IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
CIV.CASE
NO.1243/92
In
the matter between:
MATSAPHA
KNITWEAR (PTY) LTD Applicant
And
GIRDWOOD
GARDENS AND FENCING (PTY) LTD Respondent
C
O R A M : DUNN J.
FOR
THE APPLICANT : MRS CURRIE
FOR
THE RESPONDENT : MR VAN HEERDEN
JUDGMENT
5th
March 1993
The
applicant (defendant in the main action) seeks an order rescinding a
judgment granted in favour of the respondent (plaintiff in the main
action) , on the 13th November 1992 for payment of the sum of
E11,673.00 together with interest and costs. The application is
opposed.
The
summons commencing action was served on the applicant on the 9th
October 1992. The applicant had 10 days within which to file a notice
of intention to defend. Rule 19(1) provides -
Subject
to any direction given by the court, the defendant in every civil
action shall be allowed at least ten days after service of summons on
him (and where he resides more than eighty kilometres from the seat
of the court at least fourteen days) within which to deliver a notice
of intention to defend, either personally or through his attorney.
2
"Deliver"
in terms of the interpretation of the Rules means to "serve
copies on all parties and file the original with the Registrar".
It
is the established practice (a sound a salutary one) for an
endorsement to be made on the face of the notice of intention to
defend, reflecting that it is to be served on the plaintiff with an
acknowledgment by the plaintiff that such notice has been served and
the date thereof.
The
applicant filed a notice of intention to defend dated 12th October
with, the Registrar on the 13th October 1992. The notice was not
served and bore nor endorsement that it was to be served, on the
respondent. The respondent subsequently applied for and was granted
default judgment on the 13th November 1992. The applicant learnt of
the default judgment on the 19th November when the Deputy Sheriff
produced a warrant of execution.
Rule
31(3)(b) reads -
A
defendant may, within twenty-one days after he has had 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 payment of the
costs of the default judgment and of such application to a maximum of
E200.00 set aside the default judgment on such terms as to it seems
fit.
The
applicant has paid the E200.00 security for costs.
3
An
applicant in an application for rescission of a judgment granted by
default must -
give
a reasonable explanation for his default;
show
that his application is bona fide and not made with the object of
delaying the opposite party's claim;
show
that there has not been a reckless or intentional disregard of the
Rules of Court;
show
that his action is not ill-founded;
show
that any prejudice to the opposite party could be compensated for by
an appropriate order as to costs.
See
MSIBI v. MLAULA ESTATES (PTY) LTD, MSIBI v. GM KALLA & CO. 1970
-1976 SLR 345 and the authorities cited at 348.
Two
affidavits have been filed by the applicant. The first affidavit is
by Mrs Currie who was instructed by the applicant. Mrs Currie states
that on receipt of the respondent's summons she "immediately
prepared a notice of intention to defend and instructed the firm's
messenger to serve the notice on the plaintiff's attorney and to file
same in the High Court". She states at paragraph 6 that she had
no knowledge that the Notice was not served on the plaintiff's
attorney. She submits at paragraph 7 that the applicant "should
not be burdened with a judgment obtained in error because the Notice
of intention to defend was not served on the plaintiff's attorney."
Mrs
Currie does not state whether or not she checked
4
that
the Notice was served by the messenger. The messenger has not filed
any affidavit setting out what his instructions were and as to why
the Notice was not served on the plaintiff. It was clearly the duty
of the applicant's attorney to ensure that the notice was served on
the plaintiff. The notice should have been checked to ensure that it
had been endorsed by both the plaintiff and the Registrar.
The
second affidavit is by Lynette Rowberry, the Personnel Manager of the
applicant company. She sets out the circumstances under which Mrs
Currie was instructed and as to how she learnt of the default
judgment on the 19th November 1992. The terms of the contract from
which the action arose are set out in Rowberry's affidavit as
follows-
7.
The Respondent entered into an agreement with the applicant company
in terms of which the respondent would supply:
Ten
silky Oak trees.
Extend
a drain to convey rain/storm water from the premises towards the
fence.
Regrass
the Matsapha factory site.
Complete
the work within 30 days.
Maintenance
of landscaping - 90 days.
It
is averred that the applicant's obligation under the contract was to
ensure that the respondent had water and accessibility to the site
and to provide one gardener at the end of the contract to assist the
respondent during the maintenance period. The applicant alleges at
paragraph 10
5
that
the respondent "failed to comply with the terms of the contract,
in particular, the respondent failed to regrass the Matsapha factory
site in terms of its contract and further failed to extend a drain to
convey rain/storm water from the premises to the fence." These
allegations relate to part of the respondent's claim. The applicant
has not set out any right to repudiate the contract based on the
alleged failure by the respondent to comply with the matters
complained of. Further, the applicant has not set out the extent of.
the claim which it states it can resist as a result of the
respondent's failure to comply with its obligations. The respondent
has replied to these allegations and the dispute between the parties
centres on the obligation to ensure the supply and availability of
water throughout the contract period by the applicant. There are
references to water restrictions imposed by the Town Council and the
failure by the applicant to honour an undertaking to provide a
borehole during the contract period. These are matters which cannot
be properly resolved on the affidavits.
It
is with some hesitation based largely on the view I take of the
indifferent and casual attitude adopted by the applicant's attorney
in dealing with the action in the first instant and in preparing the
present application, that I find that this is a proper case in which
to grant the relief sought. The case of ZEALAND v. MILBOROUGH 1991(4)
S.A. 835 is authority for the proposition that if an applicant for
rescission of a judgment in terms of Rule 31(2) (b) can show a bona
fide defence to portion of the judgment, he is entitled to rescission
of the whole judgment. My so holding should in no way be construed as
condoning the disregard of the Rules and as a departure from the
requirement for the exercise of care in the preparation of
applications.
6
The
judgment granted on the 13th November 1992 is hereby set aside. The
applicant is to pay the costs of this application.
B.
DUNN
JUDGE
Adidas NMD R1 