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:
The appeal is struck off the roll.
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.
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.