IN
THE HIGH COURT OF SWAZILAND
Case
No. 847/93
In
the matter between:
THE
ATTORNEY GENERAL 1st Applicant
THE
ROAD TRANSPORTATION BOARD 2nd Applicant
and
SANDILE
D. DLAMINI Respondent
and
In
re:
SANDILE
DLAMINI Plaintiff
and
ROAD
TRANSPORTATION BOARD Defendant
Judgment
(7/6/95)
This
is an application under rule 42(1) of the High Court Rules to set
aside a default judgment.
On
13th November 1992 the Road Transportation Board purported to suspend
the respondent's permit to operate a road transportation service. He
challenged its action on review in this court which on 22nd January
1993 ordered the Board to restore the permit.
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Thereafter
on 14th June 1993 the respondent commenced an action against the
Board claiming damages for loss of income during a period of two
months during which the Board failed to comply with the order.
The
Board was the only body named as the defendant in the action. The
combined summons was served on its secretary but not on the Attorney
General.
No
notice of intention to defend was filed on behalf of the Board. The
respondent, as plaintiff, was on 1st September 1994 granted leave to
lead evidence by way of affidavit in proof of his claim and given
judgment in default for the amount claimed by him and interest and
costs.
The
Attorney General has applied to set aside the default judgment on the
grounds that he was not cited as a defendant and that he was not
served with the combined summons.
A
further ground alleged is that the respondent failed to serve on him
a letter of demand in compliance with the requirements of section
2(1)(a) of the Limitation of Legal Proceedings Against the Government
Act 1972, but on the whole of the evidence on the present application
for rescission, it is apparent that such a demand was made on 14th
January 1993. It was addressed incorrectly, to the Chairman of the
Board. Nevertheless a copy was sent to the Attorney General. In
substance, therefore, demand was made.
A
copy of the default judgment was served on the Attorney General at
some time between 1st and 5th September 1994.
I
do not consider that it was essential for the respondent to make the
Attorney General a nominal defendant in the action. However it is
evident that the respondent has sued and has intended to sue the
Government. The Board is a statutory government body. He did not cite
is members individually as defendants. He served a demand under the
Act, and the judgment on the Attorney General. No doubt he will look
to the Government for payment of any damages to which he is entitled.
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In
these circumstances, he was in my view bound to serve the combined
summons at the office of the Attorney General. Rule 4(10) of the High
Court Rules so requires. Rule 4(2)(h) does not modify that
requirement because it is concerned with the case where a statutory
body per se has to be served. Here, as I say, it is clear that the
respondent has sued the Government. Rule 4(10) has not been complied
with.
This
court has an inherent jurisdiction to set aside a default judgment.
Although I am bound to say that I think the sensible course would
have been for the secretary to the Board to take the combined summons
to the Attorney General on its receipt, so that the Attorney General
could appear at the hearing of the action and take any procedural
points that he wished to raise then, the failure of the respondent to
serve the combined summons on the Government legal representative, as
stipulated in the rules, was in my view a serious procedural
irregularity and a fundamental one. The case is different from the
one in which an applicant for rescission has been served but has
failed to file notice of intention to defend. Although in those
circumstances, I do not consider that the prospect of a good defence
is relevant, I am also of the view that if the Attorney General
decides to defend the claim, important issues of law might arise, on
which he should be heard.
The
judgment by default given on 1st September 1994 is therefore
rescinded. The respondent, if he wishes to proceed upon his action,
is to serve the combined summons at the office of the Attorney
General. Thereafter the action is to take its course. The costs of
this application for rescission are to be the present applicant's
costs in any event.
DAVID
HULL
CHIEF
JUSTICE
