THE
HIGH COURT OF SWAZILAND MATSAPHA TOWN BOARD
And
ANKA
(PROPRIETY) LIMITED
1st
Respondent
THE
DEPUTY SHERIFF MANZINI
2nd
Respondent
IN
RE:
ANKA
(PROPRIETY) LIMITED
Plaintiff
And
MATSAPHA
TOWN BOARD
Defendant
Civil
Case No.'2766/2000
Coram S.B.
MAPHALALA - J
For
the Applicant MR. W. MKHATSHWA
For
the Respondents MR. K. MOTSA
JUDGEMENT
(15/08/2003)
Before
court is an application brought under a certificate of urgency for an
order as follows:
1. Waiving
the rules of this Honourable Court regarding service, forms and time
limits
and
hearing the matter as one of urgency.
2
2. Directing
that rule nisi do hereby issue, returnable on a date to be determined
by this Honourable Court, calling upon
2.1 The
2nd Respondent to show cause why he should not be interdicted and
restrained from removing and selling by public auction, the goods of
the Applicant placed under judicial attachment on the 3rd April 2001
as listed in the notice of attachment annexed to the Applicant's
affidavit marked "MT5".
2.2 The
lst and or 2nd Respondent to show cause why they should not pay the
costs of this application in the event of unsuccessful opposition
hereto.
3. Staying
execution of the judgment granted by this Honourable Court in the
main action under Case No. 2766/2000 pending the finalisation of this
application.
4. Rescinding
and/or setting aside the judgment granted by this Honourable Court on
the 13th October 2000.
5. Granting
the Applicant leave to defend the main action instituted by the
Respondent in terms of the Summons dated 23rd August 2000.
6. Directing
that the 1st and or 2nd Respondents pay the costs
of
this application only in the event of unsuccessful opposition hereto.
7. Granting
the Applicant such further and/or alternative relief as to the
Honourable Court may seem meet.
The
founding affidavit of the Chairman of the Applicant Myekeni E.
Vilakati is filed in support of the application. Pertinent annexures
are filed viz, a notice of application for judgement by default in
terms of Rule 31 (2); annexure "MT3" - being an order of
this court dated the 13th October 2000; annexure "MT4"
being a writ of execution and annexure "MT5" - being a
notice of attachment by Inalda Antonio dated the 3rd April 2001. A
confirmatory affidavit of one Vusi Dlamini is also filed.
The
Respondents has raised a number of points of law in limine which are
the subject matter of this judgement. However, before dealing with
the points of law raised I find it imperative to sketch the history
of the matter. The Applicant is a statutory body duly established in
terms of Section 111 of the Urban Government Act, No. 8 of 1969
(hereinafter referred to as the "Act"). The first
Respondent is Anka (Proprietary) Limited, a company with limited
liability duly registered and incorporated in accordance with the.
Laws of the Kingdom of Swaziland, with its principal place of
business situate at King Sobhuza II Avenue, Plot No. 180, Matsapha,
district of Manzini.
3
The
second Respondent is the Deputy Sheriff for the district of Manzini.
On
or about the 24th August 2000, the first Respondent commenced
proceedings and set in train a course of events which have led to the
institution of the current proceedings. These events are outlined in
paragraphs 5.1 to 5.6 of the Applicant founding affidavits as
follows:
"5.1 On
the 24th August 2000 the combined summons in the action was caused to
issue;
5.2 The
combined summons was served on one Vusie Dlamini, at the Applicant's
premises at Matsapha on the 22nd September 2000. A copy of the return
of service is hereto annexed and marked MT1.
5.3 On
the 16th day of October 2000 the 1st Respondent made an application
for judgment by default, a copy of which is annexed and marked MT2.
For ease of reference, two 92) aspects of annexure MT2 are
highlighted.
5.3.1. At
paragraph (a) the cause of action is described as:
"Damages
sustained as a result of the Defendant's failure to carry out its
obligations in terms of the Urban Government Act NO. 8 of 1969",
and
5.3.2. At
paragraph (e) the "time for the filing of the Notice to Defend
expired on the 6th October 2000".
