IN THE SUPREME COURT OF ESWATINI JUDGMENT

case No. 06/2019 HELD AT MBABANE In the Inatter between:

S IKHUMBUZO DLAMINIAppellant

and

SAMKELISIWE DLAMINIRespondent

The final orders of the Court a quo in the litany of applications and counterapplications filed before that Court, was that the:

(a) custody of the children was awarded to the Respondent herein; (b) amount of maintenance was raised from the sum of E3, 500.00 to E8, 000.00; and

(c) Commencement of the awarded maintenance of E8, 000.00 would be the 1 ^st of March, 2019 and the actual payment would be payable before the end of March or beginning of April, 2019 (though the Respondent holds that the award is payable on the I ^st

March, 2019).

THE LAW

[8] When the Appeal and Cross-Appeal con-nmenced in this Coun on the 24 ^th March, 2021, the Court asked the parties to address or make submissions on the jurisdiction of the Court and by extension the jurisdiction of the High Court on matters of custody and maintenance of children. During submissions, the Appellant submitted that, whatever the determination on the question of jurisdiction would be, the Appellant was agreeable to continue paying the sun-I of E8,000.00 per month as maintenance for the children.

To allow the Counsel sufficient time to submit on the question ofjurisdiction, the Court Ordered a postponement. The Order specified that the matter was postponed to 14 ^th April, 2021 at 9.00 A.M for that purpose. While both parties filed documents in support of their suppositions, neither appeared at the allocated time on the date in question.

[10] Rule 33 of the Court of Appeal Rules regulate the power of this Court in such matters as the present and I quote it in full:-

' 'Power of Court of A eal to amend admit further evidence or draw inference of fact — Civ. Form 5.

33. (1) No party to an appeal shall have the right to adduce new evidence in support of his original case; iustice, the Court of Appeal map where it thinks [it allow or require new evidence to be adduced.

2. A party may, by leave of the Court of Appeal, allege any fact.s essential to the issue that have come to his knowledge after the decision from which the appeal is brought and adduce evidence in support of such allegations.

3. Even where the notice of appeal seeks to have part only of the judgment re-versed or varied, the Court of Appeal mav draw anp inference of (act, give anp judgment, and make anp order which

ought to have been made and may "take such further or other order as the case map require, and such powers may be exercised infavour of all or any of the respondents or parties whether or not thep have appealed from or complained of the decision under appeal.

2. The Court of Appeal may make such order as to the whole or any part of the costs of the appeal as may be just. "

(my underlining).

The powers conferred on the Court is that it can make any order as the case may require in furtherance of justice whether or not the parties have raised the issue.

I now turn to address the question of jurisdiction as it is the issue that should be resolved first before any other issues can be considered.

[12] First, the question of jurisdiction of a Court to hear and determine a matter may be raised by a Court mero moto in the interests of justice. It's trite that all determinations, final or interlocutory decisions or orders should be made by a tribunal or Court with the necessary jurisdiction or. jurisdictional power. The Court has a right to question itself whether or not it has the legal right to hear the Inatter, that is, jurisdictional power to hear the matter placed before

it.

I believe the following case from Lesotho equally represents our law in

Eswatini in this regard. The Land Court of Lesotho in, Motibele Tseliso v Maqekase Mampho, LC/APN/152/2014t an objection of lack ofjurisdiction was not raised at the first Court appearance as may have been required by the Rules. The Court had to answer the question whether an objection can be waived in order to prevent the Court from entering a valid judgement. The Court held that the objection or the issue ofjurisdiction cannot be waived and can be raised by the Court mero motu. At page 6 paragraph 10, the Court stated as follows -

''[101 A Court has power to raise mero motu the special pleas of jurisdiction, non-joinder and mis-joinder, and if proven valid, must decline jurisdiction, whether or not the plea of

lack of jurisdiction has been raised by the Respondent/defendant or propri.o motu stay the proceedings until an interested party has been joined or intervened or has waived the right to be joined or intervene, or has consented to be bound by the outcome of the case."

