IN THE HIGH COURT OF ESWATINI
In the matter Between: Case No. 1149/2018
ALPHEOS LUSEKWANE DLAMINI 1st Applicant
NTOKOZO GLORIA MWELI 2nd Applicant
NTOMBI ALICE DLAMINI (NEE NKAMBULE) 1st Respondent
NTOMBI ALICE DLAMINI (NEE NKAMBULE) Applicant
ALPHEOS LUSEKWANE DLAMINI 1st Respondent
NTOKOZO GLORIA MWELI 2nd Respondent
REGISTRA OF BIRTH, MARRIAGES
AND DEATHS 3rd Respondent
ATTORNEY GENERAL 4th Respondent
Neutral citation : Ntombi Alice Dlamini (nee Nkambule) v Alpheos Lusekwane
Dlamini & Three Others (1149/18)  SZHC 03, (7th February, 2019)
Coram : M. Dlamini J
Heard : 29th November 2018
Delivered : 7th February, 2019
Rescission application : applicant entering wrong date in the face of court repetition of the hearing date – all other parties diarising correct date – applicant’s counsel failure to appear in court therefore – court proceeding with trial – applicant seeking rescission of orders entered against her-
Held : applicant cannot deposit his error to the door step of respondent – Steyn CJ’s well established exposition of our law that there are limits upon which a litigant cannot escape his attorney’s laxity and refusal of explanation tendered is upheld
Application refused with cost
Summary: The applicants seeks for a rescission of orders taken during their attorney’s absence in court and after leading of oral evidence by the respondent.
 The 1st applicant has described himself as an adult male of Mkhulamini area, Manzini region. 1st applicant who initiated the present application choose to say nothing of the 2nd applicant. It is not clear why applicant failed to describe his companion in this application. However, the court is aware who 2nd applicant is from the respondent’s main application. 2nd applicant was described by respondent as an adult female widow of Lomahhasha. She was said to have contracted a civil rites marriage with 1st applicant who was also married to the respondent in terms of Swazi Law and Custom. The civil rites marriage between the 1st and 2nd applicants was concluded during the subsistence of the customary marriage between 1st applicant and respondent. The respondent is referred to in applicant’s pleadings as an adult female of Lomahasha.
 The application whose orders are sought to be rescinded by the applicant were for the following prayers:
“1. Declaring the 1st respondents’ Civil rites marriage with
the 2nd Respondents’ under the Marriage Act null and void as bigamy [sic] in terms of Section 7(1) of the Act.
2. Directing the 3rd respondent to cancel the registration of the Civil rites Marriage between the 1st and 2nd Respondent.
3. Directing the 1st Respondent to facilitate and take the initiative to the registration together with the Applicant of their Swazi Customary Marriage with the 3rd respondent within 14 days of the grant of this order.
4. Interdicting the 1st Respondent from occupying the matrimonial home (of the Applicant and the 1st Respondent) with the 2nd Respondent.
5. Directing the 1st Respondent to hand over to the Applicant the spare keys of their matrimonial home to allow applicant access thereat.”
 The respondent’s application came by way of Notice of Motion. When the application came before me on 12th October 2018, Counsel on behalf of applicant albeit that pleadings were closed, pointed out that the only issue he was raising as applicant’s defence to the prayers was that the Swazi law and customs marriage between respondent and his client was never consummated. All other defences were to fall off. On that note, the court postponed the matter to 13th November 2018 for purposes of trial on the issue raised by the present applicant.
 On the return date (13th November 2018), Counsel for applicant was not available. The court waited from 9:30 am for Counsel or the applicant to appear. In the meantime the Registrar was requested to contact Counsel for applicant. In fact both the Assistant Registrar and Counsel for the respondent made frantic efforts to secure the attendance of Mr. Malinga who appeared on behalf of applicant. Responses from both officers of this court were that Mr. L Malinga was out of office and was without a cell phone.
