HIGH COURT OF SWAZILAND
CASE NOS. 1386/01,
the matter between
NATIONAL BANK PLAINTIFF
A. NKOSI AND COMPANY DEFENDANT
MAPHALALA - J
the Plaintiff MR. S. EARNSHAW
the Defendant MR. S. NKOSI
are three matters before me. The first one pertains to Case No.
1388/2001 by the defendant who excepts on the grounds that the
summons are sued out against a trust which by operation of law does
not possess a corporate personality of its own. The second matter is
an application for substitution by the plaintiff that dependant's
name in the summons, declaration, summary judgement application and
in Case Number 1386/2001 is directed to be: Sipho Anthony Nkosi in
his capacity as trustee of Nkosi Progressive Trust. The third matter
argued was an application for condonation for the late filing of
further affidavits by the plaintiff under Case No. 1386/2001,
1387/2001 and 1388/2001.
matters were argued at the same time because of the similarities
which run through them as in all the three matters the plaintiff is
the First National Bank of Swaziland. The defendant in Case No.
1386/2001 is Nkosi Progressive Trust. The defendant in Case No.
1387/2001 is Sipho Anthony Nkosi and the defendant in the third
matter viz, Case No. 1388/2001 is S.A. Nkosi and Company.
all the three matters the affidavit resisting summary judgment is
deposed to by Sipho A. Nkosi. In Case No. 1386/2001 he deposes that
he is a trustee of the Nkosi Progressive Trust, which is the
defendant. In Case No. 1387/2001, he deposes to the affidavit in his
personal capacity. In Case No. 1388/2001, he deposes as an attorney
in the defendant law company S.A. Nkosi and Company.
order to appreciate their nature it is necessary to set out a brief
history of the litigation between the parties.
all the three matters the plaintiff issued summons against the
various defendants in each case viz, in Case No. 1386/2001 for a sum
of E95, 849-29 based on an oral agreement entered into between the
parties during November 1996 of a loan in terms of which the
plaintiff agreed to lend and advance to the defendant a total sum of
E145, 500-00 and an additional sum of E29, 100-00; in Case No.
1387/2001 the plaintiff sues for a sum of E9, 132-36 also based on an
agreement entered into by the parties upon or about the 3rd November
1995, where the defendant would open and operate a current account
with plaintiff's Manzini branch. The balance on the bank overdraft
was on the 31st May 2001, and despite demand defendant fails and/or
refuses to repay the said sum; and in Case No. 1388/2001 the
plaintiff sues for the sum of E249, 012 - 69 where an existing
overdraft in the name of S.A. Nkosi and Company (Account Number
62002000181) was converted to a loan of E200, 000-00 payable over
sixty (60) months. The defendant defaulted in paying the agreed
all the three matters the plaintiff proceeded to apply for summary
judgment, which was resisted by the defendants as evidenced by the
affidavits of Sipho A. Nkosi in each of theses matters.
Exception (Case No. 1386/2001).
exception taken pertains to the Nkosi Progressive Trust (Case No.
1386/2001) that the summons are sued out against a trust, which by
operation of law does not possess a corporate personality of its own.
It is argued that a trust does not have a capacity to sue or be sued
in its own name. The plaintiff's action is totally defective in that
it failed to join the trustees of the defendant.
Nkosi for the defendant took the view that the exception put forth is
in compliance with Rule 23 (3) and (4) of the rules of court that in
casu the defendant has advanced the grounds upon which the exception
is founded and such grounds have been clearly and concisely stated.
Mr. Earnshaw argued au contraire that whenever an exception is taken
to any pleadings the grounds upon which the exception is founded must
be clearly and concisely stated and should conclude with a prayer for
the relief sought. For this proposition he cited the work of Van
Winsen et al The Civil Practice of the Supreme Court of South Africa
(4th ED) at page 488 where the authors cite the case of
Pietermaritzburg City Council vs Local Road Transportation Board
Pietermaritzburg 1960 (1) S.A. 254 (N) at 260 D - F.
second attack on the exception by Mr. Earnshaw is that Mr. Nkosi
filed the affidavit resisting summary judgment deposed by himself in
his capacity as the trustee on the 10th August 2001, and two weeks
later on the 28th August 2001, files and exception. The parties were
ad idem as to who the defendant was as evidenced in the affidavit
resisting summary judgment deposed by Sipho A. Nkosi at paragraph 1,
which reads as follows:
am an adult Swazi male attorney duly admitted to practice as such by
this honourable court.
am a trustee of the defendant and I am duly authorised to make this
affidavit by virtue of the (sic) trustee.
facts deposed to herein save to where otherwise stated are within my
personal knowledge and belief true and correct".
the summons gives direction to the Sheriff or his deputy, Manzini
district to inform the Nkosi Progressive Trust, a trust whose full
and further particulars are unknown to plaintiff of care of Sipho
Anthony Nkosi in his capacity as trustee of BP Building, 8th Street,
Matsapha Town, Manzini district (hereinafter called the defendant).
