list is not exhaustive and that these factors are interrelated and do not have to be considered and weighed individually. The Applicant must satisfy that Court that good cause exists to allow or permit the Court to grant the indulgence sought. _Vide The Prime Minister and 2 Others v Michael Vusane Masilela (100/2018)[[2023] SZSC 38](/akn/sz/judgment/szsc/2023/38) (13 September, 2023) at para 6 and 14_. Thus the application is not a mere formality, as invariably applicants allege that where the application is not opposed, it must ipso facto be granted. (See _Feldman v Feldman, 1986 (1) SA 449 (T) United Plant Hire (Pty) Ltd v Hills 1976 (1) SA 71 (A) at 720.’_ [9] The Appellant filed and served an application for the Condonation for the late filing of her heads of argument. The gravamen of her application was that she was an old and sickly person and did not have the necessary funds to instruct an attorney to represent her in the appeal. She said she was impecunious and had failed to meet the financial demands made to her by the prospective or would be attorneys. She also stated that she was not in wilful default and was not _an fait_ with the rules of Court governing the conduct of Court proceedings and her previous attorneys had withdrawn their services just when her heads of argument had to be filed I Court. On some unspecified period, she had been confined to bed due to an operation she had undergone at the RFM hospital. Finally, she averred that she believed that she had reasonable prospects of success in her appeal. This application for Condonation was not opposed by the Crown and was granted by this Court on 31 March, 2023. The Court indicated that the reasons for this order would be incorporated in this judgment. The Appellant was further ordered to file and serve her heads of argument on 05 April, 2023. The Respondent was also granted leave, if so advised, to supplement its heads of argument by the 12th April, 2023 and the appeal was postponed for hearing, on the merits, on 14 April, 2023. [10] This Court noted that this case has been enrolled for hearing before this Court before November, hearing stated above and at that time the Appellant indicated to Court that she was in the process of instructing attorney S. Khoza to handle her appeal and this was confirmed by Mr. Khoza. Apparently, these negotiations were not successful. When Linda Dlamini & Associates formally filed their Notice of Withdrawal, the Appellant was already in default of filing her heads of argument. The current attorney was appointed on 03 March, 2023. The Appellant has stated that she is an old lady and is poor and thus cannot afford the services of an attorney. The matter is of grave interest to her inasmuch as she was convicted and effectively a straight custodial sentence of 10 years was imposed on her. She believes that her conviction is legally unsound or unjust or unlawful. Her default has been explained and the delay is not inordinate or alarming. [11] On the issue of reasonable prospects of succession appeal, the Appellant sates that there was no direct evidence to establish or prove her contrition. The evidence was only circumstantial. The trial Court based its findings purely on inference drawn from the available material before it and this inference was not the only inference to be drawn from that reached by the trial Court. As already stated above, the Court has to consider the application for Condonation in a holistic fashion and not treat each requirement in isolation. The factors are inter related and constitute the whole or unit, which is the application itself. No doubt the question of reasonable prospects of success in the appeal relates to the actual merits of the appeal but in making a determination on this issue, the Court is by no means making a firm finding that the appeal shall be grounded or be dismissed. But of concise, where the appeal is demonstrately hopeless unmeritorious, then there is no reasonable prospects of success. In _Makhosonkhe Dlamini & 2 Others v The King (03/2024 [2024] SZSC (09 April, 2024)_ the Court quoted Du To it et al, Commentary on The Criminal Procedure Act (Revision Service 15, 1995) 31-8A as follows: ‘A reasonable prospect of success on appeal is by no means a __sine qua non__ for Condonation (_Mofokeng v Prokureur – General (OUS)_ _1958 (4) SA 519 (O)512E)._ The minor role played by reasonable prospects on appeal, in considering an application for amendment appears from the fact that an application for Condonation may succeed whilst an application for leave to appeal will be refused, precisely because of the absence of reasonable prospects on appeal _(R v Matsatebe 1949 (2)SA_ _105(O)108-9)._ It is absolutely unnecessary in any case that an applicant should have to persuade the court that he has a reasonable prospect of success on appeal; his prospects of achieving success on appeal are not at this stage relevant nor does the court have to bring out a finding in that regard _(S v Kashire 1978 (4) SA 166 (SWA) 167. . . ._ In _Mofokeng_(_Supra)_ it was held that an applicant’s prospect of achieving success on appeal is one of the factors which may be taken into account in viewing an application for Condonation’. I am in respectful agreement with this exposition of the law save that I am of the view that the issue of reasonable prospects of success do and must form part of the inquiry, otherwise the court would find itself granting Condonation for the late filing of a Notice of Appeal for an unmeritorious or hopeless appeal. By considering the existence or otherwise of reasonable prospects of success on appeal, the court hearing the application is by no means making a finding on the merits of the intended appeal but merely enquiring on whether there is some reasonable issue to be adjudicated upon. Again, each case would be decided based on its own particular facts. It is not a one-rule-fits all approach.’ Although this was in respect of the late noting of an appeal, these remarks are apposite in this case and are hereby repeated. (Vide also _The Swazi Observer Newspaper (Pty) Ltd t/a Observer on Saturday & 2 Others v Dr. Johannes Futhi Dlamini (13/2012) [[2018] SZSC 26](/akn/sz/judgment/szsc/2018/26) (19 September, 2018)._ [12] Although not given specifics on her state of health and in particular the period when she was bedridden due to her medical operation, we were enamours in our ruling that on a balance of probabilities, she had shown good cause for her failure to file her heads of argument within the prescribed period. She was not in wilful default. Further, the Court concluded that, her contention that there were reasonable prospects of success in the appeal was not entirely hopeless or unmeritorious and therefore there being no prejudice to either the Respondent or the interests of justice in general, it was proper that the appeal be hear and adjudicated on its real merits. (See _The Prime Minister and 2 Others v Michael Vusane Masilela (100/2018)[[2023] SZSC 38](/akn/sz/judgment/szsc/2023/38) (13 September, 2023) at para 6 & 14)._ I examine the appeal in the next segment of the judgment. [13] The background information or fact of the case are captured with judgment of the Court a quo in the following three paragraphs; namely: ‘[8] By way of summary the Crown’s case was that sometime in 2005 the Authorities of this Country took a decision to stimulate its economy and in the process to create jobs. To kick start the project a big summit, which came to be known as the job summit, was held at the Mavuso Trade Centre in Manzini, where pledges were made by both the Swaziland Government and the Financial Institutions operating in the country who all came together to try and make the intended exercise a reality. Through the Principal Secretary in the Ministry of Finance, the Swaziland Government pledged a sum of fifty Million Emalangeni (E50M) towards the project. [9] To operationalize the decision referred to above, the evidence reveals that the Swaziland Government took a further decision to train Swazis in the Capacity to own and run business. This was referred to as the Capacity Building Exercise. The Capacity Building Exercise was to be spearheaded by the Ministry of Enterprise and Employment working closely with that of Finance and Economic Planning. Otherwise the Ministry of Finance was itself going to spearhead the other wing of the project called the Resource Mobilisation Committee. These two committees were meant to be chaired by the Respective Principal Secretaries of the Ministry of Enterprise and Employment and that of Finance. The ministers of the three mentioned ministries were going to be the ones to oversee the entire project. This was covered in the evidence of PW1 Lutfo Dlamini and PW2 Majozi Sithole who were the former ministers in the ministers of Enterprise and Employment on the one hand and that of Finance on the other. [10] On the E50M pledged by the Swaziland Government it was decided that it be split into three heads namely: 10 Million Emalangeni (E10,000.000.00) for Job Creation or Capacity Building. This was to be used to train Swazis on the skills to establish and manage businesses. Another 10 Million Emalangeni (E10,000.000.00) was allegedly to be used for the establishment of a Trust Fund to which all the other pledges were to be deposited into. The balance in the sum of 30 Million Emalangeni (E30,000.000.00) was to be used as security to cushion the loans by those Swazis who were establishing business is or it was to be some form of loan guarantee. A document confirming this decision and the concomitant breakdown was handed into Court as part of the Exhibits and marked as Exhibit A.’ [14] An application for Condonation for non-compliance with any Rule of Court is regulated by Rule 17 of the Rules of this Court. The application must show good or sufficient cause for such non-compliance. The Court has a discretion in the matter. [15] One has to emphasize that the rules of Court are largely if not entirely procedural in nature and are there for the smooth, expeditious, uniform, inexpensive and efficient operations or reviewing of the Court. The Rules are there for the Court to perform its duties in an open and predictable way. As stated in _Dumisa Dlamini v Mbango Matsenjwa, App. Case 3/91 (judgment delivered on 30 September, 1992),_ ’ . . . this Court remains the master of its own procedure and it retains its overriding power to condone the Appellants’ non-compliance . . . of the Rules of Court.’ Having said that, the Courts have consistently cautioned that ‘. . . parties and their legal advises should not be encouraged to become slack in their observance of the rules, which are an important element of the machinery for the administration of justice. But on the other hand, technical objections to less than perfect procedural steps should not be permitted in the absence of prejudice, to intefere with the expeditions and, if possible, inexpensive decision of cases on their real merits.’ _(Trans-African Insurance co. Ltd v Maluleka, 1956 (2) SA273(A)_ , quoted with approval by this Court in __Shell Oil Swaziland)__. See also _Swaziland Electricity Company v Gideon Gwebu & another (36/2018) [[2018] SZSC 25](/akn/sz/judgment/szsc/2018/25) (29 May 2019_ and the cases cited therein). [16] In _Madvubadle Investments (Pty) Ltd V Heavy Plant Centre (Pty) Ltd (94/2022)[[2023] SZSC 48](/akn/sz/judgment/szsc/2023/48) (27 November, 2023),_ this Court pointed out that ‘[6] Rule 17 of the rules of this Court has been the subject of numerous judgments by this Court. All these judgments are consistent on the requirements and applicability of the provisions of the Rule. This is a procedural rule rather than one of substantive law. It is perhaps because of this characterisation that the Court is given a very wide discretion, to be exercised judiciously and judicially upon a consideration of the relevant facts in a given case. Ultimately, it is a discretion grounded on fairness and justice. In deciding whether to condone non-compliance with the rules, the Court would take into consideration issues including, the degree or extent of non-compliance, the excuse or explanation proffered for such lack of compliance, the importance of the case to the parties and to the general scheme of the law, the respondent’s interest in having the matter finalised, the prospects of success on appeal, the avoidance of any unnecessary delay in the administration of justice and the functioning of the Court in general. The Courts have always emphasized that the list is not exhaustive and that these factors are interrelated and do not have to be considered and weighed individually. The Applicant must satisfy that Court that good cause exists to allow or permit the Court to grant the indulgence sought. Vide _The Prime Minister and 2 Others v Michael Vusane Masilela (100/2018)[[2023] SZSC 38](/akn/sz/judgment/szsc/2023/38) (13 September, 2023) at para 6 and 14_. Thus the application is not a mere formality, as invariably applicants allege that where the application is not opposed, it must _ipso facto_ be granted. (See _Feldman v Feldman, 1986 (1) SA 449 (T) United Plant Hire (Pty) Ltd v Hills 1976 (1) SA 71 (A) at 720._ [17] Again in _Tuntex Textile (Pty) Ltd v Eswatini Government & Others (86/2018) SZSC 28 (31 May, 2019) _the case law on Condonation was stated by the Court as follows: _‘[10] Van Ransburg J. in Fanapi v. East Cape Administration Board 1983 (2) SA 688 at 690, said:-_ _‘Condonation of non-observance of the Rules of Court_ __is by no means formality__ _. It is for the Applicant to satisfy the Court that there is sufficient case for excusing him from compliance. What calls for some acceptable explanation is not only the delay in noting the appeal and the delay in the prosecution thereof_ __but also the delay in seeking Condonation__ _?’ The learned Judge added, ‘The explanations furnished by the Applicants’ attorney leave much to be desired. This, however, need not be fatal to the success of the application_ __if the prospects on appeal are strong__ _. Good prospects of success may transcend deficiencies in an application for Condonation and warrant a granting of the application mot withstanding the present of the deficiencies.’_ . . . [11] An application for Condonation should be brought to Court without delay as soon as the attorney for the Appellants becomes aware that he is in default of complying with any Rule of this Court. In the present case after Mr. Howe was notified by the Assistant Registrar that he was late for filing the heads of argument and he did not act quickly to remedy the default but chose to argue and disagree with the Assistant Registrar until a month passed by, a whole month was wasted before reluctantly filing the Condonation application. Cloette AJA (as he then was) in _De Barry Anita Belinda v A.G. Thomas (Pty) Ltd (30/2015)[[2016] SZSC 07](/akn/sz/judgment/szsc/2016/07) (30 June, 2016)_ imported the principles in _Dr. Sifiso Barrows v Dr. Priscilla Dlamini and the University of Swaziland (09/2014)[[2015] SZSC 09](/akn/sz/judgment/szsc/2015/09) (09/12/2015)_ where the Court at 16 stated: ‘It has repeatedly been held by this Court, almost _ad nauseam_ , that as soon as a litigant or his Counsel becomes aware that compliance with the Rules will not be possible, it requires to be dealt with forthwith, without delay’. The earned judge quoted several authorities with the same principle including the _Unitrans Swaziland Limited v Inyatsi Construction Limited, Civil Case 9 of 1996_ where the Court held at paragraph 19 that: ‘ _The Courts have often held that whenever a prospective Appellant realizes that he has not complied with a Rule of Court, he should apart from remedying his fault, immediately, also apply for Condonation without delay.’