 The next step was to search the High Court and the Industrial Court with a view to ascertain if he was engaged elsewhere within the premises. This again was an exercise in futility. It is after such effort that the matter was recalled in court. By then the time was 10:22 hours. Counsel for respondent having submitted that he was ready for the trial, the court ordered that the trial proceeds.
 Respondent took the witness stand and gave viva voce evidence under oath. She testified that the applicant was her husband. She fell in love with him in 2012. They started to cohabit together in 2013. At that time 1st applicant was ill. She was nursing him. On 20th September 2015 1st applicant married her in terms of Swazi law and custom. They continued to live together after the marriage at his place of employment as he was a teacher.
 It was her further evidence that as soon as the 1st applicant married her, he became abusive towards her. She conceived after the marriage. However owing to 1st applicant’s conduct of subjecting her to abuse, the pregnancy was aborted when she was two months pregnant. They started constructing their now matrimonial home before contracting their customary marriage.
 Before and after marriage, they continued to live together and engaged in sexual inter course. She testified further that the last straw was when applicant physically assaulted her such that she went to report the matter to the police. 1st applicant was arraigned before court. He was convicted and sentenced to two years imprisonment with the entire sentence suspended. At the end of this unchallenged evidence, the court came to the conclusion that the marriage between 1st applicant and respondent was consummated.
 The evidence established that after they were married on 20th September 2015, they continued to live together as husband and wife. As a result, respondent conceived, but for the persistent physical abuse at the hands of applicant, respondent had a miscarriage. The court then granted the prayers sought with costs of suit.
 Mr. Luke Malinga seeks to have the orders set aside. He explains that he made an error when he recorded the date of trial in his records. He states that he entered the date as 30th November, 2018 instead of 13th November, 2018. I am not sure whether 13th and 30th resonates the same. However, the court noted that all other parties; respondent’s Counsel, Assistant Registrar, the presiding judge recorded the correct date as 13th November. What makes it remote for Mr. Malinga to mistake 13th and 30th, as the court recording would bear testimony to this, is that the court repeated over and over the date of postponement.
 When the court emphasised the date, it pointed out that following that Mr. Malinga had the tendency of missing out on appearances, it was imperative that he diarised the 13th November 2018 as the date of hearing in the presence of the court. Mr. L. Malinga assured the court that he had duly diarised the date. This date was emphatically mentioned several times not for anyone’s attention but mainly Mr. L. Malinga who responded that he had noted the date. How he could have missed it is only privy to him.
 In the above circumstances, this court is not prepared to accept the reason advanced by applicant’s Counsel for his failure to appear in court. Worse still he chose to be out of office without a cell phone. He has himself to blame. His slackness cannot be deposited to the door steps of the respondent. The appellant court has pointed out several times that there are limits upon which a litigant cannot escape the tardiness of his lawyer. Steyn CJ expressed in this regard:
“There is a limit beyond which a litigant cannot escape the result of his attorney’s lack of diligence or insufficiency of the explanation tendered, To hold otherwise might have disastrous effect upon the observance of the rules of this Court.”
 1st applicant attorney’s “explanation tendered” as per Steyn CJ cannot be accepted. I am not persuaded why I should deviate from this well founded principle of justice. At any rate the error advanced was committed by 1st applicant’s attorney and not by court or 1st respondent’s counsel. 1st applicant’s Counsel has failed to establish reasonable circumstances which led his to commit such an error.
 In the result, the following orders are entered:
- Applicants’ rescission application is hereby dismissed.
14.2 1st applicant is ordered to pay costs of suit.
M. DLAMINI J
For the Applicant : Mr. M.S. Dlamini of S.M. Mngometulu Attorney
For the Respondent : Mr. L. Malinga of Malinga & Malinga Inc.
 Saloojee and Another v Minister of Community Development 1965(2) SA 135 at 141C-E. See also Ekuhlamukeni Farmers Association v Sipho Dlamini (53/2017)  SZSC 46 (31st October, 2018) para 19