THE HIGH COURT OF SWAZILAND
the matter between :-
ROAD TRANSPORTATION BOARD Respondent
ROAD TRANSPORTATION BOARD 1st Respondent
MDLULI at/a UMUSA BUS SERVICE 2nd Respondent
February Mr. Matsebula began proceedings in this court against the
Road Transportation Board. His complaint was that the Board had
stopped him from operating a service under a road transportation
service permit, and taken away his disc and tax clearance
retrospect, there were features of his complaint that were open to
comment. In the application, he described the decision that he was
challenging as a refusal by the board to "renew" his
permit. On the other hand, in the second paragraph of his affidavit
setting out the evidence in support of the complaint, he said that he
had received a letter from the Board, on 17th February, "withdrawing"
his permit. Those are really two different things.
letter which he attached to his affidavit in fact refers to the
withdrawal of the permit.
discrepancy does not in my view made greatly. What is clear is that
Mr. Matsebula was complaining that the Board have stopped him,
wrongly, from operating a service. It is not in real dispute that the
Board did decide to stop his service.
he was asking the High Court to do was to intervene to set aside that
that decision. In other words, he was asking the High Court in the
exercise of its supervisory jurisdiction over inferior courts and
tribunals to review the Board's decision.
High Court Rules set out, in rule 53, the procedure that ordinarily
is to be followed in such cases.
Mr. Matsebula did was to ask for a rule nisi, calling on the board to
show cause on a date to be set by the Court why the decision should
not be set aside, with consequential relief.
speaking, although it may be a rather technical point, it was in my
view inappropriate and unnecessary to seek a rule nisi, at least in
terms. Rule 53 sets out clearly the things that an application for
review may seek. These include calling on the lower tribunal (and all
other affected parties, who must accordingly be served with copies of
the application) to show cause why the decision to which the
complaint relates should not be set aside. In other words, rule 53
itself (once invoked) postulates what is in effect a response to a
rule nisi. This is not a pedantic point because the rule itself goes
on to set out the way in which ordinarily the application will take
the present case, Mr. Matsebula's attorney certified that the matter
was urgent. That does not mean either that there is a need for
someone who wishes the High court to review a decision of a lower
tribunal to seek in terms a rule nisi. This is still, formally,
unnecessary. All it means is that "the course" of the
application is to be quickened by curtailing some of the steps
leading to the decision on review.
the outcome of his complaint, Mr. Matsebula also asked for an order
to the effect, i.e. in the meantime, that he should be allowed to
continue to operate his bus service. That did not need a specific
request for a rule nisi either. Interim relief - pending the outcome
of a review - can in any case be granted under rule 53.
short point in this regard (even though I may have put it at some
length) is that on an application for review, the person aggrieved
does not have to concern himself with any formal need to obtain an
interlocutory order that is expressed as being a rule nisi. Rule 53,
once invoked, takes care of that automatically and immediately.
the question that I have now to decide relates to the way in' the
case proceeded after all of that. Mr. Matsebula, on his certificate
of urgency (but nevertheless on notice, though short) did obtain an
order in the form of a rule nisi from me.
was returnable on 18th March. However on 11th March, the second
respondent Mr. Mdluli, on a certificate of urgency, applied to the
High Court to anticipate the return date in terms of Rule 6 (22) of
the High Court Rules and for leave to oppose the application and to
intervene and he joined.
application by Mr. Mdluli stated on its face that the application
would be made on 14th March, 1994, at 2.30 p.m. That was a Monday. It
was served on Mr. Matsebula on Friday 11th March, by being delivered
to his attorneys' office.
Mr. Mdluli's application came before Mr. Justice Weyers on 14th March
at 2.30 p.m., no one appeared on behalf of Mr. Matsebula. It is clear
from the affidavits which have since been filed that the reason for
this, simply, was that within the offices of Mr. Matsebula's then
attorneys, there was an internal breakdown in communication. Mr.
Mdluli's application was not brought to the attention of either of
the partners. Neither of them became aware of it in time. Mr.
