Swaziland Development and Savings Bank v Lugedzeni Tractors Spares and General Distributors and Others ((15310/08)) [2010] SZHC 117 (29 July 2010);

IN THE HIGH COURT OF SWAZILAND

 

 

HELD AT MBABANE                                        CIVIL CASE NO. 1531/08

 

 

In the matter between:

 

 

SWAZILANDDEVELOPMENT & SAVINGS BANK   APPLICANT

And

LUGEDZENI TRACTOR SPARES & GENERAL

DISTRIBUTORS (PTY) LTD                             1^st RESPONDENT

SIBONISO CLEMENT DLAMINI                      2^nd RESPONDENT

SIMON MBHEKWA MHLANGA                               3^rd RESPONDENT

FAFAZA INVESTMENTS (PTY) LTD                        4^th RESPONDENT

In Re:

 

SWAZILANDDEVELOPMENT & SAVINGS BANK   PLAINTIFF

And

LUGEDZENI TRACTOR SPARES & GENERAL

DISTRIBUTORS (PTY) LTD                             1^st DEFENDANT

SIBONISO CLEMENT DLAMINI                      2^nd DEFENDANT

SIMON MBHEKWA MHLANGA                               3^rd DEFENDANT

FAFAZA INVESTMENTS (PTY) LTD                        4^th DEFENDANT     

 

 

JUDGMENT

 

HLOPHE J

 

[1]    The Applicant instituted the current proceedings under a certificate of urgency and as an interlocutory application seeking inter alia the following reliefs:-

 

• That (sic) Dispensing with the usual forms and procedures relating to the institution of proceedings and allowing this matter to be heard and enrolled as one of urgency.

 

• Condoning Applicant’s non-compliance with the rules.

 

• Rescinding and/or setting aside the judgment/order of the High Court dated the 16^th April 2010, and allowing Plaintiff leave to oppose the main application.

 

• That a Rule nisi do issue with immediate effect staying execution of the order aforesaid.

 

• Costs of this application at attorney and own client scale.

 

• Further and/or alternative relief.

 

 

 

[2]    In a Founding Affidavit attested to by one Sabelo Peleweo, who described herself as a Senior Manager, Corporate and V.I.P Banking of the Applicant Bank, and who went on to attest that she was duly authorised to do so on behalf of the Applicant, the background to this application was stated.

 

[3]    It is stated that on or about the 22^nd April 2008, the Applicant sued out a summons from the High Court in terms of which it sought payment of certain monies Loaned and advanced by the Applicant to the Respondents at their instance and request.  From the combined summons itself the claims made include payment of the sum of E1, 565, 645.61, interest thereon at 9% per annum, the declaration of the bond executable and the costs of suit at an attorney and own client scale.

 

[4]    It is alleged, by the Applicant that whilst these proceedings were pending, and long after their commencement, the Respondents made certain payments in an attempt to normalize their account with Applicant.  The Applicant does not however say the said account was normalized, nor does it say how much of the amount was paid as well as what aspect of the ancillary relief was settled or resolved, if any was.

 

[5]    Both parties are also said to have gone on and filed all their pleadings up to the point that pleadings were taken to be closed with only a trial date being awaited.  This from the papers would have been around December 2009.  It is alleged that it was when such trial date was awaited and on or about the 12 April 2010, that the current Respondents prepared and launched an application in terms of which they sought the following reliefs:-

 

1. Striking out the action as unsustainable and thus vexatious;

 

1. Costs on the attorney and own client scale.

 

1. Further and/or alternative relief.

 

[6]    The above application was filed as an interlocutory application and was served upon the Applicant’s attorney’s offices on (Monday) the 12^th day of April, 2010.  The said application bore on the face of it, a notification that it was to be heard on Friday the 16^th day of April 2010 at 9.30 hours or so soon thereafter as the application may be heard.