_ In the same case Cloette AJA (as he then was) also referred to the case of _Johannes Hlatshwayo v Swaziland Development and Savings Bank Case No.21/06 paragraph 7_ where it was stated: ‘ _It required to be stressed that the whole purpose behind Rule 17 of the Rules of Court on Condonation is to enable the Court to gauge such factors as (1) the degree of delay involved in the matter, 92) the adequacy of the reasons given for the delay, (3) the prospects of success on Appeal, and (4) the Respondents’ interest in the finality of the matter._ (See _Nokuthula Mthembu & 4 Others v Minister of Housing & Another (94/2017) [[2018] SZSC 15](/akn/sz/judgment/szsc/2018/15) (30 May, 2018) Para 16-22) _Vide also _De Klerk v Renderis & Ors (SA 76of 2020) [[2023] NASC 1](/akn/na/judgment/nasc/2023/1) (1 March, 2023) at Para 44_ where the Court noted that ‘[49] It is trite that a party applying for Condonation for his or her non-compliance with the rules must give a full and frank explanation for his or her non-compliance. In addition, such party must demonstrate that the appeal enjoys good prospects of success. There is thus a strong interplay between the two requirements. As pointed out earlier in this judgment, an application for Condonation may be refused because the non-compliance with the rules has been glaring, flagrant or inexplicable. In such an instance, the Court may decide the Condonation application without regard to the prospects of success on appeal.’ [18] In the present application, Counsel for the Appellants has taken the full blame or responsibility for the late filing of the heads of argument. He has stated that he erroneously diarised that the appeal would be heard on 30 May, 2024 instead of 30 April, 2024. Inevitably, this error led to the wrong computation of the date for the filing of the heads in question. He states further that as soon as he realised the error, he took steps to rectify it by filing the heads and application for Condonation. As already stated, the heads were about 7 days out of time. The application for Condonation was, however, filed twelve days later, 16 April, 2024. Counsel also avers that the issues raised in the appeal are of importance to the parties and the general public inasmuch as they involved day to day loan or consumer issues between debtors and creditors in general. There is very little said about the existence or otherwise of reasonable prospects of success of the appeal. However, unlike in _Tuntex (supra)_ where reference was made to the heads only, there are averments in the Founding Affidavit stating why it is contended that the Court _a quo_ erred in its judgment. This is in my judgment, a rather circuitous or perhaps inelegant way of stating that there are reasonable prospects of success in the appeal. In particular, it is stated by Counsel that: ‘The Respondent deliberately bypassed a mandatory legislation commanding debt re-arrangement before suing and there is no way this legislation can be interpreted to mean the contrary and as such we need this clarity from the apex Court as to the meaning of Section 100 and 101 of the [Consumer Credit Act].’ (Per para 22). From these brief facts; the reason for the delay having been fully explained; and the lateness thereof being only 7 days and I am of the considered view that the application for Condonation has to succeed. (See _The Prime Minister & 2 Others v Michael Vusani Masilela (100/2018) [[2023] SZSC 38](/akn/sz/judgment/szsc/2023/38) (12 September, 2023)_. [19] I accept that the heads were filed without Leave of Court and this was irregular. The heads of argument should have been filed as an attachment or appurtenance to the affidavit in support of the application for Condonation. Had this been done, the Appellants would then have referred to them, in sufficient detail, in their Founding Affidavit in an effort to show, _inter alia_ , that there are reasonable prospects of success in the appeal. I am of course mindful of the remarks made by this Court in _Tuntex (supra)_ _at para 21_ , that referring to such heads of argument before they are even admitted or condoned may be contrary to the very notion, spirit and meaning of such an application. I am, however, of the considered view that where the subject matter under consideration is fully canvassed or articulated in the relevant affidavit, a reference to the attached heads would not offend against this legal practice or percept. [20] Notwithstanding the above irregularity or defect, no substantial prejudice was caused to or suffered by the Respondent as a result. This irregularity perhaps unwittingly resulted in reducing the lateness of the filing of such heads. Had the heads been filed after the hearing of the application, there was no doubt in my mind that this would have caused a further delay in the hearing of the appeal. [21] It stands to reason, in my view, that because of the Condonation application being successful, the application by the Respondent to declare the appeal to be deemed abandoned, falls away. [22] By its very nature, an application for Condonation is a prayer for an indulgence. Although the Appellants have been successful in this endeavour and they cannot escape an order for the costs occasioned by this exercise. This is not your run-of-the Mill case where costs follow the event. The Appellants are ordered to pay the costs of the Condonation application. These costs are to include the costs of Counsel to be duly certified in terms of the applicable rule of the Court. [23] For the above reasons, I would uphold the appeal and grant the following order: (a) The appeal is granted and the order of the Court _a quo_ is substituted with the following: The point in _limine_ raised by the Respondents is upheld and the application is dismissed with costs. . (b) The Respondent is ordered to pay the costs of the appeal. __ **M.D. MAMBA** **JUSTICE OF APPEAL** **I AGREE** __ **M.C.B. MAPHALALA** **CHIEF JUSTICE** **I ALSO AGREE** __ **M. J. VAN DER WALT** **JUSTICE OF APPEAL** **FOR THE APPELLANTS: MR. N.G. DLAMINI** **(Attorney General’s Chambers)** **FOR THE RESPONDENT: MR. N.D. JELE** **(Robinson Bertram)** #### __Related documents ▲ To the top >