The High Court has dismissed an application by government and related parties seeking condonation and joinder in ongoing litigation involving the Eswatini Medical Aid Fund, trading as EswatiniMed.
The decision was delivered in an extempore judgment by Judge Mumcy Dlamini, who found that the applicants had failed to meet the legal requirements for condonation and joinder.
The applicants in the matter were government, the ministry of health, and the attorney general.
The respondents included the Eswatini Medical Aid Fund, a non-profit entity duly incorporated under the laws of the Kingdom, as well as its board members, namely Bheki Maziya, Leonard Nxumalo, Mzwandile Magagula, Edward Sithole, Vusi Khumalo, Sibusiso Nhleko, Peter M. Simelane, Samuel Dlamini, Jonathan Dlamini, Sibongile Ndlela-Simelane, John Sibandze, and Treasure Dlamini.
In its application, government sought condonation for the late filing of an application for joinder and an order allowing it to be joined as a party to proceedings that had already been heard and were the subject of an appeal.
The respondents opposed the application, asserting their position on the merits of the main action.
Judge Dlamini outlined that Rule 27(3) of the High Court Rules empowered the court to condone non-compliance with the rules upon good cause shown. She referred to established authority which requires the court, when considering condonation, to assess the degree of delay, the adequacy of the explanation for the delay, the prospects of success, and the respondent’s interest in the finality of the matter.
Turning to the background of the dispute, the court recounted that the main application had been served on April 17. At that time, interim relief was sought, but the court declined to hear the matter on a piecemeal basis, ruling that the relief sought was final in nature. Timelines were set for the filing of answering and replying affidavits, and the matter was postponed to May 6 for argument.
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On the date set for hearing, the respondents’ answering affidavit was served shortly before proceedings commenced. Despite this, respondents’ counsel indicated readiness to proceed. The court took issue with this conduct and granted the orders sought by the applicants in the main matter, treating the late-filed answering affidavit as ineffective. An appeal against those orders was subsequently lodged.
Thereafter, further applications were filed, including an application for rescission by newly instructed counsel for the respondents, and an application for leave to execute pending appeal by the applicants.
The matter was postponed by consent, and on May 16, the court was informed that the respondents had undertaken not to act in a manner that would prejudice the applicants.
It was on the same date that the present applicants filed their application seeking joinder.
The founding affidavit in support of the joinder application was deposed to by the principal secretary in the ministry of health. The reasons advanced for the delay included what was described as government “red tape,” the absence of the minister of health from the country on national duties, and the unavailability of a government lawyer who had also travelled on official business.
It was stated that the matter was only allocated to an assistant attorney general on the afternoon of May 15.
Judge Dlamini found these explanations to be inadequate.
She held that the reasons advanced did not amount to good cause and reflected inefficiency on the part of the applicants.
The court noted that the absence of the minister from the country was not a satisfactory explanation, particularly in an era of electronic communication.
The judge emphasised that the law could not permit a litigant to shift blame for non-compliance with court rules onto other parties or the court itself.
The court further observed that the applicants devoted a substantial portion of their founding affidavit to criticising the parties in the main application for failing to join them, yet failed to clearly state when they became aware of the proceedings. This omission was found to be fatal to their case.
The affidavit itself revealed that government was aware of the litigation from the outset, as one of its nominees, Samuel Dlamini, had been cited in the main proceedings.
Judge Dlamini reasoned that it was unlikely that a board member nominated by government would defend litigation without informing the nominating authority.
From this, the court inferred that the applicants had knowledge of the proceedings at an early stage, but nonetheless delayed in bringing their application. This delay weighed heavily against them in the assessment of condonation.
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On the issue of prospects of success, the court noted that the application for joinder had been filed 10 days after final orders had already been granted in the main matter and while an appeal against those orders was pending. The applicants were aware of the appeal, as they expressly acknowledged it in their founding affidavit.
The court held that it could not entertain an application seeking to join proceedings that were already on appeal.
Additionally, Judge Dlamini found that the applicants had failed to demonstrate any real prospects of success. The stated intention of government to be joined in order to “solve the impasse” within the Fund was found to be inappropriate for court proceedings.
The court reiterated that a joinder was meant to allow a party to participate in the adjudication of a concrete legal dispute, not to facilitate negotiations or resolutions outside the judicial process.
The applicants also indicated an intention to apply for rescission of the orders granted on May 6. However, the court observed that no such relief had been formally sought in the notice of motion.
Merely mentioning rescission in the body of an affidavit, the judge held, did not constitute a proper prayer before the court.
Having considered all the relevant factors, Judge Dlamini concluded that the applicants had failed to satisfy the requirements for condonation and joinder. The court found that the delay was inordinate, the explanation inadequate, and the prospects of success non-existent.
In the result, the High Court dismissed the application for condonation and joinder, bringing government’s bid to enter the EswatiniMed legal battle to an end.