Dlamini, the one who was handling the matter, had been away from his
chambers on the Friday, and was in court at Manzini on other business
when Mr. Mdluli's application came on for hearing before Mr. Justice
Weyers on the following Monday.
learned Judge in fact waited until 3.00 p.m. for Mr. Matsebula's
attorneys and then proceeded in his absence , but on a consideration
at the papers, granting leave to Mr. Mdluli to anticipate the return
of the rule nisi, declaring that he should have been joined on the
original application and so joining him, and discharging the rule
nisi with costs to Mr. Mdluli against Mr. Matsebula.
should say in passing that the first respondent had also been served
and had filed an opposing affidavit.
to Mr. Dlamini in an affidavit that he had filed in reply on this
present application for rescission of that judgment, the matter came
before Mr. Justice Weyes again on Friday 18th March because that was
the original return date for the rule. I have difficulty in
understanding how that could have been the reason. It had been
determined on Monday 14th March.
his replying affidavit, Mr. Dlamini did put forward a second reason.
He said that he wanted to seek "clarification" from the
Judge "as to the implication" of the order because it
seemed to him to be "contradictory and vague." I have
difficulty with that explanation too. In first place I do not
consider it to be a proper thing to say. The terms of the order of
14th March are quite clear. I also find it hard to understand on what
basis it was placed once more before Mr. Justice Weyers.
that as it may, it is agreed that it was in fact put before him once
again on the Friday. In his opposing affidavit on the present
application for rescission, Mr. Shilubane has deposed that Mr.
Dlamini argued the matter and sought to file further affidavits
regarding Mr. T. Mdluli's application, but that he failed to explain
his absence on 14th March, and that the Judge held that the rule
could not be revived as the matter had been finally determined and
was therefore res judicata.
Dlamini's replying affidavit is not entirely clear in this respect.
It may have been prepared hurriedly. What he does say unequivocally
is that he denies that he sought to file further affidavits and that
the judge held that the matter was res judicata. He also seems to be
saying, though not clearly, that he denies that he sought to argue
the matter on 18th March, and that on that day he failed to give an
explanation. He does not suggest, however, that he had any other
purpose in coming before the Judge on that day than to seek
clarification of the terms of the order made on 14th March.
dispute of fact does not matter. Counsel for Mr. Matsebula has not
sought to have it referred to oral evidence. For present purposes, I
shall assume that Mr. Shilubane's narrative is therefore corect.
Matsebula on 13th April, on a certificate of urgency, then applied to
have the judgment of 14th March set aside . No explanation has been
offered for the passage of time between 18th March and 13th April.
Mdluli opposes the rescission of the judgment of 14th March. He
submitted in limine that Mr. Matsebula's application for rescission
was fatally defective because it failed to deal with the merits of
the discharge of the rule nisi. It is correct that neither the
founding affidavit nor for that matter the one in reply on this
application for rescission does deal with these merits. On 20th
April, however, I declined to dismiss the application on the point in
limine, but postponed it to allow Mr. Mdluli to file an opposing
affidavit. Thereafter it took its course.
am, reluctantly - because the court never likes to hear a mater
without hearing both sides fully - of the view that on the
authorities the application for rescission must fail. This is not a
case to which rule 31 (3)(b) of the High Court Rules applies. It is
not, properly, a case to which rule 42 applies. The application to
anticipate the return date of the rule nisi and to intervene and
oppose was not granted erroneously by the learned judge. Mr.
Matsebula is to be taken as having had due notice of the hearing. No
other basis, under rule 42, for setting aside the judgment, aplies.
if Mr. Matsebula is to succeed, he can only do so by invoking the
inherent jurisdiction of this court at common law to grant
rescission. The position in that regard, is the same here as in
Bristowe v Hill 1975 SA 505 at page 506 at paragraph C.
common law as to the setting aside of a judgment appears to me to be
stringent. According to Bristowe, the applicant must show a
"supremely and just cause" and must be free from all blame
whatsoever. That decision also cites Voet 2.4.14, in which it is said
in effect that if a summons, duly served, nevertheless does not reach
a party through the negligence of his servants, he himself is to be
held to be at fault. In Vista Estates PVT Ltd v.Animal Breeders
Co-Op. Co. Ltd. 1975 I SA 193, which dealt with a case of gross
negligence, it was nevertheless said at paragraph B on page 197 that
case be no justus error if negligence is present -justus error being
the basis in which relief may be sought on common law.
the present instance , I would hesitate to say that Mr. Matsebula's
attorneys were grossly negligent. They were nevertheless negligent.
They slipped up.
while I think it was open to Mr. Matsebula on this present hearing to
show by argument on the papers as they stand, rather than by setting
it out in his founding affidavit, that he had on the merits a case
notwithstanding Mr. Mdluli's intervention, he has not really done so
at all and it is not for the court to construct such an argument for
those circumstances, I come to the view that I must properly found
that a case for rescission, as such, is not made out, and dismiss the
application with costs to Mr. Mdluli..
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