IN THE HIGH COURT OF SWAZILAND
CIVIL APPEAL CASE NO: 250/2017
In the matter between:
TISUKA TAKANGWANE APPELANT
ZANDILE NSIMBINI RESPONDENT
Neutral Citation: Tisuka Takangwane vs. Zandile Nsimbini 250/2017  SZHC (58) (2017)
Coram: MLANGENI J.
Heard: 17 March 2017
Delivered: 29 March 2017
Summary: Civil Procedure – rescission in the Magistrates’ courts, appeal against decision of the court-a-quo in which application for rescission was dismissed with costs at attorney-client scale.
Rescission application made in terms of Section 21 (2) of the Magistrates’ Courts Act No. 66 of 1938. This section sanctions the rescission of judgments/orders that are –
- Void ab initio
- Obtained by fraud
- Obtained through error common to the parties.
Applicant/Appellant’s case based on error common to the parties. Respondent did not answer to the factual averments made in the rescission application and merely raised points of law in limine, being apparently satisfied to rely on the pleadings that had been made in opposing the orders sought in the main application.
In its judgment the court-a-quo canvassed the points of law as well as the merits of the application and came to the conclusion that Applicant had failed to establish error common to the parties, and also failed to establish on a balance of probabilities that it was owed arrear rental, hence this appeal.
Appeal is against the “entire judgment” of the court-a-quo. Through the process of elimination, Respondents understanding of Applicant’s papers was that the application was largely based on error common to the parties.
During legal arguments on appeal the Applicant raised from the bar, for the first time, the issue of voidness of the order ab initio.
The forte of Applicant/Appellant’s case on appeal is that the Learned Principal Magistrate erred in dismissing the application despite the fact that the Respondent had not filed an affidavit on the merits, the alleged result of which being that Applicant’s averments therein stand uncontested.
Dismissing the Appeal, court held that –
1. rescission orders being discretionary, the court-a-quo was entitled to take a broad view of all facts and circumstances of the case, including statements that were made by the Applicant under oath in a concurrent High Court matter between the present parties and in respect of the same subject matter;
2. the factual averments made by the Applicant in the court-a-quo at best relate to error, there being no reference to voidness ab initio or to fraud.
3. a case for error common to the parties had not been made out.
The fact that an appeal might be based on bad or tenuous grounds is not a sufficient ground to justify punitive costs.
Appeal dismissed with costs at the ordinary scale.
 In a commercial business venture one would expect the investor, at all times, to weigh the costs against the returns in order to determine the worth of the operation. Logically, the same principle should apply in litigation, especially civil litigation. Once the costs of litigation exceed the value of the subject matter, the parties – or one of them – must be rational and bold enough to count their losses and call it a day. At the hearing of this appeal I expressed the genuine concern that the subject matter – an amount somewhere between E5, 000-00 and E8, 000-00, was no longer worth the contest, especially with punitive legal costs and all. It is with regret that the parties have not been able to reach compromise, hence the court shall do what needs to be done in order for the parties to move forward with this eventful and extraordinary matter. I will refer to the Appellant as Applicant, interchangeably.
 On or about the 20th October 2016 and by way of urgency the Appellant, as Applicant, moved an application before the court-a-quo, the substantive prayers being as follows:-
“3. That the written lease agreement entered into by the Applicant and the Respondent is hereby cancelled.
4. Directing that rule nisi do hereby issued calling upon Respondent to show cause on a date to be determined by the court why the rule as follows should not be made final.
4.1 Pending payment of the arrear rental and/or charges in the sum of E7, 789.20 ----- claimed by the Applicant from the Respondent in respect of arrear rentals, the removal of any movables from the said premises is hereby interdicted.
4.2 The Messenger of Court is hereby ordered and directed to;
a) Forthwith to serve the Notice of Motion and this order upon the Respondent and to explain the full nature and exigency thereof;
b) Attach all the movables upon the premises and keep same under lock and key ---- to prevent the Respondent from removing and/or alienating the items referred to in paragraph 4 hereof;
c) Make an inventory thereof;
d) Make a return to the Applicant’s attorney and the clerk of what he has done in the execution of this order.