[14] And at paragraph [l l] (supra) the Court further stated as follows

"[Il] Since the special plea of jurisdiction is not confined to the initio lites stage of the proceedings but remains alive up to

the stage of appeal proceedings, there is no merit in the contention that it cannot be raised after the first appearance. In Attorney General v Kao LAC (2000-2004) 656 at paragraph .[131 - [181 the Court of Appeal held that the defence of lack of jurisdiction may be raised at any time, even on appeal. Failure by a litigant to raise this defence does not have the effect of conferring jurisdiction where none exists".

[1 5] This Court agrees with the view and decision in the Motibele Tseliso case, supra, that the question of jurisdiction of the Court is alive through all the levels of the proceedings inclusive of the appeal level, that is, from subordinate Courts, including tribunals, to the Suprelne Court.

16. The Court will now examine the statutory provisions to ascertain where and on whom it places jurisdiction on children's protection and welfare matters.

THE PROTECTION OF CHILDREN AND WELFARE ACT 2012

16. This Act was promulgated as recently as 2012 and its objective being to extend the provisions of Section 29 of the Constitution (Rights of the child) and other international instruments, standards and rules on the protection, care, welfare and maintenance of children. This Ineans it's an Act based on and implementing the Constitution of Eswatini and related international instruments such as conventions and protocols and therefore no Court in this country should take it lightly or disregard it. The Act is born from and is a direct descendant of the supreme law, the Constitution of Eswatini.

17. I draw attention to a few but pertinent provisions of the Act in support of my decision in this case which, if Counsel for the parties had paid attention to, would have saved the warring parties a lot of money and incidental expenses and time. This aspect of failure to pay attention to detail or to these provisions of the Act has a direct effect on the awarding of costs.

18. Section 213 of this Act stipulates as follows-

"Application for maintenance order

213. (1) The following persons may apply to the Children's Court for maintenance order of a child-

     1. a child;

     2. a parent of a child; (c) a guardian of a child; (d) relative of the child;

5. a chief;

6. a social worker; and (g) any other person. (my underlining).

16. Section 132 provides as follows

"Jurisdiction of the Children's Court.

132 (1) Every Magistrate's Court shall be a Children 's Court within its area of jurisdiction and shall have iurisdiction to hear and determine matters in accordance with the provisions of this Act".

(underling is minefor emphasis on the question ofjurisdiction and the

High Court is excluded.)

16. Section 214 gives guidance of what the Children's Courts should consider when faced with an application for maintenance "Consideration for maintenance orders

    213. The Children's Court shall consider the following when making maintenance orders-

1. the source of inconte and wealth of both parents of the child or of the person legally liable to maintain the child;

2. any impairment of the earning capacity of the person with a duty to maintain the child;

3. the financial responsibility of the person with respect to the maintenance of other children;

4. the cost of living in the area where the child resides;

(e) the rights of the child under this Act• and

C) and any other matter which the Children's Court consider relevant. " (underling for emphasis).

[221 From the foregoing it is crystal clear that the High Court has no jurisdiction to hear and determine the matter between the parties as a court of first instance. The High Court can only hear and determine custody and maintenance issues on review or appeal from the Children's Court. The common law principle that the High Court is the upper guardian of Children is overtaken by this Act. I must hasten to point out that this moot question was not put forward to Counsel for argument and proper digestion. It could, possibly, be argued though that the upper guardianship of the High Court could be invoked in special circumstances where the Children's Court has failed to exercise its jurisdictional powers. But it can never be emphasised more that it is universally accepted that statute law, legislation or Acts of

Parliament prevails over common law. If there is a conflict between statute

law and the common law, statute law overrides the common law. Statute law can change common law but the reverse is not true and statutes law trumps

Rules of other statutes.

