IN
THE HIGH COURT OF SWAZILAND
CIVIL
CASE NO. 1188/98
IN
THE MATTER NETWEEN:
THEMBI
GLORY NGCAMPHALALA APPLICANT
vs
FIRST
NATIONAL BANK OF SWAZILAND RESPONDENT
t/a
WESBANK
CORAM: MASUKU
A
J
FOR
THE APPLICANT: ADVOCATE L.M. MAZIYA
FOR
THE RESPONDENT: MR. T.M. MLANGENI
JUDGEMENT
This
is an opposed application for rescission of a Summary Judgement
granted on the 30th March 1999, in favour of the Respondent herein.
The
brief history of this matter is that on or about May 1998, the
Respondent herein issued a combined summons for payment of El24
700.63 together with alternative prayers which include the return of
a motor vehicle which was the subject of a disputed lease agreement
between the parties.
After
the Applicant filed its notice to defend, the Respondent as it was
advised, filed an application for summary judgement, which was
opposed by the Applicant, who filed an
1
affidavit
in opposition thereto. The Respondent filed a replying affidavit and
the matter became ripe for hearing.
Thereafter,
the matter was postponed on numerous occasions, the last one being on
the 5th March 1999, where the matter was postponed to a date to be
arranged with the Registrar. It however appears from the papers that
there was a difficulty in obtaining a date suitable to all the
parties and as a result, the Respondent's attorney approached a
member of the Registrar's staff and obtained a date for hearing the
contested summary judgement hearing.
The
Respondent's attorney accordingly set the matter down on Notice to
the Applicant's attorneys for the 30th March 1999. On receipt of the
Notice of Setdown on the 25th March 1999 the Applicant's attorneys
drafted and sent a letter to the Respondent's attorneys, bearing the
same date.
In
the said letter which was annexed and marked TGN1, the Applicant's
attorneys stated
as
follows:
"1. We
refer to the above matter.
2. We
are in receipt of a Notice of setdown for 30th March 1999.
3. You
have set the matter down without any consultation with us whatsoever.
4. Your
office is well aware that the client has engaged counsel in this
matter and a date was to be arranged with him.
5. Counsel
has prior commitments and will not be available on that date.
6. We
suggest that we approach the Registrar to arrange a date suitable to
all parties."
On
the 26th March 1999, the Respondent's attorney replied to annexure
TGN1, which appears to have been received by the Applicant's
attorneys on the same day as evidenced by a stamp indicating receipt
of the same.
For
the sake of completeness, I shall quote the full text of the letter
hereunder:
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"FIRST
NATIONAL BANK OF SWAZILAND LTD t/a WESBANK/THEMBI GLORY NGCAMPHALALA:
CASE NO. 1188/98
1. We
acknowledge receipt of your letter dated 25th instant which came
through to us via fax.
2. It
is disturbing to note that despite the difficulty in obtaining a date
of hearing at the High Court due to the backlog of cases, and despite
the extra effort being made by the High Court to deal with the
situation, you are prepared to lose an allocated date on the feeble
ground that your Counsel was not involved in arranging the date and
that he is, in any event, engaged elsewhere on the date in question.
3. The
issues involved in this matter are so simple and straight forward
that your article Clerk could argue them; if your client can afford
the luxury of Counsel, surely alternative arrangements can be made to
instruct another local Counsel or, indeed, as so often is the case
with your other matters, to instruct Counsel from South Africa. The
matter is so simple that Counsel would be ready to deal with it in a
matter of hours.
4. We
make the inescapable conclusion that this is a delaying tactic which
obviously suits your client who continues to have her cake and eat it
- she has the use of our client's vehicle and refuses to pay for it.
5. You
need hardly be reminded of the facts of WESBANK VS MIKE TEMPLE which
dragged on for a long time, and the motor vehicle was eventually
stolen at gun point somewhere in South Africa, which case your office
is defending. In this way our client lost the only security that it
could look to in order to recoup something from your client.
6. No
serious investor can be expected to live with this kind of
frustration.
