Dlamini v Thwala N.O. And Others (65 of 2016) [2022] SZSC 1 (17 March 2022)

# Dlamini v Thwala N.O. And Others (65 of 2016) [2022] SZSC 1 (17 March 2022) [ __](https://api.whatsapp.com/send?text=https://eswatinilii.org/akn/sz/judgment/szsc/2022/1/eng@2022-03-17) [ __](https://twitter.com/intent/tweet?text=https://eswatinilii.org/akn/sz/judgment/szsc/2022/1/eng@2022-03-17) [ __](https://www.facebook.com/sharer/sharer.php?u=https://eswatinilii.org/akn/sz/judgment/szsc/2022/1/eng@2022-03-17) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://eswatinilii.org/akn/sz/judgment/szsc/2022/1/eng@2022-03-17) [ __](mailto:?subject=Take a look at this document from EswatiniLII: Dlamini v Thwala N.O. 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And Others (65 of 2016) [2022] SZSC 1 (17 March 2022) Copy Media Neutral Citation [2022] SZSC 1 Copy Court [Supreme Court of eSwatini](/judgments/SZSC/) Case number 65 of 2016 Judges [Manzini AJA](/judgments/all/?judges=Manzini%20AJA), [Dlamini JA](/judgments/all/?judges=Dlamini%20JA), [Cloete JA](/judgments/all/?judges=Cloete%20JA), [Maphalala JA](/judgments/all/?judges=Maphalala%20JA), [Currie AJA](/judgments/all/?judges=Currie%20AJA) Judgment date 17 March 2022 Language English Court Roll [Download PDF](/akn/sz/judgment/szsc/2022/1/eng@2022-03-17/attachment/dlamini-v-thwala-no-and-others-2022-szsc-1-17-march-2022.pdf) (779.2 KB) * * * Skip to document content _**IN THE SUPREME COURT OF ESWATINI**_ _**JUDGMENT**_ **Case No. 65/2016** **HELD AT MBABANE** In the matter between: **MANZINI CITY COUNCIL Appellant** And **MESHACK DLAMINI 1****st****Respondent** **THE REGISTRAR OF DEEDS 2****nd****Respondent** **THE ATTORNEY GENERAL 3****rd****Respondent** **SANDILE THWALA N.O. 4****th****Respondent** In re: **MESHACK DLAMINI Applicant** And **SANDILE THWALA N.O. 1****st****Respondent** **COWIGAN (PTY) LTD 2****nd****Respondent** **MANZINI CITY COUNCIL 3****rd****Respondent** **REGISTRAR OF DEEDS 4****th****Respondent** **THE MASTER OF THE HIGH COURT 5****th****Respondent** **THE ATTORNEY GENERAL 6****th****Respondent** **NHLANGANO TOWN COUNCIL 7****th****Respondent** **MBABANE CITY COUNCIL 8****th****Respondent** **MATSAPHA TOWN COUNCIL 9****th****Respondent** **Neutral Citation** : _Meshack Dlamini vs Sandile Thwala N.O. and 8 Others_(65/2016) [2022] _SZSC_ 01 (17/03/2022) **Coram: S.P. DLAMINI JA, R.J. CLOETE JA, S.B. MAPHALALA JA, J.M. CURRIE AJA AND M.J. MANZINI AJA.** **Heard** : 09th March, 2022. **Delivered** : 17th March, 2022. **SUMMARY** : _Appeal against a Judgment of the full Bench of the High Court – Matter had started in the High Court, was before the Supreme Court on two previous occasions and finally a Judgment emerged after the third appearance before the High Court – At the outset both Counsel agreed that the issue of constitutionality in respect of the provisions of the Rating Act appeared as an unwelcome sidetrack during the proceedings and agreed that it was not an issue which this Court needed to decide upon – The main issue was that relating to the locus standi of the 1_ _st_ _Applicant to have brought the matter to the High Court in the first instance – Provisions of Rule 33(1) invoked in respect of the admission of an affidavit refused by Court a quo –Found that 1_ _st_ _Respondent had no locus standi to institute the proceedings and appropriate costs orders made._ **JUDGMENT** **R.J. CLOETE – JA** [1] This matter in effect comes from as far back as 2006 and has a long history. Along this tedious journey the matter started in the High Court, then graduated to the Supreme Court, then was referred back to the High Court and again graduated to the Supreme Court and then finally sent back to the High Court where a full Bench handed down a unanimous Judgment on 28 July 2016 penned by Hlophe J (as he was then). Six years later this matter finally came before us for hearing. [2] What started out as an issue relating to the purported sale of immovable Property and the purported real rights flowing therefrom, it morphed into a matter, which as will be seen below, unnecessarily involved constitutional issues and further muddied the waters. [3] The basic background is very simply that the 1st Respondent purportedly entered into a purported deed of sale with the Estate of the late D.R. Thwala, with the 4th Respondent (Sandile Thwala who purported to be the Executor in the Estate and who purportedly issued a power of attorney in favour