^SUMl\1ARV Three d!ff'erent matiers were presented fcJr hearing of'

appeal(1) and a renewed applicationfrJr bail, cert/fled hy their attorney as 111xent - No effort of' consolidation made by either party -Pleadings by Applicants/ Appellants unacceptahfy presented under guise of' procedural w.norance - No demonstrated effort to overcome patently ohvio11.1· misguided papers filed of'

record - Purported certificate ()l urgency to seek

ju.1ti/icatio11 for enrolling and dealing with ii under a "certified" basis of urgency in support of a late application/cir condonation of the admittedly late filing of their Notice (!f Appeal - It seeks to import a fresh application f<Jr the release of the applicants on hail, which was held out lo he considered as a Court of' First Instance. '/'his incompetentlv presented prayer was not pursued hy the Applicants and it.falls to be regarded as "Pro 11011 scripto ",

Second issue of Notice of Appeal against Order of the

"

High Court dated the 6¹ August 2021: Appellant.I/

Applicants helatedfy sought to appeal the refi1.ml of'their hail application - Not seeking extra time to pursue their "other options" at the High Court ancl obviously aware of the ohstac/e, also filed an application for the condonation of the late filing of their appeal - It is hopelessly inadequate - '/he f<mnding C(ffidavil is not confirmed nor even supported hy the second Applicant/

Appellant. 1'l1e hlatant disregard ofnumerousjudgment.1· hy this Court, especially pe1·taining to the requirements of' stal/11/!, the prospects of' .1·1.,cce.1·.1· in their intended appeal, does not salvage the dilemma. Instead, the concept of "inlerest.1· of justice" was prc>ffered and

.1·oughl lo trump any other legal precedents.

,\'/alemen/.1· of opinion and belief.'<; hy the erstwhile attorney of record do not elevate the "interests (If justice" to any other level from the well-established principle of stare decisis -No argument that plethora of case law was wrong/JI decided, thus potential justljication .fr!r radical departure .fom precedent. Application fi!r condonation for late filing of Appeal di.1·missed.

Notice of ApJ,ea! dated 1-1'" September 2021 containing 6 (1·ix) stated grounds of appeal, as well as a second version thereof,' circulating as "Amended Notice of Appeal" and now containing (8) (eight) grounds of pur;?orled appeal, with no relevant leave having heen appliedfr!r nor granted; Such Notice ordered as heing struck off' the roll, not to he reinstated without leave of this Court having heen sought and granted.

'Jhird matter fhrcon.1iderution con/ams an appeal against the ,1udgment of the same C:ourl he/ow, dated the 1-1'" Septemher 2021. ApJ,ea/ not ·without merit vis-ct-vis the Order as made per incuriam hy the Court a quo. Ratio decidendi Justifie.1 a finding of' hemg functus officio, however not an order (!f "Application Oi.1missed". It was

entered per incuriam, the Court heing inco111petent to di.1m1.1-s the application itself' without having heard and definitively decided the merits of' the 111atter. r:rroneous order set aside on appeal and substituted with an Order that: "The matter he removed fiY!/11 the Roll due to the Court l)('/ng functus officio".

No costs orders made.

.JUDGMENT

Jacobus Annandale JA

1. This wonderfully blessed Kingdom of Eswatini has peacefully co-existed within itself and with our neighbours for many generations. Recent events have however caused havoc and destruction all over the land, in our cities, in our lives, our structures and a dark cloud descended in the midst of a Covid pandemic.

2. It was in these turbulent times that the two Appellants/ Applicants before us were anested and indicted. They jointly face charges under the Te1Torism Act and incitement, amongst others. Their trial is ongoing in the High CoUii with some 46 witnesses already called by the prosecution.

3. Rapidly after their arrest, both Appellants filed an application for their release on bail. The High Collli, per Dlamini J, heard the fully ventilated application, applied her mind to the matter and the law at hand and concluded that their application be dismissed. This was done on the 6^th August 2021.

4. The Judicia1y of Eswatini owes its existence to the Constitution. As independent Courts we rely on the Rule of Law, Statutes, Common Law and Rules of Court to regulate our sphere of work. Procedure and precedence create certainty and regularity. Stare decisis and the hierarchy of our Comis all function predictably in law. For instance, Rule 8 of the Comi of Appeal Rules, made under Section 112 of the Constitution and in conjunction with the Court of Appeal Act of 1954, sets out the manner in which dissatisfaction with the outcome of a judgment by the High Court may be prosecuted as an appeal to this Court.

5. Section 4 of the Act establishes the right to appeal by a person aggrieved by a judgment of the High Collli. Rule 8 requires that a Notice of Appeal be filed within four weeks of the judgment appealed against. This peremptory

requirement finds repercussions with the Registrar when it is out of time. Rule 8 (2) holds that:

"The Registrar shall not file any Notice of Appeal which is presented after the expi1y of the period referred to in paragraph (1) [four weeks] unless leave to appeal out of time has previously been obtained".

(6] The importance of compliance with the Rules and strictly so in matters like this is patently obvious. Literally, it means that ifa Notice of Appeal has not been filed within a period of four weeks from the date of judgment, no appeal shall be enrolled or heard unless leave to appeal out of time has previously been obtained. The seemingly harshness of the time bound exercising of a right to appeal is ameliorated in several ways.

(7] Legal practitioners in this jurisdiction are taken to be au fait with the Rules of Court. When a situation arises where a potential appellant, for whatever reason, foresees or must be presumed to have foreseen that the time for filing of a Notice of Appeal might well expire before he is ready to take the step, Rule 16 comes to the rescue of the reasonably prudent lawyer. These rules permit the extension of time limits on almost mere application. In this regard, as to the expected standard of service delivery in the field of legal advice and of taking instructions, we have repeatedly recited the dic/11111 by Steyn CJ in

Saloojee and Another, NNO V. Minister of Commerce Development, I956

2. SA 135 (A) at 141 C-E. There, he said: -

"There is a limit beyond which a litigant cannot escape the results of his Attorney's lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the Rules of this Court. ^{Considerations ad}

misericordiam should not be allowed to become an invitation to laxity .... The Attorney, after all, is the representative whom a litigant has chosen for himself, and there is little reason why, in regard to condonation of the failure to comply with the Rule of Court, a litigant should be absolved from the nonnal consequences of such relationship, no matter what the circumstances of the failure are."

