Magagula v Matsebula And Another (51 of 2008) [2009] SZSC 6 (18 May 2009)


IN THE SUPREME COURT OF SWAZILAND


APPEAL CASE NO.51/2008

In the matter between:



CHIEF JUBIPATHI MAGAGULA APPELLANT
VS

ROBERT MATSEBULA 1st RESPONDENT

SISANA MATSEBULA 2nd RESPONDENT



CORAM BANDA CJ

EBRAHIMJA MAGID AJA

FOR THE APPELLANT MR. S.C. DLAMINI

FOR THE RESPONDENTS MR. MAGONGO






JUDGMENT

MAGID AJA:



[1] In this matter:

[1.1] the appeal was noted on 14th October, 2008;

[1.2] in terms of the Rules, the record had to be filed with the

Registrar of this Court within a period of two months,

which expired at midnight on 13th December, 2008; [1.3] the record was in fact filed with the Registrar on 27March 2009 and served on the respondents on the day

the Appeal was heard - 13th

th May 2009; [1.4] the appellant's heads of argument were dated 27th March

2009 but only served on 23rd April 2009; [1.5] no application for condonation of the late filing of the

record or the lateness of the heads of argument was ever

made.



[2] Before us, Mr. Magongo who appeared for the respondents, objected in limine to the appeal proceeding on the ground that condonation for the appellant's procedural defects was necessary and had not even been sought.



[3] Mr. S.C. Dlamini, who appeared for the appellant, sought to answer Mr. Magongo's complaint with the submission that the respondents had not been prejudiced because the proceedings in the Court a quo having been brought on motion, they were in possession of all the papers on which the appeal was based.



[4] That submission is clearly wrong and for these reasons, the following order was made:

  1. The appeal is struck off the roll.

  2. The appellant is given leave at the next session of this Court to bring a proper application for condonation of his non-compliance with the Rules.

  3. The appellant is ordered to pay the respondents' wasted costs.

ACTING JUDGE OF APPEAL


P.A.M. MAGID

R.A. BANDA CHIEF JUSTICE





A.M. EBRAHIM

JUDGE OF APPEAL Judgement delivered in open court on the 18th day of May 2009.


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