IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
CIVIL
CASE NO. 3335/02
In
the matter between LUCKY NHLANHLA BHEMBE APPLICANT
VERSUS
SWAZILAND
BUILDING SOCIETY 1st RESPONDENT
THE
DEPUTY SHERIFF - HHOHHO 2nd RESPONDENT
CORAM
SHABANGU AJ
FOR
APPLICANT MR MNISI
FOR
RESPONDENT MR MADAU
JUDGEMENT
11th March, 2004
The
applicant one Lucky Nhlanhla Bhembe seeks relief from this court as
follows:
"1.
Rescinding and or setting aside the default judgement granted by
this honourable court on 23"' October, 1998
Staying
the notice in terms of rule 45 (13) calling upon the judgement
creditor (sic) or applicant to come for a financial enquiry on the
8th November, 2002 pending the outcome of this application.
Ordering
the respondent to refund the applicant any monies in excess of the
capital debt from the proceeds of the sale in execution.
Further
and or alternative relief. "
2
The
present application was first filed before court on 6th November,
2002 and was set down for hearing on 15th November, 2002. It appears
that on 15th November, 2002 the matter came before Annandale J (as he
then was) and was struck off the roll. It was apparently on the roll
again on 7th February, 2003 on which date it was postponed to 14th
February. 2003. On the latter date it was removed from the roll and
eventually came before me on 3rd October, 2003. Inspite of the fact
that the application was first served on first respondents' attorneys
on 6th November, 2002 (the same date it was filed in court with the
Registrar) none of the respondents have filed a notice of intention
to oppose the application or any opposition papers of any kind.
On
3rd October, 2003 when the matter came before me it was set down on
the uncontested roll.
On
that day Mr Mnisi wished to proceed with his application on the basis
that it was uncontested. Mr Madau sought a postponement of the matter
for some unclear reason having regard to the fact that the
application had been served on the first respondents attorneys almost
a year earlier. From annexure LB4 of the applicants' affidavit filed
in support of the application it is possible to form the view that
the application is intended to be an interlocutory one related to
case No. 1241/98. However beside the reference to High Court case No.
1241/98 in the aforementioned annexure "LB4" nothing else
appears on the papers to connect the present proceedings to case
number 1241/98. The present proceedings were commenced under a
different case number altogether. The prayers in the Notice of Motion
would in light of this be ambiguous and vague in the absence of a
more fuller description of the default judgement said to have been
granted by this court on 23rd October, 1998. It may well be that in
order to remove any uncertainties prayer one of the notice of motion
ought to have read, for example,
"Rescinding
and or setting aside the default judgement granted by the honourable
court on 23"' October, 1998 under case number 1241 of 1998, "
Similarly
prayer two of the said Notice of motion might have read
3
"Staying
the Notice in terms of rule 45 13 (1) calling upon the judgement
debtor in case number 1241/98 or applicant to come for a financial
enquiry on the 8th November, 2002 pending the outcome of this
application."
The
highlighted portions of the abovequoted prayers are my additions
given to illustrate how the prayers might have been formulated in
such a way as to eliminate uncertainty on the identification of the
judgement or proceedings which the applicant sought to have
rescinded. As it is it is possible that the respondents' attorneys on
receiving such a notice of motion were uncertain as to the
proceedings in respect of which the rescission application applied.
The other possibility for removing the uncertainty would have been to
use the same case number as in the main proceedings. This factor may
account for the failure by the respondents to file any opposing
papers. A further reason which might have led to the confusion is the
fact that the rescission application itself was initially set down on
the roll of 15th November. 2002 for hearing on the short form. When
the application was not moved on 15th November, 2002 but was struck
of the roll the respondents might have considered that it was no
longer going to serve any purpose to file any opposing papers in
respect of an application which has been struck of the roll and the
date on which it had been set down had passed. After the initial set
down date had passed the matter was again set down on the 7th
February. 2003 by notice of set down dated 6th February. 2003. There
is no indication on the Notice of Set down dated 6th February, 2003
that it was served on the respondents or their attorneys if
applicable. Even if that notice would have been served on the
respondents' it is possible that the less than one days notice given
would have been too short. The matter had not been properly set down
on this date because of the failure to serve the first respondents
attorneys or any of the respondents' with any such notice,
On
the 7th February. 2003 the matter was apparently postponed to 14th
February, 2003 by Mr Justice Maphalala. There is nothing to indicate
that on this later date the respondents' were represented when the
matter was called. It would be safe to accept that because of the
non-service upon them the respondents did not appear and were
unrepresented. The applicant could not have obtained any order
adverse to the respondents having regard to the fact that the latter
had no notice of such set down. It was probably because of this
realisation that the applicants' attorney may have applied to have
the matter postponed
4
from
the roll of 7th February, 2003 to the roll of 14th February. 2003.
However again the matter was removed from the roll of 14th February.
2003. It was again set down by the Applicant for the 3rd October,
2003 by a Notice of set down filed in court on 2nd October, 2003.
This Notice of Set down was also not served on the respondents' or
their attorneys. The manner by which the applicant has dealt with the
matter was confusing and was calculated to embarrass the respondents'
in their response to the application. In the circumstances and
because of the factors mentioned above I cannot grant any relief to
the applicant, at least at this stage. Having considered all the
matter raised and alluded to in the applicants' affidavit in support
of the application the appropriate order should give the parties
directions on how the matter should proceed as from now. I make no
order on the relief claimed. I however direct that the respondents
are ordered as follows;
To
file their notice of intention to oppose this application, if any,
within five days from the date of service by the applicant of this
order and thereafter,
To
file their opposing affidavit, if any, within fourteen days and
If
any of the respondents intend to raise a question of law only he or
it shall deliver a notice of intention to do so within the time
prescribed in paragraph (2) above.
ALEX
S. SHABANGU
ACTING
JUDGE
