IN THE SUPREME COURT OF SWAZILAND JUDGMENT ... - SwaziLII

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$IN THE HIGH COURT OF S\V AZIL.\i'W S\V AZILAND ... - SwaziLII$

<strong>JUDGMENT</strong>DR. TWUM J.A.[1] On 31 st August 2012, the appellant applied to this Court by Notice ofMotion for Reinstatement of an appeal which was struck off the roll ofthis Court on 9 th November 2011 for failure to pay or deposit securityfor costs. The Respondents duly filed Notice of Intention to Oppose.[2] The appellant admitted in an affidavit in support of the applicationthat his Attorney did advise him about posting security for costs. Headded that the matter had been enrolled in the November 2012 sessionof this Court. It so happened, (he continued) when the matter was dueto be heard, he did not have legal representation as the SwazilandAttorneys were engaged in a stay-away from the courts.Thatexplained why he appeared in person at the hearing.[3] In one moment of candour, the appellant/applicant deposed in thataffidavit that even though the appeal had somewhat become moot, hewas still desirous of prosecuting it to finality because of the order ofcosts that was made by the court a quo. (underlining is mine). Headded that the security for costs had then been made.2
[4] It is worth pointing out that at the hearing of 9 th November 2011 whenthe appeal was struck off the roll Mr Yunus Patel, director of the 2 ndand 3 rd respondent companies, informed the Court that the property,the subject-matter of much of the litigation between the parties, hadactually been sold and bought at an auction and that the purchaser’stitle had been registered.[5] In my view the substratum of the litigation between the partiesdisappeared; confirming the appellant/applicant’s view that his appealunder Case No. 9/2011 had somewhat become moot.[6] In my view, this application suffers from two (2) major impediments:-(i)There is no application for condonation of the late payment ofcosts or deposit of security for costs.An application for relistment of an appeal which has beenstruck off the roll, is not simply for the asking. The failure topay deposit for costs may mean that the applicant may beunable to satisfy an order for costs when the appeal goes againsthim.The payment of deposit is therefore an important3
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Page 5 and 6: moot, for the sake of the costs whi

IN THE SUPREME COURT OF SWAZILAND JUDGMENT ... - SwaziLII

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