Slomoes Corporation (Pty) Ltd v Dlamini And Others (78 of 2020) [2021] SZSC 33 (18 November 2021)

# Slomoes Corporation (Pty) Ltd v Dlamini And Others (78 of 2020) [2021] SZSC 33 (18 November 2021) [ __](https://api.whatsapp.com/send?text=https://eswatinilii.org/akn/sz/judgment/szsc/2021/33/eng@2021-11-18) [ __](https://twitter.com/intent/tweet?text=https://eswatinilii.org/akn/sz/judgment/szsc/2021/33/eng@2021-11-18) [ __](https://www.facebook.com/sharer/sharer.php?u=https://eswatinilii.org/akn/sz/judgment/szsc/2021/33/eng@2021-11-18) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://eswatinilii.org/akn/sz/judgment/szsc/2021/33/eng@2021-11-18) [ __](mailto:?subject=Take a look at this document from EswatiniLII: Slomoes Corporation \(Pty\) Ltd v Dlamini And …&body=https://eswatinilii.org/akn/sz/judgment/szsc/2021/33/eng@2021-11-18) [ Download DOC (97.4 KB) ](/akn/sz/judgment/szsc/2021/33/eng@2021-11-18/source) Toggle dropdown * [Download PDF](/akn/sz/judgment/szsc/2021/33/eng@2021-11-18/source.pdf) Report a problem __ * Share * [ Download DOC (97.4 KB) ](/akn/sz/judgment/szsc/2021/33/eng@2021-11-18/source) * [Download PDF](/akn/sz/judgment/szsc/2021/33/eng@2021-11-18/source.pdf) * * * * * Report a problem __ ##### Slomoes Corporation (Pty) Ltd v Dlamini And Others (78 of 2020) [2021] SZSC 33 (18 November 2021) Copy citation * __Document detail * __Related documents * __Citations 1 / 1 Citation Slomoes Corporation (Pty) Ltd v Dlamini And Others (78 of 2020) [2021] SZSC 33 (18 November 2021) Copy Media Neutral Citation [2021] SZSC 33 Copy Court [Supreme Court of eSwatini](/judgments/SZSC/) Case number 78 of 2020 Judges [Dlamini JA](/judgments/all/?judges=Dlamini%20JA), [Maphalala CJ](/judgments/all/?judges=Maphalala%20CJ), [Currie AJA](/judgments/all/?judges=Currie%20AJA) Judgment date 18 November 2021 Language English Court Roll [Download PDF](/akn/sz/judgment/szsc/2021/33/eng@2021-11-18/attachment/slomoes-corporation-pty-ltd-v-dlamini-and-others-2021-szsc-33-18-november-2021.pdf) (377.5 KB) * * * Skip to document content _**IN THE SUPREME COURT OF ESWATINI**_ _**JUDGMENT**_ **HELD** **AT** **MBABANE****CIVIL CASE NO:** **78/2020** In the matter between: **SLOMOES CORPORATION (PTY) LTD** And **BONGANI S. DLAMINI N.O. ESWATINI PUBLIC PROCUREMENT REGULATORY AGENCY** **ESWATINI INVESTMENT PROMOTION AUTHORITY** **MUKWA** **ELECTRICAL** **SERVICES** **(PTY)** **LTD DESTINY GROUP (PTY) LTD CONSTRUCTION INDUSTRY** **COUNCIL** APPELLANT l ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT 4TH RESPONDENT 5TH RESPONDENT 6TH RESPONDENT **Neutral** **Citation:**_Slomoes Corporation (PTY) LTD vs Bongani S. Dlamini_ _& __5 Others (78/2020) [2021] SZSC 33 (15_ '_September_ ___2021)_ **CORAM: M.C.B MAPHALALA** **CJ** 19. **P. DLAMINI** **JA** **J.M. CURRIE AJA** **DATE HEARD: DATE DELIVERD:** 15 September 2021 18 November 2021 1 **Summary:** Civil _Procedure_ \- _Appeal before the Supreme Court preceded by an Application for Condonation for the late filing of the Third's Respondent's Heads of Argument and_ _it_ _stands to be decided first_ \- _The substantive prayer in the said application sought both condonation and extension of time, the relevant legal principles and_ _the rules of this cdurt regarding condonation and extension of time_ 'i\ _considered -Held that the application falls below the required legal_ _standards_ \- _Held that the extension of time is a legal impossibility in the circumstances and hence it falls away_ \- _Held that notwithstanding that the Application for Condonation does not meet_ _the requirements, the court mero mutu in consideration of such_ ), _factors as the signfficance of the matter, that the Appellant did not_ _!:\_ _oppose_ ___the_ ___Application_ ___and_ ___that_ ___the_ ___Heads_ ___of_ ___argument_ ___and_ ___Bundle of Authorities were already served and filed of record before the hearing of this matter, it decided to condone the late filing of the Third_ ___Respondent's_ ___Heads_ ___of_ ___Argument_ ___and_ ___Bundle_ ___of_ ___Authorities_ __ - _Held further that the decision by this court to condone the late filing_ ); I,, _of Third's Respondent's Heads of Argument mero mutu is not_ ___a_ _precedent for departing from the firm jurisprudence of this court when it comes to the requirements to be met by a party seeking condonation_ \- _Held further that the Appeal_ is _postponed sine die pending the allocation of a date for hearing_ \- _Held further that prior_ _to the hearing of the Appeal, the parties are directed to file affidavits regarding the status of the tender subject to the appeal and held that there is no order as to costs regarding the Application for_ ___Condonation._ **JUDGMENT** 16. _**DLAMINI -**____**JA**_ _**INTRODUCTION**_ 1. Falling for consideration before this court is a judgment of the High Court delivered on 19 August 2020 per Her Ladyship Q.M Mabuza PJ and an Application for Condonation for the late filing of the Third Respondent's Heads of Argument. 