Earnshaw contends that there is no doubt who the parties are in the
agree with Mr. Earnshaw that the identity of the defendant, namely,
Sipho A. Nkosi in his capacity as trustee of The Nkosi Progressive
Trust was never in doubt and was at all times known to all the
parties. The sequence of events borne out by the pleadings before
court are testimony to this fact. On the 31st May 2001, plaintiff
issued summons against defendant and as appears from the summons and
declaration filed of record in this matter, the defendant was therein
defendant is The Nkosi Progressive Trust, a trust whose full and
further particulars are unknown to plaintiff of care of Sipho Anthony
Nkosi in his capacity as trustee of BP Building 8th Street, Matsapha
Industrial Sites, Manzini district".
to the service of the aforesaid summons and on behalf of the
defendant, attorneys Sipho A. Nkosi and Company entered an appearance
to defence this action. Applicant brought an application for summary
judgement. Sipho A. Nkosi and Company cause to be filed an affidavit
resisting summary judgement. The affidavit is deposed to by Sipho A.
A. Nkosi proceeded to set out what he claims to be the defence of the
defendant in detail in the paragraphs following paragraph 2 of the
would appear to me that the Plaintiff's misnomer of the defendant in
the caption as The Nkosi Progressive Trust was a bona fide error and
I am not able to read into it more than that.
papers before me are abundantly clear that it was at all times the
intention of the
to sue the defendant namely Sipho A. Nkosi in his capacity as trustee
of The Nkosi Progressive Trust.
the result, I dismiss the exception with costs.
Application for substitution (Case No. 1386/2001)
this matter the plaintiff filed an urgent application for an order
inter alia that defendant's name in the summons, declaration, summary
judgement, application and condonation application in Case No.
1386/2001 is directed to be Sipho Anthony Nkosi in his capacity as
trustee of The Nkosi Progressive Trust.
is obvious overlapping in this matter with the exception advanced by
the defendant. I have listened to the submissions by both parties in
this instance and I adopt a similar view I expressed in the exception
above. It is apparent from the summons, the declaration and the
affidavit resisting summary judgement that the identity of the
defendant, namely, Sipho A. Nkosi in his capacity as the trustee of
The Nkosi Progressive Trust was never in doubt and was at all times
known to all the parties.
the result, I grant the application in terms of prayer 2 of the
notice of motion and I make no order as to costs.
application for condonation.
aspect of the matter pertains to all the cases before me viz,
1386/2001, 1387/2001 and 1388/2001. The applications were brought
with a certificate of urgency for an order inter alia that the late
filing of the further affidavit by the plaintiff in the summary
judgment proceedings pending before court be condoned. Affidavits of
one Steven William Hough are filed in support thereto. Per contra
Sipho A. Nkosi filed affidavits in answer in all three matters.
Earnshaw argued that the court may on good cause shown condone any
compliance with the rules. The circumstances or "cause"
must be such that a valid and justifiable reason exists why
compliance did not occur and why non-compliance can be condoned. (see
Herbstein and Van Winsen (4th ED) at pages 549 - 560). He contended
that in casu the delay in filing was not wilful and reckless
disregard of the defendant's rights. The delay has not prejudiced
defendant in any manner. It is trite law that technical objections to
less than perfect procedural steps should not be permitted, in the
absence of prejudice. The court has an inherent power to grant
condonation when principles of justice and fair play demand it to
avoid hardship; and when the reasons for non-compliance with the time
limits have been explained to the satisfaction of the court (see
Cains' Executors vs Gharn 1912 A.D. 181 at 186).
in the instant case the plaintiff has given an acceptable explanation
for the delay. Further, plaintiff has fair prospects of success in
the main application.
Nkosi on the other hand argued that the plaintiff must establish the
prospect of success on the main application and that in casu the
plaintiff is unlikely to succeed in its application for summary
judgement in that:
summary judgment can only be granted when there is no reasonable
doubt about the Plaintiff's claim. The defendant has raised several
issues which render the matter triable;
Plaintiff's replying affidavit has raised several issues, which the
defendant has no recourse to reply to these issues raised, are highly
contradictory such that the matter is rendered triable.
plaintiff claim is not one which is unanswerable; and
defendant has raised a bona fide defence.
that the affidavit of Mr. Hough does not allege that the plaintiff
has prospect of success and this only came from the bar from Mr.
Earnshaw when making submissions. This cannot cure the lack of
averment for the prospect of success.
have considered the issues before and the lengthy submissions made in
this matter. The court has a wide discretions to grant and refuse
condonation (see Kruger vs
of Police 1981 (1) S.A. 765 (T). The courts are inclined to refuse to
grant condonation in cases of flagrant breaches of the rules (see
Tshivase Royal Council and another vs Tshivase and another 1992 (4)
S.A. 852). It would appear to me that Mr. Nkosi is correct that in
casu the Mr. Hough's founding affidavit lack an essential averment in
an application for condonation that the applicant has prospect of
success. This only emerged in the Plaintiff's Heads of Argument and
the submissions by Mr. Earnshaw from the bar. The court cannot cure
this defect, as there is no application before court except from the
bar. The general rule which has been laid down repeatedly is that an
applicant must stand or fall by his founding affidavit and the facts
alleged in it. I disagree, with respect with Mr. Earnshaw that
paragraph 2.1 of the defendant's answering affidavit has cured this
defect. The plaintiff ought to have at least filed a replying
affidavit in answer to paragraph 2.1 of the defendant's answering
affidavit to show the prospects of success. This essential averment
ought to appear ex facie the Plaintiff's papers in support of such an
application. It should not be gleaned from papers filed by the
opposing party. In casu, no such allegation relating to the prospects
of success were made by the plaintiff.
the result, the application is dismissed with costs. To sum up, I
make the following orders:
exception (in Case No. 1386/2001) is dismissed with costs;
application for substitution (in Case No. 1386/2001) is granted in
terms of prayer 2 of the notice of motion. No order is made as to
application for condonation is dismissed with costs.