of Attorney Bob Sigwane to enter into the purported deed of sale on behalf of the said Estate) for the purchase of Lot 260 situate in Manzini (“the Property”). In the meanwhile Appellant had obtained an Order against D.R. Thwala as the owner of the Property in respect of non-payment of rates and after many communications between the 1st Respondent’s attorney and late attorney Bob Sigwane, the Property was sold in execution by the Appellant and transferred to the 2nd Respondent in the proceedings _a quo_ namely, Cowigan (Pty) Ltd. I use the term “purported” for the reasons set out below. [4] On 20 August 2010 Hlophe J (as he was then) issued the following Order: 1. **A rule nisi, operating effectively and with immediate effect;** 1. **Interdicting and restraining the 2****nd****Respondent from encumbering or transferring the immovable Property, Lot/ERF 260 in the Manzini District.** 2. **Interdicting and restraining the 1****st****Respondent from utilising or distributing in any manner whatsoever the proceeds of the sale Lot/ERF 260 in the Manzini District or so much of the said proceeds as remain in the possession of either the 1****st****or 5****th****Respondents.** 2. **Service on the 1****st****Respondent is to be effected by publication in a newspaper circulating in South Africa on at least two (2) consecutive days.** 3. **Service on the 2****nd****Respondent is to be effected by publication in a local newspaper once.** 4. **The matter is postponed to the 16****th****September 2010.** As far as I am aware, only having found indirect reference thereto and no Order actually contained in the Record, it is my understanding that this Order was confirmed by M.C.B. Maphalala J (as he was then) on the return date (the “preservation Order”). [5] The _Order_ handed down in the judgment of the full Bench of the Court _a quo_ read as follows: 1. **The orders of the Magistrate’s Court authorizing the collection or recovery of rates including authorizing the sale in execution of the Property for the recovery of the amounts said to be outstanding rates in this matter be and are hereby set aside on the ground that they are void given the circumstances under which they were granted.** 2. **The sale in execution of Lot or Erf 260, Manzini in the Manzini District, be and is hereby set aside on account of the finding that:** 1. **There was no valid order authorizing the collection or payment of rates against the estate of the Late Reuben Daniel Thwala.** 2. **There was no proper description of the Property sold in execution in violation of a peremptory rule as regards the description of the Property forming the subject of a sale in execution.** 3. **There was no service of the warrant of attachment upon the Judgment Debtor or the person as found in occupation of the Property in question at the time.** 4. **The process resulting in the Judgment that authorized the attachment and sale in execution of the Property in question was not in accord with Section 32 as read with Section 2 of the Rating Act 1995.** 5. **The order for the recovery of the outstanding rates in so far as it was not issued by a Judicial Officer was not constitutional.** 3. **The first and third Respondents are ordered to refund the second Respondent the money paid to them as proceeds from the sale in execution of Lot 260, Manzini following the declaration of the sale in execution as invalid.** 4. **The Property forming the subject matter of these proceedings, namely Lot 260 Manzini, be and is hereby declared to have been sold to the Applicant to whom it should be transferred, upon him paying the amount due in terms of the agreement of sale.** [6] A comprehensive Record was served and filed and other than the objections raised to the acceptance of the affidavit of the late attorney Bob Sigwane in the Court _a quo_ and the Court _a quo_ finding that the affidavit would not be admitted because it was “filed way out of time” and a letter from the late attorney Bob Sigwane dated 9 September 2013 in which he stated – _**“kindly be advised that the writer will not be insisting on using the contentious affidavit for the sake of progress and the expeditious determination of the matter”**_ and the Registrar duly certified the Record in terms of the Rules. [7] Appellant and the 3rd Respondent (Attorney General) and the 1st Respondent filed comprehensive Heads of Argument which were extremely useful to the Court. It is to be recorded that the 3rd Respondent filed Heads which only dealt with possible constitutional issues and not on the “merits” of the matter. [8] At the hearing of the matter Counsel for all the Parties were requested to specifically deal with _inter alia_ pertinent issues including: 1\. The _locus standi_ of the 1st Respondent to have brought the proceedings concerned to the High Court in the first instance and subsequently. 