HIGH COURT OF SWAZILAND
DIRECTOR OF PUBLIC PROSECUTIONS
Case No. 3642/2002
MAPHALALA - J
the Applicant MR. L. MAMBA
the Respondent MR. N. MASEKO
rescission of a consent order)
is an application for rescission of a consent order granted by this
court on the 2nd instant brought under a certificate of urgency. The
order being sought is inter alia, staying execution of the order
granted by this court on the 2nd December 2002, in terms of prayer C
of the notice of motion; rescinding the order granted on that date in
terms of prayer C of the notice of motion and; grant such other
alternative relief this court may deem fit.
application is founded on the affidavit of police officer 3110
Detective Constable S. Methula who relates the sequence of events in
this matter and the grounds supporting the application for
Mamba for the respondent has raised points of law in limine. There
are two points raised in this respect as follows:
application does not comply with the rules or the common law for
applications for rescission, in that:
applicant has not sufficiently explained its failure to oppose the
applicant has not sufficiently set out its defence to the main
applicant states that the order was granted in error but does not
state the error committed by the court.
court does not have jurisdiction to grant the order for rescission of
the judgement in respect of order (c) in as much as it is not shown
has not been shown that the money in question is not the lawful
property of the respondent, the application in respect of prayer(c)
having been a res vondicatio;
money is held pursuant to an order for seizure by a judicial officer
issued in terms of Section 47 of the Criminal procedure and Evidence
Act No. 67/1938".
matter came before me for arguments on the 4th December 2002, where I
reserved judgement on the matter. Mr. Mamba subsequently filed
comprehensive Heads of Argument which I found not only interesting
but also helpful and I am grateful to counsel in this regard. Before
outlining the points adopted by each counsel in arguments I find it
imperative to sketch out a brief history of the Us between the
parties. Following is a brief history of the matter;
order of the 2nd December 2002, which the applicant seeks to rescind
in this application eminated from a "consent order" granted
by me in chambers. The respondent (who was the applicant then) had
filed an application, under a certificate of urgency for an order in
the following terms:
with the ordinary forms and time limits for service and hearing this
that the applicant be released forthwith from custody;
the Royal Swaziland Police to return to the applicant or his attorney
the sum of E65, 000-00 and a passport belonging to the applicant
forthwith; (my emphasis).
costs in the event that the matter is opposed;
discharge of the respondent was sought in terms of Section 136 (2) of
the Criminal Procedure and Evidence Act (as amended) on the basis
that following his arrest he was committed to the High Court for
trial. The committal took place sometime in April 2002.
Notwithstanding six months having elapsed he has not been brought to
trial at the first session of the High Court for trial as envisaged
by the said Section. He had been charged with fraud. That in the
premise he was entitled in law to be discharged under the Section.
I have already said that the order of the 2nd December 2002, was
granted in chambers "by consent". Unfortunately
transcription of the proceedings was not made. However, when the
matter came before me for arguments on the points in limine it was
common cause that when Mr. Maseko for the crown was asked by the
court whether he confirmed what Mr. Mamba was saying that this was an
order to be granted by consent his response was "he cannot
object to the granting of the order". The order was subsequent
granted "by consent". It later emerged as per paragraph 3
of Mr. Maseko's supporting affidavit that "this is no (sic) my
personal matter and as such prayer (of the notice of motion was
erroneously granted because the effect of the discharge from
imprisonment of an accused does not mean the charges have been
withdrawn". That he did not have full instructions in respect of
prayer "C" thus his comment that "he cannot object"
to the granting of prayer "C".
in support of the points of law in limine
I have already said Mr. Mamba in his arguments in court touched upon
the points raised in the Heads. Mr. Mamba contended that the
applicant seeks rescission of a judgement granted by consent in a
matter in which he was represented. The application does not purport
to be made in terms of any of the rules of court although
is stated in the affidavit that the judgement was granted in error.
An error in an application under Rule 42 must be on the part of the
court.(see Atthmaram vs Singh 1989 (3) S.A. 953 at 959). There was no
error on the part of the court in the present matter. Be that as it
may, it is contended, the grant of an application for rescission is
within the discretion of the court and if the application does not
fall within any of the rules (which do not restrict the court's
jurisdiction) it is open to the court to consider the application in
terms of the common law.
