IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 2019/2008
In the matter between:
SARAH MASINA APPLICANT
AND
THABSILE LUKHELE RESPONDENT
FLORA DUBE AND OTHERS
CORAM OTA J.
For the applicant
For the defendant
[1] Serving before court is an application, wherein the applicant seeks to rescind a default judgment granted against her on the 8th of August, 2008, under Case No. 2019/2008.
[2] It is obvious from the papers that the applicant failed to indicate under which provision of the Law the application is brought. I am thus constrained in the circumstances, to consider this application under the three provisions in our law upon which such an application could be premised, V12:- Rule 31 (3) (b) of the Rules of the High Court, Rule 42 of the rules and the Common Law. I will come to these provisions in a while. Let me first digress here to observe, that when this matter served before Court for argument on the 9th of March, 2011, the 1st Respondent was represented by Mr Xaba. The applicant was absent and unrepresented, inspite of the fact that Notice of set down dated the 2nd day of February, 2011, was duly served on the applicant.
[3] I proceeded with this matter pursuant to Rule 39 (3) of the Rules of this Court, since there was no reason tendered for a postponement of same. Since the applicant has filed her heads of argument, I will consider it as well as all other papers filed, in the course of determining this application. The foregoing said and done, let me now turn to the substance of this matter. I prefer to commence this exercise with a consideration of the relief sought, vis a vis rule 31 (3) (b) of the Rules of this Court, which provides as follows:-
‘‘ A defendant may within twenty-one days after he has knowledge of such judgment apply to Court upon notice to the plaintiff to set aside such judgment and the Court may, upon good cause shown, and upon the defendant furnishing to the plaintiff security for the payment of the costs of the default judgment and of such application, to a maximum of E200, set aside the default judgment on such terms as to it seems meet”
[4] It is apparent from the legislation ante, that the first two hurdles that this application has to scale for it to succeed, is that it must have been brought within 21 days of the date of the knowledge of the judgment and that the applicant must tender security for costs to the tune of E200. It is not apparent ex facie the affidavit upon which the application is founded, when the applicant became aware of the said judgment. It is not also apparent ex facie the affidavit, whether the applicant tendered security for costs. Even though at paragraph 3.3 of the 1st Respondent’s Replying Affidavit, the 1st Respondent specifically deposed that the applicant failed to tender the normal security for costs, she however, appears to have abandoned this line of argument as no representations were made in furtherance thereof, by learned counsel for the 1st Respondent, either in the heads of argument or oral submissions in Court. The foregoing not withstanding, I do not think that these procedural irregularities should defeat a consideration of the substance of this matter. I have said it in several of my decisions, the most recent of which is the case of Phumzile Myeza and others vs the Director of Public Prosecutions and another case No. 728/2009 that justice can only be done if the substance of a matter is considered. Reliance on technicalities serves to render justice grotesque and in some circumstances leads to outright injustice. This is more so as the 1st Respondent has failed to disclose any prejudice she has suffered by reason of non compliance with these procedural steps. I must say that I am not alone in my posture on the above subject matter. This is because the Supreme Court of Swaziland, itself, made a similar pronouncement in the celebrated case of Shell Oil (Swaziland) Ltd V Motor World (Pty) Ltd t/a Case No. 23/2006 (unreported), at page 23, where the Court admonished that as far as possible, courts should avoid deciding cases on technical points, and in the process, eschewing dealing with important substantive matters on their real merits.
[5] Then there is the dictum of Heever JA in the case of Andile Nkosi V The Attorney – General Appeal Case No. 51/1999 at page 7, where his Lordship declared as follows:-
‘‘ Rules governing proceedings such as rules of Court, are guidelines aimed at obliging the litigants to define the issues to be determined, within a reasonable time and enabling the courts, as a consequence, to organize their administration as quickly, effectively and as fairly as possible’’.
[6] In the circumstances, I will proceed to consider the merits of this application, irrespective of the intervening circumstances.
[7] Now for this application to succeed pursuant to Rule 31 (3) (b) ante, the applicant must demonstrate the following:-
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That he has a reasonable explanation for his default.