If the application is for leave to appeal, it must contain grounds of appeal which prima.fctcie show good cause for leave to be granted.

In The Swazi Observer Newspaper (Pty)Ltd t/a Observer on Saturday

and 2 Others vs Dr Johannes Futhi Dlamini (13/2018) [2018] SZSC 39 (19/10/2018), paragraph [9] to [17]:

"In Dr Sifiso BaITow v Dr Priscilla Dlamini and the University of

Swaziland (09/2014) [2015] SZSC 09 (09/12/2015) the Couti at 16 stated "It has repeatedly been held by this Court, almost ad nauseam, that as soon as a litigant or his Counsel becomes aware that compliance with the Rules will not be possible, it requires to be dealt with fotihwith, without any delay".

In Unitrans Swaziland Limited v Inyatsi Construction Limited, Civil Appeal Case 9 of 1996, the Cou1t held at paragraph 19 that: -

"The Courts have often held that whenever a prospective Appellant realizes that he has not complied with a Rule ofCou1i, he should, apart from remedying his fault, immediately, also apply for condonation without delay. The same Court also refeITed, with approval to

Commissioner for Inland Revenue v Burger 1956 (A) in which

Centlivres CJ said at 449-G that " ... whenever an Appellant realizes

that he has not complied with the Rule of Court he should, without

delay, apply for condonation"

In Maria Ntombi Simelane and Nompumelelo Prudence Dlamini and

Three Others Supreme Court Civil Appeal 42/2015, the Court referred

to the dictum in the Supreme Court case of Johannes Hlatshwako vs

Swaziland Development and Savings Bank Case No. 21/06 at paragraph 7 to the following effect: "It required to be stressed that the whole purpose behind Rule 17 of the Rules of this Court on Condonation is to enable the Corni to gauge such factors as (1) the degree of delay involved in the matter, (2) the adequacy of the reasons given for the delay, (3) the prospects of success on Appeal and (4) the Respondent's interest in the finality of the matter".

In the same matter, the Court referred to Simon Musa Matsebula v

Swaziland Building Society, Civil Appeal No. 11 of 1998 in which

Steyn .IA stated the following: "It is with regret that I record that practitioners in the Kingdom only too frequently flagrantly disregard the Rules. Their failure to comply with the Rules conscientiously has become almost the Rule rather than the exception. They appear to fail to appreciate that the Rules have been deliberately formulated to facilitate the delivery of speedy and efficient justice. The disregard of the rules of Court and of good practice have so often and so clearly been disapproved of by this Court that non- compliance of a serious kind will henceforth result in procedural orders being made-such as striking matters of the roll - or in approp1iate orders for costs including orders for costs de honis proprii.1"

8. It is common cause that the Notice of Appeal was presented for filing well in excess of the permitted period of four weeks. Under the provision of Rule 8 (2), the Registrar was in fact precluded from filing the purp01ied Notice of Appeal as it was too late. It is also common cause that no application for leave to file a Notice of Appeal out of time was either sought or granted. It is also common cause that the Appellants/ Applicants were well aware of the four-week period within which they were required to institute their appeal against the refusal of their bail application. This is borne out by their application for condonation dated the 14°¹ September 202 l, the same date as endorsed on their so-called Notice of Appeal.

8. Again the Rules of Court provide an avenue to be followed when a problem such as the present arises, that of condonation. The term and concept of condonation per se already denotes an openness for persuasion to overlook something.

As was said in Kombayi v Berkhout 1988 (1) ZLR 53 (S) at 56 by Korsah .IA.

"Although this Court is reluctant to visit the errors of a legal practitioner on his client, to whom no blame attaches, so as to deprive him of a rehearing error on the pai1 of a legal practitioner is not by itself

sufficient reason for condonation of a delay in all cases. As Steyn CJ

observed in Saloojee & Another NNO v Minister of Commerce

Development (supra) at 141 C:

"A duty is cast upon a legal practitioner, who is instructed to prosecute an Appeal, to acquaint himself with the procedure prescribed by the Rules of the Cowi to which a matter is being taken on Appeal".

In DaITies v Sheriff, Magistrate's Cowi Wynberg and Another, 1998

2. SA 34 (SCA) Plewman .IA (with whom Hefer HA, Eksteen JA, Olivier JA and Melunsky AJA concurred) stated as follows:

"Condonation of the non-observance of the Rules of this Court is not a mere formality".

"In Commissioner for Inland Revenue v Burger (supra)

It was also stated that:

'Nor should it be simply be assumed that, where non-compliance was due entirely to the neglect of the Appellant's attorney, condonation will be granted."

[l O] MeITiam Webster mentions absolution, forgiveness, pardon, and remission as being akin concepts. Clearings, exculpations, acquittals, atonements, compurgation and whitewashes are further nouns of nearer and further relevance. Bearing in mind that the Appellants/ Applicants did not avail themselves to ask for an extension of time, or ask for leave to file an appeal out of time, all of their eggs are now in a single basket, so to speak. Their entire expectation of successfully appealing the judgment of 6°¹ August 2021, which dismissed their application for bail, is now dependent upon their application for condonation. Rule 17 empowers this Court to consider an application for the condonation of the late filing of the Notice thereof to excuse the party from compliance with the Rules, thus admitting the appeal itself to be heard. But is this to be so⁹

11. In order for an appeal to be heard, various procedural steps are implemented for the transitional arrangements to have a matter considered as ripe for argument on appeal to proceed. The cornerstone or "bitih certificate" of an appeal is the filing of a Notice of Appeal with the Registrar. Thereafter, all and sundry processes follow. However, for a Notice of Appeal to have the legal consequences ascribed to it in order to fulfil its intended function, it must comply with the rules pertaining to its existential attributes. It is in order to obtain such indulgence by the Couti to condone or overlook or pardon the fact that the Notice was almost two weeks out of time, that the present application is before us. It can be done and it has been done by this Court in numerous precedents.

11. It is precisely these numerous precedents from this Court and the persuasive value of equally unanimous judgments on the concept of "Condonation" in our neighbouring jurisdictions, which exhaustively and repetitively have set out the required standards and contents of pleadings and avennents which need to be contained within the confines of such condonation application.

