IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
CASE
NO. 455/94
In
the matter between:
LOUIS
DUMA NXUMALO APPLICANT/DEFENDANT
AND
FRANCE
MLAMBO 1ST RESPONDENT/PLAINTIFF
H.R.
LONG (DEPUTY SHERIFF 2ND RESPONDENT HHOHHO DISTRICT)
FOR
APPLICANT/DEFENDANT : MR FLYNN
FOR
1ST RESPONDENT/PLAINTIFF : MR FINE
JUDGMENT
4TH NOVEMBER 1994
In
this application, the applicant seeks an order rescinding a judgment
which was granted against him by default on the 15th July 1994. The
application is opposed. It will be convenient to continue to refer to
the applicant as the defendant and the first respondent as the
plaintiff.
A
summons was issued and served on the defendant's wife at the
defendant's residence in Mbabane on the 22nd June 1994. The claim
against the defendant was for payment of the sum of E15,374.00
together with interest and costs. No intention to defend was filed
and judgment was given in favour of the plaintiff as claimed.
Rule
31(3)(b) of the Rules of the High Court provides-
2
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 the 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.
Rule
31 (3)(b) is indentical to the South African Supreme Court Rule
31(2)(b) and the leading south African decisions in applications of
this nature have been applied by this court. See MSIBI v. MLAULA
ESTATES (PTY) LTD, MSIBI v. GM KALLA & CO 1970-1976 SLR 345 at
248-349 where Nathan CJ considered the South African decisions. To
those decisions may be added HDS CONSTRUCTION (PTY) LTD v. WAIT
1979(2) SA 298 (E). CHETTY v. LAW SOCIETY TRANSVAAL 1985 (2) SA 756;
ZEALAND v. MILBOROUGH 1991 (4) SA 836 (SECLD). It is abudantly clear
from these decisions that an applicant in such applications 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.
The
defendant's explanation for his default is that he was unaware of the
summons as he was away in the United States of America at the time
the summons was served and the default judgment was given.
3
He
states that he left Swaziland on the 17th June 1994 and returned on
the 16th August. He states that he learnt of the default judgment
during a meeting with the Registrar on the 23rd August 1994. The
present application was launched on the 25th August. It was submitted
on behalf of the plaintiff that the defentant's explanation was not
reasonable. As a businessman, it was argued, the defendant ought to
have left arrangements in place to deal with any actions or claims
which might be instituted in his absence. It was argued that he could
have made contact with his wife during his absence and that he could
thereby have been informed of the summons. It is not necessary for me
to deal with this arguement save to say that it would have been
useful to obtain an affidavit from the defendant's wife dealing, in
particular, with the question as to why the summons was not drawn to
the defendant's attention immediately upon his return on the 16th
August 1994. The defendant has, in my view, given a reasonable and
acceptable explanation for his default and the expedition with which
he launched this application is indicative of his serious intention
to defend the action.
Turning
to the defendants defence, all that he has to show at this stage is a
prima facie defence: he must allege facts which will amount to a good
defence if they are ultimately established on trial. See ZEALAND'S
case supra 838 H. The plaintiff's claim arises from a contract for
the erection of a dwelling house for the defendant by the plaintiff.
The defendant has set out the terms of the contract and avers that
there was a breach of material terms of such contract by the
plaintiff. The alleged breach related, inter alia, to the time
allowed for the completion of the house and the plaintiff's failure
to carry out certain work which the plaintiff was obliged to have
completed by other workmen. the plaintiff admits that the house was
not completed on schedule.
4
He
admits that the defendant engaged workmen to "finish off the
construction" but states that this "had nothing to do with
me as no complaint was lodged against me by the applicant nor the
Engineer Mr Humphrey Ndlangamandla in respect of work not properly
done or unfinished." Some argument was directed at the validity
of a "Waiver of Builder's Lien" (annexure B to the
application) which the plaintiff contends is a forged document. The
document has two dates endorsed on it namely 7.11.91 and 25.10.91.
The defendant relies on the former date. The plaintiff points out
that both dates precede the month during which the building contract
was entered into namely December 1991. This does not advance the
plaintiff's case. There may have been good reasons for the document
being signed at the time/s it was signed. It is not necessary for me
to make a decision on its validity, in the application, based on the
plaintiff's allegations.
The
defendant has, in my view, clearly made out a defence. The default
judgment granted against him on the 15th July 1994 is hereby set
aside. The costs of the application will, as tendered by Mr Flynn
from the bar, be borne by the defendant.
B.
DUNN
JUDGE
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