In the Suprme Court of Swaziland

1

IN THE SUPRME COURT OF SWAZILAND

REVIEW

In the matter between: Civil Case No. 07/2015

RODGERS BHOYANA DU-PONTApplicant

And

SWAZILAND BUILDING SOCIETY1stRespondent

ROBERT FANA NKAMBULE2ndRespondent

REGISTRAR OF DEEDS3rdRespondent

Incorporating: Civil Case 07/2015 (T. Mlangeni AJA) Interlocutory

Application

Neutral citation:Rodgers Bhoyana Du-Pont v Swaziland Building Society and 2 Others (07/2015) [2016] SZSC 79 (5th August 2016)

Coram:Annandale AJA, Mabuza AJA, M. Dlamini AJA, Manzini AJA, Mlangeni AJA

Judgment:Mabuza AJA, M Dlamini AJA, Mlangeni AJA (Concurring Main Judgment) : [1] - [111]

Manzini AJA (Dissenting): [112] - [166]

Annandale AJA (Dissenting): [167] - [175]

Mlangeni AJA

(Interlocutory Application): [176] - [185]

Heard:25/01/16; 02/03/16; 03/03/16

Delivered:5th August, 2016

Main Application

For the Applicant:Mr V. Kunene

For the 1st Respondent :Mr S.V. Mdladla

For the 2nd Respondent:Mr L. R. Mamba

Interlocutory Application

For the applicant:Mr L. R. Mamba

For the 1st Respondent :Mr Z. D. Jele

For the 2nd and 3rd Respondent:Mr V. Kunene

SUMMARY

Constitutional Law – Application to the Supreme Court for review of a Supreme Court Decision -Such review sanctioned by section 148 (1) and (2) of the constitution of Swaziland.

Constitutional Law - The right to a fair trial includes the right to legal representation – Applicant seeking review because such right breached by the Supreme Court.

Civil Law - Practice – Pleadings – Sale of mortgaged immovable property for far less than the market value – such sale price unfair and oppressive to the judgment debtor.

Practice - Procedure – Rule 46 (13) of the Rules of the High court – under scrutiny and declared to be reviewed and amended – Oversight by courts over sale price of immovable property to be fair and commensurate with market value.

Human Rights – Public interest litigation – its origin and meaning.

Human Rights – Building societies and financial institutions to be compliant with – Central Bank to oversee such compliance to be in line with country’s international obligations –

International Obligations – The right to shelter and the right to earn a living – Best practices to be applied.Supreme Court judgment set aside.

JUDGMENT

BY THE COURT

[1]The Applicant is Rodgers Bhoyana Du Pont who in his founding affidavit described himself as an adult male of Croydon in the Manzini Region.

[2]The 1stRespondent is the Swaziland Building Society, a body corporate duly incorporated in terms of the Building Society’s Act No. 1 of 1962 and trading as a Building Society at Mdada Street, Mbabane in the Hhohho District.

[3]The 2ndRespondent is Robert Nkambule an adult Swazi business man of Mbabane.

[4]The 3rd Respondent is the Registrar of Deeds of the Kingdom of Swaziland.

[5]In this matter the Applicant seeks the following orders:

1. Dispensing with the procedures and manner of service pertaining to form and time limits prescribed by the rules of the Honourable Court and directing that the matter be heard as one of urgency.

1. Condoning the Applicant for the non-compliance with the rules of Court.

1. That this application be served together with the interim order/that this application be made exparte.

1. Reviewing, correcting and/or setting aside the judgment of the above Honourable Court handed down on the 31 May 2013 in the matter between Rogers Bhoyana Du Pont/Swaziland Building Society and 3 Others Case No. 66/12, on the ground that the Supreme Court committed gross irregularity in determining the appeal without affording the Appellant a right to a fair hearing as enshrined in the Constitution of Swaziland 2005 in that he was denied a right to legal representation.

1. Reviewing, correcting and/or setting aside the judgment of the above Honourable Court handed down on the 4th November, 2015 and 11th November 2015 in the matter between Rodgers Bhoyana Du Pont/Robert Nkambule and 2 Others Case No. 7/15.

1. Reversing the sale in execution of Farm No. 769 situated at Crydon in the Manzini District on the basis that the sale was irregular.

1. Ordering the Registrar of Deeds to deregister the registering (sic) of the farm being Farm No. 769 situate at Croydon in the Manzini District in the name of Robert Nkambule.