11. Before l revert to this, there is some uncertainty as to exactly which Notice reference is to be made. We have two different "Notices of Appeal" before us. The first is d8ted the 1 4^1h September 2021 and filed by the erstwhile attorney of record, Mr. T. R. Maseko.

Notably, it contains six numbered grounds of appeal. Now, suddenly and without any stated cause we are simply expected to accept it as an "Amended Notice of Appeal", this time around containing eight and not six numbered grounds of appeal. The last two prayers are now in bold typescript. There is no indication anywhere that there might have been a successful application to amend the grounds of appeal, of major impotiance when an appeal is argued, with the applicant limited to argue only the stated grounds of his or her appeal.

11. Yet another anomalous aspect which surfaced before us is a so-called ancillimy bail application. The Notice of Application in which the prospective Appellants pray for the condonation of the late filing of their appeal comes under cover of a "Ce1iificate of Urgency", as written by their then attorney of record, Mr. T.R. Maseko. In it, the contents are directed in the main to the plight of the Applicants, with reference to their Constitutional rights to libe1iy and the right to a presumption of innocence. Reference is made to their personal obligations, innocence and to " ... perform their Constitutional oversight role over the other organs of State". The attorney takes shots at "trumped-up charges" to frustrate " ... the exercise of the democratic and constitutional rights of calling for an elected Prime Minister as opposed to being appointed by His Majesty the King, thus making a mocke1y of democratic principles". These bald statements

of personal political beliefs are out of context and entirely uncalled for. They have nothing to do with the attached application for con donation. they could as well have been struck-out. The cetiificate then goes on to pray for an order to release the Applicants on bail. Third in the certificate of Urgency correspond to the 2^{n d} prayer to the Application for Condonation.

11. The applications for (A) Condonation and (B) Bail, are supported by the affidavit of only one of the prospective Applicants. No supp01iing nor confirmative affidavit was filed by or for the Second Applicant. It was first in the replying affidavit which was filed as long ago as the 24^th September 2021, in which both Applicants saw fit to each sign their joint affidavits.

11. The Respondent took issue with this sought relief in that it is not an incidental matter to the main appeal as it seeks the same relief as the merits of the main appeal itself. Should it be granted, it would then render this Cou1ifimctu.1· officio, since a value judgment would by necessity have to be made. The transcribed evidence, further material and so on would need to be considered and decided by this Court, essentially acting as a CoUJi of first instance. The main appeal itself would then never be decided because it would have been overtaken by events.

11. Advocate Van Vuuren, who appeared on behalf of the Applicants, was at an obvious disadvantage during the ,hearing. He did not draft the papers which were presented in Comt. He conceded without further ado that any new applications before this Cou1t should be regarded as pro 11011 scripto and be given no more thought. I agree that this is the best manner in which to dispose of the so called "bail application" and would order that any reference to the bail application as contained in the "Cettificate of Urgency" as well as prayer 3 of the Application for Condonation for the late filing of the Notice of Appeal dated the 14^th September 2021, be struck from the record.

11. Before l revert to the requirements of a condonation application which are crucial to the first part of these proceedings, a technical issue. No application for the consolidation of the two main matters was made. However, following the enrolment of the appeal against the judgment of the 6¹¹' August 2021, a subsequent application to release the Applicants on bail due to new facts and circumstances which was unsuccessful in the Court below also ended up before us. A separate appeal altogether, but under the same case number. We decided to entertain all of the matters placed before us. The "main" or "first" appeal is thus against the judgment of 6^th August 2021, which declined release on bail. It is denoted with an "A" suffix. "B" is in relation to the appeal

against the judgment or the 1 4^th September 2021, the so called ''.fimctus officio" judgment. Hence "Criminal Appeal Case No. 19 A & B of 2021".

11. The law on what is required in an application for condonation of the late filing of proceedings, especially so with the Notice of Appeal, the gateway to the hearing of an appeal, is well settled. The frequency with which condonation applications precede the hearing of appeals in this jurisdiction is a matter of concern. Our Supreme Court, the apex Court of the land, functions under well established and well-known Rules of Court, and precedent drives the necessary elements of the application through the previously decided cases.

11. In Mfanukhona Maduma and Two Others versus Junior Achievement

Swaziland (I 05/2017) [2018] SZSC 3I (2018), the unanimous Court held at [9]: -

"There are a plethora of authorities regarding the requirements to be met by a party applying for condonation. The Courts have formulated a triad-test in order to grant condonation namely: that as soon as a pmiy becomes aware of the omission or commission the party must launch

the application for condonation [and in that] application the party must

address the prospects of success of his or her case and that a reasonable explanation for such an omission or commission must be provided.

(See De Bany Anita Belinda and A G Thomas (Pty) Ltd Appeal Case

No. 30/2015 and the other cases referred to m that Judgment)" (emphasis added).

11. It is of particular and fundamental importance and consequence that the motivation for leave depends in the main on the prospects of success, in the event that a judicial discretion is sought to be exercised in favour of the applicant. It is fundamentally important that the prospects of success must be pointed out and enumerated upon, and that it be an integral part of the suppo1iing affidavit. It does not suffice to attempt to incorporate it by

reference to any other documentation.

11. In Mfanukhona (supra):

"... the Cmni had to decide whether there was an appeal pending before it in view of the fact that the Notice of Appeal was filed out of time contrary to Rule 8 ( 1 ). The late filing of the Notice of Appeal had not been condoned by the Corni. In a unanimous judgment, the Court came to the conclusion that;

1. the Registrar of the Supreme Court ought not to have accepted the Notice of /\ppeal filed out of time in the absence of leave to do so being first granted by the Collli; and as

2. the late filing had not been condoned by the Court, the appeal was improperly before the Comi and virtually non­ existent" (as quoted with approval by another unanimous

judgment in Thandie Motsa and 4 others v Richard

Khanyile and Another (69/2018) (2019) SZHC 42(17 June 2019).

11. In the latter case of Motsa v Khanyile, the Supreme Comi decided the matter in circumstances much like the present. There, it ordered that the Record of Appeal was filed erroneously and contrary to the Rules. It resulted in the appeal being deemed to be abandoned in tenns of Rule 30 (4). It went even further and added that the appeal itself is dismissed. Though I may have issues with the latter part of the Order, fact remains that non-compliance with the Rules may well have serious consequences.