2\. The admission to evidence of the affidavit of the late attorney Bob Sigwane found that page 195 of the Record. 3\. The provisions of section 66 of the Administration of Estates Act 28/1902. 4\. The provisions of section 30(1) of the Transfer Duty Act 8/1902 [9] At this juncture I can record that all Counsel conceded that the _Order_ of the Court _a quo_ did not specifically or decisively deal with the constitutionality of section 32 of the Rating Act 4/1995 and that as such this Court was not being asked to make any finding in that regard. Counsel for the 1st Respondent also conceded that it was not the allegation of the 1st Respondent that the current attorney of the Appellant participated in the alleged fraud relating to the sale in execution. [10] Counsel on behalf of the Appellant argued that the Court _a quo_ failed to deal with the issue of _locus standi_ of the 1st Respondent because it came to the view, incorrectly, that there would be prejudice to the 1st Respondent in the Court _a quo_ if the Court found that he did not have _locus standi,_ the Court then made a finding on _locus standi._ [11] That an Applicant must demonstrate direct or legal interest in the subject matter to give it the necessary _locus standi_ in proceedings. See _**Dalrymple v Colonial Treasure**_ 1910 TS 372 at 379. [12] The 1st Respondent could not claim a legal interest as owner or even potential owner of the Property since the purported sale agreement upon which he relies was not in existence at the time that the judgment was entered in favour of the Appellant on 4 December 2006 since the purported sale agreement was only concluded on or about 8 October 2007. [13] The 1st Respondent cannot rely upon any long lease because no contention has been made by him in that regard nor does such a lease appear in the papers and despite repeatedly being requested to do so the 1st Respondent has failed to produce any lease or any details of such a lease. [14] At best for the 1st Respondent he had a month to month lease. On his own version he contended that the owner of the Property, D.R Thwala, had been deceased for some 20 or more years and in the absence of a long lease he could only have been on a month to month lease and this would not give him any security of tenure and therefore no interest in the potential sale of the Property. [15] He further argued that there is considerable doubt that the Applicant was the tenant of the owner of the Property and in the Record there were three (3) indications namely: 1\. The return of service of the Messenger of the Court (at page 128 of the Record) clearly indicates that the Writ was served on “one Gasper Americo being the Defendants Tenant and professedly being the person in charge of the Property in question at the time of service”. 2\. On 31 August 2010 Rodriques and Associates addressed the following letter to Masina Ndlovu Mzizi Attorneys in the following terms: “ _**RE: GASPAR AMERICO/D.R. THWALA – MUNICIPAL COUNCIL OF MANZINI**_ 1. **We act for Gaspar Americo hereinafter referred to as our client.** 2. **Please be advised that our client was and remains at tenant of Lot No.260, Manzini and has been a tenant thereat for the past twenty years.** 3. **In the course and scope of this tenure he affected certain improvements to Lot No.460 with the written and express consent of D.R. Thwala (Executor) to extent of an amount of E216 000.00.** 4. **We are advised by Messrs Bob Sigwane that you shall hold in trust an amount of E216 000.00 in favour of our client pending finalisation of our client’s claim for the improvement lien in favour of our client in the afore-mentioned amount.** 5. **May you kindly confirm that you hold the aforesaid amount in trust on behalf of our client by return fax.”