I made those remarks and my learned colleagues concurred therein because at the time the judgment was delivered we had not seen the
written judgment of Schreiner AJP. Had we known of it, it would not have been necessary to advert to the question at all. Nevertheless
it is abundantly clear that by November 1999 all the issues between the appellants on the one hand and the bank and the Electricity
Board on the other hand had been finally adjudicated upon by this Court.
In October 1999 the firm of J.S. Magagula and Company was appointed as the attorneys to Mr. Dlamini and the six companies who were
involved in the bank case. Notice of this appointment was received by the bank’s attorneys, Robinson Bertram, on 21st October 1999 under the heading “APPEAL NO.18/99” which was the number of both the appeal in the bank recusal appeal and
the subsequent appeal on the merits. Mr. J.S. Magagula acted for the appellants in the appeal heard in the November 1999 session
and in the events thereafter. On 16th February 2000 there was served on Robinson Bertram and on the Registrar of the High Court an application bearing the heading “APPLICATION
FOR LEAVE TO APPEAL TO HER MAJESTY IN COUNCIL (PRIVY COUNCIL.)” It bears a cover-sheet which purports to be in the Court of
Appeal of Swaziland in Appeal No.5/99 and in Appeal No.18/99. It also contains the following:-
“In the appeal of:
DUMISA MBUSI DLAMINI
1ST APPELLANT
THE PROPERTY COMPANY (PTY) LTD
2ND APPELLANT
MACKAY INVESTMENTS (PTY) LTD
3RD APPELLANT
DUMISA SUGAR CORPORATION (PTY) LTD
4TH APPELLANT
against the refusal of the Honourable the Chief Justice of Swaziland to recuse himself in the matter of:
THE PROPERTY COMPANY (PTY) LTD
AND TWO OTHERS
APPLICANTS
AND
SWAZILAND ELECTRICITY BOARD
RESPONDENT
(under Case No.2407/98)
AND
DUMISA MBUSI DLAMINI
1ST APPELLANT
SWAZI INN (PTY) LTD
2ND APPELLANT
DUMISA SUGAR CORPORATION (PTY) LTD
3RD APPELLANT
THE NEW GEORGE HOTEL (PTY) LTD
4TH APPELLANT
MACKAY INVESTMENTS (PTY) LTD
5TH APPELLANT
UNCLE CHARLIE HOTEL (PTY) LTD
6TH APPELLANT
THE PROPERTY COMPANY (PTY) LTD
7TH APPELLANT
against the refusal of the Honourable the Chief Justice of Swaziland to recuse himself in the matter of:
DUMISA MBUSI DLAMINI & SIX OTHERS
PLAINTIFF
AND
SWAZILAND DEVELOPMENT AND
SAVINGS BANK
DEFENDANT”
The application papers served on the bank’s attorneys commence with the following introduction:-
“BE PLEASED TO TAKE NOTICE that Appellants hereby apply, to the extent that it may be necessary, for leave to appeal to Her
Majesty in Council (the Privy Council) against the whole of the judgment including the order for costs delivered in the above Honourable
Court on Friday, 3 September 1999 and more particularly upon the following grounds.”
There then follow 14 paragraphs criticising the judgment of Schreiner AJP which clearly deal with both recusal applications. Thus,
for example, paragraph 11 reads:
“The Court erred in not dealing with the manner in which the learned Chief Justice had handled the applications for recusal, more particularly as his behaviour during such hearings both of which were subsequent to 29th January 1999 constituted further grounds for his refusal.” (emphasis added)
The application was signed by Mr. Magagula personally. The service of this application produced an almost immediate response from
Robinson Bertram who, on 21st February 2000 served on J.S. Magagula and Company a notice which reads as follows:-
“NOTICE OF INTENTION TO OPPOSE LEAVE TO APPEAL TO THE PRIVY COUNCIL.
Be pleased to take notice that the respondents hereby give their notice to oppose the application for leave to appeal to the privy
council (sic) and appoint the offices of Robinson Bertram whose address is fully set out herein below as its address for purposes
of service of notices, correspondence and all processes in connection with these proceedings.”
It is dated 18th February 2000. In my view I have said sufficient thus far to demonstrate beyond doubt that Mr. Magagula, when he brought the application
for leave to appeal to the Privy Council, knew full well that both recusal applications had been the subject matter of Schreiner
AJP’s judgment. The contents of the application are inconsistent with any other inference. Despite that, however, on 16th March 2000 Mr. Magagula addressed a letter to the Registrar of this Court which, I regret to say, can at best for Mr. Magagula be
described as disingenuous. This letter is headed. DUMISA M. DLAMINI AND OTHERS/SWAZILAND DEVELOPMENT AND SAVINGS BANK: APPEAL CASE NO.18/99. The body of the letter reads:
“You will realise that although all documents including the full record were timeously prepared and filed, the appeal against
the decision of the Chief Justice by which he refused to recuse himself in the above matter was never enrolled in the June, 1999
session of the Court of Appeal where it was supposed to be dealt with. It was also not dealt with in the November, 1999 session.
Although this appeal was a