(24) In the present matter it is not the record which matters, but the source of origin to bring an appeal before this Comi. It commences with a Notice of Appeal,

but as shown, it could also readily result in the end of the road. ln Debbie

Sellstrohm vs Ministry Housing and Urban Development and 4 Others (25/2014) (2018) SZSC (27 ^th February, 2017), it was stated in paragraph (7) that:

"It has repeatedly been stressed by this Court that legal practitioners are enjoined to "forthwith" apply for con donation of late filing as soon as it becomes apparent that exigencies of a situation has become such that deadlines will not be tirneously met. Paramount in deciding an application for condonation of non-compliance with the Rules is the prospects of success in the main matter".

It continues at paragraph [ I 0- l l]:

"Alas-the non-production of the Appellant's heads of argument was overshadowed by the woefully inadequate application for re-instatement to motivate the relief Most notable is the absence of a setting out of the potential prospects of success in the appeal itself, ifit came to be heard. l reiterate the importance of persuading the Court that is should grant condonation because the appeal is rneritorious. As best as can be, it should be demonstrated that there is at minirnum a reasonable chance that the impugned judgment may be overturned on appeal.

In addition, good prospects of success militate against the delay in the course of bringing the condonation application for adjudication. ^{A longer delay can rnore readily be}

accommodated when there are stronger chances of a successful appeal. The inverse hereof is obvious".

25. In favour of the Applicants, it is recorded that they indeed forthwith and without undue delay filed their application for condonation as soon as they became aware of the need to do so. In my view it successfully assists them to overcome the hurdle of explaining the delay as was highlighted and

featured in Simon Musa Matsebula v Swaziland Building Society, Civil

Appeal No.17 of 1998· Dr Sifiso Banow v Dr Priscilla Dlamini and the

University of Swaziland (09/20 I 4) [2015] SZSC 09 (09/12/2015) at paragraph 16 and other case law and precedent in numerous likewise instances.

25. The prospects of success in an intended appeal are of paramount importance in an application to condone the late filing of the very same intended appeal. A bold and unsubstantiated statement of anyone's belief that there are reasonable prospects that another Court would have come to a different conclusion or that the facts do not support the judgment, simply does not suffice. The prospects of success must be spelled out and accompanied by what and how it is intended to demonstrate on appeal that there exists at least a "sporting chance'' or having success on appeal. It is that which could

persuade the Court to indeed open the door and allow the appeal to be heard on its merits.

25. In Rustenburg Gearbox Centre v Geldmaak Motors cc t/a MEJ Motors 2003

(5) SA 468 (T), it was held:

"In para 14 at 4 l 9 the Appellant simply submits that it has good prospects of success on appeal. (See also para 4.2 at p 21 of the notice of motion of 21 February 2003.) That is not sufficient. What is required is that the deponent should set fo1ih briefly and succinctly the essential information that may enable the Cowi to assess the appellant's prospects of success. A bald submission unsupported by any factual averments is not good enough to discern what the prospects of success are in this matter".

25. I agree with the dictum in Rustenburg Gearbox. If an applicant for the con donation of the late filing of an appeal wishes to obtain such relief, he has to convince the Court that if all other factors are on board, his prospects of successfully prosecuting the intended appeal justify that it be heard. A relaxation of the Rules which have peremptory time frames within which to perform ce1iain tasks may be afforded in deserving cases. In Ronald

Mosemantla Somaeb v Standard Bank Namibia Ltd Case No 26 of 2014, the learned Chief Justice of Namibia, Shivute JP, said at paragraph [21]:

"It is incumbent on every litigant to comply with Rules of Court in view of the fact that Rules of Court serve a specific purpose.

In Molebatsi v Federated Timbers (Pty)Ltd 1996 (3) SA 92 (B)

quoted with approval in S v Kakololo 2004 NR 7 (HC) at I 0C­ E the following was stated (at p 96 G-H):

"The Rules of Court contain qualities of concrete particularity. They are not an aleatoric quality. Rules of Court must be observed to facilitate strict compliance with them to ensure the efficient administration of justice for all concerned. Non­ compliance with the said Rules would encourage casual, easy going and slipshod practise, which would reduce the high standard of practise which the Courts are entitled to in administering justice. The provisions of the Rules are specific and must be complied with; justice and the practise and administration thereof cannot be allowed to generate into disorder.

Rules of Court cannot be applied selectively in the sense that they are bound to be complied with only by a cetiain group of persons engaged in litigation in our Courts."

(29] In our Courts, all persons are treated equally before the law, present Applicants included. It would not be proper for this Court to now embark on an exercise of any sort, if it is for instance intended to detennine if the personalities of the Applicants add any value to the equation. Their erstwhile attorney of record emphasised their political freedoms, constitutionally required oversight over the other (two) arms of Government, their undying devotion to democracy as envisaged by themselves, a growing concern amongst themselves and their followers as to who must appoint the Prime Minister. Even if their attorney and at least the First Applicant are in agreement that charges against them have been tnunped up, there still remains the question as to just how· such serious allegations are intended to be substantiated in the course of their appeal') If it so happened that the stated prospects of success on appeal sufficiently justified the appropriate relief, the matter would then have been ordered to proceed on appeal.

30. Learned and respected counsel for the Applicants, as said above, was at a disadvantage in that he did not draft the relevant (initial) papers filed of record. He inherited badly pleaded papers and had to do as best as he could to salvage. Wisely, the stated requirements for successful applications such as the one at hand, were not challenged. Instead, a novel and innovative approach was followed. To make up for the shmicornings in the non-stated prospects of success in the intended appeal, we were now urged to elevate the

concept of "The interests of justice" to a level where it would trump the old approach. "The interests of justice" were sought to be spelled out in their condonation application, under cover of a "Certificate of Urgency", by their attorney of record.

30. The most unfortunate gist of their depositions to persuade us is that the interests of justice suffice almost automatically to have their appeal against the refusal of their release on bail to be heard. They argue that it is enough to condone their late filing, even in the patent absence of the possible alternative and easy remedies to extend time limits, which they did not use.

30. By all accounts, their stated prospects of success on appeal rest upon an acceptance that their contrasting and incontrovertible political views resulted in them being wrongly accused and prosecuted on trumped up charges, almost indefinitely incarcernted and wrongly refused to be released on bail.