5. That prayer 4.1 and 4.2 above should operate with immediate interim effect pending finalization of this matter.
6. Costs of suit at attorney-client scale.”
 A passing observation that I make is that the common law procedure of confirming the landlord’s hypothec has been adulterated to a point where attorneys routinely draft meaningless prayers, such as asking the court to order the Messenger or Deputy Sheriff to do that which is his or her duty in law to do, e.g. to make an inventory or to make a return. I routinely refuse to make such meaningless orders, and I adequately canvassed my views in the case of MAJAZI INVESTMENTS (PTY) LTD. v SWAZILAND BUILDING SOCIETY.
 The initial application was based on breach of a lease agreement in the form of unpaid rent. It was opposed and the Respondent filed her opposing affidavit on or about the 17th November 2016, in which affidavit she raised points of law in limine as well as pleading over. The points of law included “unclean hands”, in that prior to approaching the court the Applicant took the law into its own hands by locking the Respondent out of the residence. The matter was called before His Lordship D.V. Khumalo, Principal Magistrate for Manzini Region, for legal arguments on the 28th November 2016, whereupon an order was entered by consent in the following terms –
“1 ----- the application is herein withdrawn (on the ground that Respondent is not indebted to Applicant and/or Respondent is not owing the Applicant)”
After hearing legal arguments on costs, the court-a-quo ordered punitive costs against the Applicant, now Appellant.
 Six days after the above order was recorded, the Applicant lodged an application for the rescission of the said order. The Founding Affidavit of Vusi Mthupha in support of the rescission application discloses that the order sought to be rescinded was made by the Honourable Court on the basis that Applicant’s counsel actually withdrew the application, the reason being that the Respondent did not owe any arrear rentals. Indeed, this position is repetitively captured in order (1) at paragraph 4 above.
 For present purposes I quote the relevant portions of the Applicant’s affidavit in support of the application for rescission, per deponent Vusi Mthupha.
“5. On or about the 28th November 2016, the above Honourable Court gave effect to a withdrawal of the application against the Respondent, at the instance of the Applicant’s attorneys. The Honourable Court went on to issue an order of costs at the attorney and own client scale -----
6. I humbly submit that the Applicant’s Representatives, one Mr. Tapiwa Mazvidza had no instructions to withdraw the claim against the Respondent as the latter was, at the time of withdrawing the application owing the Applicant and still remains indebted to the Applicant in the sum of E7, 767-54.”
 The deponent further states that in withdrawing the application the legal representative was under the mistaken belief that the Respondent had settled all arrears. The said Tapiwa Mzvidza has attested to a confirmatory affidavit.
 The above background simply demonstrates that anything is possible in litigation. It epitomises the ultimate fiasco imaginable.
 Applicant’s Notice of Motion stated that the rescission application was brought in terms of s 21 (2) of “THE ACT”. I take this to refer to the Magistrates’ Courts Act 1938. The provision quoted by the Applicant specifies three grounds upon which rescission may be sought in the Magistrates’ Courts, being where –
(i) A judgment is void ab initio
(ii) A judgment is obtained by fraud
(iii) A judgment granted by mistake common to the parties. (my emphasis).
 As pointed out by the Respondent in its notice to raise points of law in opposition to the rescission application, the applicant’s affidavit does not effectively invoke any of the three sets of circumstances that are stipulated in the said section. At this stage the Applicant was already in the deep end and should have done much better, in an effort to obtain the indulgence of the court. In its opposition, the Respondent did not plead to the merits; it only raised points of law, namely that –
(i) the application does not disclose a cause of action, in that the allegations in the affidavit did not answer to any of the grounds of rescission as provided for in Section 21 (2);
(ii) unclean hands and/or perjury committed by the Applicant’s deponent in the present case vis-à-vis High Court Case No. 1978/2016 which was between the present parties, it being alleged that the deponent made contradictory statements under oath, each version made to suit the pressing needs at that particular time.