 

[7]    The Applicant avers that its attorneys, attended Court on the 16^th April 2010, and tried to resist the grant of the application by inter alia advising Court that it had already filed its Notice of Intention to oppose and I can only guess that was asking for time to file its opposing papers.  It is said that Applicant’s attorney (then Respondents) also tried to raise certain points in limine to no avail as the Court seized with the matter, went on to grant the reliefs sought by the current Respondents as prayed for and as indicated above.  The effect of the Court order was to strike out the main action which it is common course was already awaiting allocation of a trial date together with granting Applicant the costs of the matter at a punitive scale. 

 

[8]    It is contended by the Applicant that the grant of the said order in the manner set out above was erroneous which should justify this Court rescinding such Judgment on the basis of Rule 42 (1) of the High Court Rules or the common law.

 

[9]    It is contended further that it was erroneous for this Court to have entertained the application to strike out in as much as the action was awaiting trial and further still because Applicant alleges it had not been given sufficient time to deal with the application and as I understand it, they claim they were not given a hearing which is effectively a violation of Section 21 of the Constitution.

 

 [10]It is averred again that on the basis of this error as well this Court should rescind the said order both in terms of Rule 42 (1) (a) of the High Court rules as well as the common law.

 

[11]  The Respondents have opposed this application and have raised several points in limine which can be summarised briefly as follows:

 

• The matter is not urgent because even the bill of costs complained of has not yet been taxed.  Execution is therefore a long way in to the future.

 

• The certificate of urgency is a nullity as it does not state why the Applicant cannot be afforded substantial redress in due course.

 

• The notice given to the Respondents amounts to no notice at all as the application was served that day (the 23^rd April 2010) at 10.30 am and Respondents were required to have filed a Notice of Intention to oppose within an hour.  It was further contended that the shortness of the period within which the Respondents were required to file their papers amounted to an abuse of the Court process.

 

[12]  In the merits it was contended that the Applicant neither had a defence nor had it given a reasonable and acceptable explanation for its default.  It was stated that from the statements annexed to the application it was clear that from as early as March 2008, the Applicant’s claim had been paid, which was even before the 29^th April, 2008.  I can however comment that a consideration of the combined summons and the Respondent’s Plea does not support this contention as in the plea the Respondent does not claim to have paid in answer to the allegations that he owes the claimed amount and other reliefs.  He only states that he is ahead of his instalments or payment schedule.

 

[13]  I must however state my observation of the statement at this stage.  The statement establishes disputes of fact in my view.  The statement indicates a credit entry in the sum of E1, 610, 520.00 on the 17^th March 2010 as the first entry.   This sum is later shown how it was utilised in the debit column leading to there being a zero balance on the same day (17^th March 2008).  On the 11^th June 2008, it shows again a credit in the sum of E800 000.00.  This amount is also shown as having been applied such that by the same date it indicates a zero balance.  Again on the 31^st July 2008, a credit in the sum of E866,000.00 is also shown to have been applied on that same date as well as on the 1st August 2008 to leave a balance of some E93.00.  It became clear during argument that none of the parties understood with certainty the meaning of the statement.  This to me makes it all the necessary for the matter to go on trial.

 

[14]  Not only that, it is clear that if the matter was settled after the commencement of the action proceedings it was then necessary for there to be a determination on the question of interest and costs which could only be done during the trial.   Indeed the same applies if the matter was to be allowed to go on trial and at the end of it was found that the Respondents’ version was the correct one as he would most likely be awarded costs at t scale considered appropriate.  Redress would therefore have been afforded either of the parties during the trial.

 

[15]  I cannot say therefore that no defence has been established by the Applicant in the main action just as I cannot say the Applicant was in wilful default to file its opposing papers.  In my view it was not realistic to give Applicant four days to file both its Notice of Intention to oppose as well as its opposing papers.  I believe it deserved to be given a reasonable time to do so as can be seen from the passage quoted from Hebstein and Van Winsen’s, The Civil Practice of the Supreme Court of South Africa 4^th edition, which is cited in full at paragraph 23 herein below.

