IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CASE No. 2080/11
In the matter between:
KUKHANYA (PROPRIETARY) LIMITED APPLICANT
JONAS CONSTRUCTION (PROPRIETARY)
JONAS CONSTRUCTION (PROPRIETARY)
KUKHANYA (PROPRIETARY) LIMITED DEFENDANT
CORAM: SEY J.
For the Applicant Mr. L. R.Mamba
For the Respondent Ms. Boxshall - Smith
 The Applicanthas filed this application on an urgent basis seeking a rescission of a Summary Judgment order granted against it on the 28th October 2011. The Applicant has also prayed for costs of the application on a scale as between attorney and own client, de bonis propris, against Boxshall -Smith Attorneys.
 In support of this application is the Applicant’s Founding Affidavit sworn to by Lindifa Mamba on the 28th day of October 2011. The Respondent filed an Answering Affidavit sworn to by John Glover, the managing director of the Respondent. There are also three Confirmatory Affidavits sworn to by one Marie Joan Gent, Marisa Boxshall - Smith and Marco De Sousa on the 4th day of November 2011 respectively. Thereafter, the Applicant filed a Replying Affidavit dated the 9th day of November 2011.
 When the matter came up for hearing before this Court on the 11th day of November 2011, the Respondent applied for striking out in terms of the Notice of Application for striking out dated the 10th day of November 2011. I intend to deal with the application for striking out before delving into the Applicant’s application for rescission of the Summary Judgment order granted against it on the 28th October 2011.
 The Respondent is seeking the striking out of the following portions from the Applicant’s Replying Affidavit on the basis that same constitute scandalous and vexatious matter in terms of High Court Rule 6 (28).
Paragraph 2, the ultimate sentence reading:
“I have decided to do so because this paragraph clearly demonstrates the extent to which the deponents and in particular Boxshall - Smith are prepared to go in order to mislead the above Honourable Court.”
Paragraph 8, portions reading:
“ I am embarrassed to state that the more Ms Boxshall-Smith tries to defend her behavior the more she demonstrates her unsuitability to be an officer of the above Honourable Court” and
“Ms Boxshall - Smith is willing to commit perjury to hold onto an order she caused to procure by stealth. This is with respect shameful and not worthy of an attorney of the above Honourable Court.”
 The Respondent is also seeking a striking out of paragraph 4 of the Replying Affidavit, sworn to on the 9th day of November 2011 by Mr. Lindifa Mamba, on the basis that same constitute inadmissible hearsay evidence and therefore is irrelevant. The said paragraph 4 states as follows:
“I am informed sought (sic) that when the sheriff (sic) to execute, it was made clear to him that the only money which was acknowledged to be owed was only a sum of E77 453.00 which was then immediately paid to the respondent”
 As regards scandalous and vexatious matters, Ms. Boxshall - Smith submitted, both in the Respondent’s Heads of Argument filed of record and in her oral submissions, that the portions sought to be struck out are abusive and defamatory and convey an intention to harass or annoy. That they go beyond simple statements of fact and constitute a character assassination of the Respondent, who deposed to the Answering Affidavit, and its attorneys, who deposed to a confirmatory affidavit. That the prejudice to the Respondent and its attorneys should these allegations not be struck out, is evident. If a party was required to deal with the scandalous, vexatious or irrelevant matter in motion proceedings, the main issue could be side-tracked; but if those allegations remain unanswered the innocent party might well be defamed, and the retention of such matter would be prejudicial.
 To buttress her points, counsel cited the case of Vaatz v Law Society of Namibia 1991 (3) SA 563 (Nm) at 566 where the meaning of the above concepts are set out as follows:
Scandalous matter - allegations which may or may not be relevant but which are so worded as to be abusive or defamatory.
Vexatious matter - allegations which may or may not relevant but are so worded as to convey an intention to harass or annoy.
Irrelevant matter - allegations which do not apply to the matter in hand and do not contribute one way or the other to a decision of such matter”.
 In his reply, Mr. L. R. Mamba contended that the offending matters being referred to are the crux of the application before this Court. Counsel further submitted that the judgment “was stealthily procured in a manner which can best be described as amounting to sharp practice on the part of the Boxshall-Smith Attorneys.”
 An application to strike out is permissible where an affidavit contains averments which are scandalous, vexatious or irrelevant. Rule 6 (28) of our Rules provides as follows:
"The court may on application, order to be struck out from an affidavit any matter which is scandalous, vexatious or irrelevant, with an appropriate order as to costs as between attorney and client, but the court shall not grant the application unless it is satisfied that the applicant will be prejudiced in his case if it is not granted."
 In Dlamini v Thwala NO and Others Civil Case No. 3210/10dated 5th April 2011 (unreported), His Lordship MCB Maphalala, J opined that:
“The decisive factor in determining whether to grant the application to strike out is the existence of prejudice to the applicant in the conduct of his claim or defence if it is not granted.”
