Caltex Swaziland (Pty) Ltd v Mansoor (NULL) [2003] SZHC 43 (04 April 2003);

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THE HIGH COURT OF SWAZILAND


CIVIL CASE NO. 1041/02


In the matter between:


CALTEX SWAZILAND (PTY) LTD PLAINTIFF


AND


SURAYA MANSOOR DEFENDANT



CORAM ANNANDALE J


FOR PLAINTIFF MR. MOTSA


FOR DEFENDANT MR. SIMELANE


JUDGMENT ON EXCEPTION


4th April 2003


Accuracy of pleadings has and will always be one of the cornerstones of civil litigation, not so much to comply with the Rules but to enable opposing parties to exactly know what cases they are to meet and to assist in assuring fairness and a levelling of the playing field. From time to time it so happens that a litigant incurs unnecessary expenses and delays in a matter because its pleadings do not live up to expectations and it can easily lead to a misplaced distrust of a legal system by a client who does not receive full and comprehensive explanations from its attorneys as to exactly why a case has been "thrown out of court", to borrow a phrase, or why no progress is being made with its matter, or why such enormous bills of costs are being run up. The matter at hand is one of the latter category.


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Initially, during April 2002, a simple summons was issued to the defendant, who was referred to as a "male" person at the time, wherein E17 543.16 was claimed in respect of "goods sold and delivered". The summons inter alia informed the defendant about the filing of a notice of intention to defend the matter, also about the 5 kilometre address for service of further papers, but it did not also mention the requirement to file a plea thereafter.


A notice of intention to defend was duly filed by defendant's attorneys at the time, Bheki G. Simelane and company.


For reasons that cannot be established from either the Book of Pleadings, which does not contain either of abovementioned documents (the initial summons or the notice to defend issued by her attorneys Bheki Simelane) or from the Court file that I have received, a further summons was issued, dated the 19th June 2002. The second summons, which is clearly endorsed as a "Re-Issue", is still between the same parties (defendant is still described as an "adult male") and the case number remains the same, but this time the quantum is not E17 543-16 but E2 999-10.


The original of the "Re-Issue" summons is not in the court's file, where it should be, and the copy contained in the Book of Pleadings does not bear the registrar's date stamp. It is the defendant's attorneys who compiled the Book and I can only assume that it would have been served on then, or their predecessors. Incidentally, this second "Re-Issue" summons does not bear the signature of the Registrar of the High Court, but only that of plaintiff's attorney, Mr. Motsa of Robinson Bertram.


This raises the question as to whether the plaintiff relies on the first summons issued on the 11th April 2002 and which is not contained in


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the Book of Pleadings filed by the defendant's attorneys, or whether it relies on the second "Re-Issue" summons, dated by plaintiffs attorneys on the 19th June 2002. The first summons relates to a claim of some E17 543.16, the second to a claim of E2 999.16.


Both summonses have it that the claim arose over the period between October 2000 to August 2001, but whereas the earlier summons alleges that the "amount is now due owing and payable", the latter does not contain the same allegation.


The next pleading that is available to me, over and above plaintiffs declaration in the Book of Pleadings, which is dated the 29th October 2002, is the second "Notice of Intention to Defend", which was filed by defendant's attorneys, this time being Sigwane, Manzini and Partners. The one and only conclusion to be drawn is that it is a response to the second, "Re-Issue" summons, dated the 19th June 2002. Although it seems to be way out of time, one does not know when the second summons was served, most likely on the erstwhile attorneys of the defendant who contested the initial claim, Bheki G. Simelane and Company.


Thus far, the proceedings could be summarised to say that following issue of a first summons herein, following notice to defend, the summons was re-issued, again defended but by a different firm of attorneys, and that where initially the claim was for more than seventeen thousand Emalangeni, it was belatedly reduced to virtually three thousand Emalangeni. In the absence of any contrary indication, it might well be a plausible explanation that perhaps defendant's first firm of attorneys took informal issue to the amount of the claim which resulted in a fresh claim of almost a sixth of the original amount, which was then defended by the second firm of attorneys. The other shortcomings in the summons remained as it was at first.


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From the above factual situation of the pleadings it leads me to no other reasonable conclusion, in the absence of any explanation to the contrary, which was not given, that all of this results in the first summons dated in April 2002 to be deemed as substituted by the second summons dated in June the same year. As said, with the latter summons filed in the Book of Pleadings by defendant's present attorneys, it lends support to the aforesaid conclusion of substitution. Also, it has not been argued otherwise by either of the attorneys during the hearing of the exception. As a matter of course it is accepted that both attorneys are fully conversant with the true and actual historical progress of the matter.


