SUPREME Court Judge Nkululeko Hlophe has called on lawyers to confront the persistent uncertainty surrounding the effect of appeals on court orders.
The judge said the legal profession must take the lead in clarifying whether noting an appeal automatically suspends a High Court order or whether litigants are required to seek leave before execution can be stayed.
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The judge made the remarks in the ongoing matter involving Eswatini Medical Aid Fund (EswatiniMed) Principal Officer Peter Samora Simelane and the Fund’s Board Chairperson, Sammy Dlamini, who were charged with contempt of court after proceeding with an annual general meeting (AGM) despite an order interdicting such a gathering.
At the heart of the case is the legal question of whether noting an appeal automatically suspends the execution of a High Court order or whether, under certain circumstances, the order remains enforceable unless leave to appeal has been sought and granted.
Judge Hlophe noted that the confusion over the effect of appeals is persisting in the courts, often resulting in inconsistent approaches by litigants and judicial officers alike.
“There is this interesting question about an appeal,” the judge said, addressing counsels. “When does an appeal stay, and when does an appeal not stay? Can an appeal filed in the Supreme Court be ignored by the High Court on the basis that it has not complied with High Court rules, such as that the matter was not final or that leave has to be sought? Does it lie with the High Court or with the Supreme Court?”
The judge stressed that even if an appeal is disputed, parties are not left without remedies.
“If you do not accept that an appeal has been filed, then the one whom the appeal is interdicting from proceeding with the matter should file an application to execute,” Judge Hlophe said. “It is not like he is left remediless. He should file an application to execute, saying: notwithstanding that appeal, may I be allowed to execute because it has been filed without leave of court, it has no merit or whatsoever.”
Lawyer Mangaliso Magagula argued that the problem stems from courts ignoring established precedent.
“There is the principle of stare decisis,” Magagula said, referring to the doctrine that courts must follow legal precedent set in previous cases.
Assistant Attorney General Mbuso Simelane added that the issue was not confined to the EswatiniMed case, noting that other practitioners were grappling with the same uncertainty. Turning to fellow lawyer Lucky Howe, he remarked that “we are in the same predicament in another matter.” Howe, however, declined to comment further on the issue of the appeal.
Judge Hlophe emphasised that the uncertainty called for deliberate action by the legal community.
“These are matters that, as senior legal practitioners, you need to address,” he said. “It is about time that you stood up and gave direction, not in a confrontational setting like this one, but perhaps even in a meeting of some sort called by attorneys and practitioners to discuss this.”
The EswatiniMed case dates back to March 25, when Justice Ticheme Dlamini issued an ex parte order against Simelane and Dlamini in proceedings launched by another faction of EswatiniMed.
That order, among other things, restrained the two from convening AGMs or special meetings without proper board and shareholder approval, barred them from obstructing investigations into the Fund’s affairs, and interdicted them from interfering with disciplinary processes against them. Crucially, it also set aside the annual shareholders’ meeting that had been called for March 26.
The order read:
“The annual shareholder’s meeting unlawfully called for by the first respondent and for March 26 is hereby set aside, including but not limited to any and all decisions taken at such meeting.”
Simelane and Dlamini argued that this part of the order was final in nature, since it prevented them from proceeding with the AGM altogether. On this basis, they filed an appeal in the Supreme Court, contending that they were entitled to do so as of right, without first seeking leave from the High Court.
They further argued that the order had been granted in their absence and in the absence of shareholders with a direct stake in the matter, contrary to the constitutional right to a fair hearing under Section 21 of the Constitution.
By noting the appeal, the duo asserted, the effect of Justice Dlamini’s order was automatically suspended. Acting on this belief, they proceeded with the AGM as originally scheduled. This prompted the other side to launch contempt proceedings against them on March 28, accusing the pair of willfully defying the court’s authority.
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