INCIDENTAL ISSUES TO JURISDICTION IN THE PRESENT CASE [23] One of the disputes in this matter concerns the commencement of a maintenance order as issued by the Court a quo which said it was effective from I ^st March, 2019. The Appellant argued in the Court a quo that such order meant that the first payment should be made at the end of March or at least on the I ^st of April. This meant the award starts accruing from the I ^SI of March and becomes due at the end of March. The Respondent on the other hand held that the Appellant had committed the offence of contempt of Court as the Appellant failed to pay on the I ^st of March but at the end of March or the beginning of April.

[24] Had the matter been instituted at the Children's Court, this dispute would not have arisen because Section 221 of the Act provides -

"Enforcement of maintenance orders

221 (1) Maintenance orders shall be enforced thirty days after the order has been made".

25. The second dispute in this regard relates to a report made by a social welfare officer which was filed before this Court (socio- economic report) but not at the High Court. Counsel for the Appellant seemed lost as to what this Court should do with the report as it had not been introduced at the High Court and talked to, and even suggested that this Court should disregard it. The Act addresses itself to this issue where in Section 215 it states as follows

"Request for soéial enquiry report.

215. The Children 's Court may request that a social worker prepares a social enquiry report on the issue of maintenance and submit it to the Children's Court for consideration before the children's Court

makes a maintenance underlining)

25. The other issue that does not come out clearly from the judgment ofthe Court a quo is whether Section 228 was considered before the maintenance order was issued and the Section reads in part -

"Joint maintenance of child.

228. Unless the Chfldren 's Court otherwise directs, and subject to any financial contribution ordered to be made to any other person, the following presump ions shall apply with regard to the maintenance of a child —

(a) where the parents of a child were married to each other at the time of the birth of the child and are both living, the duty to maintain a child shall be their joint responsibility;

25. Finally, important and applicable to this matter is Section 229, as the parties sought to make it an issue that divorce proceedings were pending at the

Magistrate's Court, which States as follows —

	roceedin
229. The C	ildren's Court shall have powers

"Maintenanc durin matrimonial s.

to make a maintenance brder, whether or not proceedings for nullity, judicial separation, divorce or any after matrimonial proceedings have been filed by the parent of a child or during such proceedings or after a final decree is made in such proceedipgs".

CONCLUSION

25. This Court is satisfied that —

1. this matter should have been instituted under the Children's Protection andi Welfare Act, 2012 and commenced under the

Children's Coupt which is defined as every Magistrates Court;

2. it has the powel mero motu to raise the issue of jurisdiction of the Court in any npatter before it and that the issue of the Court's jurisdiction remains alive during the proceedings and can be raised even at the Court of Appeal proceedings;

3. the High Court (court a quo) had no jurisdiction to hear and determine the disputes in this matter as a court of first instance in the face of the Children's Protection and Welfare Act, 2012; and

4. it is just to endorse the Appellant's undertaking made by Counsel, Mr Z. Jele to the effect that in accordance with the principle of "best interests of the bhild", the Appellant undertakes to continue contributing towards the maintenance of the three children in the sum of eight thousand Emalangeni (E8,000.00) per month.

25. Accordingly the Coun issues the following order:

1. T he High Court, as a court of first instance has no jurisdiction to hear and deterinine custody and maintenance matters respecting children.

2. All the orders judgments issued by the High Court respecting custody and maihtenance of the children are set aside.

3. The Respondent in terms of an undertaking given from the Bar shall continue to cootribute a sum of eight thousand Emalangeni (E8,000.00) per month towards the maintenance of the children subject to any su sequent order issued by the Children's Court.

4. The proceedings i this case shall, should any of the parties wish to pursue it again, be commenced de novo at the Children's Court.

5. No orders to costs, each party pays it's own costs.

I agree I agree

JUSTICE O, APPEAL

For the Applicants: Z. JEL FROM ROBISON BERTRAM ATTORNEYS

For the Respondent: SABEL DLAMINI FROM MAGAGULA AND

HLOP ^I ATTORNEYS.