2. At the hearing of the matter, the court directed that it would hear the Application for Condonation only and that the appeal will be dealt with on a subsequent date to be allocated in the current session. 3. Accordingly, only the Application for Condonation was heard and is subject of this Judgment. _**THE PARTIES**_ 4. Even though this is an Application for Condonation and not the Appeal, the Applicant is referred' to as the Third Respondent. The parties retain original citation on appeal. This court will therefore proceed on that basis in order to avoid confusion. 5. _Ex_ ___facie_ the papers befot'e the High Court, the impugned judgment and the papers before this court as well as the appearances, there are two protagonists in this matter namely the Applicant and the Third Respondent. _**RELIEF**_ 6. The Third Respondent by Way of Notice of Application dated 26 August 2021 sought an order in the following ten11s; _"].__**Condoning and extending the time frame for filing of the**_ _3_ _rd_ _**Respondent's Heads of Argument as provided for in terms**_ _of thr_ _**Supreme Court Rules.**_ _2\. Further and/or alternative_ ___relief."_ 7. The Notice of Application was issued out of the office of the Registrar of the Supreme Court on 25 August 2012 and was served upon the Applicant's Attorneys on 27 August 2021. There were no papers filed in opposition of the Application. In fact, Mr. Manzini counsel for the ,, Applicant, submitted at'the hearing that the Application was not being opposed on the basis that Applicant wished for the Appeal to be determined without any delay. 8. I hasten to point out thalt it is a trite position of our law that whether the ·: papers before court are being opposed or not, it remains a legal obligation on the part of the court to determine if the papers meet the legal requirements for the relief sought hence the court proceeded with the hearing. _**THE THIRD RESPONDENT'S CASE FOR CONDONATION**_ 9. The Third Respondent relied on the Founding Affidavit deposed to by its Counsel, Sabelo M. Masuku, together with a Confirmatory Affidavit deposed to by the Legal Advisor, Patience Bennett. 10. The premise for the Third Respondent's application is set out in paragraphs 11, 12 and 13 of the Founding Affidavit wherein Masuku states the following; _11._ _"The present application_ _is_ _an application for the condonation of the late filing_ ___of_ ___Heads_ ___of_ ___Argument_ ___in_ ___the_ ___present_ ___appeal.____It_ ___is_ ___with_ ___regret_ ___that_ ___we have_ ___found_ ___ourselves_ ___late_ ___by_ ___three_ ___(3)____days_ ___in_ ___filing_ ___the_ ___Heads_ ___of_ ___Argument in_ ___this_ ___matter.____Tl/eAppellantfiled_ ___his_ ___Heads_ ___of_ ___Argument_ ___on_ ___the_ ___12_ _th_ _August, 2021,____after_ ___the_ ___publishing_ ___of_ ___the_ ___roll,____our_ ___client_ ___had_ ___earlier_ ___on_ ___in_ ___the_ ___year_ ___of 2020 when the matt r w s not enrolled made a decision to abandon the defence because it was running behind schedule with the project under scrutiny in this_ ___appeal._ _12._ _When the matter was enrolled this session and given dates, we had to .take instructions 011 the prosecution of the appeal. Due lo the 3_ _rd_ _wave of the Covid-19, the decision makers in the legal department of the_ _J'd_ _Respondent were indisposed anil not in the office to take a decision 011 our awaited instructions. We fin'ally got hold of the instructions lo proceed 011 the 19_ _th_ _August, 2021. We in'advertently believed we hadfifteen (15) days to file tlte Heads when in fact we /tad eighteen (18) days. We started to work 011 tlte Heads 011 the weekend to serve am/file on tlte 25_ _11_ _'__August, 2021, only to be reminded that we were out of time, by the Registrar of the Supreme Court._ _13._ _Tltere was no d'elib rate delay intended and we submit that_ _it_ _sltoufd not cause_ ___great_ ___i11co11ve11ience_ ___to_ ___Court_ ___and_ ___to_ ___the_ ___Appellant.