Following on the heels of the already mentioned Notice to Defend filed by Sigwane, Manzini and Partners on the 11th September 2002, attorneys Mbuso E. Simelane and Associates came on record on the 10th October 2002 as the defendant's attorneys and a copy of their notice was served on the "Applicants" (sic) attorneys. Somewhat belatedly, the former attorneys of defendant, Sigwane, Manzini and Partners, notified all and sundry on the 1st November 2002 of their withdrawal and of the substituted attorneys.


The newly appointed attorneys very soon afterwards continued on the course set, bungling along, when it filed a Notice of Bar on the 22nd October 2002, purporting to tell the plaintiff's attorneys to file its "replication" forthwith. It is a safe bet that this irregular proceeding will be charged for by defendant's attorneys, whether on a taxation or as attorneys to its own client.


Not willing to be caught asleep and unawares, plaintiff's attorneys responded with just the right calibre of weaponry, a notice under Rule 30 on the basis of irregular proceedings, "as neither a declaration nor plea has been filed" at that stage. This had the desired effect causing


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defendant's new attorneys (Simelane) to quickly withdraw their Notice of Bar. Simultaneous with this Notice, plaintiff filed a declaration, on the 31st October, 2002.


The amount in the declaration now refers to the initially claimed sum of E17 543.16 and not to E2 999.16 which is the "new" quantum, as per the "Re-Issue" summons which would have replaced and substituted the first summons. This new perspective, which is supported by diverse documents annexed to it, clarifies the matter to the extent that it now reads that "liters (sic) of paraffin to the value of E17 543.16" was "orally (sic) sold and delivered" to the defendant, payable thirty days after delivery. A discount of E14 544.06 was passed on, hence the newly claimed amount of E2 999.16. Plaintiff made a mistake if it thought that the declaration, and especially the annexed papers to related invoices, a statement of account and a reconciliation statement, was going to carry the day. It had just the opposite effect.


Plaintiffs attorneys, Robinson Bertram, drew out the carpet from underneath all feet by notifying, two weeks later, that the action has been withdrawn. The notice reads that "plaintiff hereby withdraws the action against the defendant in the above case number", which remains as case 1041/02 throughout.


Instead of accepting the significance of a thrown towel by perhaps asking for costs, the defendant's attorneys insist on running the full gauntlet. A week after the action was withdrawn, they filed a Notice of Exception to the plaintiff's particulars, of the by then withdrawn claim.


All of a sudden the skeletons are pulled out of the closet and it comes as a revelation (in the exception) that the defendant is a female after all, whose legal status and capacity to litigate is not painstakingly set


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out as required by the Rules. Further, and more importantly, exception is also taken to annexures of the declaration, which on the explained analysis of defendant boils down to a discrepancy of E45-99 (on a final statement of E17 543.16). If this is not enough, a further point is made on whether the litres referred to in the declaration all pertain to paraffin only, further complicated by an absence of pleading the action to be based on contract or delict. Last but not least is the complaint that "no facts or procedure has been alluded to by plaintiff to make two different prayers in one action, to wit, on the simple summons, plaintiff claims E17 543.16 whilst in the declaration it prays for E2 999.16" (quoted verbatim).


It may well be that the complaint has merits, which was eventually the subject matter of the contested hearing herein, in that there might have been vague and embarrassing pleadings.

However, as pointed out above, by the time the exception was raised, the action had already been withdrawn a week earlier! It makes one wonder if attorneys bother to read the papers that are served on them, when exception is noted in an action already withdrawn.


This should have been the end of the matter, but although it had notified defendant's attorneys about two weeks prior, plaintiffs attorneys are obviously not keen to be spoiled of a good fight once it has begun. Why and on what basis I do not know, but they saw fit to seek amendments of their summons and declaration, hot on the heels of their notification that the action has been withdrawn! It is clearly an effort to address the concerns raised by defendant's attorneys in their exception, so equally unnecessarily filed a week earlier. All sorts of details are given, including a first reference to a discretionary 5% rebate amounting to E14 544.00, which would have had the effect of reducing the sum of E17 543.10(sic) to E2 999.16.


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This Notice, under Rule 28(1) to amend the summons and declaration of an action that had already been withdrawn at that time, has led to even more incomprehensible results. Just before the closing of the legal year, defendant's attorneys saw fit to raise their heads and as a grande finale notified the opposition that they are not going to lose the fight while down on the ground, there is salvation in that irregular proceedings has been brought into play. The complaint this time around is strangely enough not that the matter has been laid to rest long ago, but that the notice "does not contain a provision of what the defendant should do after receipt of same". This is contained in a notice of irregular proceedings, filed by defendant on the 13th December, 2002.


It decries description of how legal representatives fail to read what they receive, carrying on regardless and repeatedly taking issue with each other on the strictest of technicalities, figuratively failing to see the trees for the forest.