Mamba went on at length to outline the legal principles governing the
rescission of judgements under the common as set out in case law (see
Childerlay Estates Stores vs Standard Bank of S.A. Limited 1924
O.P.D. 166; Vista Estates (Pty) Limited vs Animal Breeders Company
Limited 1975 (1) S.A. 193 and Briston vs Hill 1975 (2) S.A. 505 (N)
further argued that, it seems to be trite that a judgement by consent
may not be rescinded unless it can be shown that such consent was
induced by fraud on the part of the respondent (see Bankorp Ltd vs
Ridi and another 1993 (4) S.A. 276; Peter Kowalski vs Gainess Estate
(Pty) and other HC. No. 1918/02 (unreported)).
it was contended on behalf of the respondent that in casu the
applicant has not shown on the merits that he has a bona fide defence
which prima facie, carries some prospect of success (see Cheetty vs
Law Society, Transvaal 1985 (2) S.A. 756 (A) at 765). In the present
case the applicant has not shown that the seizure of the money and
passport was lawful in terms of the Criminal Procedure and Evidence
Act No. 67/1938.
in opposition of the points in limine.
Maseko for the applicant argued with all the force under his command.
The gravamen of his argument is that when the consent order was
granted on the 2nd December 2002, in chambers he told the court that
he was not in a position to oppose the matter and it was then that a
consent order was granted. That he was not personally involved in
this matter and did not have full instructions either to oppose or
confirm the order.
Maseko submitted that by stating that there was error he meant that
the error was not on the part of the court but it was on his part and
that he was prepared to "take the heat" for his error. He
urged the court to allow the applicant to file supplementary papers
as the present application was hastingly prepared thus omitting
important averments. Lastly, he contended that the respondent has not
complied with Section 47 of the penal code.
in all Mr. Maseko urged the court to exercise its discretion in
favour of the applicant in this matter.
Court's analysis and the conclusion thereon.
have considered the matter very carefully. I have considered the
submissions by both counsel. The authorities cited by Mr. Mamba are
good law in a situation where there has been a consent order. But the
question in this case is whether there was a consent order, if so
then the legal principles advanced by Mr. Mamba would apply. However,
if the court finds that the order of the 2nd December 2002, was not a
consent order in the ordinary sense then these principles would not
apply. It is common cause that when Mr. Maseko for the applicant was
asked by the court whether he confirmed what was stated by Mr. Mamba
as being by consent he answered that "he was not in a position
to oppose the matter". The order was then recorded as a "consent
law in this respect can be found in Halsbury 's Law of England (4th
ED) per Lord Hailsham of St Marylebone it is stated that "a
consent judgement or order is juridical different from a judgement or
order to which a party may agree or not to object to, or does not
wish to contest" one of the cases cited in support of this
statement in Siebe Gorman's Co. Ltd vs Pneupac Ltd 1 ALL ER 377
(CA),  1 WLR 185, in which Lord Denning said the following, and
an order is expressed to be made "by consent", it is
ambiguous. There are two meanings to the words "by consent"...
one meaning is this: The words "by consent" may evidence a
real contract between the parties. In such a case the court will only
interfere with such an order on the same grounds as it would with any
other contract. The other meaning is
the words "by consent" may mean "the parties hereto
not objecting". In such a case there is no real contract between
the parties. The order can be altered or varied the court in the same
circumstances as any other order that is made by the court without
the consent of the parties" (at ER 380, WLR 189). (My emphasis).
the above legal proposition I refer to an essay by Dale Hutchison
titled "Contracts embodied in orders of court: The Legal effect
of a judgement by consent" found at footnote no. 9 at page 231
of the work by Ellison Kahn "The Quest for Justice (Essays in
Honour of Michael Mcgregor Corbert - Chief Justice of the Supreme
Court of South Africa) - Juta (1995). It appears to me that the above
enunciated legal principle obtains in the instant case as the order
of the 2nd December 2002, does not fall under the first category
propounded by the learned Judge Lord Denning but the second category
where a party "was not objecting" to the grant of the
order. Therefore, such an order according to the learned Judge can be
altered or varied by the court. It cannot be said in casu on the
circumstances of this case that the order of the 2nd December 2002,
was a "consent order or judgement" strictu sensu.
the interest of justice and fair-play, I would exercise my common law
discretion and rescind the order made on the 2nd December 2002, in so
far as prayer "C", viz directing the Royal Swaziland Police
to return to the applicant or his attorney the sum of E65, 000-000
and a passport belonging to the applicant forthwith. I would
therefore grant prayers 2 and 3 of the notice of motion.
respondent in the main application to file opposing papers by close
of business on the 20th December, 2002 and the applicant to file a
reply on or before the 9th January
and the matter be enrolled for full arguments on the 10th January
to be costs in the main application.