THE COURT OF APPEAL OF SWAZILAND
AT MBABANE CIVIL APPEAL NO.32/97
the matter between:
D. DLAMINI APPELLANT
GENERAL 1ST RESPONDENT
ROAD TRANSPORTATION BOARD 2ND RESPONDENT
THE APPELLANT :
THE RESPONDENTS :
appellant was the unsuccessful respondent in the Court a quo in which
an action brought by him against the first respondent and the
Government represented by the second respondent was dismissed with
costs by Sapire A
J. The action was so dismissed by reason of the Court a quo holding
that the appellant's claim was time-barred and accordingly upheld the
second respondent's plea in abatement that the appellant's claim was
prescribed in terms of the Limitation of Legal Proceedings against
the Government Act, 1972. It is against that judgement that this
appeal is brought.
the 14th June 1993 the appellant brought an action against the second
respondent in which he claimed damages in the sum of El6,000 by
reason of the withholding of a permit in December 1992. Despite being
served the second respondent failed to enter an appearance to defend
and default judgement was granted against it on the 1st September
on the 28th September 1994 application was brought by the second
respondent (the Attorney General) for rescission of that default
judgement. In paragraph 5 of his affidavit he states the following:
my capacity as the Attorney General, I am charged, amongst other
things, with the task of being the principal legal advisor and sole
legal representative of the Government of the Kingdom of Swaziland,
its ministries, departments, tribunals and statutory boards,
including the applicant." He ascertained that,
letter of demand or court process was ever served on his chambers,
neither was I cited in my capacity as the Government's nominal legal
representative in the suit; hence the order in question was granted
in our absence and without our notice or knowledge."
submitted that the failure to serve was in contravention of section
2(1) of the Limitation of Legal Proceedings against the Government
his answering affidavit the appellant stated that a copy of the
letter of demand dated 14th January 1993 was served on the first
respondent. There was no replying affidavit by the first respondent.
application for rescission of judgement was decided by Hull CJ on 7th
June 1995 about two and half years after the appellant's claim arose.
setting out the facts Hull CJ said this.
Attorney General has applied to set aside the default judgement 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 January
1993. It was addressed incorrectly to the Chairman of the Board.
Nevertheless a copy was sent to the Attorney General. In substance
therefore the demand was made. A copy of the default judgment was
served on the Attorney General at some time between 1st and 5th
September 1994 "
learned Judge went on to hold that it was not essential for the
Attorney General to be made a nominal defendant in the action.
is evident that the respondent has sued and intended to sue the
government......No doubt he will look to the Government for payment
of any damages to which he is
learned Judge held further that the appellant was bound to serve the
combined summons at the offices of the Attorney General in terms of
Rule 4(10) of the High Court Rules. He also held that the Court had
an inherent jurisdiction to set aside a default judgment and that the
appellant's failure to serve the combined summons on the Attorney
General was "a serious procedural irregularity and a fundamental
one" as it prevented the Attorney General from raising any
defences which he might wish to make.
learned Judge then concluded his judgement as follows:
judgement 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
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."
relevant provisions of the Limitation of Legal Proceedings against
the Government Act 1972 provide as follows: (I interpolate to say
that it is not disputed that no application for special leave under
Section 4 was ever sought or obtained by the appellant.)
Act may be cited as the Limitation of Legal Proceedings against the
Government Act, 1972.
of time in connection with the institution of legal proceedings
against the Government of Swaziland.
2. (1) Subject
to section 3 no legal proceedings shall be instituted against the
Government in respect of any debt-
a written demand, claiming payment of the alleged debt and setting
out the particulars of such debt and cause of action from which it
arose, has been served on the Attorney General by delivery or by
that in the case of a debt arising from a delict such demand shall be
served within ninety days from the day on which the debt became due;
the expiry of ninety days from the day on which such demand was
served on the Attorney General unless the Government has in writing
denied liability for such debt before the expiry of such period;
the lapse of a period of twenty-four months as from the day on which
the debt became due.
the purpose of subsection (1) -
proceedings shall be deemed to be instituted by service on the
Attorney General of any process of a court (including a notice of an
application to court, a claim in reconvention, a third party notice
referred to in any rules of court and any other document by which
legal proceedings are commenced) in which the claimant of the debt
claims payment thereof;
debt shall, if the Government prevents the claimant thereof from
coming to know of its existence, not be regarded as due before the
day on which such claimant becomes aware of its existence;
of special leave.
