HIGH COURT OF SWAZILAND
Case No. 1869/99
MAPHALALA - J
the Applicant MR. N. HLOPHE
the Respondent MR. Z. MAGAGULA
is an extra ordinary application as there are no papers motivating
it. It was moved from the bar on behalf of the Defendant by Mr.
Magagula. The circumstances which prompted him to make the
application are as follows: This matter is a part-heard case before
me where substantial evidence of the Plaintiff was led and one
witness was still to be cross-examined. The matter has been in
abeyance for over two years from the last
the matter came to court. The Defendant as represented by Mr.
Magagula has always defended the matter.
Registrar of this court set the matter for trial for the 26th and
27th ultimo for continuation. It was duly included in the court's
roll for the second session starting on the 12th May 2003, to the
30th June 2003. The Plaintiff through his attorneys set the matter
for trial for those dates in a notice of set-down dated the 21st May
matter was called for trial on the 26th. May 2003, the Plaintiff
appeared and the Defendant did not appear. The Plaintiff proceeded in
terms of Rule 39 (1) of the rules of court. As the Plaintiff has
already given evidence and led one. witness Mr. Hlophe contended that
Plaintiff has proved his claim and was accordingly entitled to
judgment in his favour. After hearing submissions by Mr. Hlophe for
the Plaintiff I reserved judgment to a future date.
the afternoon of the same day Mr. Magagula for the Defendant appeared
before me in Chambers giving reasons for the Defendant's
non-appearance when the matter was called earlier on in the morning.
I then directed that I may hear whatever application he wishes to
make the following morning at 9.30am and that he informs the other
party of this.
when the court sat at 9.30am Mr. Magagula sprang to his feet and
launched an application from the bar for the re-opening of the
matter. He advanced a number of reasons for the re-opening of the
case. Firstly, he submitted that the Defendant has always wanted to
defend this case from its inception to date. He has filed all the
requisite affidavits and thus joining issue with the Plaintiff and
even when Plaintiff gave evidence the Defendant cross-examined him
and, for all in intents and purposes has displayed a strong desire to
defend this case. Secondly, he contended that as there was no
pre-trial conference conducted in this case no period of set-down was
agreed to by the parties. Thirdly, he submitted that since his
practice operates from Manzini he has to rely on his correspondent
P.R. Dunseith for all court processes in this matter. In this
instance he received a telephone call from his correspondent at about
12.00noon that the matter was
Mr. Magagula submitted that his client was prepared to pay wasted
costs for the day.
in all it was Mr. Magagula's plea that for the interest of justice
and fair play the court in the circumstances of the case ought to
reconsider the matter by allowing the Defendant to present its
defence of the claim.
Hlophe argued per contra. Firstly, he challenged the manner this
application has been moved in that Defendant has not filed a proper
application with the necessary affidavits. The Defendant has been
embarrassed in that he did not know the nature of the application to
prepare a defence. Hearsay evidence has been presented to court as
Mr. Magagula launched a tirade from the bar. The second ground which
appears to me, to be gravamen of the Plaintiff's response is that the
Plaintiff was perfectly entitled to have proceeded as he did in terms
of Rule 39 (1). The said Rule reads as follows:
when a trial is called, the Plaintiff appears and the Defendant does
not appear, the Plaintiff may prove his claim so far as the burden of
proof lies upon him and judgment shall be given accordingly, in far
as he has discharged such burden ..." (my emphasis).
buttress his position he cited the work of Erasmus, Superior Court
Practice, (Juta) at page B1 - 290. The learned author state that
under the rule a Defendant who appears when the hearing of a trial
action starts, but thereafter withdraws and absent himself from the
remainder of the proceedings, is regarded as being in default. To
what constitutes "default" the learned authors cited the
case of Katritsis vs De Magedo 1966 (1) S.A. 613 (A) and that of
Hayes vs Baldachin 1980 (2) S.A. 589 ®. Nathan et al, Uniform Rules
of Court (3rd ED) at page 248 also cited the case of Katritsis
(supra) in this regard. Also the authors Herbstein et al, The Civil
Practice of the Supreme Court of South Africa (4th ED) at page 660
cites the same case for this proposition.
Hlophe contended that the only course open to the Defendant is to
await the judgment of the court and then he may apply for a
rescission of that judgment on
ground he may be advised to advance. At this stage it is not proper
to ask the court to re-open a case where there is a pending
reply on points of law, Mr. Magagula argued with all the force in his
command that justice requires that Defendant's side be heard. Another
point which he raised was that this matter did not come by way of
action but by way of application and thus Rule 39 (1) is not
applicable in casu.
are the issues before me. I have considered the submissions made
before me. It would appear to me Mr. Magagula is correct in respect
of whether Rule 39 (1) is applicable in the instant case. The Rule
seems to apply to action proceedings and not application proceedings.
Therefore, allowing the Plaintiff to proceed in terms of the said
Rule was clearly erroneous. I was unable to find any authority which
applies in application proceedings to cater for what happened on the
26th ultimo. It is on this basis that I would allow the Defendant to
re-open its case. Further, I was moved by the explanation given by
Mr. Magagula for Respondent's default. The Respondent has always
opposed this matter and it is my considered view that re-opening the
case would be in the best traditions of justice. Even if one would
have ruled that Rule 39 (1) applies the notice of setdown would not
have conformed to Rule 56 (1) (a) and (b) in that the notice of
setdown for trial was served and received less than 10 days of the
date allocated for trial. It would appear to me proceedings then in
terms of Rule 39 (1) was null "ab initio". In the case of
Barclays Western Bank vs Gunas and another 1981 (3) S.A. 91 a party
was allowed to re-open his case and lead further evidence of certain
witnesses, the application being made only after the court had
reserved judgment. (see also Oosthuizen vs Stanley 1938 A.D. 322; and
Mkhwanazi vs Van Der Merve and another 1970 (1) SA. 609).
the result, the Respondent is allowed to re-open the case and
Respondent is to pay the wasted costs of the 26th May 2003.
Further, the matter is referred to the Registrar to set another trial