HIGH COURT OF SWAZILAND
CASE NO. 1041/02
the matter between:
SWAZILAND (PTY) LTD PLAINTIFF
PLAINTIFF MR. MOTSA
DEFENDANT MR. SIMELANE
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
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.
notice of intention to defend was duly filed by defendant's attorneys
at the time, Bheki G. Simelane and company.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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
new attorneys (Simelane) to quickly withdraw their Notice of Bar.
Simultaneous with this Notice, plaintiff filed a declaration, on the
31st October, 2002.
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.
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.
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
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
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).
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.
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.
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.
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.
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.
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
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".
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
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
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".
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.
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.
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
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.
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
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
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.
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
of the High Court