7. If
your Counsel is engaged in the Magistrate's Court in this date, there
is a long - standing practise which is accepted in the Magistrates'
Courts whereby matters are stood down to enable us to appear at the
High Court, especially since legal arguments in this matter cannot be
expected to be more than one and a half hours. If he is engaged at
the High Court similar arrangements can be made.
8. We
are going to such length in an effort to implore you to make
yourselves available in Court on the 30th instant. Should you fail to
do so we will raise these concerns and proceed to make submissions
for relief on behalf of our client.
9. You
are also reminded that on the 5th March 1999 this same matter was
postponed because your same Counsel was not prepared to argue the
matter, the reason being that your office had failed to alert him
timeously that the matter was to proceed on that date. The Court bent
over backwards in sympathy with Advocate Maziya, our only solace
being an order for wasted costs on an attorney-client scale."
Although
it does not appear on the Court file, it is common cause that the
matter proceeded on the 30th March 1999 before the Chief Justice but
in the absence of the
3
Applicant's
attorneys. The learned Chief Justice proceeded to grant summary
judgement in favour of the Respondent. It is this summary judgement
that the Applicant seeks to rescind and set aside.
A
judgement of a Court may be rescinded under one or more of the
following heads, namely -
(i) Rule
31(3) (b);
(ii) Rule
32 (11);
(iii) Rule
42; and
(iv) the
common law.
(See
LEONARD DLAMEVI VS LUCKY DLAMEVI CASE NO.1644/93
(unreported)).
In
this application, the Applicant failed to state under which of the
above heads the rescission application was made and on enquiry at the
hearing, Mr. Maziya informed the Court that the application was in
terms of Rule 42(1) (a). I will pause and emphasize the importance of
stating under which head the application for rescission is made in
order to place the Court and the other side in a position to know
whether or not the requirements for the relief sought have been
traversed therein. Failure to do so will often result in the Court
and the other side being ambushed and will hamper good preparation
and argument.
Rule
42(1) (a) states as follows: -
"The
Court may, in addition to any powers it may have, mero motu or upon
the application of any party affected, rescind or vary."
(a) an
order or judgement erroneously sought or erroneously granted in the
absence of any party affected thereby,...."
Mr.
Maziya argued that the error in this matter which justifies the
rescission of the summary judgement was that when the matter was
before Court on the 5th March 1999, it was referred to the Registrar
of this Court to state a date on which it was to be argued. The Court
was urged to find that the action by the Respondent's attorney in
unilaterally
4
finding
a date for hearing the matter from the Registrar's office was an
error, which if the Court had been aware of, would not have granted
the summary judgement.
The
submissions by Mr. Maziya cannot stand, as there is no patent or even
latent error alleged. A party who is dominis litis is at liberty to
approach the Court to find a date, as it appears in the papers that
no date suitable could be obtained. In fact, early hearing dates
become ideal in matters involving summary judgement where it is
alleged that the Defendant has no bona
flde
defence but has filed papers for no purpose than to delay the action.
In obtaining a date without consulting the other side, it must be
stated that the party setting down the matter must do so on
sufficient notice to the other side.
In
order to succeed under Rule 42(1) (a), a party must show that there
existed at the time of issue a fact of which the Judge was not aware,
which would have precluded the granting of the judgement and which
would have induced the Judge, if he had been aware of it, not to
grant the judgement. See LEONARD DLAMINI VS LUCKY DLAMINI supra at
page 2. See also NYINGWA VS MOOLMAN N.O. 1993(2) SA508 @510. In casu,
there is no such error which if the Chief Justice had been aware of,
would have precluded him from granting the summary judgement.
Obtaining a hearing date without consulting the other side, but on
notice cannot constitute an error as envisaged in the above-cited
cases. I thus find that the application for rescission must fail
under Rule 42(1) (a).
During
argument, I stated that in my view, the proper head under which the
application should have been made is Rule 32(11) of the Rules of the
High Court as amended and which reads as follows: -
"Any
judgement given against a party who does not appear at the hearing of
an application under sub-rule (1) or sub-rule (2) may be set aside or
varied by the Court on such terms as it thinks just."