____The_ ___Honourable Court has lost threei-(3) days and the said delay is not such that the Court will not be 11ble to read the Respondent's Head of Argument. The_ _3"__1_ _Respondent intends to oppose the appeal and has high prospects of succes, in tlte matter, as wil(be seen below."_ 11. Masuku's averments are supported by Bennett in her Confirmatory Affidavit in paragraphs 3, 3.1, 3.2 and 4 wherein she states the following; _**3.**_ _"I_ ___**beg**_ ___**of**_ ___**the**_ ___**above**_ ___**Honourable**_ ___**Court**_ ___**to**_ ___**repeat**_ ___**the**_ ___**submissions**_ ___**made by**_ ___**our**_ ___**legal**_ ___**representative,**____**Mr.**____**Sabelo**_ ___**Masuku**_ ___**in**_ ___**so**_ ___**far**_ ___**as**_ ___**the**_ ___**merits of the case, the reasons of the delay and the prospects of success.**__I_ _**pray that same be incorporated herein as**_ _if_ _**specifically pleaded herein**_ ___**so**_ ___**as**_ ___**Jwt**_ ___**to·repeat**_ ___**the**_ ___**said**_ ___**allegations**_ ___**therein.**____**The**_ ___**Appellant, in**_ ___**our**_ ___**humblf**_ ___**submission,**____**will**_ ___**suffer**_ ___**no**_ ___**prejudice**_ ___if_ ___**the**_ ___**condonation**_ _**is granted to the 3**_ _**rd**_ _**Respondent as the issues**_ _will_ _**be ventilated before**_ _**the Court and each party will be**_ _given_ _cu1_ _**opportunity to clearly**_ _state_ _**their case.**_ 1. _It is our humble submission that_ _it_ _is an important matter to the 3_ _rd_ ___Respondent, the Appellant and all parastatals and persons who have to comply with public procurement that this issue ruled upon by the Court_ ___a_ ___quo_ __ i'1i _given_ ___clear_ ___direction_ ___by_ ___this_ ___Court.____The_ ___3r1J_ ___Respondent_ is _involved_ _iii_ _procurements daily and the guidance which will be given by the Court is_ ___important;_ 2. _Should the cdndonation not be granted, the views and perspectives of the_ _3r1i_ _Respondent in argument and in assistance of the authorities and underst.anding of the legal principles, which assist the Coul't in determining tfte matter will not be before the_ ___Court._ _4._ _It is correct t_ r _l_ ,_zat when the appeal was filed in the year, 2020, the_ _3 r1_ _1_ _Respondent_ ___liad_ ___anticipated_ ___it_ ___would.find_ ___its_ ___way_ ___011_ ___the_ ___2020_ ___sessinn. However, it only got to be enrolled_ _in_ _September, 2021. .The_ _3r1J_ _Respondent had withdrawn its instruction to pursue the appeal opposition on' account of the delays that were to be occasioned_ ___in_ _getting enrolled. When our attorney informed us that it had been enrolled, there was a considerable amount of delay from the 3"__1_ _Respondent (o instruct that we proceed to place our defence on the_ _appeal beforrCourt. Due to the prevailing Covid_ _0_ _19 pandemic,__it_ _took_ ' ' _a while to get a decision and the instructions through. We were also_ . 'LI _not aware of the appeal time frames. We only got to instruct_ ___our_ _attorney to proceed with the appeal on the 19_ _th_ _August, 2021 and apparently a day before the Heads were due."_ _**ANALYSIS AND THE APPLICABLE LAW**_ , 12. At this juncture it is apposite to deal with certain issues that are relevant, ! in my view, do not warr'aL nt detailed attention by this court; 1. Firstly, it is the issue of the extension of time. The issue of the extension of time appears only in prayer 1 of the Notice of Application. Neither the Founding Affidavit nor the Confirmatory Affidavit advance a case for the extension of time to justify any further attention from this Court. If. In any event, the extension of time is provided for in terms of Rule 16 of the Rules of this court and the Rule provides that; 1. _"16. (1) The Judge President or any judge of appeal desig11ated by him_ ___may_ ___in_ ___application exte11d_ ___a11y_ ___time_ ___prescribed_ ___by_ ___these_ ___rules:_ _Provided that the Judge Preside11t or such judge of appeal may_ _if_ _he thinks fit re/er the application to the Court of Appeal for decision. (Amended L.N. 10211976.)_ 2. _An application for extension shall be supported by an affidavit setting forth good and substantial reasons for the application and where the application is for leave to appeal the affidavit shall contain_ ___grounds_ _of appeal wh/ch primafacie show good cause for leave to be granted."