 

        This in my view deals with the good cause requirement in the rescission of judgments or orders required in terms of the common law.  See in this regard Nyingwa vs Mealman 1993 (2) SA 508 as well as Leonard Dlamini vs Lucky Dlamini, Civil Case No. 1644/97 (unreported).

 

[16]  It is further contended that the rescission sought is inappropriate in terms of Rule 42 (1) of the Rules of this Court as such envisages the grant of the order to have been in the absence of the aggrieved party for it to be rescinded.  In this case, so the contention went, the Applicant was represented when the order was granted.  I will deal with this aspect of the matter fully herein below.

 

[17]  It is also alleged by the Respondents that the Notice of Intention to oppose had not been served on their attorneys and therefore the Applicant had failed to oppose the application as required of him.  The Applicant maintained that it had done so and claimed that same got misplaced at the Registry.  To this extent there is a dispute of fact.  The reality however is should the Applicant have been penalised for not filing a Notice of Intention to oppose an interlocutory application on the hearing of which he appears and asks for time to file opposing papers?  I do not think so.

 

 [18]It is a fact that as there now exists an order striking out the action and awarding Respondents the costs at attorney client scale, the order could now be executed anytime without any need for the Applicant to be notified as long as the Bill of Costs shall have been taxed.  On this point alone I cannot say that this matter is not urgent.  It may as well be that it was not proper to abridge the time limits in the tortuous manner done by the Applicant but in my view that does not take away the apparent urgency in the matter; at least for the Applicant to be assured of the maintenance of the status quo in the interim. It has to be remembered that urgency is a case of degree which vary from matter to matter.

 

It is apparent that the Applicant stands to suffer irreparably if the matter is not heard and at least with an order maintaining the status quo of it being granted.  Once the Bill of Costs has been taxed a writ can be executed anytime to the Applicant’s prejudice hence the need for the enrolment of the matter as one of urgency even though on a reasonable notice to the other side in the circumstances.

 

Lastly the Respondent’s were not prejudiced in their opposition as they themselves do not so allege and appear to have been able to file their answering affidavit.

 

[19]  Having considered such cases as H.P. Enterprises (Pty) Ltd vs Nedbank (Swaziland) Ltd Case No. 788/99 and Megalith Holdings vs RMS Tibiyo (Pty) Ltd and Another as concerns the allegations an Applicant in urgent applications ought to make in his Founding Affidavit, I cannot say that allegations meeting this requirement have not been made in this matter.  In my view, it cannot realistically be said that this case does not fall within those exceptional cases which qualify to be dealt with on the basis of urgency as observed in Nhlanhla Maseko and Others vs George Mbatha and Another Appeal Case No. 7/2005.  I therefore cannot say that these proceedings amount to an abuse of the Court process.  As indicated above due criticism can be levelled against the Applicant for abridging the time limits in the manner he did when considering the circumstances of the matter, but that in my view would not necessitate the dismissal of the application particularly where no prejudice is shown to have been occasioned the other party.  I am of the firm view that in the circumstances this Court cannot dismiss this application without falling foul of the disapproval expressed by the Supreme Court in the Shell Oil Swaziland (Pty) Ltd vs Motor World (Pty) Ltd t/a Sir Motors, Appeal Case No.   23/2006 to the effect that this Court must not avoid dealing with real issues in a matter by placing undue weight on technicalities.

 

[20]  As stated above the Respondent contended that the Applicant had not made a case for the relief sought because he could not meet the requirements as set out in terms of the Common Law as well in terms of Rule 42 (1).  As regards the Common Law I have already dealt with that aspect of the matter at paragraph 15 hereinabove.

 

[21]  The position is now settled that the rescission of a judgment of this Court particularly in terms of Rule 42 (1) is a discretionary matter.  In Theron N.O. v United Democratic Front and Others 1984 (2) SA 532 (c); the Court had the following to say vis-à-vis the discretion the Court has in a rescission application in terms of Rule 42 (1) of the South African Rules which is similar to our rule:-

 

“The Court has a discretion whether or not to grant an application for rescission under Rule 42 (1).  In my view the Court will normally exercise that discretion in favour of an Applicant where as in the present case he was, through no fault of his own, not afforded an opportunity to oppose the order granted against him ….”

 

[22]  The position is also settled that once an error is established then a rescission of the judgment should be granted.  See in this regard Erasmus and Others, Superior Court Practice at page B1 – 308 where the position in such matters is captured as follows:-

 

“Once the Court holds that an order or judgment was erroneously sought or granted, it should without further enquiry rescind or vary the order and it is not necessary for a party to show good course for the sub-rule to apply.

 

An order or judgment is erroneously granted if there was an irregularity in the proceedings or if it was not legally competent for the Court to have made such an order ….”

 

[23]  In the present matter the Applicant contends that he was not given sufficient time to file his opposing papers to the interlocutory application to the point that his claim that he had filed a Notice of Intention to oppose was itself not acceptable to the Court.  In my view it was erroneous for this Court to have entertained the application without at least having afforded the Applicant an opportunity to file its opposing affidavit and deal with the Respondent’s assertions by means thereof.  This is made all the moreso by the fact that the contents of the Bank statement relied upon were not common course as they require some explanation.

 

[24]  Whilst Applicant was in attendance on the day the order sought to be rescinded was granted, can it be said that the grant of the order in those circumstances was not erroneous when taking into account the foregoing as well as the position expressed by Herbstein and Van Winsen’s The Civil Practice of the Supreme Court of South Africa, 4^th Edition at page 352 – 353 where in dealing with interlocutory applications they stated as follows:-

 

“No directions are generally given with regard to the delivery of Notice of Intention to oppose or the filing of answering affidavits.  It seems that answering and replying affidavits, when they are necessary, should be filed within a reasonable time.”

 

        I cannot say the time afforded Applicant was reasonable in the circumstances.

 

[25]  I do not think that the rule concerned provides that by merely being physically present in Court and without being afforded a proper hearing because of not being afforded sufficient time it can be argued that an order granted in such circumstances cannot be said to have been in error.  In my view, it was a sufficient error to qualify in terms of the rule concerned where the matter was heard without Applicant being afforded an opportunity to file opposing papers to deal with the Respondents contentions in his affidavit.

 

[26]  Even the entertaining of the application to strike out seems to me to have been improper as the matter was being dealt with on the basis of a trial.  I do not think that it is open to a party to circumvent the trial of a matter that is otherwise ripe for trial through the striking out procedure simply because he believes he has a defence thereto.  In my view, all claims in matters that go for trial, can either be sustained or dismissed.  In either case the law does provide redress to the aggrieved party.  I am of the view that the striking out procedure should not be used to circumvent a trial.  Whilst it should be used where there is no cause of action it cannot be used in my view to perhaps show that the cause of action relied upon is not correct or that it is not supported by the evidence.

 

[27]  Consequently I have come to the conclusion that the order of the Court granted on the 16^th April 2010 was erroneously granted which justifies this Court to exercise its discretion in favour of the grant of the rescission application.

 

[28]  Because of the decision to which I have come I make the following order:-

 

• The order granted by this Court on the 16^th Day of April 2010, striking out the action proceedings in Case No. 1531/08 be and is hereby set aside.

 

• The Parties are directed to seek an allocation of a Trial date in the main matter in accordance with the Rules of Court.

 

• As in my view the error was that of the Court, each party is to bear its own costs.

 

 

Delivered in the open Court at Mbabane on this day of July 2010.

 

 

 

…………………………………

Hlophe J

JUDGE OF THE HIGH COURT OF SWAZILAND