(iii) absence of Notice of Breach. This last one has not featured in the appeal.
 Having heard legal arguments in respect of the matter, the Learned Principal Magistrate, in a comprehensive and well-reasoned judgment, dismissed the application for rescission with costs at the attorney-client scale. The present appeal is a sequel thereto. The appeal is “against the entire judgment”, and the grounds are articulated in the following terms –
“(1) The court-a-quo erred in law and in fact in dismissing the rescission application lodged before it.
(2) The court-a-quo erred in law and in fact in failing to hold that all the factual allegations made by the Appellant in the rescission application were not disputed by the Respondent on account of the latter’s failure to file and serve an opposing affidavit in the matter.
(3) The court-a-quo erred in law and in fact in upholding the Respondent’s points of law when the latter had not disputed the factual allegations of the Respondent’s indebtedness to the Applicant in the rescission application.”
 There is obviously no substance in the first purported ground of appeal. It is nothing more than an unsubstantiated opinion of the Appellant. The third ground could well be an extension of the second. As I understand it, in essence the appeal is based on the fact that the court-a-quo effectively upheld the points of law and overlooked the fact that the Respondent did not plead to the merits, and because it did not plead to the merits the Applicant’s factual averments stood uncontroverted.
 The duty upon me is to consider the judgment of the court-a-quo in the light of the stated ground(s) of appeal, to see whether the Learned Principal Magistrate did or did not err. The judgment of the court-a-quo, in my view, has addressed all pertinent issues arising in the matter. I understand the main issues to be as follows –
13.1 Does the application for rescission fall within the provisions of s 21 (2) of the Magistrates’ Courts Act 1938?
13.2 If the points of law raised by the Respondent were sufficient to dispose of the matter in favour of the Respondent, is it of any consequence that the Respondent did not plead to the merits?
13.3 Was the court-a-quo entitled to go beyond the strict pleadings in the rescission application, in particular to take into account pleadings and averments made in a concurrent high court matter between the same parties and on the same subject matter?
 In his judgment on the matter the Learned Principal Magistrate identified a number of pertinent issues that arise in the application and, in my view, interrogated them with commendable efficiency. I now deal with those issues.
 NO AFFIDAVIT FILED BY RESPONDENT IN OPPOSING THE APPLICATION
15.1 It is common cause that in its quest to oppose the application the Respondent filed a notice to raise points of law and did not file an opposing/answering affidavit. What this clearly means is that the factual averments which the Applicant makes in its papers remain undisputed. According to the Appellant on this basis alone the rescission application ought to have been granted, and the court-a-quo therefore erred in dismissing the Application.
15.2 But it cannot be as cut-and-dried as the Appellant suggests. Points of law have different legal consequences. Some are merely dilatory, e.g. the plea of lis pendens whose effect is to stay one set of proceedings pending the outcome of another. A point about lack of locus standi, if upheld, has the effect of determining the matter in that particular form and in that particular jurisdiction.
15.3 Subject to what has been observed above, there would be absolutely nothing wrong with the matter being concluded against the Applicant in the event that one or all of the points of law were successful, and in the event that the effect of one or all of them was to determine the matter.
15.4 It follows, therefore, that the argument of the Applicant – to the extent that it is in a blanket form – is incorrect. And this is the position that was adopted by the court-a-quo, which I respectfully agree with.