_ ";· On its plain reading, Rule 16 applies in instances whereby a party appreciates that for one reason or another she or he may not comply with a _dies_ contained in the Rules hence requires an extension of the stipulated ' time. The application for extension of time comes prior to the expiry of 'i the _dies_ and not after. However, Third Respondent's application was launched after the expiry of the _dies.___ In addition, no arguments were advanced beyond the mention of the extension of time in prayer 1\. For these reasons, this issue falls away. 2. Secondly, it is the issue of the Third Respondent's bundle of authorities. In the application for condonation nowhere do the papers seek an order to condone or address the late filing of the Bundle of Authorities. Notwithstanding this shortfall, my view is that the fate of the Bundle of Authorities is sealed with that of the Heads of Argument and shall be treated accordingly. _**ISSUES FOR CONSIDERATION**_ 13. The above - mentioned issues having been addressed, the only issue that falls for consideration by this court is whether the Third Respondent's Application for Condonation meets the requirements for the relief sought. 14. Condonation is provided for under Rule 17 of the Rules of this Court and it states that; )' _**"17. The Court**_ _of_ _**Appeal may on application and for sufficient cause shown, excu e 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",**_ 15. A plain reading of Rule 17 is that a party due to one reason or another fails to take a prescribed legal step within the stipulated time may seek the J Court to condone such a·failure. This is antithesis to the operation of Rule i:,, 16 in that Rule 17 serves as a basis for relief after the expiry of the prescribed _dies._ 16. This Court has pronoui;iced itself on a number of cases regarding the requirements to be met y a party seeking condonation and consequently the applicable law is now settled in our jurisdiction. To mention but a few relevant cases, see; UNITRANS CONSTRUCTION LIMITED vs INYATSI CONSTRUCTION LIMITED APPEAL CASE NO.9 OF 1996, DR. SIFISO BARROW vs DR. PRISCILLA DLAMINI AND THE UNIVERSITY !.OF SWAZILAND (09/2014) [2015] SZSC (09/12/15); DR. BANY ARVITA BELINDA vs A.G. THOMAS (PTY) LTD (30/2015) [[2016] SZSC 07](/akn/sz/judgment/szsc/2016/07) (30 JUNE 2016); ROYAL ESWATINI SUGAR CORPORATION LIMITED vs ACTING JUDGE MSIMANGO N.O AND 4 OTHERS (93/2020) [[2021] SZSC 21](/akn/sz/judgment/szsc/2021/21) j (12/10/2021); ABEL MPHILE SIBANDZE vs MAGAGULA & ·! **HLOPHE ATTORNEYS (86/2019)[[2020] SZSC 25](/akn/sz/judgment/szsc/2020/25)** **(24/08/2020);** **NOKUTHULA MTHEMBU AND FOUR OTHERS** vs **THE MINISTRY OF HOUSING AND ANOTHER (94/2017) [2018] (30/05/2018).** 17. This Court has considered and cited with approval cases from other jurisdictions particularly .the Republic of South Africa. In this regard see; **MELANE** versus **SANLAM INSURANCE COMPANY LTD 1962 (4) SA 531 (A); COMMISSIONER OF INLAND REVENUE** versus **BURGER 1956 (4) SA (A); THE COMMISSIONER FOR THE** i SOUTH AFRICAN REVENUE SERVICES versus CANDICE JEAN .\ VAN DER MERVE (20152/2015) [[2014] ZASCA 86](/akn/za/judgment/zasca/2014/86) (28/05/2015). 18. In the **NOKUTHULA MTHEMBU CASE** _(supra),_ His Lordship Dr. Odoki, considered some of the cases referred above both from within and outside our jurisdiction and stated the following legal requirements to be ' ' met in order for an App1-ication for Condonation to succeed; 1. That as soon as a party becomes aware of non-compliance with the Rules sh or he must immediately take steps to remedy such by way of application; 2. That in such an application the Applicant must provide a reasonable explanation for the default; 3. That in the application the Applicant must demonstrate good prospects of success; and 4. That the court in granting or denying the relief sought ought to consider prejudice likely to be suffered by the innocent party and the importance of1the case. 19. In the **MELANE vs SANLAM** Case _(supra),_ the Court had this sought at page 532 C - F; __"without a reaso11ablp and acceptable explanation for the delay, the prospects of__ ____success are immaterial, and without prospects of success 110 matter how good__ __th'!_______explanation fo1· the delay, an application for Condonation should be refused__ _."