THE HIGH COURT OF SWAZILAND
CASE NO. 3819/2000
the matter between
MKHONTA 1ST RESPONDENT
SWANEPOEL 2nd RESPONDENT
S.B. MAPHALALA - J
Applicant MR. M. MAMBA
Respondents MR. THWALA
is an application for rescission of judgement for an order as
and/or setting aside the order granted by this court in favour of
the respondent on the 30th March 2001.
the respondent to pay costs hereof (only in the event of her
opposing this application).
the applicants such further and/or alternative relief as this court
matter is brought by way of application. When the matter was called
in the contested motion of the 25th May 2001, Mr. Thwala submitted
that the order, which is sought to be rescinded was executed by the
Deputy Sheriff of the Shiselweni District
the 27th March 2001. The matter had come to an end thereafter and as
such his instructions to act for the respondents also came to an end.
For this reason he requested Mr. Mamba for the applicant o re-set the
matter and serve the respondent as the present application was served
on his correspondent. He told the court that he has no duty to go
after the respondents. In short Mr. Thwala's argument is that his
office is no longer representing the respondents in this matter.
Mamba for the applicant held the view that if that was so,
respondents attorney should have filed an affidavit in this regard.
He further submitted that they have furnished security in the sum of
E200-00 in terms of the rules. That the respondent's attorney
accepted the security and that it is rather strange at this point for
them to rum around that they are not involved in this matter. It is
Mr. Mamba's view that they are still representing the respondent. To
support this proposition he cited the case of Muller vs Paulsen 1977
(3) S.A. 206 where a defendant (applicant) had applied to set aside a
judgment, given by default, after the plaintiff had twice attempted
to execute a writ of execution thereon and had instituted proceedings
in terms of Rule 45 (12) (i). The plaintiff (respondent) had filed a
notice of objection in limine to the application on the grounds that
(1) no security had been furnished for the payment of the costs of
the default judgment and (2) the application did not comply with the
provisions of Rule of Court 6 (5) (a). It was held, that the
proceedings were still pending for purposes of Rule 6 (11) and had
not been finally determined: it was competent and proper to utilise
the provisions of Rule 6(11). Stewart J had this to say:
the final determination of a case actually is, will, in my view
depend upon the circumstances of each case and upon the litigation
concerned. Theoretically, at any rate, it is always possible to
re-open a case but practical considerations must, of course, apply.
In this particular matter I consider that the case is still pending
for purposes of Rule 6 (11) and has not been finally determined. From
a practical point of view, it is quite obvious that the parties are
still represented by the same attorneys and the time lapse since the
default judgement was granted is not such as to cause the parties or
attorneys concerned any embarrassment if they are regarded still as
being attorneys of record".
crisp issue to be determined in this matter is where the service by
the applicant of the notice of application on the respondent's
attorney is proper or competent in view of their contention that they
no longer represent the respondents. I am inclined to
with Mr. Mamba that the service was proper in view of the dicta in
Muller vs Paulsen (supra),
rule that the matter proceed to the merit for the determination of
the main application.