Royal Swaziland Sugar Corporation Ltd v Mabuza and Others (1443 of 2019) [2021] SZHC 54 (12 March 2021)

IN THE HIGH COURT OF ESWATINI

verbatim oral recording of proceeding of the court a quo, in circumstances where such recording is stated to have been erased, and therefore none - existent.

Held: the application lacks merit in that the Applicant failed to show that documents filed fall short of a reconstructed record sufficient for determination of the review application.

RULING ON THE OBJECTION THAT THERE IS NO ADIQUATE RECORD OF PROCEEDINGS OF COURT A QUO

1. The Applicant, erstwhile employer of the 1^st Respondent, filed with this court an application for review and setting aside judgment of the Industrial Court Judge, (2^nd respondent) issued on the 27 March 2019. The 1^st Respondent opposed the application, and to that end filed his Answering affidavit.

2. The matter came before court on the 29 November 2019, on notice filed by the 1^st Respondent. The court issued a consent order by the parties for the Registrar of the Industrial Court to file a record of proceedings in terms of the Rules, and then removed the matter from the roll.

3. The review application was subsequently enrolled on the contested motion roll of 28 February 2020 for arguments. The matter did not proceed because counsels informed the then presiding Judge that they preferred to seek a date for the matter to proceed before Judge Tshabalala, referencing the fact that Judge Tshabalala issued the order of28 February for Industrial Court Registrar to file a record of proceedings. The matter was subsequently set by me for arguments to proceed on the 27 March 2020. Nothing was communicated to the court on the setting of the hearing date that the record of proceedings that had been filed was inadequate.

4. On the set date, the review application could not be argued on the merits because the Applicant had filed an objection to the record stating that Industrial Court Registrar had furnished Judge's Notes instead of a transcript of live proceedings of the court a quo in accordance with High Court Rule 53 (3).

5. The basis of Applicant's objection to the filing of the Judge's Notes as a record of proceedings is that it is not a record of proceedings and does not assist the Applicant in pursuance of its review application against the Judgment of the court a quo. The Applicant further argues that the record lacks the substantive basis in support of its review application and accordingly the Applicant is unable to amend its notice of motion.

6. The Applicant cited criminal decisions of South African courts, among them, Davids v S¹ which the Applicant submits provides, inter alia, a model to follow for reconstruction of a missing record. The court in that case nonetheless, acknowledges that courts may adopt different procedures for a proper reconstruction of a missing court record, emphasis being that both parties must be engaged in the process:

"...Courts have identified different procedures for a proper reconstruction, but have stressed the importance of engaging both the accused and the state in the process. Practical methodology has differed. Some courts have required the presiding Judicial Officer to invite the parties to reconstruct a record in open court. Others have required the Court to reconstruct a record

¹ [2013] ZAWCHC 72.

based on affidavits from parties and witnesses present at trial and then obtained a Confirmatory Affidavit from the accused.

7. What is apparent is that a format or procedure for reconstruction of a record may not be one-size-fits-all. The process cannot be entirely the same between criminal and civil matters. Each case will turn on its circumstances. What is important is that the procedure must be fair and just to the parties. There is no requirement that resultant reconstructed record shall be perfect.

8. The l't Respondent opposes the objection on the basis that it is malafide and merely calculated to delay determination of the review application. The 1^st Respondent's view stems from the fact that the Applicant had previously penned a letter of 17 June 2019 in which it stated that all its efforts to retrieve the record of Industrial Court proceedings, and that it appeared that the record had been erased. Further that the only option was for the Applicant to obtain the Judge's Notes to enable Applicant to prepare the record. The communication referred to was made in the context of an appeal to the Industrial Court of Appeal.²

9. The 1^st Respondent submits that the Applicant cannot turn around and challenge adequacy of the Judge's Notes and demand non-existent actual voice/electronic trial recordings. According to the 1^st Respondent the Applicant must be held to its

² This was an appeal lodged by the current applicant against the same Judgment the subject of this review application, which appeal was subsequently withdrawn.

undertaking made during the then anticipated appeal, for use of Judge's Notes for reconstruction of the Industrial Court record.

10. The 1^st Respondent denies that the record before court is inadequate for review purposes as alleged by the Applicant. The 1^st Respondent submits that the record is adequate and refers in this regard to the Judge's Notes which he submits must be read together with the detailed judgment of the court a quo and other books and records filed in this matter prior to the order of the 29 November 2019.

11. This court notes that on the 28 October 2019³ the Applicant filed under cover of a certificate of the Registrar of the Industrial Court, two volumes of "RECORD OF PROCEEDINGS: INDUSTRIAL COURT CASE NO. 440/2013. PRESENTED FOR FILING ... " Volume 1 contains all the pleadings in the court a quo with annexures; the court a quo's judgment delivered on the 27 March 2019, among others. Volume 2 contains "Transcript of viva voce Evidence dated 25 July 2019; Bundle A: Book of Applicant's Documentary Evidence Prepared by Simelane Mtshali Attorneys dated 2 August 2016; Bundle B: Respondent's documentary Evidence under filing Certificate dated 18 July 2017; Inspection in Loco DVD's Filing certificate by Magagula & Hlophe Attorney dated 19 June 2018."

12. It is not immediately clear why on the 29 November counsels for both parties solicited from this court the consent order that was issued directing Registrar of the Industrial Court to file record of proceedings in terms of the rules, when they

³ Perthe Registrar of the High Court's date stamp.

presumably both knew well that the record filed by the Applicant on the 28 October 2019, certified by the Registrar of that court, was all there was. Neither counsel for the Applicant nor the 1^st Respondent alluded to theadditional nature of material they expected to be filed by the registrar of the court a quo in pursuance of the court order. Be that as it may, the issue for determination is whether there is merit in the Applicant's objection and contention that there is no adequate record before court for the purpose of determining the review application.

13. Having considered the relevant aspects of this matter -the Judge's Notes which are quite elaborate on the witnesses' testimony in chief and under cross examination, the extensive judgment of the court a quo and the sets of pleadings, I tend to share the view of the 1^st Respondent that the objection lacks merit. Reference to authorities indicates that reconstruction of a record should be a joint venture involving the parties. In this case the Applicant participated in that it filed the two volumes of duly certified record referred to above at paragraph [11]. The Applicant's prayer that the matter be remitted to the Industrial court for re-hearing is unmerited. There is no justification for retrial in the present case where there is sufficiently detailed Judge's Notes, detailed judgment and documents exchanged by the parties.

14. 

15. The objection based on the ground that the record is inadequate cannot stand an ·tis dismissed.

D Tshabalala Judge

For Applicant: Mr. Z Hlophe

For 1^st Respondent: Mr. S Simelane