15.5 However, on this aspect the Honourable court did not end there. His Lordship observes at paragraph 8 of the judgment that even though no answering affidavit was filed in opposition to the rescission application, “the answering affidavit in convention materially suffices for the contest since it counters the Applicant’s claim that the Respondent is in arrears.” The Respondent would, in any event, have had an insurmountable difficulty in responding to the Applicant’s averments pertaining to what transpired between the Applicant and its legal representative, leading to the debacle wherein a claim was withdrawn allegedly without the client’s instruction, on the alleged assumption that the debt had been settled. In the words of the Learned Principal Magistrate –
“The reasons behind the withdrawal of the matter are a matter of subjective knowledge of the Applicant and his attorney. The Respondent is not privy to such information”
I share the Honourable Principal Magistrate’s view that the Appellant is being overly-technical on relying upon the Respondent’s position of not answering on the merits of the rescission application as denial of arrears had already been canvassed in the main application.
15.6 I respectfully agree that rescission being discretionary, a court seized with such application has to adopt a broad view of the facts and circumstances, and especially to see if the Applicant’s case is bona fide and demonstrates just cause. It is my view that the court-a-quo was entitled to take into account the defence already before court in the form of the affidavit filed in convention. The court found that on the papers filed in convention the Applicant had not succeeded in establishing a case of arrears as against the Respondent. To the contrary, it is the Applicant who, upon withdrawing the matter, asserted that there was no cause of action against the Respondent as the latter did not owe arrears and was sued erroneously, it being alleged by the Applicant that it had many tenants who shared the same particulars as the Respondent.
15.7 The Applicant’s deponent Vusi Mthupha states in High Court case no. 1978/2016, which is between substantially the same parties and on the same subject matter –
“-----The application instituted at the Magistrates’ Court will be withdrawn as it clearly has no legal basis.”
The High Court application was launched on the 24th November 2016, contemporaneously with the Magistrates one which had been launched earlier, in October 2016.
15.8 Sure enough, the application against the Respondent was withdrawn on the 28th November 2016 and the court entered an order for punitive costs against Applicant.
15.9 In the conspectus captured above, it would be injudicious to grant rescission.
 RESPONDENT’S POINTS OF LAW
16.1 Respondent submited that the Applicant’s papers do not disclose a cause of action in that, whilst purportedly relying on s 21(2) of the Magistrates’ Court Act 1938, the Applicant’s averments do not establish voidness ab initio, fraud or a mistake common to the parties. I am not certain that this argument is well-within a point of law in the conventional since. It could well be an issue of the merits. But putting characterization aside, it is correct that the rescission application does not answer to any of the three instances which are the statutory basis for rescission in the Magistrates court.
16.2 On this basis alone the application fell to be dismissed.
16.3 At the hearing before me an attempt was made from the bar to make a case on the basis of alleged voidness of the order ab initio. I need not make heavy work out of this, other than stating that an order made in confirmation of withdrawal of proceedings by one party against another, which is then followed by an order for legal costs, cannot be void ab initio. It may, under certain circumstances, be open to challenge but that does not make it void ab initio.
16.4 The second point of law raised by the Respondent was that the Applicant is approaching the court with unclean hands, in that its deponent Vusi Mthupha made contradictory and inconsistent statements under oath in affidavits filed in the High Court under case no. 1978/2016 and in the Magistrates’ Court case that is the subject of this appeal. Respondent ventures to equate this with perjury.
16.5 The Honourable Magistrate deals with this aspect at paragraph 11 of his judgment, in particular that in the High Court matter the deponent alleged that there was a written lease agreement between the parties, and the same deponent asserts in the Magistrates’ court matter that the Respondent was without a lease agreement, and this, goes the argument, is lying under oath.
16.6 Although the court-a-quo did not specifically rule on the point of unclean hands, and I also do not have to do so in the circumstances, it is my considered view that a litigant who makes contradictory statements under oath, on important factual issues such as the existence or non-existence of a written lease agreement, does not deserve an indulgence of the court. If anything, he or she probably deserves censure.
 ERROR COMMON TO THE PARTIES
This aspect has been touched upon above. It is apparent from the judgment of the court-a-quo that it formed the subject of extensive legal arguments before him, in the same way that it did before me. For this reason I am paying further attention to its analysis by the Honourable Principal Magistrate.