1. Staying the eviction of the Appellant and his family from Farm No. 769 situate at Crydon in the Manzini District pending finalization of the application.
2. Directing that prayers 3, 4 and 5 operate as an interim order, and that a rule nisi do hereby issue returnable on a date to be determined by the above Honourable Court.

1. Costs of suit in the event the application is opposed.

1. Further and/or alternative relief.

[6]This Court granted prayer 8 pending the finalization of this matter.

[7]The background hereto is sourced from the summons issued by the 1st Respondent against the Applicant in High Court Case No. 263/2012. The summons was issued on the 8thFebruary 2012.

[8]It is stated in the summons that on about the 2nd September 2004 the Applicant and 1st Respondent entered into a valid written loan agreement wherein the 1st Respondent made advances to the Applicant the sum of E220,000.00 (Two hundred and twenty thousand Emalangeni). A mortgage bond as security for this amount was registered on the 19th October 2004 in favour of the 1st Respondent over Farm 769 which farm is situate at Croydon in the Manzini District. The monthly instalment was to be E4,330.00 (Four thousand three hundred and thirty Emalangeni). The amount of E220,000.00 (Two hundred and twenty thousand Emalangeni) is categorized as Claim A in the summons.

[9]On or about the 27th January 2006 and at Mbabane the Applicant and the 1st Respondent entered into a second written loan agreement wherein the 1st Respondent made further advances to the Applicant in the sum of E300,000.00 (Three hundred thousand Emalangeni). A further bond was registered in favour of the 1st Respondent on the 14th February 2006. The amount of E300,000.00 (Three hundred thousand Emalangeni) is the subject matter of Claim B in the summons. The monthly instalment was to be E3,458.00 (Three thousand four hundred and fifty eight Emalangeni).

[10]Even though the Applicant has stated that the value of Farm 759 was E1,500,000.00 (One million five hundred thousand Emalangeni) during 2004 (during the first loan) and E2,400.000.00 (Two million four hundred thousand Emalangeni) during 2006 (the second loan) he has not filed any proof therefor.

[11]However, from the 1st Respondent’s review notes of 11 January 2008 (Annexure SBS1) the market value of the property is stated to be E1,220,000.00 (One million two hundred and twenty thousand Emalangeni). The date of the valuationis given as 2nd August 2004.

[12]Of particular concern is that the Applicant was given a further loan of E300,000.00 (Three hundred thousand Emalangeni) while still owing on the first loan. There is no evidence that a valuation of the property was carried out before the second loan was advanced to the Applicant. If this is the case, the second loan would have been contrary to section 33 of the Building Societies Act No. 1 of 1962 which provides that:

“no building society shall make any advance unless it is based upon a valuation made in accordance with subsections (2), (3) and (4) by a valuator appointed by the society for that purpose”

[13]Annexure SBS3 consists of loan review notes dated 7 March 2012. The market value of the property is recorded as E2,400,000.00 (Two million four hundred thousand Emalangeni) and its forced sale value being E1,600,000.00

[14]In terms of the certificate of balance dated 25th January 2012 annexed to the summons the amounts outstanding were broken down as follows:

“The total amount lent and advanced to the debtor was E520,000.00 (Five hundred and twenty thousand Emalangeni) broken down as follows:

Capital sum under main accountE520,000.00

Sub accountsE 5,264.82

Re-Advance E 54,600.00

Unpaid itemsE 73.500.00

Compound Interest from 30/09/2004 to 31/12/2011E352,043.54

Charges from 30/11/2004 to 31/12/2011E 37,037.50

Insurance Premium from 31/10/2004 to 31/12/2011E 58,407.09

Repayments from 01/04/2005 to 12/01/2011 (E590,957.41)

E509,895.54

Dated at Mbabane on this day………………. January 2012

………………………………………………..

MANAGER FINANCE AND ACCOUNTING”

[15]When the matter appeared before Sey J, on the 16th March 2012, she granted default judgment in terms of the prayers asked for.

[16]The certificate of balance reflects the compound interest as amounting to E352,043.54 (Three hundred and fifty two thousand Emalangeni forty three hundred and fifty four cents). It does not appear that the learned judge applied the induplum rule with regard to interest that Mr. Justice B. Dunn introduced to our legal jurisprudence. Had she done so this would have considerably lowered the amounts of the arrears.

[17]It is common cause between the parties that the amount sued for in the summons was made up of the arrears amounting to E500,000.00 (Five hundred thousand Emalangeni) and attorneys costs amounting to E30,000.00 (Thirty thousand Emalangeni).