 In the case of Steyn v. Schabort and Another 1979 (1) SA 694 at 697 (O) Justice Erasmus pronounced that the procedure for striking out was never intended to be utilized to make technical objections of no advantage to anyone and just increasing costs. He then went on to state that the court should not grant the application unless it is satisfied that the applicant will be prejudiced in his case if it is not granted. See also John Graig (PTY) Ltd v Dupa Clothing Industries 1977 (3) SA 144 at 148.
Now, having carefully considered the averments contained in paragraphs 2 and 8 of the Applicant’s Replying Affidavit in the light of the aforementioned authorities, it is my considered view that they are scandalous and vexatious in that they are so worded as to be abusive or defamatory. I am furthermore of the firm conviction that the deponent Mr. Lindifa R. Mamba ought not to be allowed to bring into disrepute, in the eyes of the public, his colleague and fellow member of the Swaziland Law Society. As regards the averments contained in paragraph 4 of the Replying Affidavit, it is worthy of note that the deponent has simply stated that he was informed. He has not stated who informed him and whether or not he verily believes the information to be true and correct. I find that same constitute inadmissible hearsay evidence and therefore is irrelevant. In the circumstances therefore, the said paragraphs 2, 8 and 4 of the Replying Affidavit are hereby struck out.
 I shall now turn to consider the merits of the Applicant’s application for rescission. On the date Judgment was taken in this present case, the Respondent’s attorney had in fact set down three matters for Summary Judgment namely, Case No. 665/11 for an amount of E25 860.00; Case No. 664/11 and the present matter. The record demonstrates that the Applicant had received more than the required 10 Court days notice of the application as the Summary Judgment application was served on the 10th October 2011 and set down for hearing on the 26th October 2011.
 It is common cause that the Applicant did not file an affidavit opposing Summary Judgment prior to or at the hearing or appear or have anyone appear on its behalf. For its part, the Respondent, was represented at the hearing by one of its directors, and Summary Judgment was granted in the absence of the Applicant.
 The Applicant’s primary contention is as stated in paragraph 19 the Founding Affidavit which reads as follows:
It is clear from the Court file that the Attorney herself procured that the directors, who could not have know any better, to appear before the above Honourable Court in a matter they were not entitled to appear in and to act as attorneys or advocates on behalf of the respondent. This is an irregularity and the Order granted was in my respectful submission therefore erroneously granted and erroneously sought.”
 The main issues canvassed before this Court are twofold, namely:
(a) Whether the Respondent, a Company, was entitled to be represented in Court by a director; and
(b) Whether the Summons and Plaintiff’s Declaration were defective.
 The procedure for rescission of Court orders or judgments is governed by Rule 42 of the Rules of the High Court which provides that:
“42 (1). 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 judgment erroneously sought or erroneously granted in the absence of any party affected thereby.”
 InBakoven v A. J Howes (Pty) Ltd 1972 SA 466 at 421 it was held that:
‘‘…once the applicant can point to an error in the proceedings, he is without further ado entitled to rescission.’’
Also, in the case of Nyingwa v Moolman N.O. 1993 (2) SA 508, while discussing this issue, White J. concluded as follows:
“It therefore seems that a judgment has been erroneously granted if there existed at the time of its issue a fact of which the Judge was unaware, which would have precluded the granting of the Judgment and which would have induced the Judge, if he had been aware of it, not to grant the Judgment.’’
 It would appear, therefore, that the overriding criterion in the grant of rescission, as demonstrated by case law, is that where there is an error by the Court, in the sense of a mistake, which, if it had been aware of, would have induced it not to grant the judgment or decision it had made, then the Court in that instance would be entitled to rescind the judgment in question. See also Johannes Manguluza Tsabedze v Swaziland Development and Savings Bank and Others Case No. 257/09; The Attorney General v Austin Bonginkosi Nhlabatsi and Others Case No. 91/2010 (unreported).
 At this juncture, it appears to me that the question that calls for my determination is whether there is an error by the Court which, if the Judge had been aware of, would have induced her not to grant the Order that she did. The error which the applicant is complaining about is succinctly stated in his averments in paragraph 7 of the Replying Affidavit as follows:
At paragraph 20 Glover goes to lengths to outline to the court what he calls “current practice” of the above Honourable Court. I have been an officer of the court for some twenty years and it has never been the practice to allow directors or anyone other than a practicing legal practitioner to represent corporate bodies. Even recently the Supreme Court has refused to hear officials representing corporate entities.”
 In a bid to buttress his point, the Applicant’s counsel referred the Court to the decision of Nathan CJ in the case of Khotakhotayo (Pty) Ltd v OK Mbabane (Pty) Ltd 1976 May 31 and then counsel submitted that a company could not be represented in Court unless represented by a legal practitioner and, therefore, that the appearance of a director on behalf of a company constitutes an irregularity.
 It cannot be gainsaid that authorities abound to the effect that a natural person may appear to conduct his own case and has a right of audience for that purpose, but that he is not entitled to do this on behalf of a company or other corporation. See Dormehl’s Garage (Pty) Ltd v Magagula 1964 (1) SA 203 T whereit was held that an artificial person cannot be represented in a Superior Court unless represented by an advocate. See also Yates Investments (Pty) Ltd. v Commissioner for Inland Revenue 1956 (1) SA 364; Also see Ramsey v Fuchs Garage (Pty) Ltd. 1959 (3) S.A. 949 where the Cape Provincial Division per Bloch J held that “as an incorporated company was a fictitious person, that it could only be represented in Court by counsel.”
