THE
HIGH COURT OF SWAZILAND
Civil
Case No.2138/03
In
the matter between:
THE
ATTORNEY GENERAL 1st Applicant
THE
COMMISSIONER OF POLICE 2nd Applicant
And
SENZO
NXUMALO 1st Claimant
UNION
RISK MANAGEMENT ALLIANCE (PTY) LTD 2nd Claimant
In
re:
SENZO
NXUMALO Applicant
And
THE
COMMISSIONER OF POLICE 1st Respondent
THE
ATTORNEY-GENERAL 2nd Respondent
CORAM
: MASUKU J.
For
the Applicants : Ms Mkhwanazi
For
the 1st Claimant : No appearance
For
the 2nd Claimant : Mr S. Dlamini (Millin & Currie)
JUDGEMENT
4th June 2004
This
matter has seen numerous twists and turns in its not very long
history. The chronicle of relevant events may briefly be summarised
as follows: On the 7th July, 2003, the Royal Swaziland Police
(hereinafter referred to as the "R.S.P.", seized and
attached a motor vehicle described as an Isuzu K.B. Series, bearing
engine number 4JB3666022, chassis No. ADM
2
TER
55 DFM 833970 and registration number PJM 298 G.P. The seizure of the
vehicle was ostensibly carried out by the R.S.P. in terms of the
provisions of the "Theft of Motor Vehicles Act No. l6 of l991.
The
1st Claimant, from whom the vehicle was seized, moved an application
before this Court, seeking the release of the said vehicle. The RSP
opposed the application which served before Nkambule J, who delivered
a Ruling on the 24th September, 2003, in which he found that there
was a dispute regarding the identity of the motor to be released. He
ordered viva voce evidence to be led and reserved the question of
costs.
On
the 28th August, 2003, while the Ruling referred to above remained
reserved, the 2nd Claimant, under the above Case number, applied for
an Order on an urgent basis in terms of which the Police would
continue to have custody of the vehicle in question, pending an
application by the 2nd Claimant for the release of the vehicle to it.
This Order was granted by Shabangu A.J., on the 29th August, 2003,
and the matter was postponed on many occasions thereafter, including
being struck off on one occasion. It suffices to mention that the 1st
Claimant vigorously opposed the 2nd Claimant's application.
On
the 6th February, 2004, the matter served before me on the Contested
Roll and after giving due consideration of the matter and in
particular, after realising that there were two claimants, to the
vehicle, I ordered the Attorney General and the Commissioner of
Police, to file an Interpleader Notice in terms of Rule 58 of the
High Court Rules. This was to be done within fourteen (14) days of
the Order.
The
said Notice was filed by the Attorney General on the 10th March,
2004, and amongst other things, it called for the 2nd Claimant to
file the particulars of its claim. No reference was made in the said
Notice regarding the 1st Claimant filing the particulars of his
claim. On the 30th April, 2004, Shabangu A.J. ordered the 1st
Claimant to file the particulars of his claim on or before the 5th
May, 2004, and postponed the matter to the 7th May, 2004.
When
the matter again served before me on the 4th June, 2004, having been
postponed on various occasions from the 5nd May, 2004, the 1st
Claimant had not filed the particulars of his claim as ordered by
Shabangu A.J., nor was any application for extension of time made. I
should also point out in this regard that the 2nd Claimant itself did
not file its particulars
3
within
the time stipulated in the Interpleader Notice, which would have been
by the 30th March, 2004. The said particulars were only, filed on the
29th April, 2004, about four (4) weeks later. It does not appear that
any application for condonation or extension of time, in terms of the
provisions of Rule 27 was made or granted. It is also not clear on
the papers whether an agreement between the parties was reached in
this regard.
Mr
Mdladla, for the 1st Claimant filed a Notice in terms of the
provisions of Rule 30 (1) of the Rules of Court dated 6th May, 2004,
seeking an Order setting aside the 2nd Claimant's particulars of
claim on the grounds that it "failed to comply with the
provisions of Rule 58 (3) and that there has been no application for
condonation nor is (sic) the 2nd Claimant filed a claim herein".