30. Applicants counsel faced the dilemma of trying to persuade this Couti that in the absence of stated and persuasive prospects of success as has been pronounced upon in our case law, all is not lost. Instead, he relied upon the "interest of justice'' to be ovenvhelmingly present and capable of oveniding the usual requirements. If so, it should then trump and substitute the need to

show good prospects of success in the intended appeal, dependent upon the granting of condonation, or not.

30. The matter of Prime Minister of Swaziland & Others v Maseko and Others, Civil Appeal No. 73 of 2016, upon which the Applicants rely, is entirely distinguishable from the present matter. It was decided on a very different set of facts and legal issues. There, it was held that"... the interest of justice" required the intended appeal to be disposed of in one way or another. At the time, the shoe was on the other foot and the Cou1i was critical of problems caused " ... due to the confusion that seems to have reigned at the Office of the Attorney-General". That is not how it is now.

30. Regard must be given to the papers under which this application has been brought to Cou1i. Apart from irrelevant and oftentimes objectionable offensiveness, with the added references to their various Constitutional Rights and wanting to "oversee" the other arms of Government, they simply do not even almost meet the well-established requirements of having their application considered ,,vith any measure of favour. These requirements cannot now be jettisoned and trumped by the averred interests of justice.

30. It is for these reasons tlrnt I must conclude that the application for the condonation of the late filing of the Notice of Appeal against the judgment of

the 6^th August 2021 ought to be dismissed. As per our long-established practice, no costs order is considered or made.

30. I now turn to the second part of the matter before us which emanates from two separate applications previously made in the High CoUii during the course of their ongoing trial and subsequently to the belated attempt to file a Notice of Appeal and condonation application. Both matters were dated for hearing on the 26^th July 2021 and placed for determination before the learned trial judge, who also dismissed their initial application for release on bail. Both of these applications contained a prayer for their release on bail upon such terms and conditions as the Court would deem fit.

30. The initial judgment by Dlarnini Jin which she dismissed the first application for bail was dated the 6^th August 2021 . It was unsuccessfully sought to be appealed, as is set out above. Soon after a Notice of Appeal was belatedly filed, with the explanation that they first wanted to "explore their other options" in the High Court, another bail application was filed. Judgment followed on the 1 4^th September 2021. Therein, the Court a quo ordered that: "Bail application is dismissed". No costs were ordered.

30. It is against this second judgment that an appeal was promptly noted.

Records, authorities and heads of argument were filed in due course and the

appeal was enrolled for the same date and under the same case reference number as the first matter.

30. The six Grounds of Appeal are formulated as follows: -

1. The Court a quo erred in finding that it wasfimctu.1· officio;

(Para 52).

2. The Couti a quo erred in finding that there was no need to make a consideration whether they were new grounds (Para 52).

3. In finding in Paragraph 52 that the Couti isfimctus officio, the Court Order dismissing the Bail Application is bad in law.

4. The Court in fact did consider the new facts filed in the second

bail Application (Para 3, 23).

I

5. The Court a ₁₁₁₁₀ misdirected itself in finding that Applicant's Counsel argued that the Court did not make factual findings against the Applicants (Para 38).

6. The Court a ₁₁₁₁₀ erred in finding that the Couti was precluded

from hearing an Application on new facts with reference to the

cases of Shongwe v Rex (26/2015) [2012] SZSC and Moyo v

Rex 469/2015 [2016] SZHC.

30. This second application for release on bail was filed hot on the heels, so to speak, of their Notice of Appeal against the dismissal of the first application.

The "Certificate of Urgency" by their attorney, Mr. T.R. Maseko, makes no mention of the first dismissal, nor of the noted appeal. It sets out their personal circumstances to a very limited extent but details various Constitutional and other rights, some political beliefs and the perceived unfair, non-existent and trumped-up charges. The affidavit of the two Applicants sets out in some detail all of the relevant factors normally found in applications of this nature, and some more. It even includes the manner in which a prime minister is to be appointed, extending to their duty of oversight over the other two arms of government, which includes the judicimy itself. Each refers to the unbearable detriment that they have suffered since their incarceration. Business losses, unpaid wages, family and health problems. These are some of the so-called "new facts".

30. ' ..

    I need not detail this any further, nor to deal with the extensive and detailed opposition by the Respondent. This is so because right before the hearing of this "second bail application with new facts" would have commenced, the learned trial judge issued a directive that the litigants were required to address the Cowt, prior to a hearing and decision on the merits of the application, on whether or not she was /imctus off/cf(). If so, she would not hear and decide the matter, nor the applic<1tion to strike out. If not so, she would then firstly decide the interlocutory application, wherein the Respondent applied to have certain matter struck out. I cannot find any more details of the "Application

to strike out" apart from brief mention of it in paragraph 25 of the judgment. As it turned out to be, the Court made no pronouncement on the interlocutory application to strike out. When the matter continued, according to the judgment, the Court first heard submissions on the legal point offimctus

officw.

(43] Thereafter, promptly five days later, a written judgment was handed down. In it, the learned judge diligently and comprehensively refers to argument and authorities as presented by counsel. She then made a detennination after consideration of an analysis of various precedents through the case law and ultimately concluded that: -

"In the result, there is no need for this Court to make a determination

whether there are new grounds for the present bail application. I find that this Cou1i is/i111c/u1 officio. Applicants' remedy, if any, lies not with this Comi but elsewhere in this regard".

44. The main issue in this appeal lies against the finding ofbeingfimctus C!fficio.

Fune/us officio is a Latin expression that translates into "having performed his or her office". The concept of ji111ct11s officio has existed for many centuries. The Roman jurist Ulpian (C.170-228AD) had written about it. His Edict was later usurped into Justinian's Digest, the largest compilation of doctrinal commentaries in the western world from which all later western

legal systems borrowed. According to Ulpian, after a judge has delivered his judgement, he immediately ceases to be the judge [in that matter]. The gist of Ulpian 'swords on the matter is: "A judge who has given judgment, either in a greater or a smaller amount, no longer has the capacity to correct the judgment because, for better or for worse, he will have discharged his duty once and for all". 1"1111c111.1· officio lends finality to the conduct of proceedings by marking a definitive end point to it. A valid and final decision, as defined by the law o(fimctus <J/ficio, is the summit of all judicial, arbitral, and tribunal proceedings. If not, there would be no end to the case. The law of resjudicata is a close cousin in the family of valid and final decisions. The doctrine and law ofjimctus officio also enables effective appeal and review. Preclusion from changing a decision is necessary to ensure a stable basis for appeal and judicial review. If it was possible to revisit and amend, change or correct for whatever reason, one could only imagine the horror of continuously shifting sands in an appeal record. (See S.P. Wong of the Canadian Bar Association's Review 543 for an excellent paper on this doctrine).

44. The Applicants based the success of their rejuvenated application for release on bail on what could be summarised as "New Facts", a significant change in their circumstances to allow the Court to re-assess their plight and come to a different conclusion as previously. The same judge of the same Court was thus effectively sought to be tasked with something akin to a review of her

own previous decision. To add another ingredient to the mix, this application was preceded for well over a week by the purported filing of a Notice of Appeal against the very same judgment which the applicants now want to have decided. Adding further to the confusion, the Applicants erstwhile attorney of record sought to "import through the backdoor", a piggy-back fresh application for bail, to be decided by the Supreme Court in its appellate jurisdiction, as a supposed ancilliary matter. In effect, it was to be the third bail application in a row.

44. The first and foremost ground of appeal is of decisive importance in most of the remaining grounds of appeal. It is the gateway through which the other aspects have to move in order to even come up for consideration. Most of the legal arguments in both the Court below and in this Court, were devoted to issues smTounding a second bail hearing based on new facts, or changed circumstances, whether it depends upon a previously granted bail order, now sought to be modified, whether the authorities are on equal footing in both fact and local statutes vis-a-vis other jurisdictions with persuasive value and the interpretation of locally decided and binding cases on the subject. It goes on and on.

44. However, before any of the contentious issues were placed before the learned judge, she prudently and wisely sought counsel's input on/imc/11.1· officio. As

was to be expected, their views were entirely different, each with reliance on authorities to suppmi their respective views. This detennination is entirely different from any of the merits to re-open and hear the Applicants for bail, whether our law has accommodation for such re-visiting of bail aspects in a repeated but fresh refusal, or a change of mind which would result in their release. All of this would depend on whether the Court wasfimctus oflicio, or not. From what has been stated above in this regard, it would be conclusive and final, inevitably resulting in a refusal to hear the matter at all, refraining from consideration afresh or from any other point of departure from the prior pronouncement, or even going so far as to determine the applicability of a renewed application such as at hand. She held that there is a distinction as to whether the variation ofa bail order which was refused is akin to the variation of bail conditions only in the event that bail had already been granted. Otherwise put, the learned judge applied her mind to consider whether a Court is able to re-visit the terms of a bail order already granted but now to allow a variation of the terms of that order, on the basis of new facts brought before the Cowi. On the other hand, whether such same new facts could cause the original refusal of' bail to be rescinded by the same judge or Court and replaced with a fresh order which now allows bail.

(48) The Applicants sought to persuade the Court to follow the latter option. They rely on certain clictae in South African case law which at first blush seem to

support their position. However, every case also requires that regard be given to the context and factual situation at hand, and a broader understanding than

a mere extract from the authorities. For instance, Theron .IA said in Prinsloo

v The State (613/2013) [2013] ZASCA 178 (29 November, 2013) at para 9

on new facts was not fully canvassed as no arguments to and from were made. Worse still, in the present case, both Counsel did not argue that the South African penal code enjoyed similar wording as Section 96 (18) and (19) of our CP & E''.

49. I cannot fault the reasons why the Court a quo distinguished Prinsloo from the present matter. Nor can I fault the manner in which she applied and

distinguished the case of Sibusiso Bonginkosi Shongwe v Rex (26/2015) (2012] SZSC 04(29 ^th July, 2015. Therein, Maphalala ACJ (as he then was) dealt with it as follows:

"The appeal against the judgment of Justice Hlophe is both misconceived and misdirected. It is common cause that both Judge Mabuza and Justice Hlophe heard the bail applications in the Court a quo as judges of the High Court. After Justice Mabuza had made findings against the Appellant that he was a flight risk, likely to interfere with Crown witnesses as well as police investigations, the Court a quo wasfimctus officio, and the bail application could not be heard by another judge of the same jurisdiction. It is trite law that judges of the same jurisdiction are not competent to review each other. The remedy available to the Appellant was lodging an appeal before the Supreme Court".

49. The initial bail application which was dismissed by necessity required consideration, evaluation and dete1111ination by the Court, based on all available evidence, argument, authorities and law in order to conclude and order as she did. That was the end of the road for anything to do with bail and Dlamini J. She is still continuing with the criminal trial of the two Applicants. As it happened, an appeal was indeed noted against the refusal of bail, and it has already been dealt with above.

49. In my considered view, it would cause havoc in our judicial system if judicial officers may recall or revisit matters in which they have previously refused bail, whether or not that very same order is still subject to a noted appeal, and then entertain "new facts and circumstances in a fresh bail application" and maybe come to a different conclusion. Jettison ofthefimctus officio doctrine, disposing of finality in legal decisions, forgetting about resjudicata and such maladies cannot be a part of our legal system, jurisprudence and the administration of justice.

49. In Sibusiso Shongwe (supra) it was also held that:

"Where a Court hearing a bail application has made specific findings refusing bail, an accused person is precluded from lodging a subsequent bail application before the same Court on the pretext that

new facts exist. The Court isfimclus off/cw and has no jurisdiction to ente1iain the matter''

It continued:

"The 'new facts' or change of circumstances should be invoked in circumstances where bail has already been granted and the application is only intended to vary the bail conditions. Otherwise, the subsequent bail application would offend the general principle of our law that once a Court has pronounced a final order of judgment, it becomesfimctus officio and cannot therefore alter, correct or supplement its judgment".

(53] Our Criminal Procedure and Evidence Act actually provides for subsequent applications before a Court of the same jurisdiction with a view to amend the amount of bail or supplement any bail conditions. Sections 96(18) and (19) which regulate this expressly, state that such subsequent applications, whether at request of the prosecutor or accused, are in respect of matters where bail has already been granted, not refused. Otherwise, it would be tantamount to allowing a Court which is alreadyfimctus r!fficio, to review its own decision of dismissal of a bail application. The learned judge below was indeed duty bound to find that she wasfimctus officio.