17.1 The closest that the Appellant’s papers get to invoking Section 21 (2) of the Magistrates’ Courts Act 1938 is by reference to error. I make reference to two paragraphs in the Appellant’s founding affidavit in respect of the rescission application.
“7. I humbly submit that the Applicant’s Representative had no instructions to withdraw the application and did so under the mistaken belief that the Respondent had indeed settled all her outstanding arrears with the Applicant, which was however not the case.
10. I humbly submit that it was a grave error on the part of the Applicant’s Representative to withdraw the application much to the prejudice of the Applicant.”
17.2 No one can deny that the Appellant, as applicant, may have made an error or errors. Indeed if it is true that the application was withdrawn without the instructions of the client, that is catastrophic. But is such error or others related to it, common to the parties? If it is a unilateral error of the Applicant, then the application is outside the ambit of the section.
17.3 The Respondent argued at the court-a-quo and before me that she never at any point in time labored under a mistaken belief that she was indebted to the Appellant in respect of rental arrears. To the contrary she has, at all material times, argued that she does not owe any rental arrears.
17.4 It is on the above basis that the Honourable Principal Magistrate came to the conclusion that Appellant’s case, as applicant, does not meet the requirements of the section and stood to be dismissed. I agree completely with the court-a-quo’s analysis of the matter. His Lordship made reference to the case of TSHIVASE ROYAL COUNCIL v TSHIVASE where the court defined a mistake common to the parties as that where “both parties are mistaken as to the correctness of certain facts: this occurs where both parties are of one mind and share the same mistake ----”. The Appellant’s mistake cannot, in the circumstances, be imposed upon the Respondent, no matter how bona fide it may be.
 What remains is to deal with the issue of legal costs. The court-a-quo entered punitive costs against the Applicant, after having found that the Respondent had been dragged to court “when in fact there is nothing to prove that the tenant is owing any rent ----”. His Lordship relies on a passage in the case of RMS TIBIYO (PTY) LTD T/A BHUNU MALL v BRIDGE FINANCE (PTY) LTD where it was stated that –
“It is important that before an applicant embarks on an application of this nature he should satisfy himself that rental is owing because of the drastic and prejudicial nature of the remedy. If on the return day the landlord fails to prove arrear rental, the tenant should be entitled to costs at a punitive scale; the reason being the prejudice which the tenant has suffered, as well as the fact that the proceedings were not necessary.”
 Of course in the case in casu there was no return day in the usual sense, because by the time the matter was heard the Respondent had already filed opposing papers, and at that stage the lis was withdrawn. It is perhaps, on that basis that the court-a-quo dealt with the merits of the matter in circumstances where it possibly need not have done so, and came to the conclusion that the Applicant’s case did not, on a balance of probabilities, establish that the tenant was in arrears. It was obviously difficult to come to a contrary conclusion when Applicant’s deponent had categorically stated in the court-a-quo as well as in the High Court matter that there was no legal basis for the claim against the Respondent. The court-a-quo actually came to the conclusion that the initial application was an abuse of court process.
 If this appeal had been brought in respect of the punitive legal costs only, there is a possibility that I might have arrived at a different conclusion. The blanket appeal against the “entire judgment” in the face of a bad case reflects poor judgment on the part of the Appellant.
 In conclusion I make the following order –
21.1 The appeal is dismissed.
21.2 Costs of the appeal in the ordinary scale.
FOR APPELLANT/APPLICANT: MR. B.S. DLAMINI
FOR RESPONDENT/RESPONDENT: MR. T.M. NDLOVU
 See Notice of Appeal at page 158 of the Record.
 (339/14) [2015) SZHC 195
 Paragraph 14 of the Judgment at p 154 of the record.
 See page 93 of the record, paragraph 13.
 1992 (4) SA 852 at page 863
 High Court Case No. 3446/11
 At paragraph 6
 At paragraph 38 of the judgment, page 154 of the Record.