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That his application is bonafide and not launched as a dilatory stratagem geared to frustrate the successful party in the early enjoyment of the fruits of his judgment; and
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That he has a bonafide defence to the plaintiff’s claim.
[8] See Johannes Manguluza Tsabedze V Swaziland Development and Savings Bank and others Case No. 251/2007, The African Echo (Pty) Ltd t/a The Times of Swaziland and Another V Thulani Mau Mau Dlamini Civil Case No. 3526/2000 Let me now proceed to consider these parameters ad seriatim, vis a vis, the facts alleged by the applicant in her affidavit.
[9] 1. Reasonable explanation for default
In contending this issue, learned counsel for the applicant submitted as follows in paragraph 4 (a) of page 3, of the applicant’s heads of argument:-
[10] ‘‘(a) The applicant was not in willful default of defending the summons as stated in paragraph 5.8 of her affidavit, where she stated that after being served with the summons she went to the offices of the First Respondent’s Attorneys to enquire about the summons, and also put forward her side of the story. She was advised that she would be called to a meeting at a later date together with the First Respondent to resolve the matter, however, that did not happen and default judgment was granted against the applicant, further to that the Applicant is illiterate and not well versed with court procedures’’.
[11] Now, in paragraph 5.8 and 5.9 of the Founding Affidavit, the Applicant averred as follows:-
‘‘ 5.8 After being served with the summons, sometime in February 2009, I attended at the offices of the 1st Respondent’s Attorneys, to enquire about the same and put forward my side of the story. Further to that I thought that it was the right thing to do as the summons were issued by their offices and I am illiterate and not well versed with Court procedures. The Attorney handling the matter advised that he would call me to a meeting at a later date together with the 1st Respondent to resolve the matter, however I was never called.
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As a result of the foregoing reasons I did not defend the summons and default judgment was granted in my absence and without my knowledge-----’’
[12] The question here is: Do the foregoing allegations of fact demonstrate a reasonable explanation for the applicants default. In other words, do the foregoing allegations of fact demonstrate that the applicant was not in “wilful default’’ in attending Court?
[13] In the case of Harris V ABSA Bank Ltd t/a Volkskas, 2006 (4) SA 527 (1) paragraph 8, page 530, Moseneke J, elucidated the principles that must guide the court in determing wether an applicant for a rescission is in default, as follows:-
‘‘ 8. Before an applicant in a rescission of judgment application can be said to be in “wilful default’’ he or she must bear knowledge of the action brought against him or her and of the steps required to avoid the default. Such an applicant must deliberately, being free to do so, fail or omit to take the step which would avoid the default and must appreciate the legal consequences of his or heractions’’
[14] Now there is a return of service filed by the Deputy Sheriff, Flora Dube, 2nd Respondent, in respect of the summons which gave birth to the default judgment, subject matter of this rescission application. That process demonstrates that on the 25th of June 2008, at 1050hrs, the deputy sheriff served the summons upon Applicant, Sarah Masina (personally) at her place of residence (Fonteny), Mbabane, district of Hhohho, by handing to her a copy thereof after exhibiting the original and explaining the nature and exigency of the said process, under the provisions of Rule 4 (2) (a) Act 20/1954. It is beyond disputation therefore, that the said process was served on the applicant personally on the 25th of June 2008, Contrary to her allegation that it was served on her sometime in February 2009. It is also obvious to me, that the applicant was fully aware of the step to take to avoid a default and the consequences of not taking that step. This is because the return of service shows clearly, that the Deputy Sheriff, explained to the applicant the nature and exigency of the said process pursuant to Rule 4 (5) of Act 20/1954, at the time of effecting service upon her.
[15] The said Rule 4 (5) of Act 20 of 1954 states at follows ‘‘ it shall be the duty of the sheriff or other person serving the process or documents to explain the nature and contents thereof to the person upon whom service is being effected and to state in his return that he has done so”. The said return of service has not been challenged in these proceedings, it is thus taken as established.
[16] In the circumstances, the allegation by the applicant that she is illetrate and is not well versed with court procedures cannot avail her.
