HIGH COURT OF SWAZILAND
the matter between:
DE SOUZA Defendant
: MASUKU J.
the Plaintiff : Mr P.R. Dunseith
the Defendant : No Appearance
7th April 2004
case has a chequered and convoluted history. This history has a
material bearing on the Order that will eventually be handed down. It
is therefor necessary, in this light, to highlight the important and
relevant aspects of the history.
summons dated 4th December, 1998, the Plaintiff claimed the delivery
of a motor vehicle described as a Toyota Land Cruiser bearing Chassis
No. FJ 62105843 and engine number 3 F-0224983 which was in the
Defendant's possession. The Defendant was in the summons described as
a motor mechanic.
his Plea, the Defendant averred that he effected substantial repairs
to the said motor vehicle in the amount of E17, 420.00. The Defendant
further averred that he would not release the vehicle to the
Plaintiff in exercise of a repairer's lien he held over the said
Defendant, simultaneously with the Plea, filed a counter-claim for
payment of the aforesaid amount of E17,420.00 in respect of the
must also point out that I have called up the file from the office of
the Master of the High Court, which on perusal shows clearly, that
since the death of the deceased, no one was appointed executor or
executrix to date.
would appear that the Defendant passed on during the 20th April, 2001
and this necessitated a substitution of the Defendant by the
Executor. It is apparent that the substitution, despite demand from
the plaintiff's attorney has not been effected by the Defence.
the 16th October 2002, Sapire C.J. (as he then was) granted an Order
in the following terms;
That the sum of E17,420.00 is to be deposited into a savings account
at a local commercial bank by the Applicant (Plaintiff), which
account is to be operated under the joint signatures of the parties'
That the Respondent, Edmund de Sousa, is to deliver the vehicle
namely; Toyota Landcruiser
No. FJ 02/105843
the Applicant Chris Matsias against proof of the aforesaid deposit.
Costs to be costs in the main action.
appears to be no dispute that the Order stated above was complied
with. It is implicit from the said Order that the plaintiff's claim
was disposed off, leaving the counter-claim awaiting determination.
In particular, there is a letter from Mr Dunseith dated 23rd October,
2000, in which he informs the Defendant's attorneys of the deposit of
the aforesaid amount
El7, 420.00 into a Bank Account as ordered by the Court in prayer 1
of the said Order of
is correspondence filed by Mr Dunseith, showing that attempts to have
the matter settled out of Court failed after the issue of the Order
of the 16th October. The matter was then set down for hearing
unsuccessfully in October, 2002, and this was due to the
unavailability of a Judge to hear the matter.
matter was finally allocated a hearing date i.e. 22rd March 2004 by
the Registrar on the 19th January 2004. The notice of the allocation
of trial was sent to the parties' legal representatives by the office
of the Registrar. The plaintiff's attorneys filed a notice of set
down for the said date and Mr Dunseith, an officer of this Court
informed the Court that he was in contact with the Defendant's
attorneys two weeks before trial regarding the hearing. Mr Mabuza
from the Defendant's attorneys promised to revert to Mr Dunseith but
to no avail, I have no reason not to accept Mr Dunseith's version
given as it is by him as an officer of the Court, more so in casu
where the Defendant's attorneys did not attend Court to explain their
position or to controvert what he placed on record.
the 19th March, 2003, the Defendant's attorneys purported to withdraw
as the attorneys of record. Mr Dunseith has, in view of the purported
withdrawal urged the Court to consider the notice of withdrawal
ineffectual and to grant absolution from the instance with costs in
respect of the counterclaim. In the alternative, he urged the Court
to order the release of the security held in terms of the Order of
the 17th October, 2000, as aforesaid with wasted costs to the
question of the representation of the parties is governed by the
provisions of Rule 16 of the Rules of this Court, as amended. Of
particular relevance to this case are the provisions of Rule 16 (4)
(a), which provide as follows: -
an attorney acting in any proceedings for a party ceases so to act,
he shall, forthwith deliver notice thereof to such party, the
Registrar and all other parties: provided that notice to the party
for whom he acted may be given by registered post."
learned author Erasmus, in his work entitled "Superior Court
Practice", Juta, 1995, states the following in respect of
service of a notice of withdrawal by registered post as recorded
above at page Bl-121: -
proviso to the sub-rule now entitles an attorney to notify his client
of his withdrawal by registered post. Such notification by registered
letter at an address furnished to the attorney by the client would
seem to be sufficient proof that the client had in fact received the
letter. " (underlining my own).
is worth noting that in casu, the purported notice was sent by
Registered post, not to the Defendant's postal address, but to the
plaintiff's attorneys address. That address was not the one furnished
by the Defendant to the attorneys. There was therefor no hope that
the notice of withdrawal would reach the Defendant. It is therefor
ineffectual and the Defendant's attorneys must bear the consequences
of whatever Order this Court is minded to hand down, given the
peculiar circumstances of this case.