In
setting out the requirements for succeeding in an application under
this sub-rule, Dunn J, in the case of LEONARD DLAMINI VS LUCKY
DLAMINI (supra) at page 2 to 3 states as follows: -
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"For
a proper application of Rule 32(11) an applicant must give notice of
his application to all parties affected thereby. He must, in his
application satisfy the requirement of showing "good" or
"sufficient" cause, that is, present a reasonable and
satisfactory explanation for his failure to appear at the hearing of
the application and satisfy the Court that on the merits, he has a
bona
fide
defence which, prima facie carries some prospect of success."
I
am in respectful agreement with Dunn J's enunciation of the law in
this regard. I however, find that there is no need in this case to
show that the Applicant had a good and bona
fide
defence to the claim as in casu, the Applicant had filed its
affidavit resisting summary judgement and which the Court considered
on the 30th March 1999. In the LEONARD DLAMINI case, no affidavits
resisting summary judgement had been filed hence the requirement that
a case for bona
fide
defence must be made out.
I
will now mero motu decide whether the Applicant made out a case under
Rule 32(11). In the Founding Affidavit, the Applicant states as
follows:
"4.7 Mr.
Maziya was advised by the Deputy Registrar that she was still to
consult with Justice S. Maphalala with the view of finding a date and
then confirm same if it was suitable to both Mr. Mlangeni and Mr.
Maziya. Mr. Maziya advised Mr. Mlangeni about this and both parties
then awaited to hear from the Deputy Registrar.
4.8 On
the 25th March 1999 my attorney BHEKI G. SIMELANE & COMPANY
received a notice of set down from Mlangeni & Company for the
30th March 1999. The notice of set down was made without consultation
whatsoever whether with Mr. Maziya or BHEKI G. SIMELANE &
COMPANY.
4.9 I
am reliably informed that this date was never arranged with the
Registrar and was not suitable to both parties but only to
Respondent's attorneys.
4.10 Mlangeni
& Company was advised on the 25th March 1999 that Mr. Maziya who
I had retained was not available on the 30th March 1999 because of
prior commitments and my instructions were strictly that this matter
be handled by Mr. Maziya. A copy advising Mlangeni & Company of
the position is annexed hereto marked "TGN1."
4.11 Mlangeni
& Company responded on 26th March 1999 in a very sarcastic and
uncalled for manner in this letter annexed hereto marked "TGN2."
4.12 The
Deputy Registrar was required to draw the attention of the above
Honour Court to the fact that no one was available to handle this
matter and it was my belief that the matter will not proceed on that
date.
5. I
submit that I was not in wilful default by not appearing in court on
the 30th March 1999 as I was under the reasonable impression that the
matter will not proceed.
6
In
paragraphs 4.12 and 5, the Applicant shows that she was personally
aware that the matter was proceeding but did not appear in Court
because "I was under the reasonable impression that the matter
will not proceed."
This
does not constitute good or sufficient cause. Further, the
Applicant's attorneys do not state the reasons why they did not
appear in Court on the 30th March 1999, having contented themselves
with filing a confirmatory affidavit without explaining the reason
for the non-appearance. The Applicant's attorneys knew that the
matter would proceed on the 30th March 1999 but did not appear in
Court even if to ask for a postponement if the reason was that
Counsel briefed in the matter was not available. The Applicant
herself was aware of the date as it appears in paragraph 5 and the
Court would probably have been sympathetic to the Applicant if she
had appeared in person.
Attorneys
must take the Court seriously. It is not enough for Attorneys or
litigants to draft letters to the Registrar and hope that the Court
will postpone matters on the strength of such letters. This is
inexcusable and borders on denigrating the authority of this Court.
I
accordingly, find that the Applicant has also failed to make out a
case for relief in terms of the provisions of Rule 32(11). No good or
sufficient cause has been shown for the non-appearance on the 30th
March 1999 and it cannot be said that a reasonable and satisfactory
explanation for failure has been made out.
The
application is dismissed with costs on the normal scale as I can find
no sufficient grounds for awarding the Applicant with costs on the
punitive scale and no such grounds were suggested to me. I order that
the stay of execution granted on the 9th April 1999 in terms of
prayer 2 be and is hereby discharged.
T.S.
MASUKU
ACTING
JUDGE
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