5.4 On
the 13th day of October 2000, His Lordship, Mr. Justice Maphalala
made an order in the following terms:
"1. That
the Defendant pay the sum of E197 774-86
2. Interest
on the sum of E197 774-86 at the rate of 9% per annum a tempore morae
to date of final payment.
3. The
Defendant is compelled to forthwith install or cause to be installed
a proper drainage system in respect of the property of the Plaintiff.
4. The
Defendant is forthwith compelled to take whatever steps and/or
decisions may be required in order to give immediate effect to the
order referred to in (3) above.
5. Costs
of suit.
4
6. Such
further and/or alternative relief.
7. A
copy of the court order is hereto annexed and marked MT3.
5.5 A
writ for payment of the sum of E197 774-86 was caused to issue on the
8th November 2000 a copy of which is annexed hereto marked MT4.
5.6 Pursuit
to the writ certain goods belong to Applicant were attached and a
copy of the Notice of Attachment is hereto annexed and marked MT5.
The
Applicant avers that the service of the summons upon Vusi Dlamini was
defective in paragraph 6.1, 6.2, 6.3, 6.4, 6.5, 6.6 and 6.7 of the
founding affidavit.
In
paragraph 7 of the founding affidavit the Applicant challenges the
default judgment granted on the ground that the Plaintiff's claim was
clearly illiquid and that this fact is borne out by paragraph (6) of
annexure "MT2" the first Respondent states that an
affidavit in proof of damages was attached. (see paragraphs 7.1, 7.2,
7.3 and 7.4 of the founding affidavit.
At
paragraph 9 the Applicant avers urgency as follows: "Urgency
9.1 The
matter is urgent by virtue of the fact that writ has been caused to
issue as the order directing the Applicant to rectify the drainage
problems.
9.2 An
attachment was in fact effected by the Deputy Sheriff Inaldo Antonio
(nee Herpes) and a copy of the said notice of attachment is annexed.
9.3 I
am advised and verily believe that presently the 2nd
Respondent,
Martin Akker has been appointed on ad hoc basis to finalise execution
against the Applicant.
9.4 I
am further advised and believe that our attorneys of record herein
had secured indulgence from the 1st Respondent's attorney for an
extension of time up to the 7th February 2003 whilst they considered
amicable solution of this matter. As the said period has expired, the
2nd Respondent may at any time remove the attached property and
thereafter cause the same to be sold by public auction to the loss
and prejudice of the Applicant.
9.5 Further,
an application may be sought seeking the committal of the Applicant
to contempt in failing to comply with an order of court.
Reverting
to the points of law in limine. These points are couched in the
following language:
5
1. Applicant
moved an urgent application under certificate of urgency.
1.1 Respondent
states that the application should fail as Applicant has failed to
state the reasons of urgency and why it will not be afforded a remedy
in future in terms of the normal limits as required by Rule 6 (25)
1.2 Applicant
has also failed to explain why it waited for two years before it
launched an urgent application.
1.3 Consequently,
this application should fail on this basis.
2. Secondly,
Applicant has failed to show this Honourable Court either under Rule
31 (3) (b) and the common law the following:
2.1 it
has failed to show that it made a reasonable explanation why the
rescission was launched; and
2.2 why
instead of advancing its defence in court, for two years it was
offering to settle the judgment.
3. Applicant
has for almost two years represented through its representatives and
attorneys to Respondent that the court judgment will be settled.
3.1 Consequently,
Applicant is estopped from repudiating its representations and now
coming to court and seek to rescind the said judgment.
They
came for arguments before me. Mr. Motsa for the Respondent argued
that the Applicant has not complied with the peremptory provisions of
Rule 6 (25) of the High Court rules in that the Applicant has not
firstly, stated why it cannot be afforded a remedy in due course. The
court in this regard was referred to the case Lindiwe Kunene (born
Dludlu) vs Bheki Kunene - High Court Case No. 2390/99.
Mr.
Motsa further contended that the Applicant has not complied with the
rule relating to rescission. That under the common law and Rule 31
(3) (b) a party applying for a rescission has to give a reasonable
explanation for the delay in bringing the application. As stated in
paragraph 4.2 of the reply the Applicant has failed to do so and
hence its application ought to fail. The court was referred to the
cases of Richard John Perry N.O vs Musa Magongo Civil Trial No.