3. (1) The
High Court may, on application by a person debarred under section
2(1)(a) from instituting proceedings against the Government, grant
special leave to him to institute such proceedings if it is satisfied
has a reasonable prospect of suceedings in such proceedings;
Government will in no way be prejudiced by reason of the failure to
receive the demand within the stipulated period; and
regard to any special circumstances he could not reasonably have
expected to have served the demand within such period:
that the Court in granting such leave may impose such conditions as
it deems fit (including the payment of any costs) and notwithstanding
section 2(1)(c) stipulate the date by which such proceedings shall be
appellant served the combined summons on the Attorney General on 2nd
June 1997. In his judgement Hull CJ did not stipulate a time when the
combined summons had to be served on the Attorney General.
is correctly pointed out on behalf of the appellant that his cause of
action arose in December 1992 when the debt became due and that
therefore in terms of section 2(1) of the said Act would be time
barred after December 1994. It is further urged, correctly in my
view, that at the time default judgement was rescinded by Hull CJ on
7th June 1995 the time for instituting a fresh action had already
expired and that such fresh action would be time-barred. This is
Hull CJ held that the Government had been sued and that the appellant
had intended to sue the Government. "It is clear," he said,
"that the plaintiff had sued the Government."
is also made to the fact that a copy of the default judgement was
served on the Attorney General between 1st and 5th September 1994 and
that in terms of section 2(2) (a) of the said Act legal proceedings
shall be deemed to be instituted by service on the Attorney General
of any process of a court in which the claimant of the debt claims
is contended that "process of the Court" would include the
default judgement which the appellant served on the Attorney General
between 1st and 5th September 1994 claiming payment of the amount
awarded in terms of such judgement.
is placed on cases such as BATES V BATES 1927(1) PH P.64 and the
cases referred to by Marais J in CERONIO VS SNYMAN 1961(4) S.A.
294(W) at p.296 a - g. The effect of those judgements is that a civil
summons includes a notice of motion; so does a restitution order
BOTES V BOTES 1944 WLD 76 at 78.
am disposed to think that, by analogy, a default judgement and the
service thereof is a "process of the Court" and it is also
implied by Section 3 l(3)(b) of the High Court Rules that a default
judgement must be served upon the defendant.
seems to me to be clear that in his judgement Hull CJ was stating in
effect that the appellant would not have to commence an action de
novo against the Government for if he had that action would clearly
the time-barred. Hull CJ must have been aware of that because he
referred in terms to section 2 of that Act in his judgement and he
had the right in terms of section 31(3)(b) of the High court Rules to
set aside a default judgement on such terms as to him seemed fit.
am accordingly disposed to think that Hull CJ was correct in making
the order which he did and it is also clear that he held in effect
that the appellant's claim was not time-barred because he had
and intended to sue the Government.
whether Hull CJ was right or wrong this Court and this Court only
could set it aside on appeal. And there was no appeal against the
judgement of Hull CJ.
is now convenient to turn to the judgment of Sapire A
The learned Judge set out the facts and then quoted the following
statement by Hull CJ:-
respondent, if he wishes to proceed upon the action, is to serve the
combined summons at the office of the Attorney General. Thereafter
the action is to take its course."
went on to hold that that statement was not called for and was
plainly wrong as it overlooked the provisions of section 2(1) of the
said Act which showed that the action had become prescribed in
December 1994 and that the appellant's claim was time-barred when the
matter came before Hull CJ.
had no jurisdiction to overrule a decision of the High Court for
that, as I have said earlier, falls with the exclusive domain of this
Court as has been held in decisions both of the High Court and of
the respondent was dissatisfied with the undue delay taken by the
appellant to serve upon the Attorney General it could have made an
application to obtain some relief from the High Court but did not do
so. Hull CJ did not prescribe a time within which service should be
effected. The alternative argument on behalf of the respondent that
the action became prescribed after two years from the date of Hull
CJ's judgement cannot prevail for Hull CJ ordered the continuation of
the same action not the institution of an action de novo.
my judgement the appeal must be allowed, with costs and the judgement
of the Court a quo altered to one dismissing the plea in abatement
on...........day of April 1998.