This time, plaintiff wanted to prove a point and filed an amended declaration, restating all it said it would do in its notice of intention to amend, apart from also stating the defendant to be a female instead of a male person. It still does not address the problem above, about what defendant is required to do on receipt of the notice of intention to amend the pleadings, raised on the 13th December 2002.


Possibly the defendant's attorneys did not retain faith in their initial exception under Rule 23(1), dated the 21st November 2002, which followed the plaintiff's withdrawal of the action, but equally possibly to make very sure that nothing as final as a withdrawal stands in the way of continued litigation, they yet again noted an exception to plaintiffs amended declaration. This is said to be vague and embarrassing, yet again referring to an exposed "discrepancy of E45.49 on the final (sic) statement of E17 534.16". Secondly, a


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problem is perceived with plaintiff's indiscriminate references, on the 5% rebate, to either "litres" or "discounts". The third paragraph of this pleading refers to "9 200 000 (nine million two hundred thousand) (sic) yet annexure C2 reflects only 14 210 (fourteen thousand two hundred and ten) litres". If hairs are seemingly split, the last paragraph takes the cake. There, the complaint is that the account refers to E17 543.16, not to E17 583.18, a difference of two cents on an amount of over seventeen thousand Emalangeni.


Acting like any diligent attorney, plaintiff duly replied to the diverse complaints but still not changing defendant to a female, save for an acknowledgement by implication that she is a lady (paragraph 1.1 of the reply).


An accounting postulation is given to explain the alleged discrepancy of E45.49 and although the quotation arose from its own figures, the defendant is disparaged to have come up with an idea that it would have received some nine million litres of paraffin and be able to store it. Condonation is further sought for a "typing error" by mentioning the claim as "E 2 9996.16 (sic) arising from E17 543.16". Lastly, costs are sought on a punitive scale as "the exception has no basis".


This case was seriously argued in court, pinpointing the absence or existence of a few cents here and a few litres there. That might well have had merits if the circumstances were different. Perhaps it may have been a serious question whether the defendant was a male or a female, requiring an allegation that she is presumed to have been assisted by her husband, or father even, stating her marital status and so on. It also may have become a potential issue whether E45 more or less is due and whether the claim is for E17 000 or E3 000, or whether nine thousand or nine million litres of paraffin is involved. All these things could have been relevant.


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Fact of the matter is that ever since the 14th November 2002, there was no more lis between the parties that required any further action, pleadings or costs. On that date already, the plaintiff had withdrawn its action against the defendant under "the above case number". Effectively, that disposed of the matter. Plaintiff's attorneys knew what they had done and they should not have responded to the further pleadings by defendant's attorneys in the manner they did. Likewise, for the defendant's attorneys with what they did after withdrawal of the action. The Notice of Withdrawal of the action was served the same day it was issued, on defendant's former attorneys, Sigwane Manzini and Partners.


By that date however, this firm of attorneys had already been substituted by Mbuso E. Simelane & Associates, notice of which was served on plaintiff's attorneys on the 10th October 2002 by the newly appointed attorneys. Thereafter, if it was not enough, the former attorneys, Sigwane Manzini and Partners, also notified plaintiffs attorneys of their withdrawal and substitution by Simelane.


It was two weeks later that plaintiff notified of the withdrawal of its action, on the 14th November 2002, but of which it notified the attorneys it had twice been notified of that they had ceased to act for the defendant.


If this was not the position, the third and final firm of attorneys which acted for the defendant might have been liable for costs it caused to be wasted. The conduct of the final attorneys, Simelane's, clearly indicate that they were not aware that the action had been withdrawn, or at least no other reasonable contrary conclusion can be drawn from the available facts, on any measure of propability. The same cannot be imputed to the plaintiff's attorneys. At best, they can be said to have acted without malice, merely without a due display of diligence. After they themselves informed the court and defendant on the 14th


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November 2002 that the action was withdrawn, they should not have continued in the manner that they did. This is their downfall, also that of their client.


Under these circumstances, I find no reason to pronounce on the exception which was argued in court on the 14th March 2003. Were it not for the fact that the pleadings had to be properly sorted out as a preliminary to the judicial finding, the court may well have been misled and have given an erroneous ex tempore ruling. The book of pleadings that was filed did not in any way contribute to a proper resolve of the matter, on the contrary, it enhanced the misleading picture which was conveyed to the Court.


For the reasons above, with reference to the remarks initially made, no ruling on the outcome of argument on the exception need be made. The proceedings had already been brought to a halt, the action was withdrawn as long ago as the 14th November 2002, rendering the pleadings and process thereafter a nullity. Due to the failure of any display of professional diligence by the plaintiff's attorneys thereafter, it is ordered that all subsequent costs, wasted for all practical purpose and intent, be borne de bonis propriis by the plaintiffs attorneys.


JACOBUS P. ANNANDALE


Judge of the High Court