MACDONALD t/a HAPPY DAYS CAFE VS NEETHLING 1990 (4) SA 30 (NPD) at
31, Didcott J. cited with approval the case of S VS NDIMA1977 (3) SA
1095 (N), where the following applicable principles were enunciated.
is quite plain that an attorney must if he is going to withdraw from
a case, withdraw from it timeously and inform his client that he is
withdrawing so that the client can make other arrangements or, if
there are none which he can make and if he wishes to do so, so that
he may appear in person to argue his appeal. If an attorney wishes to
carry on, hoping that at the last minute he will be given funds, and
does not wish to withdraw at an earlier stage of the case because he
will jeopardise his chance of being paid, then he must be willing to
take the risk that he will find himself financing the appeal and go
on with it. In other words, he either withdraws at an appropriate
stage or he takes the risk and carries on and does the work. Prima
facie, and I emphasise those words because I do not have the
attorneys' explanation before me,.... The attorneys in this case are
guilty of gross discourtesy and a neglect of their duty as officers
of the Court."
is apparent from the 'foregoing that if the attorney does not file a
notice of withdrawal timeoulsy, he reaches what I term a point of no
return, in terms of which he must proceed with the case regard less.
casu, the withdrawal was not only incorrectly made in so far as the
wrong address is concerned, but it was also not made timeously. This
was barely forty-eight hours (over the week-end) before the
commencement of the trial. It is clear that the Defendant could not
get notice of withdrawal, not only because of the wrong address, but
also because of the short notice given to him. The Defendant could
not make any other contingency plans. Worse still, the Defendant's
attorney did not come to Court to explain what their predicament was.
was grossly discourteous, particularly when the notice was given at
such a late stage and so shortly before trial. It is not out of place
to consider the circumstances of this case i.e. that the matter has
been pending since 1998 and the plaintiff's money is held in a bank
and the Defendant has no desire to prosecute its counter claim.
notice of trial was given for a sufficiently long time and that
should have given the Defendant sufficient time to prepare for trial.
It is grossly unfair in the circumstances to prejudice the Defendant,
who is any event no longer the dominis litis. There is no other
inference that can be drawn save that the withdrawal was designed as
a delaying tactic or tactical manoeuvre which will see the Defendant
having his money held up as security for an indefinite period of
time. It is necessary for the Court to step in and come to the
assistance of the Plaintiff who has been agitating for a trial for
about five (5) years.
am of the view in the circumstances that the provisions of Rule 39
(3) should apply in this case. The said Rule reads as follows: -
when a trial is called, the defendant appears and the plaintiff does
not appear, the defendant shall be entitled to an order granting
absolution from the instance with a view to satisfying the Court that
final judgement should be granted in his favour and the court, if so
satisfied, may grant such judgement."
regard the Plaintiff as a Defendant in casu, because as earlier
stated, the main claim was finalised and what is outstanding is the
Defendant's counter claim. The Defendant/Plaintiff has not appeared.
It does not appear that there is any need for the Plaintiff/Defendant
to lead any evidence. The proper Order to grant in the circumstances
is one of absolution from the instance with costs.
is clear in this case that the relief sought by the Plaintiff herein
is not in the nature of an execution of a judgement obtained against
the deceased person or his executor, I am of the view therefor that
the provisions of Section 43 of the Administration of Estates Act,
No.28 of 1902, and the respective periods mentioned therein have no
application. The said section, in my view, constitutes no bar to the
relief sought by the Plaintiff herein.
must however express a word of caution regarding the ever-increasing
incidents of withdrawal at the eleventh hour, thus causing manifold
inconveniences to the Court and to the other side. Some type of
censure should visit attorneys who withdraw at such critical times
and further do not bother to attend Court to explain their
predicament, if any. The provisions of Rule 16 must not be abused to
the extent that litigants who are desirous of bringing their matters
to speedy finality are frustrated and left licking their bleeding
wounds with disappointment and at the same time having to settle
their lawyers' bill for the preparations done for the aborted case.
Courtesy, respect and a modicum of sensitivity all point in the
direction of avoiding this ugly practice by withdrawing from a case,
if necessary, timeosly.