127/97; D.
M.
M.
Estates (Pty) Ltd vs Daniel Mamba Case No. 3151/2001 at page 8; and
Herbstein et al The Civil Practice of the Supreme Court of South
Africa (4th ED) at page 691 to support this
point.
The
last point advanced in argument in support of the points of law in
limine raised is that assuming that the Applicant had a defence which
is denied, Respondents submits
6
that
it is estopped from raising a defence as for two years has
represented to Respondents that it was going to settle the debt and
the court is referred to paragraph 4.2 to 4.1.4 of the reply. The
court was further referred to the following cases: Freeman vs
Lockeyern Buckhorst Part Property (Maga) Ltd 1964 (1) E.R. 630 CCA
and the work by Rabbie P.J. The Law of Estoppel in South Africa
(1992) P. 18.
Mr.
Mkhatshwa for the Applicant advanced arguments per contra. Firstly,
on the point of urgency he contended that this aspect of the matter
has become academic, however, what prompted the Applicant to launch
these proceeding is what is contained in paragraph 9.4 of the
founding affidavit. The said paragraph reads as follows:
"I
am further advised and believe that our attorneys of record herein
had secured indulgence from the first Respondent's attorneys for an
extension of time up to the 7th February 2003, whilst they considered
amicable solution of this matter. As the period has expired, the
second Respondent may at any time remove the attached property and
thereafter cause the same to be sold by public auction to the loss
and prejudice of the Applicant.
Secondly,
Mr. Mkhatshwa argued that Mr. Motsa's reliance
on
the
correspondence between the parties should not be taken into account
by the court. The contention here is that correspondence which takes
place between the parties is always "without prejudice".
None of these letters constitute any admission of liability on the
part of the Applicant.
Thirdly,
it is contended on behalf of the Applicant that this application is
brought in terms of Rule 42 (1) of the High Court Rules. The
application is premised on a dictum by Erasmus J, in the case of
Bakoven Ltd vs G
J
Howes 1992 (2) S.A. 466 at 471 E
-
H
where the learned Judge stated the following:
"It
follows that a court in deciding whether a judgement was "erroneously
granted" is, like a Court of Appeal, confined to the record of
proceedings. In contradistinction to relief in terms of Rule 31 (2)
(b) or under the common law, the Applicant need not show "good
cause" in the sense of an explanation for this default and a
bona fide defence" (my emphasis).
7
The
learned Judge went further to say at paragraph G - H of page 471 of
the judgement:
"Once
the Applicant can point to an error in the proceedings, he is without
further ado entitled to rescission...".
Mr.
Mkhatshwa contended that it is common cause that in casu no viva voce
evidence or affidavit was led despite the fact that this was an
illiquid claim. That this was an error of law. It does not matter, so
the argument ran when the application is brought. It can be brought
even after 20 years. Mr. Mkhatshwa cited the cases of Dawson &
Fraser (Pty) Ltd vs Havenga Construction (Pty) Ltd 1993 (3) S.A. 397
(BGD); Hardroad (Pty) Ltd Veibi Motors (Pty) Ltd 1977 (2) S.A. 576
(w) at 578 B - C, De Wet and others vs Western Bank Limited 1977 (4)
S.A. 770 and Nyingwa vs Norman 1993 (2) S.A. 508 (TK) at 510 to
buttress his point.
On
the third point of estoppel Mr. Mkhatshwa reiterated what he said on
the correspondence between the parties that all correspondence
between the parties is on "without prejudice" basis. Out of
all the correspondence between the parties there was no admission of
liability at all by the Applicant.
The
Applicant cannot be estopped from protecting its right which were
reserved.
These
are the issues raised in this matter. There are three issues raised
viz, i) urgency; ii) whether Rule 42 is applicable; and iii) whether
the Applicant has been estopped.
I
shall proceed to determine each in seriatum, thus;
i) Urgency
When
the matter came for argument Mr. Motsa for the Respondent withdrew
point 1.1 in his Heads of Arguments viz that the Applicant has failed
to state the reasons of urgency and why it will not be afforded a
remedy in due course in terms of the normal limits as required by
Rule 6 (25). This he did in view of paragraph 9 of the Applicant's
founding affidavit which sets out the grounds for urgency. However,
Mr.
