THE HIGH COURT OF SWAZILAND
the matter between:
MABANDLA KHUMALO Applicant
SANDLANA DLAMINI Respondent
O R A M : DUNN J.
THE APPLICANT : MR NTIWANE
THE RESPONDENT : ADV. FINE
is an application for the rescission of a judgment granted against
the applicant/defendant by default on the 14th August 1992. The
summons commencing action was issued on the 7th July 1992.
of the summons was effected by the deputy sheriff at the applicant's
place of employment (Central Bank of Swaziland). The personnel
manager of the Central Bank attempted to serve the summons on the
applicant who refused to accept service. The personnel manager filed
a return of service to that effect and the respondent proceeded in
terms of the Rules of Court to apply for a default judgment.
applicant in such an application must in terms of Rule 31(2) (b) show
good cause for the relief sought. In order to show good cause an
applicant must comply with the following -
must give a reasonable explanation of his default;
application must be made bona fide; and
must show that he has a bona fide defence to the plaintiff's claim.
HDS CONSTRUCTION (PTY) LTD v. WAIT. 1979(2)S.A. 298. Theapplicant
sets out that had he known about the action he would have defended it
as he has a good defence to the claim. He deals with the service of
the summons by the personnel manager and ' submits that such service
was defective in that –
When Mr Joe Mabuza came to me at work he instructed me to accept an
envelope stating that it contained court documents. He never
explained to me that inside the envelope was a summons and he never
explained the nature and exigency thereof.
Notwithstanding that I told Mr Joe Mabuza that I had attorneys who
had successfully dealt with a matter substantially similar to the
present matter under case no.688/92 between Respondent and myself and
that all court process had to be served upon my attorneys. Mr Mabuza
failed to advise me what the contents of the envelope were and that I
would be required to enter an appearance to defend within a number of
days if I so wished.
applicant proceeds to state at paragraph 9 of his affidavit that he
"was afraid of receiving" the envelope from Mr Mabuza
because he thought that the summons Mr Mabuza wanted to serve on him
related to case No. 688/92.
is difficult to appreciate precisely why the applicant refused the
court process It is abundantly clear from his own narration of what
transpired that he was aware that the personnel manager had a summons
in his possession for service on the applicant. There is no reason
whatsoever for the applicant to have associated the summons with case
no. 688/92 without first looking at the summons.
interim order granted in case No. 688/92 had, to the applicant's
knowledge, been discharged and service of the summons could not be
effected on the applicant's attorneys without specific instructions
to them in the matter, by the applicant.
of the summons was properly effected in terms of Rule 4(2)(c) at the
applicant's place of employment. The applicant showed complete
contempt for the court process and refused to accept service. He
cannot now be heard to say that his failure to defend the action was
not as a result of a wilful disregard of the Rules. The applicant
deliberately placed himself in the position which resulted in
judgment being granted against him. The applicant has failed to
satisfy the court on the first of the requirements I have set out and
on that ground the application stands to be dismissed.
is also the question of a bona fide defence. The applicant simply
states that the Deed of Sale between the parties was cancelled after
the respondent had failed to furnish a guarantee in terms of the said
Deed. The Deed of Sale makes no reference to the furnishing of a
guarantee by the respondent. The Deed provides that the payment of
the balance of the purchase price "shall be payable on
registration of transfer to the Central Bank of Swaziland within
twenty one days from date of the signing of the Deed of Sale."
The applicant is called upon to show, at this
a prima facie defence. He must set out facts which if established at
the trial would amount to a defence. The allegation of cancellation
of the Deed of Sale is, in the circumstances of this case, not such a
fact. The applicant has shown no prospect of success on the merits.
application for rescission is dismissed with costs.
Puma Rihanna Creeper