[17] Neither can the blame that applicant seeks to put at the door step of respondents counsel, for her default, avail her. This is because the time frame which the applicant alleges that she was served and she met with respondents counsel, which is sometime in February 2009, contradicts the conspectus of the evidence serving before Court which is that the process was served on the applicant on the 25th of June, 2008 and default judgment obtained on the 8th of August, 2008. The explanation advanced by the applicant, to put it in mild terms, defies common sense and reason, and is thus discountenanced.
[20] I therefore hold the applicant in wilful default in the circumstances. This is more so because I hold the view, that if applicant’s allegation that she approached the Respondents attorneys only in February 2009, is to be countenanced, it follows that she did so 6 months after judgment was rendered in this case, which conduct in itself constitutes ‘‘ wilful default ’’ , since it demonstrates that the applicant deliberately failed or omitted to take the steps to avoid the default judgment, after service was effected on her.
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That the application is bona fide and not geared to frustrate the Respondent’s victory.
[21] I am firmly convinced that the application instant is lacking in bona fides. The applicant has chosen to engage in frivolities geared towards frustrating the Respondent’s victory by way of default judgment, and is hoping to drag the Court along with her.
[22] I say this because the claim giving rise to the judgment subject matter of this application was for a loan of E5,000 given to applicant in October, 2007. The processes were served on the applicant on the 25th of June 2008. She did nothing about the summons, and default judgment was granted on the 8th of August, 2008. Now the applicant, is before Court alleging that the loan was for an amount of E1,000 given to her by the 1st Respondent in late 2008, which she repaid within one month. This allegation of fact seeks to set up an entirely different claim from that upon which the default judgment was founded. I say so because its time frame runs contrary to that exhibited by this case to the effect that the loan was for E5,000, given in October 2007, the processes were served in June 2008 and judgment obtained in August 2008. The question here is: If the loan was given and repaid in late 2008, as alleged by the applicant, then how comes the processes were served in June 2008 and judgment obtained on 8th of August, 2008. These dates can hardly be termed ‘‘ late 2008 ’’ and I so hold. I’ll thus discountenance these allegations of fact and hold that the application is in the circumstances not bona fide.
[23] 3. Bona fide Defence
In the same vien I hold that the applicant has failed to disclose that she has a bonafide defence to entitle her to the rescission sought. This is because the defence she seeks to set up in relation to the allegation that the loan was for E1,000, which was given to her by 1st Respondent in late August, and which she repaid within the same month, has failed to address the claim that gave birth to the default judgment, which was for a loan of E5,000 given to applicant in October 2007, in respect of which summons was served on the applicant middle 2008 i.e. June 2008, and judgment was obtained in August 2008. It appears to me therefore, that the loan of E1,000 alluded to by the applicant, is an entirely different transaction from the subject matter of the claim that gave birth to the default judgment, sought to be rescinded instant. The applicant’s affidavit has thus failed to disclose a bonafide defence to the claim, substratum of the judgment sought to be rescinded. In the light of the totality of the foregoing, the applicant has failed to demonstrate that she is entitled to the rescission sought, pursuant to Rule 31 (3) (a) of the rules of this Court.
[24] Similarly, this application cannot see victory under rule 42 of the Rules. This is because as required by that rule, the applicant’s founding affidavit has failed to demonstrate that the judgment sought to be rescinded was granted either erroneously by the Court, or that there is an ambiguity, patent error or omission on the judgment itself, or that it was granted as a result of a mistake common to both parties.
[25] See Bakoven V G J Howes (Pty) Ltd 1992 (2) SA 466 at page 471 E-G, Nyingwa V Moolman N O 1993 (2) SA 508 at 510 F.
[26] Furthermore, as I have already held in this judgment, the applicant has failed to demonstrate that she has a bona fide defence to the claim.
[27] Similarly, the application must also fail under the Common Law, because as I have already demonstrated in this judgment, the applicant has failed to advance a reasonable explanation for her default and has also failed to disclose a bona fide defence to the claim. These are the prerequisites of a grant of a rescission application under the Common Law.
[28] In the light of the totality of the foregoing, this application has no legs to stand upon, it fails and is accordingly dismissed with costs.
DELIVERED IN OPEN COURT IN MBABANE ON THIS
THE ……………………………… DAY OF ………….. 2011
OTA J.
JUDGE OF THE HIGH COURT