8
Motsa
contended that the Applicant has not explained ex facie the papers
why it waited for 2 years to file this matter under a certificate of
urgency. Mr. Mkhatshwa answered by referring the court to paragraph
9.4 of the founding affidavit. The explanation given for launching
these proceeding as such an urgent basis is as follows:
"9.4
I am further advised and believe that our attorney of record herein
had secured indulgence from the 1st Respondent's attorney for an
extension of time up to the 7th February 2003, whilst they considered
amicable solution of this matter. As the said period has expired, the
second Respondent may at any time remove the attached property and
thereafter cause the same to be sold by public auction to the loss
and prejudice of the Applicant".
There
is correspondence between the parties which indicate that from the
time the order which is sought to be rescinded was obtained the
parties were engaged in some negotiations with the view to settle the
matter out of court.
My
view, on the basis of the facts before me is that Applicant has
proved
urgency
to satisfy the strictures of Rule 6 (25) and thus the point of law in
limine raised in this regard is without merit.
ii) Whether
Rule 42 is applicable
It
has become trite in this division that an Applicant when applying for
a rescission of a judgement has to state under which head the
rescission is sought. The dicta by Dunn J (as he then was) in the
case Leonard Dlamini vs Lucky Dlamini Civil Case No. 1644/97 is
instructive in this regard and counsel for the Applicant ;is well
advised to appraise himself with the wisdom contained therein.
It
can only be gleaned from the various averments made in the founding
affidavit and from what counsel for the Applicant has stated from the
bar that the rescission is sought in terms of Rule 42 of the High
Court Rules.
The
Applicant's case is premised on the dictum in Bakoven Ltd (supra)
where Erasmus J stated the following at paragraph F to H of page 471:
"It follows that a court in
9
deciding
whether a judgment was "erroneously granted" is, like a
Court of Appeal, confined to the record of proceedings. In
contradistinction to the relief in terms of Rule 31 (2) (b) or under
the common law, the Applicant need not show "good cause" in
the sense of an explanation for his default and a bona
fide
defence...".
The
learned Judge went on to state the following:
"Once
the Applicant can point to an error in the proceedings, he is without
further ado entitled to rescission. (my emphasis).
The
Applicant contends that in casu, the judgment granted by this court
on the 13th October 2000, in favour of the 2nd Respondent was clearly
in error. The error lay on the fact that since this was an illiquid
claim the Respondent ought to have filed an affidavit to proof
damages or lead viva voce evidence. In the present case no such
evidence was led.
In
Bakoven Ltd (supra) Erasmus J held that a judgment may be set aside
in terms of Rule 42 (1) (a) on the ground that it was erroneously
granted only if the court has made a "mistake in a matter of law
appearing on the proceedings of a court of record". The issue
that presents itself in casu is whether there was a mistake in a
matter of law. In the present case I am inclined to agree with Mr.
Motsa that the non-filing of the affidavit to prove damages by the
Respondent is not an error of law but a procedure followed by the
courts. Therefore the ratio in Bakoven Ltd (supra) cannot apply.
Further, the court will normally exercise its discretion in favour of
an Applicant who, through no fault of his own, was not afforded an
opportunity to oppose the order granted against him and who, having
ascertained
that
an order has been granted, takes expeditious steps to have the
position
rectified.
(see
Herbstein (supra) at page 698 and the cases cited thereat). It is
common cause that the Applicant knew of the judgment as far back as
the year 2000. In casu the Respondent has surely not taken
expeditious steps as required in the circumstances. There has to be
finality in legal proceedings.
For
the above reason I find that the point of law in limine raised in
this regard is good in law and the application ought to be dismissed
on this ground.
10
Coming
to the last point of law in limine, viz iii) the issue of estoppel I
find that in view of the conclusion I have reached above, any further
discussion would be merely academic. I find it not necessary to
determine this point of taw in limine.
In
the result, I dismiss the application with costs.
S.B.
MAPHALALA
JUDGE