(my emphasis)._ [201 In this matter it is not disputed that the Third Respondent was out of time by three days to file the Heads of Argument and Bundle of Authorities. Such a delay in my view is relatively short to justify the Court granting the relief sought provided the other legal requirement for condonation have been met. i· [211 The Third Respondent has laid a basis for prospects of success as envisaged by the law namely the challenge as to whether the matter is one of review or appeal, in view of the Applicant's contention that the matter was reviewable by the High Court. The High Court held that there was nothing to review. [221 The Third Respondent also contended that there will be no prejudice suffered by the Applicant if the Court condones the late filing of the Heads of Argument. T find nothing that counters this argument. [231 However, what is clearly the elephant in the room for the Third Respondent lo deal with is the explanation forthe default. The explanation at best is a warped up one. The Third Respondent at one stage is said to have abandoned the defence; as to what this means is unclear to me that there were delayed instructions and miscalculations of days on the part of Third Respondent's Counsel. The explanation falls far short of the standard set as per the cases above. 24. Therefore, a reasonable and acceptable explanation for default has not been given by the Third Respondent. The Application for Condonation must fail as per the MELANE vs SANLAM CASE _(supra)._ __**MERO MUTU**__ _**ORDER**_ 24. Notwithstanding the fact that not all the requirements for an Application for Condonation have been satisfied by the Third Respondent, the Court _mero_ ___mutu_ condones the late filing of the Third Respondent's Heads of Argument and Bundle of Authorities. 24. The decision of the Court must not be construed as a depatture from the now settled principles of our law regarding condonation. The Court has considered the following factors; the Application for Condonation was not opposed, the degree of lateness (3 days) was relatively short, the seriousness of the matter in view of its commercial implications and that the Applicant will not suffer any prejudice as a result of the order. The Heads of Argument and Bundle of Authorities were served and filed. ' _**COSTS**_ 24. The Application for Condonation was not opposed by the Applicant. Therefore, Applicant did not incur any costs in connection with the Application. It is my view that an appropriate order in the circumstances is not to make any costs order. _**RULE 33**_ _**(1)**__**ORDER**_ 24. In the course of the hearing of this matter before this Court the question as to the status of the tender arose. Bot! Counsel could not be of assistance to the Court to shed some light on the matter. This is a very important question that requires a truthful response. 24. In the circumstances the Court has elected to exercise its powers in te1ms of Rule 33 (1) of the rules of this Courtlby calling the parties to file Affidavits explaining the status of the tender in question. Rule 33 (1) provides that; _"No party to an appeal shall have the right to adduce new evidence in support of his original case;___but for the furtherance ofiustice, the Court of Appeal may__ ______where__ I' __it thinks {it allow or requirii'new evidence to be adduced."____(my emphasis). 24. In view of the aforegoing, the Court makes the following order: 1. The Respondent's application for condonation for the late filing of heads of argument and bundle of authorities does not meet the necessary legal requirements. 2. Notwithstanding paragraph 1 above, the Court _mero_ ___mutu_ __ condones the late filing of the Third RespDndent's heads of argument and the bundle of authorities. 3. In terms of Rule 31 (1) of the Rules of this Court, the parties are directed to file affidavits disclosing the current status of the tender-subject to the litigation within fourteen days hereof. 4. The appeal is postponed to the next session of the Supreme Court for hearing on the merits. 5. No order as to costs is made, . - --- ------__ **S. P. DLAMINI J.A** **!AGREE** __//!J»L__ ____ **M.C.B MAPHALALA** **C.J.** **!AGRE****E** __I__ _+-f_ _**Cf**_ _**J.M. CURRIE**_ **A.J.A** Counsel for the Appellant: Mr. S. 13. Masuku of Howe Masuku Nsibandze Attorney Counsel for the Third Respondents: Mr. 13. Manzini of C. J. 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