** 3\. The affidavit of the late attorney Bob Sigwane which appears at page 190 onwards in the Record. [16] During the hearing the Court _a quo_ refused to accept the affidavit on the basis that it was “filed way out of time” (page 274 of the Record) and that “it was obviously going to be prejudicial to the Applicant and possibly all the Parties who had timeously filed their papers (page 275 of the Record). [17] Counsel stated that the affidavit was not filed way out of time given the circumstances of the matter and the Court should have considered the contents of the affidavit and if satisfied that it dealt with matters which were crucial and fundamental to a resolution of the dispute, it should have been admitted into evidence. [18] The effect of this affidavit would have destroyed the 1st Respondent’s case entirely if it had been accepted because then he could not have been a tenant but at best a sub-tenant who knew that he had no rights at all. In that regard the Court was referred to the matter of _**United Watch and Diamond Co. (Pty) Limited and Others v Disa Hotels Limited and Another**_ 1972 (4) SA 409 C at 415 E in which it was stated that: “**An applicant for an order setting aside or varying a judgment or order of Court must show, in order to establish** _**locus standi**_**, that he has an interest in the subject-matter of the judgment or order sufficiently direct and substantial to have entitled him to intervene in the original application upon which the judgment was given or order granted. What is required is a legal interest in the subject-matter of the action which could be prejudicially affected by the judgment of the Court.** **A sub-tenant has no direct legal interest in proceedings in which the tenant’s continued right of occupation is in issue, however much the termination of that right may affect him commercially and financially.”** [19] In the event of this Court finding that there is no _locus standi_ on the part of the 1st Respondent, then there is no need to decide the constitutional issue in terms of the well established principle of “avoidance” to the effect that if it is possible to decide a matter without delving into a constitutional issue, that is the course to be followed. See _**Sterklewies (Pty) Ltd t/a Harriesmith Feedlot v Msimanga and Others**_ 2012 (5) SA 392 (SCA) at paragraph 15 _**Nyathi v MEC for Department of Health, Gauteng, and Another**_ 2008 (5) SA 94 (CC) _**Prince v President Cape Law Society and Others**_ 2001 (2) SA 388 (CC) at paragraph 22 [20] Counsel on behalf of the 1st Respondent dealt with the issue of _locus standi_ at some length. From the contents of his Founding Affidavit, the 1st Respondent operates a mechanical workshop on the Property which is his only means of livelihood and that his extended family depends on him, he has occupied the Property without a break for over 20 years, he is still in occupation of the Property and that he invested his life savings in the attempted purchase of the Property. [21] It was further submitted on behalf of the 1st Respondent that when the 1st Respondent entered into the said agreement he had already been in occupation of the developed Property pursuant to a lease agreement and was still in occupation when the application was launched. [22] There can be no doubt that the 1st Respondent has a direct, substantial and legal interest and as such was entitled to enforce the agreement of sale which in itself confers a legal interest, that he had at all relevant times been the lessee of the premises in question and has been paying rental as a person in occupation of premises in terms of a rental agreement and as such he has a real right. He quoted from _**Silverberg and Schoeman’s The Law of Property 3**_ _**rd**_ _**Edition**_ at Page 484 dealing with short leases which stated as follows: “**However, the position changes as soon as the tenant has taken possession of the Property: he or she now acquires a limited real right to the Property of another for the duration of the lease and will henceforth be protected by the rule “huur gaat voor koop”.