THE HIGH COURT OF SWAZILAND
AT MBABANE CASE NO. 1784/93
the matter between:
BANK OF SWAZILAND PLAINTIFF
MKHATSALI ZWANE DEFENDANT
THE PLAINTIFF MR. KHUMALO
is an application to set aside a default judgment granted on the 18th
March 1994. The action arose from the defendant's failure to repay a
loan which was granted to the defendant upon terms contained in
Mortgage Bond Numbers 214/81 and 204/1983. The summons commencing the
action was served at the domicilium citandi et executandi namely Lot
No.20 Zembe and Sukati Streets, Sandla Township, Mbabane on the 1st
March 1994. A writ of execution was subsequently issued and the
deputy sheriff advertised for the sale by public auction of Lot 20
Sandla Township. The sale was to be held on the 13th May 1994.
the 29th April 1994 the defendant filed the present application which
also contained a prayer for an order staying the sale in execution
pending the finalisation of this application. The defendant was
a stay of the sale in execution. Several requests were made for a
date for the hearing of the application and the matter was eventually
set down for the 9th March 1995. On that date serious difficulties
were encountered as the defendant attempted to move the application
himself without legal representation. The requirements which an
applicant is obliged to satisfy in such applications were explained
to the applicant and he was urged to consider engaging the services
of an attorney. The hearing was adjourned to the 24th March 1995 for
purposes of enabling the defendant to seek legal advice.
the matter was called on the 24th March the defendant indicated that
he stood by the contents of the affidavits he had filed in support of
the application which he would argue himself.
applicant in an application for rescission of a default judgment must
a reasonable explanation for his default;
that his application is bona fide and not made with the object of
delaying the opposite party's claim;
that there has not been a reckless or intentional disregard of the
Rules of Court;
that his action is not ill-founded;
that any prejudice to the opposite party-could be compensated for by
an appropriate order as to costs.
MSIBI v MLAULA ESTATES (PTY) LTD, MSIBI V G M KALLA AND COMPANY
1970-1976 SLR 345 and the authorities there referred to at p. 348.
defendant has paid little, if any, attention to these requirements.
He states that he was unaware of the summons until the 11th April
1994. The defendant selected the domicilium citandi et executandi.
The summons is endorsed as having been properly served by the deputy
so far as setting out a bona fide defence, the defendant states that
he authorised the plaintiff to work out moneys due to him in respect
of benefits and pension and to transfer such moneys "into the
loan account to reduce the money owing". It appears from a
considerable amount of correspondence between the plaintiff and the
defendant, which was annexed to the plaintiff's answering affidavit,
that the question of the termination of the defendant's services with
the plaintiff was a protracted one which resulted in an action before
the Industrial Court. No agreement was reached between the parties
regarding the application of any of the defendant's terminal benefits
towards servicing the defendant's loan with the plaintiff. The
defendant admits in his supporting affidavit that his attempts at an
amicable settlement of the matter were not successful as the
plaintiff's attitude was that the matter
"dragged on for a long time". The defendant's averments
regarding the unsuccessful attempts by him to secure a settlement do
not amount to a defence to the plaintiff's claim.
defendant has failed to satisfy the requirements necessary for the
grant of the relief sought. The application for the setting aside of
the default judgment of the 18th March 1994 is dismissed with costs.
The interim relief staying execution of the writ accordingly falls
U D G E