[18]After default judgment was granted against the Applicant on the 16 March 2012, he filed an application for rescission of judgment. The application was heard by Hlophe J. on the 27th July 2012 who dismissed it with costs on the ordinary scale on the 12th September 2012.

[19]Thereafter Farm 769 was sold in execution to the 2nd Respondent(Robert Fana Nkambule) for the sum of E530,000.00 (Five hundred and thirty thousand Emalangeni).

[20]The Applicant says that it was worth E4,5 million (Four million five hundred thousand Emalangeni) at the time of the sale. The 1st Respondent does not deny this valuation. Its response is that the valuation report is inadmissible because it amounts to hearsay evidence as the author thereof has not furnished evidence through an affidavit to confirm its contents.

[21] The Applicant filed an appeal against the judgment of Hlophe J. The

grounds of appeal were as follows:

(1)The learned judge in the court a quo erred in law and in fact in coming to the conclusion that there was no agreement entered into between the parties.

(2)The Learned Judge in the court a quo erred in law and in fact in relying on the Internal Memorandum or Communique of the Respondent to which the Appellant was not privy.

(3)The Learned Judge in the court a quo erred in law in (sic) fact in failing to take into consideration the conduct of the parties as between each otherafter the issue of Summons to date.

[22]The Supreme Court heard the appeal on the 15 May 2013. The Coram comprised M. M. Ramodibedi CJ, S.A. Moore JA, and B.J. Odoki JA. The judgment was delivered on the 31 May 2013. The appeal by the Applicant was dismissed with costs including the certified costs of counsel, the Court having found that the appeal was wholly lacking in merit.

[23]It is the judgment of 31 May 2013,that the Applicant now seeks to have reviewed corrected and or set aside on the ground that the Supreme Court committed gross irregularity in determining the appeal without affording the Applicant a right to a fair hearing as enshrined in the Constitution of Swaziland 2005 in that he was denied a right to legal representation.

[24]Authority for such a review is to be found in section 148 (1) and (2) of the Constitution which is entitled “Supervisory and Review Jurisdiction” and provides that:

“1. The Supreme Court has supervisory jurisdiction over all courts of judicature and over any adjudicating authority and may, in the discharge of that jurisdiction, issue orders and directions for the purposes of enforcing or securing the enforcement of its supervisory power.”

“2. The Supreme Court may review any decision made or given by it on such grounds and subject to such conditions as may be prescribed by an Act of Parliament or rules of court.”

[25]To assist him, the Applicant instructed the Attorney General of Swaziland. The locus standiin judicioof the Attorney General to bring these proceedings on the Applicants behalf was challenged by the Respondents but the Court ruled that the Attorney General had the necessary locus standi to bring these proceedings and to represent the Applicant.

[26]We set out below the submissions that persuaded us to reach the conclusion that the Attorney General has locus standi in judicio to represent the Applicant.

Historical position of the Attorney General

[27] Thehistoricalpowers of the Attorney General were well articulated by

Nathan CJ and Cohen J.[1] Their Lordships pointed out that the powers of the Attorney General were set out in much detail under Section 85 of the Swaziland Constitution Order, 1967. Later the Constitution Act No.50 of 1968 under Section 91 prescribed:

“7. There shall be an Attorney General whose office shall be a public office.

2.The Attorney General shall be the principal legal adviser to the Government of Swaziland and, for the due performance of his duties, entitled to be provided with all papers which are available to the members of the Cabinet or any committee thereof; and he shall have such other functions as may be conferred on him by this Constitution or any other law, (our emphasis)

3.The Attorney General may, whenever requested so to do advise the King on any matter of law relating to any function vested in the King by this Constitution or any other law.’’'

[28]Nodoubttheoffice of the Attorney General was seized with both

civil and criminalmatters as a public office in terms of the 1968 Constitution. In 1973, however, and under the Director of Public Prosecutions Order, the powers of the Attorney General were limited to civil matters, while criminal matters were transferred to the newly established office of the Director of Public Prosecutions.

