THE
HIGH COURT OF SWAZILAND
SIPHO
MATSE
Plaintiff
And
SWAZI
SPA HOLDINGS Defendant
Civil
Case No. 2805/2001
Coram
S.B, MAPHALALA – J
For
the Plaintiff MR. Z. MAGAGULA
For
the Defendant ADVOCATE P. FLYNN
(Instructed
by Robinson Bertram)
JUDGMENT
(11/06/2004)
The
Plaintiff in this case instituted action against the Defendant in
which he claimed payment of the sum of E100, 000-00 for damages
suffered as a result of Defendant's failure to exercise a duty of
care and/or omission to ensure that the meals served in its
restaurant were free from contamination, interest at the rate of 9%
calculated from date of issue of summons and costs of suit. Notice of
intention to defend was on 31st October 2001, given on behalf of the
Defendant by attorneys Millin and Currie.
2
The
Defendant excepted to the plaintiff's Particulars of Claim by notice
dated 15th November 2001. The Plaintiff filed a notice of intention
to amend on 30th November 2001. Thereafter on 19th March 2002 the
Plaintiff filed its amended summons. The Defendant filed its plea on
the 21st March 2002. Thereafter discovery of documents ensued.
On
the 21st May 2003, Plaintiff made an application in terms of Rule 33
(4) for an order in the following terms:
That
the issues raised in paragraph 2 and 4 of the plaintiff's
Particulars of Claim, as read with paragraphs 2 and 4 of the
Defendant's plea, be heard prior to and separately from the other
issues in dispute
That
only the issue as separated above be dealt with at the first trial
hearing of this action.
That
the Respondent to pay the costs of this application.
On
the 6th June 2003, the court granted the order in terms of prayer 1
and 2 of the application in terms of Rule 33 (4) mentioned above. The
said Rule provides that if it appears to the court mero motu that
there is, in any pending action, a question of law or fact that may
conveniently be decided either before any evidence is led or
separately from any other question, the court may make an order
directing the disposal of that question in whatever manner it may
deem fit, and may order that all further proceedings be stayed until
that question has been disposed of. The court is obliged, on
application by any party, to make such an order unless it appears
that the question cannot conveniently be decided separately (see
Herbstein and Van Winsen, The Civil Practice of the Supreme Court of
South Africa, 4th ED at page 1044 and the cases cited thereat)
The
essence of all this is that the Defendant has in its plea denied that
it operates in Ezulwini Valley within the district of Hhohho, owning
and running a restaurant in any premises at Ezulwini Valley, where
the Defendant as sued does not operate or own
any
restaurant at any premises at Ezulwini Valley, then no claim
correctly lies by the Plaintiff as alleged against the cited
Defendant.
3
The
crisp issue therefore is whether the correct Defendant is before the
court.
On
the 2nd June 2004, the first trial commenced as directed by the court
on the 6th June 2003. The enquiry was to establish whether the
correct Defendant is before the court. The Defendant who bore the
onus of proof led the evidence of its Regional Financial Manager one
Mr. Jacobus Richter. His evidence was that the Defendant does not own
or operate a restaurant in any premises at Ezulwini Valley but the
said restaurant is operated by a company called Manzana Estate. The
witness described in some length the relationship between Manzana
Estate and Swazi Spa Holdings Limited and the other companies in the
group. The essence of his evidence was that Swazispa Holdings Limited
does not own or operate a restaurant as alleged by the Plaintiff but
such a restaurant is operated by Manzana Estate which is also a
separate legal entity in its own right.
There
was no evidence adduced by the Plaintiff in this enquiry.
When
the matter was argued Mr. Magagula for the Plaintiff relied on what
is said by the author Beck's Theory and Principles of Pleading in
Civil Action 4th ED at page 54 to the proposition that a fact which
has not been alleged cannot be proved in evidence. It was not for the
Defendant to prove a fact it has not averred in its plea. All in all
Mr. Magagula applied that the matter proceeds on the merit.
The
fact of the matter as 1 see it is that the Defendant in casu was
called upon to either admit or deny what is in paragraph 4 of the
Particulars of Claim. The said paragraph reads as follows:
"4.
The Defendant owns and runs a restaurant in its premises at the
Ezulwini valley".
The
Defendant responded to the above paragraph as follows:
"4.
AD Paragraph 4
All
the allegations contained in this paragraph are denied as if
specifically transverse".
4
In
order for the Defendant to show that it does not own and ran a
restaurant in the premise it led the evidence of Mr. Ritcher. His
evidence clearly established that the Defendant did not run the said
restaurant but Manzana Estates as per paragraph 4 of its plea.
Therefore the attack by Mr. Magagula is without merit.
Further,
it would appear to me that this matter cannot proceed on the merits
for the simple reason that the Plaintiff has cited a wrong party in
this case. The papers before court cite Swazispa Holdings Limited as
the Defendant when the facts have shown beyond any doubt that Manzana
Estates own and operate a restaurant in the premises at Ezulwini
Valley.
In
the result, the action is dismissed with costs including costs of
Counsel to be certified in terms of Rule 68 of the High Court Rules.
S.B
MAPHALALA
JUDGE