** [23] Counsel further quoted from a number of judgments many of which dealt with the rights of sub-lessees including _**Rosebank Mall (Pty) Ltd v Cradock Heights (Pty) Ltd**_ 2004 (2) SA, _**Toekies Butchery (Edms) Bpk en Andere v Stassen**_ 1974 (4) SA 771 but at paragraph 39 of his Heads he states that it is necessary to emphasise that the 1st Respondent was at no stage a sub-lessee or a sub-tenant. [24] In dealing with the three (3) instances in which the Appellants’ Counsel indicated that there was doubt that the 1st Respondent was a tenant of the owner of the Property in the following terms. Firstly as regards the return of service by the Messenger of the Court and the letter from Rodrigues and Company, it is alleged these constitute inadmissible hearsay evidence which are disputed under oath by the 1st Respondent. The final issue is the affidavit of the late Sigwane and that it was quite correctly not accepted by the Court _a quo_ and referred to the letter from Sigwane and Partners dated 9 September 2013 relating to his intention that it should not form part of the papers. [25] He accordingly argued that the 1st Respondent had a real protectable right and as such the necessary _locus standi_ to have brought the proceedings concerned. [26] Having taken all of this into consideration I have come to the conclusion that the 1st Respondent had no _locus standi_ to bring the original application to the High Court and all subsequent hearings of the issue. The reasons therefore are the following: 1. The 1st Respondent has made much reference in his Founding Affidavit to a purported lease agreement between himself and the deceased D.R. Thwala. However there is no evidence of any nature in the Record before me of any details which would constitute a legally binding agreement of lease, whether oral or written, which would require the Parties to have agreed upon the leased Property, the term or duration of the lease, the rental payable and other usual and normal provisions relating to the rights, duties and obligations of the Parties. 2. In fact the 1st Respondent merely alleges that he has been in occupation of the Property for a period of about 20 (twenty) years and does not in any way attempt to put before the Court proof of payment of rental whether to the deceased D.R. Thwala or the 4th Respondent or anyone else for that matter. 3. It cannot be disputed that the person known as Gaspar Americo actually exists. Firstly it cannot be disputed that the return of service of the Messenger of Court for the District of Manzini appearing on page 128 of the Record, reflects that service was effected on the said Gaspar Americo and that he professed to being the person in charge of the Property. Secondly there is the letter from the Rodrigues and Associates of 31 August 2010 from which it appears that the said Gaspar Americo was a tenant on the Property concerned for at least 20 (twenty) years and that he had a claim for improvements. The 1st Respondent refers to this as hearsay evidence but with respect the documents are attachments to an affidavit attested to under oath. 4. With due respect, all of the attempts to allege that the numbering and figures on various documents are fraudulent are just an attempt, in my view, to throw the Court off the scent. Taking all of the documentation into consideration there is no doubt that the Property concerned is Lot 260 and nothing else. [27] Accordingly for the 1st Respondent to ignore the facts relating to Gaspar Americo and to virtually impute that he was an unknown person is far fetched. [28] In the absence of any details relating to the purported lease agreement, one then has to look at the other documentation in the Record to establish the true situation. At page 118 of the Record a copy of the original title deed in the name of Daniel Rueben Thwala appears. The said Property was transferred to him on the 6th of March 1957. There are no encumbrances registered against the title deed. This includes a long lease or any other real right. [29] That being the case any purported lease of any nature extending for the periods claimed by both Gaspar Americo and the 1st Respondent, namely at least 20 (twenty) years, falls foul of the provisions of section 30(1) of the Transfer Duty Act 8/1902 as referred to above which reads as follows: “**30(1) No lease of any mynpacht, claim or right to minerals, and no lease of any land or any stand for a period not less than ten years or for the natural life of any person mentioned therein, or which is renewable from time to time at the will of the lessee indefinitely, or for periods which together with the first period thereof amount in all to net less than ten years, shall be of any force or effect if executed after the taking effect of this Act unless executed before a notary public, nor shall it be of any force or effect against creditors or any subsequent** _**bona fide**_**purchaser or lessee of the Property leased or any portion thereof unless it be registered against the title deeds of such Property.”