Court name
Supreme Court of eSwatini
Case number
38 of 1997

Sifundza v Rex (38 of 1997) [1998] SZSC 21 (22 April 1998);

Law report citations
Media neutral citation
[1998] SZSC 21









IN
THE COURT OF APPEAL OF SWAZILAND


CRIMINAL
APPEAL NO.38/97


In
the matter between:


SABELO
ELMON SIFUNDZA


VS


REX


CORAM :
SCHREINER

J
A


:
LEON J

A


:
STEYN J

A


FOR
THE APPELLANT
:


FOR
THE CROWN :


JUDGEMENT


Steyn
J

A:


The
appellant was convicted on two charges one of murder with extenuating
circumstances, one of common assault. He was sentenced to undergo 8
years' imprisonment on the murder charge and two months on the common
assault charge, the two sentences to run concurrently. He noted an
appeal both against his conviction and his sentence.


When
he appeared before us today however he confined his address to us to
the issue of the sentence which was imposed upon him. I must say that
he presented a very well reasoned argument concerning the propriety
of the sentence. He struck me as an intelligent young man and it is
indeed a great pity that he had to be sentenced to such a lengthy
period of imprisonment. However, I am obliged to point out to him
that if it had not been for his youth he may well have been sentenced
to death on this count. This was a senseless, gratuitous crime
committed on a police officer without any reason or cause.


As
the learned Judge in the court below pointed out, it was his duty to
hold the scale in balance between the interests of this young man and
the community as a whole. We have examined the


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reasons
of the Judge for imposing the sentence that he did very carefully.
That judgement is free of any misdirection and it is our view that it
would be inappropriate for us in these circumstances to interfere
with the exercise of his discretion.


I
therefore think that the best that the appellant can to do is to try
to manage to serve his sentence as best he can and when he comes out
of prison - hopefully with appropriate remission as a first offender
- that he will be able to return to society and live a law abiding
life. I repeat again, that he is a young man but that due weight had
been given to his youth. The offence which he has committed was so
serious that to our opinion the sentence of 8 years' imprisonment was
entirely appropriate.

The
appeal is dismissed and the sentences are confirmed.


J.
H
.
STEYN
J A


I
agree:


W.
H.
R.
SCHREINER J

A


I
agree:


R.
N. LEON J A


Delivered
on 22nd April 1998.


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IN
THE COURT OF APPEAL OF SWAZILAND


CIVIL
CASE NO.18/96


In
the matter between:


THEMBA
MDLULl AND SEVEN OTHERS 1ST APPELLANT


and


JABULANE
DLAMINI AND SIXTY OTHERS 2ND APPELLANT


and


EMASWATT
COAL (PTY) LTD RESPONDENT


CORAM :
SCHREINER J

A


:
LEON J

A


:
STEYN J

A


FOR
THE APPLICANT : MR. A.S. SHABANGU


FOR
THE RESPONDENT :


JUDGEMENT


Schreiner
J

A:


The
appellants in this matter have caused certain papers to be filed with
this Court. There is no formal application. In a letter to the
Registrar from the appellants' attorney it would seem that a
difference of opinion between the appellants and the respondent has
arisen as to the meaning of the Order made by this Court.


The
Order followed an appeal concerning the entitlement of the appellants
to payment of wages when the relationship of employee and employer
was coming to an end. The Court made the following Order:


"1. The
appellants, in addition to the amounts awarded to them in terms of
the judgement of Hull CJ dated the 4th May 1994 are entitled to
payment of wages from the 1st February 1991 to the 31st August 1992
together with any severance allowance to which they may be entitled
in respect of that period.


2. ..................


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3. The
matters are referred back to the High Court for the determination of
the amounts due to each of the appellants save for Majunzile Ndwandwa
in respect of whom no payment is due.


4. .........................


5. ........................."


There
is no procedure laid down in the Rules whereby a party to an appeal
before this Court may obtain clarification its Order merely upon
writing to the Registrar requesting it. Though an appeal Court has
got power to do so is apparent from FIRESTONE SA VS GENTIRUCO A.G.
1977(4) SA 298(A) a decision in the Republic of South Africa. This
must be done by way of a formal application where the portion of the
judgement which is said to be ambiguous or unclear is accurately
identified and the interpretation sought by the applicant to be
placed upon the allegedly ambiguous or unclear part of the Order is
properly set out.


The
other party or parties to the appeal must be served with a copy of
the application and any affidavits or other documents filed in
support of the application and given an opportunity of filing an
affidavit in reply. The issue, if any, between the parties will then
become clear and capable of resolution by the Court on a formal
hearing. In the present case this was not done and it follows that no
Order will be made in respect of the papers which were filed.


The
matter was placed upon the roll for hearing at a session of the
Appeal Court. It was removed from its original place on the roll to a
lower position. When the matter was called there was no appearance
for either of the parties. The matter was stood down in order to
enable the Assistant Registrar to find out what had happened. Counsel
for the respondent, Mr. Flynn, told her that he had no instructions
to appear. Mr. Shabangu did appear and gave some account of his
discussions with the Registrar of this Court. He did not explain why
he had not been present when the session opened or when the matter
was called on the morning of the 22nd April. He gave the Court the
impression that he was merely relying upon the Court to issue
direction

as
to how he should proceed to obtain clarification of the judgement.
This is a most unsatisfactory approach. The Appeal Court is not there
to give advice to practitioners as to how they are to proceed. It
would be a very bad precedent if the Court were to do so in the
present case. Suffice it to say that it would prima facie appear that
what may be the issue sought to be raised by Mr.


2


Shabangu
should, in terms of the order of this Court, be decided by the High
Court to which the issues not decided by the Court were referred.


W.
H. R. SCHREINER J

A


I
agree:


R.N.
LEON

J
A


I
agree:


J.
H. STEYN

J
A


Delivered
on...........April 1998.


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