 In the case of Khotakhotayo (Pty) Ltd v OK Mbabane (Pty) Ltd (supra) the Court held that a company could not be represented in Court unless represented by a legal practitioner. However, what follows next in the said judgment as opined by Nathan CJ is quite significant and for ease of clarity I would reproduce it hereunder as follows:
“Before leaving the case there is one final matter to which I should refer. The respondent at the hearing was represented by Mr Jassat, a director of the respondent. This is not in accordance with what should be the practice in the Courts. A natural person is entitled to appear to conduct his own case and has a right of audience for that purpose. But he is not entitled to do this on behalf of a company or other corporation. …….. I permitted Mr Jassat to address me as the legal position in Swaziland in this connection has not yet been laid down ……….” (emphasis mine).
 Suffice it to say, that the rule of practice that a juristic person has to be represented in the High Court by an attorney is not inflexible and the High Court has inherent power to allow a company to be represented by its director where it is in the interests of justice to do so. A Court is entitled in an appropriate case, to avoid injustice, to give a natural person permission to represent a close corporation in legal proceedings. See the case of Mittal Steel South Africa Ltd t/a Vereeniging Steel v Pipechem CC 2008 (1) SA 640 (C).
 In the case of Manong & Associates (Pty) Ltd v Minister of Public Works And Another 2010 (2) SA 167, the Supreme Court of Appeal per Ponnan JA made the following pronouncement:
“That a person in the position of the managing director of the company had no right, such as counsel and in certain circumstances attorneys had, to address the Supreme Court of Appeal on behalf of the appellant company was well settled. But to observe that he did not have a right of audience was not to answer the question whether the court did not have, and whether the court should not on the facts of the case have exercised, a power to permit him to address the court on behalf of the corporate litigant.………………It thus seemed somewhat unrealistic and illogical to allow a private person a right of audience in a superior court as a party to proceedings, but to deny it to him when he was the governing mind of a small company which was in reality no more than his business alter ego. (Paragraphs  and  at 171 G - 172A and 172E-G.)
 His Lordship then went on to state as follows:
“It followed that cases would arise where the administration of justice might require some relaxation of the general rule. Their occurrence was likely to be rare and their circumstances exceptional or at least unusual. Our superior courts had a residual discretion in a matter such as this arising from their inherent power to regulate their own proceedings. After all, it seemed that the power of a court to give leave to a corporation to carry on a proceeding otherwise than by a legal representative was of necessity an integral part of the rule itself. It was important to emphasise that the power vested in the court in this regard was a purely discretionary power.”
 In this present case, the main reason for relaxing the rule was obvious. In terms of a Resolution of the Law Society of Swaziland, all legal practitioners were bound not to appear before the Courts. Therefore, no corporate party could instruct such appearance and bind its attorney or advocate to such instruction. This created an unusual and unprecedented situation where one party to litigation is a natural person and the other a corporate body, and only the natural person is permitted a right of audience. It would lead to an obvious and grave injustice. The same applies where both parties are corporate entities, since the doors of the Court would be closed to both of them. It is trite that the Court possesses an inherent reservoir of power to regulate its own procedures in the interests of the proper administration of justice. See Universal City Studios Inc and Others v Network Video (Pty) Ltd 1986 (2) SA 734 (A) at 754 G.
 It also needs to be mentioned that in her oral submissions, the Respondent’s counsel informed this Court that the Supreme Court of Swaziland, in its just concluded November 2011 session, permitted such representation by a natural person in the appeal matter of Bani Ernest Masuku and SAFA Investments (Pty) Ltd, Appeal Case No. 09/2011 in respect of which the Supreme Court has also already issued its judgment in favour of the company with costs .
 I am therefore of the firm conviction that, in view of the effect of the said Law Society Resolution, and in order to prevent gave injustice, the Court was undoubtedly justified to permit such appearance by a director on behalf of the Respondent company. It then follows, in the prevailing circumstances, that the representation in Court of the Respondent by a director did not constitute an irregularity and the Order granted was not erroneously sought and erroneously granted.
 In the circumstances, therefore, it is my considered view that this application is lacks merit and ought to be dismissed. As regards the other issues that arise from this matter, it is in my view unnecessary to consider them.
I therefore grant the following Order:
1. The application to rescind and set aside the Order of the Honourable Court granted on the 26thday of October, 2011 be and is hereby dismissed.
2. The Order dated the 28th day of October, 2011, staying the writ of execution levied against the Applicant’s property, be and is hereby discharged.
3. The Applicant is ordered to pay costs of this application on the scale between attorney and client.
DELIVERED IN OPEN COURT IN MBABANE ON THIS THE…………DAY OF ……………………….2011
M. M. SEY (MRS)
JUDGE OF THE HIGH COURT