** [30] Accordingly neither Gaspar Americo nor the 1st Respondent could have any claim for protection of any real right as, at best, they or either of them, would be no better than a statutory tenant which tenancy is accordingly only on a month to month basis. [31] Counsel for the 1st Respondent argued that the contents of the affidavit of the late attorney Bob Sigwane appearing from pages 195 onwards in the Record, should not be regarded or referred to by this Court as the Court _a quo_ correctly found that it should be disregarded as it was filed way out of time. Counsel for the Appellant stated in his argument that at the hearing in the Court _a quo_ , one of the Judges indicated that he did not agree with the other two in that regard but never produced a judgment on the issue concerned and eventually signed the unanimous judgment. There was no formal response to this from Counsel for the 1st Respondent. However, it forms part of the Record and was not objected to by the 1st Respondent. I believe that the solution to the whole matter partly lies in that affidavit. This Court, in terms of the powers vested in it by the provisions of Rule 33(1) which read: “**No party to an appeal shall have the right to adduce new evidence in support of his original case; but for the furtherance of justice, the Court of Appeal may where it thinks fit allow or require new evidence to be adduced.”** is of the view that some parts of the affidavit are very crucial, relevant and fundamental and as such only those pertinent provisions will be taken into account to assist the Court. I am mindful of the fact that the 1st Respondent has done everything in his power to prevent the provisions of the said affidavit being placed before the Court. I disagree with the Judgment of the Court _a quo_ where it found that admitting such affidavit would be prejudicial to the 1st Respondent without taking the rights of the other Parties into consideration. When one looks at the letter of 9 September 2013, Sigwane does not recant the contents of the affidavit but specifically states that he will not _insist_ on it being admitted _in the interest of progress and early determination of the matter_. (my underlining) [32] The only relevant parts of the said affidavit taken into consideration are the following: 1. At page 194 paragraph 3.2 he states; **“Although the Master of the High Court did not initiate the process of appointing Mr. Thwala as Executor in the Estate of the Late Reuben Thwala the process seems not to have been finalised as no Letters of Administration were ever issued by the Master in the favour of Mr. Thwala.”** The effect of that is clearly that the purported sale agreement would have been void _ab initio_ because Sigwane purportedly signed the invalid deed of sale between the Estate of the late D.R. Thwala on the strength of a power of attorney purportedly granted to him by Reuben Thwala who would have had no power to grant such power of attorney because he had apparently not been appointed as the Executor in the Estate. [33] On pages 195 and 196 the affidavit states as follows: “**6.1 On 13****th****July, 2006 at Mbabane I was approached by both the Applicant and the 1****st****Respondent who were in the company of each other.** **6.2 During consultation the Applicant disclosed that he was a sub-tenant to one Grasper Amerigo, the principal tenant, who was similarly running a mechanical workshop on the premises at Plot 260 Manzini Township belonging to the Thwala Estate.** **6.3 The Applicant disclosed that he had become aware, through the seller that, Grasper Amerigo, intended buying the leased Property for himself and that Mr. Amerigo expected to be given preference in buying the plot since he had made improvements on the Property amounting to more than E200 000.00 as per an evaluation made by C.S. Chiyanda and Associates.** **6.4 The parties also revealed that a deed of sale between the Estate and Mr. Amerigo had been executed.** **6.5 Despite the existence of the said deed of sale the Applicant insisted that he would take a gamble and enter into a deed of sale of his own since he felt that the aforesaid agreement would fall through. The Applicant further emphasised that he was taking a calculated gamble as he had nothing to lose, as any deposit paid in by him would have to be refunded to him in case Mr. Amerigo’s deal succeeded.”