THE
HIGH COURT OF SWAZILAND
QUICK
MAMBA (PTY) LIMITED
Applicant
And
TOOLROOM
SERVICES (PTY) LIMITED
Respondent
In
Re:
TOOLROOM
SERVICES (PTY) LIMITED
Plaintiff
And
QUICK
MAMBA (PTY) LIMITED
Defendant
Civil
Case No. 2752/03B
Coram
S.B. MAPHALALA – J
For
the Applicant In Absentia
For
the Respondent Miss L. Kunene
JUDGMENT
(05/03/2004)
2
On
the 4th December 2003, an application for summary judgment was served
on the Applicant's attorney and was set down for the 23rd January
2004.
The
application was for an order as follows:
1.1
Payment of the sum of Ell, 238-05;
1.2
Interest of the aforesaid amount at the rate of 9% per annum a
tempora morae from date of invoices to date of final payment;
1.3
Costs of suit.
The
applicant served a notice in terms of Rule 47 (i) for security for
costs on the 19th January 2003.
On
the 23rd January 2004, the Respondent proceeded to court for the
hearing of the summary judgment, the Applicants had not filed their
opposing affidavit and summary judgment was granted. Consequently,
the Respondent issued and served a writ of execution on the
Applicants.
By
notice of application dated the 27th January 2004, the Applicant
applied that the writ of execution issued by the court on the 23rd
January 2004, be stayed pending the finalisation of the matter.
Further that the summary judgment granted by the court on the 23rd
January 2004, against the Applicant be rescinded and set aside.
The
Respondent in answer to the application for rescission of the summary
judgment advanced the following defence found at paragraphs 7 to 9 of
the affidavit of Miss L. Kunene thus:
7.
Save to admit that a Notice in terms of Rule 47 (1) was received by
my offices, the remainder of the allegations contained in this
paragraph are unknown to me and I do not admit or deny same. The
Applicant is put to proof thereof.
8.
1 may however state that upon receipt of the Notice in terms of Rule
47 (1), I promptly transmitted same to my clients and we are awaiting
instructions from them. The ten (10) days referred to in the notice
has not yet lapsed.
9.
I also wish to state that to the best of my knowledge and according
to my understanding of the law relating to matters of this nature,
the mere issuing of a Notice in terms of Rule
3
47
(1) does not have the effect of staying proceedings and as such the
Respondent was perfectly entitled to proceed and obtain the summary
judgment on the 23rd January 2004.
The
point of law raised therefore, is that a notice in terms of Rule 47
(1) does not automatically stay the proceedings. A party must apply
to court on notice for an order that proceedings be stayed and this
can only be done if the other party has failed to furnish security in
the amount fixed by the Registrar per Rule 47 (3).
It
was contended for the Respondent in casu that the Applicant is not
entitled to a stay of proceedings. First and foremost the Respondent
has not failed to furnish the security and the dies for furnishing
same only expires on the 2nd February 2003.
The
matter appeared before Annandale ACJ on the 6th February 2004, who
postponed it to the 9th February 2004 for arguments and the
Applicants were to file their replying affidavit by 4pm of the same
day.
When
the matter was called on the return date being the 9th February 2004,
the Respondent was represented by Miss Kunene and there was no
appearance on behalf of the Respondent nor was any replying affidavit
filed as directed by the Acting Chief Justice. Miss Kunene pressed
that the matter proceeds in the circumstances. I allowed her to argue
the merits of the matter.
Reverting
to point in dispute Miss Kunene premised her arguments on the cases
E.LS. Marketing (PTY) LTD vs Millemium Oil Mills (Pty) Ltd and
another High Court Case No. 1069/2003; First National Bank of South
Africa Ltd vs Paul Zondikhaya Shabangu - Civil Case No. 1956/98
(unreported) (per Sapire CJ - as he then was); and Ranbaxy (SA) (Pty)
Limited t/a Ranbaxy Laboratories vs Swazi Pharm Wholesale (Pty)
Ltd-Civil Case No. 1878/2003 (unreported).
