The Quadro Trust and others v Mabuza and others (1464/2017) [2018] SZHC 106 (31 May 2018);

 

 

 

IN THE HIGH  COURT OF  SWAZILAND

JUDGMENT

HELD AT MBABANE                                                          CASE NO. 1464/17

In the matter between:

 THE QUADRO TRUST                                            1^st APPLICANT

THOMAS MOORE KARL KIRK                              2^ND APPLICANT                  

ROBERT RICHARD JAMES KIRK                         3^RD APPLICANT

And

PAUL GUY MABUZA N.O                                        RESPONDENT

In re:

PAUL GUY MABUZA N.O                                        APPLICANT

And

THE QUADRO TRUST                                              1^st RESPONDENT

THOMAS MOORE KIRK                                          2^ND RESPONDENT

ROBERT RICHARD JAMES KIRK                         3^RD RESPONDENT

MAVIS HAZEL INSKIP                                             4^TH RESPONDENT

THE MASTER OF THE HIGH COURT                            5^TH RESPONDENT

THE ATTORNEY GENERAL                                   6^TH RESPONDENT

 

Neutral Citation: The Quadro Trust and others vs. Guy Mabuza N.O (1464/17) [2018] SZHC 106 [2018] ( 31^st May 2018)

Coram:                J.S Magagula J

Date Heard:         25^th April 2018

Delivery Date:     31^st May 2018

 

[1]     This is an application for rescission of judgment granted by this court on the 4^th April, 2018 in the absence of the applicants. The matter had, on the 23^rd March, 2018 been postponed to the 4^th April, 2018 by consent of the parties whose representatives were before court. Mr . Bhembe was appearing for the Applicant in the main application whilst Mr .Mamba appeared for the 1^st to 3^rd Respondents in that matter. The matter was specifically postponed to commence at 8.20 am on the 4^th April 2018.

[2]     When the matter was called sometime after 8.30 am Mr. Bhembe indicated that Mr. Mamba was not before court and that he had tried to contact him telephonically without success. I directed that the matter be stood down till 9.30 am as I could not see my note on the file indicating the matter would proceed at 8.30 am. When the matter was recalled at 9.30 am Mr. Mamba was still not in court and Mr. Bhembe applied that the application be granted as prayed as the opposing affidavit did not really reveal a defense to the application. Having considered the full set of papers filed and being satisfied that the application ought to succeed, I duly granted the application as prayed. Subsequently the present rescission application was launched by the present applicants and it is opposed by the respondent.

[3]     The substantive orders sought in the present application appear as prayers (b) and (c) in the Notice of application and they are couched as follows:

“ b)   Staying the execution and the effect of the order granted under case No: 1464/2017 on the 4^th April 2018 pending finalization of this matter.

c)       Rescinding and setting aside of the judgment issued by the above Honourable Court under case No. 1464/2017 on the 4^th April 2018 granting costs in the event of opposition.”

[4]     The Application is supported by an affidavit deposed to by Mr. Lindifa Ronald Mamba (Applicant’s Attorney) in which he tries to explain his non appearance in court on the 4^th April, 2018.

[5]     In seeking to explain his non – appearance in court Mr. Mamba starts by confirming that the matter was indeed postponed in his presence to the 4^th April 2018. He however states that he mistakenly assumed this date fell on a Thursday when it actually fell on a Wednesday.

[6]     I must say that Mr. Mamba’s explanation is somewhat confusing. Firstly he says he informed his personal assistant to diarize the 3^rd April, 2018 as the date for them to prepare heads of argument in the matter and his personal assistant duly diarized Tuesday the 3^rd April 2018 as instructed. The said personal assistant has deposed to an affidavit attaching proof of the entry in the diary which  shows clearly that the 3^RD April is a Tuesday.  Mr Mamba also states in his affidavit that he indeed started preparing the heads of argument on Tuesday 3^rd April 2018. It then baffles the mind how he still thought the 4^th April was a Thursday. This is a totally unclear and unconvincing explanation. Even if he had earlier on assumed that the 4^th April fell on a Thursday, surely when he was preparing the heads of argument he ought to have realized that the day was Tuesday and the 3^rd April. This should at least have reminded him that the 4^th April fell on the following day which was a Wednesday. Mr Mamba’s explanation in this regard clearly lacks clarity and I totally reject it without any hesitation.

[7]     Further in paragraph 8 of his affidavit Mr. Mamba states:

“ I had not filed Heads of Argument and when I returned to the office, I asked my personal assistant, Noreen Chiku, to diarize the Tuesday of the 3^rd as a date for us to prepare Heads for the matter to be heard on the Thursday …” ( underlining added).

          From the foregoing it is clear that Mr Mamba knew very well that the 3^rd April fell on a Tuesday. It is then surprising how and when did he begin to assume that the 4^th April fell on a Thursday.

[8]     Also in paragraph 9 of his affidavit Mr Mamba seem to be saying that he prepared the Heads on the 3^rd April and when he tried to serve them he was told that the matter was in court in the morning of the same day. This is clearly not correct as it is common cause that the matter was heard on the 4^th April.

[9]     From the foregoing it is clear that there is no reasonable explanation why there was no appearance on behalf of the Applicants herein on the 4^th April 2018. Good cause has therefore not been shown and for this reason the application for rescission must fail.

[10]   It is trite that Applicants also have to show that they have prospects of success on the main application if rescission is granted. Mr Mamba’s affidavit does not make even a feeble attempt in this regard. He just states in paragraph 13 of his affidavit:

“ …..The applicants have raised valid points in limine in opposition to the application, which points in my view are well founded…”

I am not sure if this is meant to address the question of prospects. If it is, it is certainly a far cry from what is expected. Indeed during argument Mr. Mamba relied on some points of law which he maintained that they show prospects of success. In my view however the Applicants ought to make out their case in his regard in their affidavit supporting the application and not just through arguments from the bar.

[11]   In any event having come to the conclusion  that the applicants have failed to give a reasonable explanation for their non – appearance on the 4^th April 2018 and that they have failed to address in their affidavit the question  prospects of success  in the main application, I have no other route to take save to dismiss this application.

         

 

The application is accordingly dismissed with costs.

 

________________

J.S MAGAGULA J

 

For the Applicant :       Mr. L R Mamba

For the Respondent:     Mr. S. Bhembe