This Rule 30 Notice to me suggests clearly that there was no
agreement inter partes regarding the filing of the 2nd Claimant's
particulars after the lapse of time indicated in the Interpleader
Notice.
Mr
Mdladla did not appear in Court to argue the 1st Claimant's case. An
oral application for the postponement of the matter at his behest and
on his behalf, which was in any event opposed by the 2nd Claimant's
attorneys, was refused. The said Rule 30 Notice begs comment. It
hardly lies in the mouth of the 1st Claimant, who was and is
presently in default of complying with an Order of Court to point an
accusing finger at the 2nd Claimant for not applying for condonation
and for not having filed its particulars.
The
allegation is also made in the Rule 30 Notice that the 2nd Claimant
failed to comply with the provisions of Rule 58 (3). The respects in
which the 2nd Claimant is allegedly in default have not been
particularised. My reading of the said sub-Rule, places no burden on
either claimant, the 2nd Claimant, in particular, to do anything in
furtherance of the Interpleader Notice. Rule 58 (3) only prescribes
the matters that must mandatorily be provided for and included in the
Interpleader Notice, which Notice it must be recalled, is prepared,
in casu, by the Applicants and not the 2nd Claimant. This attack in
my view lacks any substance.
The
only issue for determination, is whether the 2nd Claimant's
particulars must be considered, it being common cause, and Mr Dlamini
conceded this, that they were filed four weeks after the date
stipulated in the Interpleader Notice. The relevant Rule, being Rule
27 (1) reads as follows: -
4
"In
the absence of agreement between the parties, the court may upon
application on notice and on good cause shown, make an order
extending or abridging any time prescribed by these rules or by an
order of court or fixed by an order extending or abridging any time
for doing any act or taking any step in connection with any
proceedings of any nature whatsoever upon such as to it seems fit."
It
is clear that where a party in both claimants' position is in default
of complying with time limits in proceedings, an application for
condonation on notice is absolutely critical. This presupposes that
the provisions of Rule 6 come into play and an affidavit must be
filed in which amongst other things, the Applicant must state cogent
and substantial grounds upon which the Court can be satisfied that
the element of "good cause", required in the sub-Rule has
been fully met.
In
this regard, Erasmus, in his work entitled, "Superior Court
Practice", Juta, 1997 at B1-171, states the following.
"Two
principal requirements for the favourable exercise of the Court's
discretion have crystallised out. The first is that the applicant
should file an affidavit satisfactorily explaining the delay. In this
regard, it has been held that the defendant must at least furnish an
explanation of his default sufficiently full to enable the Court to
understand how it really came about, and to assess his conduct and
motives. The Court will refuse to grant the application where there
has been reckless or intentional disregard of the rules of Court, or
the Court is convinced that the applicant does not seriously intend
to proceed. The application must be bona fide and not made with the
intention of delaying the opposite party's claim. "
This
the 2nd Claimant has not done. It has simply proceeded, running
rough-shod over the time limits placed and within which it ought to
have filed its particulars. I am of the view that the time limits set
out in the Interpleader Notice qualify for extension or abridgement
in terms of Rule 27 and the 2nd Claimant may not seek to proceed with
its claim oblivious to its default. The time limits referred to above
are actually set out in Rule 58 (3) as not being less than fourteen
(14) days and it is clear therefor that they fall neatly within the
pigeonhole of matters to which Rule 27 applies.
5
I
am of the firm view that notwithstanding the lst Claimant's default
in filing its particulars and its non-appearance to argue the Rule 30
application, the Court is not entitled to peruse and consider the 2nd
Claimant's particulars in the absence of an application for
condonation on notice and which has been heard and granted. For the
above reasons, I make no order on the 2nd Claimant's application for
the release of the motor vehicle.
The
2nd Claimant, if so advised, may move a application for condonation
or abridgement, if any, within fourteen days of this judgement. I
order that the Police continue to hold the vehicle in their custody
in the interim. If no such application is moved within the period set
out above, the 2nd Applicant is hereby authorised to dispose of the
motor vehicle in terms of the provisions of Section 23 of the Theft
of Motor Vehicles Act, 1991.
T.S.
MASUKU
JUDGE