[29]NathanCJandCohenJ had todecide whether the Attorney General’sconsent was a prerequisite to prosecution on a charge under the Sedition and Subversive Activities Act 46 of 1938 in light of the Director of Public Prosecutions Order conferring criminal powers to the office of the Director of Public Prosecutions away from the Attorney General. Their Lordships concluded:[2]

“The powers, duties and functions which were vested in the Attorney Genera! under the Decree 5 of the Proclamation of 12 April 1973 have been transferred to the Director of Public Prosecutions by s3 (2) of King's Order- in-Council 17 of 1973 "in so far as criminal proceedings only are concerned. " Other powers andfunctions of the Attorney General have been left with him and have not been transferred to the Director of Public Prosecutions. It appears to us that the decision whether or not there should be a prosecution for an alleged contravention of s 4 or 5 of the Sedition and Subversive Activities Act is not merely a matter of deciding whether or not to institute criminal proceedings in general (cf s3 of the Criminal Procedure and Evidence Act 67 of 1938; s 91 (4) of the repealed Constitution) but is a matter in regard to which the legislature considered that the advisory functions of the Attorney General should be and have not been transferred to the Director of Public Prosecutions. There is, accordingly no reason why literal effect should not be given to s 6 (2) f the Sedition and Subversive Activities Act; and it follows that that section cannot be said to have been impliedly repealed. ”

[30]From the above, it is settled that the Attorney General holds advisorypowers. The said advisory functions were incorporated under Act I of 2005 - the current Constitution of Swaziland.[3]From the reasoning of their Lordships therefore, it is our considered view that if the Attorney General is endowed with advisory powers, by extension, he should be able to defend in a court of law his advice. In this regard, the right to representation is established. This right to representation of private litigants is fortified by the provision that the Attorney General holds a public office.[4] Section 77 of the Constitution reads:

“Attorney General[5]

77 (1) There shall be an Attorney General for Swaziland whose office shall be a public office and who shall be appointed by the King on the recommendation of the Minister responsible for Justice after consultation with the Judicial Service Commission. "

[31]TheirLordshipproceededtopoint out[6]: “Itis to be noted that in

Swaziland the Attorney General has always occupied a somewhat unique position. Unlike his counterpart in South Africa whose functions are limited

to criminal matters, the Attorney General from thedays of British rule of Swaziland and since independence, has performed, and continues so to do, a number of other functions. Although he is appointed to his office by the King as a public officer, and not as a member of the Cabinet, his duties approximate to those vested in the Attorney General in the United Kingdom.”In other words in order to know the powers of the Attorney General in Swaziland, one must enquire on the powers of the Attorney General in the United Kingdom.

[32]The functions and powers of the Attorney General for the United Kingdom are as stated by Nathan CJ et all, explained in the Halsbury’s Laws of England.[7]At paragraph 806 it reads:[8]

"The assertion of public rights is a matter for the Attorney General alone, accordingly, where he refuses consent to a relater action a private individual has no right to access to the courts. ”

[33]In Adams v Adams 1970 (3) ALL ER 576-578 the court held:

“Ithink the Attorney General also has the right of intervention at the invitation or with the permission of the court where the suit raises any question of public policy on which the executive may have a view which it may desire to bring to the notice of the court. Public policy is a matter of which the courts take direct judicial cognizance, and they do not allow evidence on the point. ”

[34]Of importance to note in that case[9]is that the applicant’s wife had written two correspondences inviting the Attorney General to appear in the proceedings. The court observed that the Attorney General did not appear amicus curiae[10] but nevertheless allowed the Attorney General to appear. The court held in this regard.

“Although in later stages of the instant case counsel for the Attornev General claimed to be doing no more than drawing relevant legal considerations to the attention of the court, he intervened by wish as a party rather than be heard as amicus curiae; and I was left clearly under the impression that there were matter here, not merely affecting prerogative power in the narrower legal sense, but extending to matters of policy on which the Crown wished to express a view.” (our emphasis)

[35]Of significance againfrom the proceedings of that case is that there wasno application for leave to appear by the Attorney General. His appearance was initiated by merely two letters of request to do so by the applicant - a private litigant. Similarly, there is no ground for rejecting the Attorney General's appearance, who according to Nathan CJ and Cohen J, supra "his duties approximate to those vested in the Attorney General in the United Kingdom.” The case of Adams cited above demonstrates such right.

Constitutional Approach

[36]Section 77 (5)(f)reads as follows onthefunctionsoftheAttorney General:

“perform such other functions as may be assigned to the Attorney General by law.”

[37]Section77(5)(f)iscouched in similar wording as section 91 (2) of the1968 Constitution. Following this section, the question to be posed is [11]whether there is any law providing for the Attorney General to represent a private citizen. The answer lies in the Law Officers Act No.8 1966. Section 3 reads: