The other factor was that it has come to my knowledge that a complaint has been
lodged in certain quarters that I have an interest in the outcome of the litigation involving a person who has purchased buses and
the creditors from whom these buses have been purchased on terms. The allegation, I must say, at the outside, is as far as I know
is completely without any foundation and; malicious. I don’t intend taking the matter any further at this stage but I cannot
say that it is the present applicant who is responsible for this malicious complaint. If it is him, that would not influence me in
deciding this application. If, on the other hand, this applicant in this matter does have any reservations about my hearing the matter
and wishes me to recuse myself on the basis that I have an interest in the business of Dorbyl who is the respondent. Dorbyl or any
combination of creditors then the time is now to make an objection.
Mr. Shilubane, I mentioned this to you yesterday in chambers. I don’t know
whether you have consulted with your client and if you want to object or ask me to recuse myself, I will hear what you have to say
but I can tell you that any allegation that I have any connection with the creditor or any person who sells buses to people here
in Swaziland must be motivated sincerely and with reference to fact. Any general assertion must be, as I say must be made with reference
to fact otherwise it must not be made at all.
Have you any objection to my sitting?
AA:
My Lord there is an objection. The objection does not arise from what His Lordship has said. The objection
arises from the fact that Your Lordship indicated that you thought it was the appellant or the director of the appellant that wrote
the letter that you spoke about.
CJ:
This is correct.
AA:
I think that is the difficulty My Lord not this.
CJ:
If you can give me an assurance that it is not the appellant or the applicant in the matter does it
arise. Is the applicant in court now?
AA:
Yes My Lord. The applicant is the company; the director of the company Mr. Mdlalose is here.
CJ:
If you are on his behalf disavow having written any letter or made any complaint, and then the matter
ends.
AA:
He has not My Lord I took instructions from him.
CJ:
Then there is no basis for any.
AA:
I don’t know why Your Lordship thought it was him in the first place because I think that is
the difficulty.
CJ:
No. I don’t think I have to say that if you say it wasn’t him it’s not him.
AA:
My Lord that is on record, I have made the point.
CJ:
Yes.
(SUBMISSIONS BY THE APPELLANT’S ATTORNEY)
AA:
My Lord, in this application I don’t think I have to deal with the jurisdiction point. The jurisdiction
of this present Court being constituted as a Court of Appeal, that is provided for in the Repeal Constitution of 68 with savings.
It appears in Section 105 of the Constitution which provides that the Chief Justice and any judge of the High Court may act as the
Court of Appeal.
My first submission is that Your Lordships have jurisdiction to entertain this matter.
The second point is that this matter is urgent, in view of the fact that the sale in execution is scheduled to take place this morning.
CJ:
We are hearing because you say it is urgent on that ground.
AA:
Yes the urgency is set out in the founding affidavit.
CJ:
Where are the papers?
MAPHALALA J (MJ):
It’s only one set of papers.
When was the notice of sale of this execution was first publicized?
AA:
It looks like the 21st, there is one notice that we have annexed.
MJ:
There is one that you have annexed but it does not indicate on what date it was publicized.
AA:
I think it is 21st March.
MJ:
Was that the first time?
AA:
It was published on the 17th and 21st March although My Lord it does not appear on the papers. What happened, initially, the respondents attached the vehicle which appears
in annexure “IN8” which is a discovery.
RA:
I am sorry My Lord, I don’t want to object to what my learned friend is saying in so far as it
does not appear in his papers but if he wants to go into that then My Lord I would request that I also address the court fully on
that and I hope you will not object in the face that we have not yet filed any papers in that regard, so, he may go ahead.
AA:
What I am saying is that the notice of sale in execution first appeared on the 16th, 17th and the 21st March. It was published. The one that gave rise to this application.
CJ:
But it goes back, the urgency arises because I refuse to stay. When was that?
RA:
It must be the 17th September 1999 that is when the judgment was delivered.
AA:
The judgment was delivered on the 17th September My Lord.
CJ:
That is six months ago.
AA:
Yes. That application My Lord was an application for leave to file the record and Your Lordship held
that you had no power condone the late filing of the record. Thereafter My Lord, as the appellant explains in the papers, it became
necessary to decide what further steps to take. Whether an appeal should be filed against Your Lordship’s judgment or whether
the Court of Appeal should be approached and My Lord in that regard the appellant sought the advice of counsel and counsel advised
that the way to deal with the matter was to approach the Court of Appeal. And also My Lord during that time the appellant thought
it wise to find out what the fate of the earlier buses which the respondents had attached and to that extent My Lord the appellant
discovered that in fact the first respondent had transferred the one bus to a company called Bonisons Trans Serve which is in Durban.
CJ:
Where is this? Where do I find this in the papers?
AA:
It is at page 3 of the notice of application paragraphs 12, 13 and 17. I think Your Lordships should
bear in mind, this case is a very complicated matter in the sense that there are various judgments which had been delivered and various
judges have dealt with it. This appears from the papers My Lord. Your Lordship, the Chief Justice made a finding that in fact the
record had not been filed timeously and as the papers will show the matter also came before Justice Dunn who referred the matter
to oral evidence on the same issue which Your Lordship found that in fact the record had not been filed.
MJ:
You have not annexed Mr. Shilubane the entries by the (inaudible). You talk about a certain annexure
“IN4”.
AA:
I think it fell off My Lord. I am sorry My Lord that but there is that allegation, perhaps if Your
Lordships could bear with me to hand these annexures from the bar. In my copy it shows that som