** At page 198 he states: “ **8.1 Although the Applicant had been in occupation of part of the Property as alleged, no agreement existed between him and the estate directly. The Applicant is a sub-tenant to the principal tenant Mr. Gasper Americo who is the one who entered into a lease agreement with the estate.”** As referred to above, the 1st Respondent simply avoided all issues relating to Gaspar Americo and whilst I do not propose to accept all of the contents of the affidavit as being correct, this gives some indication that indeed the 1st Respondent knew all about Americo and as such his attempts to veer away from the occupation of the Property or even a part thereof by Americo is disingenuous. [34] Accordingly I find that the 1st Respondent had no _locus standi_ in respect of the action which he brought against the Appellants and the involvement by him of the Appellant in a personal dispute was totally unacceptable. Any claim in respect of any fraudulent activities, which I do not intend dealing with in view of my finding relating to _locus standi_ , would presumably lie against other parties to the dispute and this judgment should not be seen as a legal bar to any such actions. [35] Since the Court a quo did not specifically pronounce itself on the constitutional issues raised in that Court and since the parties agreed at the hearing before us that it was not a point which needed addressing by this Court and as such there is no need for me to deal with the issue concerned. Furthermore the principle of “avoidance” accordingly applies in respect of the purported constitutional issue and in light of my finding on _locus standi_ , it is not necessary to deal with any other issues raised in the pleadings. [36] At this juncture I must in passing say that the issue of the constitutionality of provisions of the Rating Act remains an issue which may have to be resolved by this Court in an appropriate matter in the future as the laws and procedures relating to the collection of rates by Municipal authorities is a matter which covers not only the law but the civic duty of entities owning immovable Property in urban areas to enable those authorities to maintain infrastructure and necessary utility services to the Properties concerned. [37] Both Counsel agreed that the costs in the appeal would follow the successful party. However as relates to the costs incurred by the postponement of this matter on 9 February 2022, there were claims by Counsel for the Appellant that the postponement was due to a complete misunderstanding and break down of communication between the parties whereas Counsel for the 1st Respondent had a differing view which resulted in Advocate Joubert having to travel to Eswatini and appear on the day in question. I am inclined to sympathise with the view of Mr. Joubert relating to his travel and I will accordingly make an appropriate Order in that regard. [38] Counsel for the 3rd Respondent, the Attorney General’s Chambers, requested the Court to find that the Chambers had merely filed papers in respect of the constitutional issue and as such no costs or Order either in favour of or against the Chambers should be issued. I did not understand the 1st Respondent to seriously oppose that submission. [39] Neither party addressed the Court relating to the preservation Order referred to in paragraph 4 _supra_ , nor was any Order sought and as such this Court makes no Order in that regard. [40] Accordingly I make the following Order: 1\. The full Order of the Court _a quo_ is hereby set aside and replaced with the Orders set out in 2 below. 2\. The Court Order is that: 2.1 The appeal of the Appellant is upheld. 2.2 The Appellant is awarded the costs of the Appeal on the ordinary scale including the certified costs of Counsel analogous to Rule 68(2) of the High Court Rules. 2.3 No Order as to costs is made in respect of the 3rd Respondent. 2.4 The Appellant shall bear the wasted certified costs, on the ordinary scale and analogous to Rule 68(2) of the High Court Rules, of Counsel for the 1st Respondent in respect of the postponement of the matter on 9 February 2022. 2.5 Subject to the Order in 2.4 above, all the Parties are to bear their own costs relating to the said postponement on 9 February 2022. I agree I agree I agree I agree **For the Appellants** : ADVOCATE SKINNER, MR. HOWE AND MR. MANANA ON BEHALF OF THE APPELLANTS **For the Respondents:** ADVOCATE JOUBERT AND MR. S.K. DLAMINI ON BEHALF OF THE 1ST RESPONDENT. 31 #### __Related documents ▲ To the top >