The
principle applied in the above-cited cases was elegantly outlined by
Sapire CJ (as he then was) in the Zondikhaya Shabangu case (supra) at
page 3 in fin 4, thus:
4
"The
question which arises today is whether in terms of Rule 47 (1) the
proceedings are stayed merely by the demand for security and whether
this court is debarred from granting anyof the relief claimed in the
notice of motion while the question of security remains undecided.
Section
47 (1) gives the right to any party entitled and desiring to demand
security for costs, as soon as practicable of the commencement of the
proceedings, to deliver a notice setting forth the grounds upon which
such security is claimed and the amount demanded. The rule in
sub-rule (2) provides further that if the amount of security is
contested the Registrar shall determine the amount given.
This
is the stage we have reached. The amount of security only, is
contested. As yet the Registrar has not been called upon to determine
the amount of security to be given not has he in fact determined such
amount.
The
rule then provides that if the party from whom security is demanded
contests his liability to give security, or if he fails or refuses to
give security in the amount demanded or the amount fixed by the
Registrar within tern (10) days of demand, or the Registrar's
decision, the other party may apply to court on notice for an order
that such security be given and that the proceedings be stayed until
such order is complied with.
That
is the relief given to the person demanding security. In must be
noticed that such an application to court may only be made if the
person upon whom the demand is made to furnish the security refuses
to furnish security in the amount demanded or the amount fixed by the
Registrar. Until the Registrar has fitted the amount therefore and
the amount has not been paid, no application may be made in terms of
that Rule. There is nothing in the Rule, which stays proceedings
pending the decision of the Registrar on the amount of security to be
furnished. The Rule goes on to provide that if security is not given
within a reasonable time the court may dismiss any proceedings
instituted or strike any pleadings filed by the party in default.
The
remaining provisions of the Rule regarding the form of security are
not relevant. On this reading of the Rule there is no basis for the
Respondent to come to court today and say that the application in
terms of the original notice of motion is incompetent or should not
be acceded to and in view of the absence of any replying affidavit I
intend to deal with the application on that basis".
In
light of the above dictum, the Applicant has no grounds to rely on
the Rule 47 notice for the default as well as not filing the opposing
affidavit thereof.
5
Coming
to rescission of the summary judgement in law such a remedy is
available only in respect of judgement given where the party was in
default of appearance Common law empowers the court to rescind a
judgement obtained on default of ' appearance, provided sufficient
cause therefore has been shown. In the case of Cairn's Executor vs
Gaarn 1912 and 181 at 186 Innes JA stated the following:
"But
is clear in principle that the long standing practice of our costs
two essential elements of sufficient cause of rescission of judgement
by default are:
That
the party seeking relief must present a reasonable and acceptable
explanation of his default; and
That
on the merits such party has a bona fide defence which, prima facie,
carries some prospects of success.
It
is not sufficient if only one of these two requirements is met, for
obvious reasons a party showing no prospects of success on the merits
will fail in an application of rescission of default judgement
against him, no matter how reasonable and convincing the explanation
of his default"
In
the present case the applicant deposes in the founding affidavit in
paragraph 10 wherein it is stated that;
"I
need not even state our defence to the above Honourable Court as the
nature of our application is such that the defence is Hot material"
I
agree with the submissions made by Miss Kunene that in light of the
above the application for rescission is defective in that the
application have failed to show the common law essential of
sufficient cause. Further, Miss Kunene is correct that any party who
contests the decision on the ground that it has erroneously granted
would have to appeal the judgement. In the case of the Kingdom of
Swaziland vs Atlas Investments (Pty)Ltd - Civil Case No. 1955/99 the
following was said:
"In
this case if there was an error in granting of the Summary Judgement
the applicant's remedy would lie in an appeal, if not and if there is
still any reason why judgement should not be observed or obeyed ,
then it is open to the Applicant to institute fresh proceedings
probably by way of action proceedings to seek restitutio in intergrum
on the grounds of mistake of fraud"
6
In
the result, the application for Rescission is dismissed with costs.
Costs to levied at the ordinary scale.
JUDGE