(54] It is for these reasons that I would order the first ground of appeal, which was against the finding ofjimctu.1 o/fic10, to be dismissed.

55. The second ground of appeal is equally unmeritorious. The Appellants state that "The Court a quo erred in finding that there was no need to make a consideration whether there were new grounds".

55. From the aforestated reasons as to why the Court was unable to reopen the matter, or review it, beingjimc/us officio, it is immaterial as to whether or not the second bail application which was presented to the Court was founded on new facts, circumstances or any other new considerations. Once the Court disposed of the first bail application, it was out of its hands. A final and appealable order was made and indeed an appeal was sought to be prosecuted. The noted appeal rests in its entirely on the shoulders of the judge or Court beingfi.mctus C!fficio. Once that is so, it is the end of the matter.

(57] It would be folly for the Appellants to say that the Court made an appealable

eJTor in not deciding if there indeed exist new facts or circumstances. It is not possible to make such a finding in the absence of an ability to detennine the matter, even if entirely new facts do exist. She was entirely correct to refrain from making such determination. It is quite clear that the Cowi was aware of the contents of the application before her. She obviously had to read it in order to see if she was able to deal with it, or not. Her judgment also reflects a summary of what they wanted the Court to consider in their favour.

However, no finding or decision was made in respect of the merits of the matter.

[58] No criticism is to be entertained in this regard. If, to be contrary, the Court actually and factually embarked on a determination and finding on the issue of new facts, it then would have been an error. A finding offimctus officio precludes a finding on the merits, whether or not the further application is granted or dismissed. I will soon revert to this.

58. The fmuih ground of appeal is unfounded. The Comi is taken to task for having actually considered the new facts contained in the second application for bail, but the judgment does not bear it out. As already stated, it was incumbent upon the Court to familiarise herself with an application brought before her for adjudication. Logically, she crnmot simply blank or mask out all of the material on which the application is founded before the actual hearing takes place. She decided to transpose the gist of the material which was placed before her into the body oft he judgment, a summary of that which was presented for adjudication. It is normal practise. What the applicants now contend is that the learned judge in the Comi below erred by also "considering" the "new facts". Specific reference is made to paragraphs 3 and 23 as support for this contention. The first of these reads:

"3. On the 19^th August, 2021, the applicants filed with the Registrar of this Court a second bail application deposing that there were new grounds and the applicants stated as follows with regard as to when the new facts arose:

"We respect/i.illy .1·1C1/e that since our arrest on July 25, 2021, and the refusal hy the Honourable C'our/ to release us on hail there have been new deve/opment.1· In our circumstances, warranting the filing CJ{ this renewed applica/1011. These facts are set fully herein below".

Paragraph 23 of the judgment reads: -

"23. A lengthy and comprehensive reply was filed at the instance of the applicants. They did not detract from their founding affidavit. They ferociously challenged respondent's deposition that their founding affidavit did not disclose new facts".

(59] In this ground of appeal, the contentious "error" which was supposedly committed was to have "considered" the new facts. To "consider" means to reflect on, to think about with a degree of care or caution; to treat in an attentive way; to give some thought to; to treat or give regard to (Websters Dictionary of the English Language, 3^rd Edition 1993). To consider is not the actual decision making which can only follow after a consideration, or a finding based on the evaluation of whatever was considered in the decision­ making process. A decision can only be made after consideration, but in casu,

the learned judge appears to have only base glossed over the purported new facts, but did not base her decision on this.

60. The two paragraphs quoted above cannot by any stretch of the imaginations found an appealable e1Tor, a reason to set aside the finding by the learned judge that she was enabled to evaluate and decide the new application for bail because she was.fimc/21.1 officio.

60. The third ground of appeal differs. It is said that in finding herself to be

fimctus officio, the order by the Court to dismiss the application is bad in law.

60. In my respectful view, this is c01Tect. In order to allow or dismiss an application, or an appeal for that matter, it requires of the decision maker or judge an application of the mind to the mcl!ter at hand. The facts and law have to be evaluated and ultimately be accepted or rejected. It is a process based on reasoning, logic, legal principles and precedent, a legal conclusion which is derived from the matter which was placed before the CoU1i for judicial pronouncement. As already stated above, the legal finding by a CoU1i of Law to decide the fate of a matter like this presupposes that the Court is indeed vested with the jurisdiction and ability to apply a judicious mind and come to a justified and f'act-based conclusion.

60. However, when a Court is fimctus officio, the judicial decision-making process is being precluded from being exercised by that judge. If not, there will be no end or finality in law and a conundrum will be created. Otherwise put and applied to this matter, a finding ofjimctus officio on the one hand is incompatible with either allowing or dismissing the matter.

60. In a careful reading of the judgment by the Cornt a quo, the ratio decidendi is clearly focussed on whether the Court was able to deal with the application at all, and not whether there were indeed new facts which called for a re­ opening or re-hearing of the application for release on bail. I have already concluded that the finding of being/i111c111.1 officio is sound in law and that it was correct. I am unable to find that the learned Judge came to a value-based decision on the merits of the application before her. Nor could she have done so under the prevailing circumstances.

60. However, her judgement ultimately concluded with an order that the bail application is dismissed. It seems to me that it was clone per incuriam, an error in the Order itself, contrary to the written judgment. Appropriately, the order would have been to remove the matter from her roll, having declined to hear it because she legally could not do so.

60. This appeal must therefore paiiially succeed to the extent that the order of dismissal be expunged and corrected by ordering removal from the roll.

60. The fifth ground of appeal is entirely without merit and cannot influence the outcome of this appeal. The Appellants seek to criticise the Court because she would have misdirected herself in "finding that applicant's counsel argued that the Court did not make factual findings against the Applicants".

60. In context, the matter was not before Dlamini J. in order to review her previous findings in the first or initial bail application. Whether or not ce1iain factual findings were made does not detract from the task she was sought to perform, namely to reconsider her previous refusal and substitute it with a fresh one, to now release the Applicants.

60. In her Judgement, with reference to the earlier Judgment of the 6^th August 2021, the Court dealt with this issue of factual findings. In paragraph 40 she said:

"I found that the bare denial of the applicants translated into no

evidence to be put on the scales of justice against the evidence of the respondent that was put ₀₁₁ the same scales. Nothing controve1ied the evidence adduced by the respondent which was put on the scales of justice by this Court. The upshot or it is that the evidence by the

respondent that the applicants were a flight risk posed a danger to national security, the public relied on the Courts to protect it and their properties, inter alia was accepted as likely or probable and certainly not as a fact (as this is the duty expected of a judicial officer in bail matters) against the applicants by re,ison that it stood unchallenged in 1aw. "

60. However, the detenninative point was not if previously made factual findings were wrong or right, or if indeed so made. Instead, fact remains that the first bail application was dismissed, for whatever reasons. The task in the new application was for precisely the same relief, but said to be one which was based on new facts, to be decided by the same judge of the same Comi. Meanwhile, an appeal against the first judgment had already been noted but not yet heard nor decided.

60. The Court a quo did indeed make specific and stated findings in the initial bail application. It resulted in a conclusion that their application stood to be dismissed, a final and appcalable decision, not open for re-visitation by the same Court in order to review or re- decide the matter. The learned judge

referred to a decision of this Court in Maxwell Mancoba Dlamini and Another v Rex (46/2014) [2014] SZSC 09 (9^1h July, 2015) where Maphalala ACJ, as he then was, held that:

"Where a Court makes specific findings refusing bail, it is not open to the same Court in a subsequent bail application to review its own decision under the guise of new circumstances. The Court becomes functus officio, and, the matter should be taken up on appeal. It is only the appeal Comi which could deal with the specific finding of the Court a quo. On the other hand, it is open to the Court of first instance to vary its decision with regard to bail conditions where bail was granted".

(72] It seems to me that some confusion might have surreptitiously affected the issue of a previous order on bail and when it is possible for the same judge to re-visit the initial order. The key to open a re-consideration by the same Court is when that Coll!i has previously granted a bail application in the same case. Sections 96 (18) and ( 19) (a) of our Criminal Procedure and Evidence Act provides as follows: -

"96 (18) Any Court before which a charge is pending in respect of

which bail has been granted, may at any stage, whether the bail was granted by that Court or any other Cowi, on application by the prosecutor, add any further conditions of bail".

"96 (19) (a)-Subject to the provisions of this Act-

1. Any Court before which a charge is pending in respect of which bail has been granted may, upon the application of the prosecutor or the accused, subject to the provisions of Section 95 (3) and 95 (4), increase or reduce the amount of bail so dete1111ined, or amend or supplement any condition imposed under subsection (15) or (18) whether imposed by that Court or any other Court ...".

73. Clearly, it is where bail has already been granted when the Court is empowered to order a variation of the conditions of release or a variation of the amount paid or yet to be paid, etcetera. In the appeal before us, no bail has been granted, which otherwise would have brought it into the ambit of the enabling statute. It would only then have been appropriate to have followed the course which the Appellants took, to file a second application based on new facts which have since become available and applicable. It then would have served its intended purpose, namely to ameliorate strict conditions of bail such as previously ordered reporting somewhere, the amount of bail, sureties and whatever else comes into play.

73. In the course of deciding the matter and concluding that she was unable to hear and determine the application because she was fi111ctu.1· officio, the learned judge below referred to and applied the eloquently and accurately

stated position of our law, as per Fakudze J. in Matthias Moyo v Rex

(469/2015) [2016] SZHC 35 (26^th February, 2016) at paragraph 12, 13, and

he was at that time in Namibia), in S v Acheson 1991 (2) SA 805 (NMHC) where he referred to a scenario where an appeal from the Magistrate's Court had previously been dismissed and in a subsequent second appeal, it was unsuccessfully argued that the same Cou1i cannot again deal with the new appeal, based on new facts. Shongwe also differs to the extent that a very different scenario and set of facts presented itself.

73. In view of the overwhelming weight of authorities which are to the point and applicable herein, I cannot conclude otherwise than that these remaining grounds of appeal also stand to be dismissed.

73. In passing and before concluding with the order herein, an unprecedented incident presented itself. In the course of writing this judgement, after it was reserved, the attorney for the Applicants/ Appellants caused a document titled "Supplementary Heads of Argument" to be placed before us in chambers. No leave was sought at the time of the hearing in open Court, nor subsequently, to do so. It was forthwith returned to the Registrar, but a day later we received a letter from Mr. Simelane in which it was sought to admit the supplementary heads, without any further ado. The Director of Public Prosecutions then filed another letter in which he contests the unprocedural approach, and objected to his alleged assent. Needless to say, this Court does not function in such a liassezfaire fashion with procedure and fonn having been firmly

established over the years. We have not read nor given any regard to the contents of the so called "Supplementary Heads of Argument" by the Appell ants/Applicants.

73. To top it all, still while in the process of drafting this judgment, we noted with grave concern that the social media, (Swaziland News, 16 April 2022), driven from outside our jurisdiction, has severely scandalised this Court. Impropriety, collusion and judicial compromise is touted. Worse, equally unfounded allegations of division and undermining ethics by the members of this bench are also presented as the truth. His Lordship the Honourable Chief Justice is not spared either.

73. Yellow journalism at its worst has not deterred this Court from exercising its constitutional, ethical and legal functions without fear or favour, according to law.

73. In conclusion, the Orders on Appeal are:

1. Judgment dated the 6^th August 2021:

1. I The application for condonation of the late filing of an appeal is hereby ordered to be dismissed.

1.2 The appeal is ordered to be struck off the roll. It may be re-instated upon obtaining leave of this Collli.

2. Judgment dated the14^th September 2021:

1. The appeal against the judgment herein, dated the 14°¹

September 2021, is partially successful.

2. The order of"Bail Application Dismissed" is set aside and substituted with an order of"Application Removed from the roll due to Comi beingfimctus officio".

2. Amended Notice of Appeal struck off the roll, not to be pursued without leave of this Court.

2. New Application for bail struck off the roll, not to be pursued without leave of this Cou1i.

2. No costs orders are made.

• 
  

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  --=======:-=_.-_,t_,f_{_}.,,,..

J.P. ANNANDALE JUSTICE OF APPEAL

I agree

-LA

JUSTICE OF APPEAL

I agree _JcJc

ACTING .JUSTICE OF APPEAL

^{For the Appellants:} J.L.C Van Vuuren - Instructed by Simelane

For the l ^st Respondent: Thabo Dlamini & M. Nxumalo