THE COURT OF APPEAL OF SWAZILAND
AT MBABANE Civ. Appeal No. 14/2001
the matter between
case No. 2071/99 the applicant was the defendant and the respondent
the plaintiff. (It will be convenient to refer to the parties as the
applicant and the respondent respectively.)
applicant sought the following order in the Court a quo:
the Court order dated 27 October 2000 being Annexure "E" to
of Samuel Sydney Earnshaw be set aside.
all proceedings pursuant to the aforesaid invalid Court order be set
the respondent (plaintiff) and all attorneys acting on his behalf be
ordered to return forthwith to the applicant (defendant) all
documents, including copies made thereof and in the possession of
respondent (plaintiff) and his attorneys or any parties holding same
on his behalf.
Costs against the respondent (plaintiff) but only in the event of his
opposing the relief sought herein.
followed a prayer for alternative relief.
application was dismissed with costs by the High Court and it is
against that dismissal that this appeal is brought.
order which was sought to be set aside appears as Annexure "E"
to Mr. Earnshaw's affidavit.
case number is given as Civ. T 2071/99 and the parties are referred
to as follows: SAM SOPHOCLEOUS Applicant
SOPHOCLEOUS 1st Respondent
SOPHOCLEOUS 2nd Respondent
(PROPRIETARY ) LIMITED 3rd Respondent
following order was granted:
defendants shall produce the documents requested in plaintiff's
Notice in terms of Rule 35(4) dated the 22nd August 2000 or state on
oath that the said documents are not in possession within ten (10)
days of the granting of this order. "
the order was purportedly granted on 27 October 2000 it was signed on
31 October 2000 but nothing turns on that.
order was granted (according to the citation) in case number
2071/2000 and it was granted against three defendants, namely, George
Sophocleous, Maud Sophocleous and Slotto (Proprietary) Limited.
it appears from Mr. Earnshaw's affidavit, in case No. 2071/2000 there
was only one defendant namely George Sophocleous.
another matter (case No. 1908/2000) the present respondent was the
applicant therein and in that case there were indeed three
respondents namely George Sophocleous, Maud Sophocleous and Slotto
error, the respondents' attorneys Millin & Currie in case No.
2071/99 sought discovery against the three defendants in the other
action on 10 November 1999. Mr. Earnshaw did not notice the error and
mistakenly complied with the order of 31 October 1999 which ought
never to have been granted as the second and third defendants were
not parties to the action in case 2071/99.
appears from the affidavit of Mr. Earnshaw that what is described in
the judgment of the court a quo as "a comedy of errors" was
caused by the mistake of Millin & Currie and of Mr. Earnshaw
Earnshaw sums up the position as follows:-
error with regard to the caption and citation relating to "second
and third respondent" as parties in case 2071/99 is a mistake
common to both parties.
the time of the filing of the incorrect documents and the granting of
the aforesaid order neither firm of attorneys realised that persons
who were not parties to the action had been incorrectly cited.
order sought to be set aside was granted per incuriam against parties
who are not joined in the action and the order is invalid.
discovered and delivered were discovered and delivered by mistake and
fall to be returned.
respondents having given notice of intention to oppose, filed a
document headed: "PRACTICE NOTE: RESPONDENT" and signed by
his counsel. Paragraph 2 thereof reads as follows:
application is fatally defective in form and substance. The Notice of
Motion does not comply with Rule 6(9). There is no certificate, or
allegations in respect of urgency. The relief sought is misconstrued
and the proper application would have been one for rescission to the
extent that the citation of the parties in the order be corrected.
terms of Rule 6(12)(b), the Respondent need only deliver its
Answering Affidavit by the 2nd April, 2001. Should these points in
limine not be upheld, the Respondent will file further papers in due
course, if necessary."
the event the respondent did not file any further papers for the
point in limine was upheld.
Court a quo accepted the correctness of Mr. Earnshaw's affidavit
after inspecting the Court file. However, the court held that the
manner in which the application was brought was defective in that it
did not comply with rule 6(9). The proceedings were brought as if the
application was an ex parte application by way of the "short
form" (rule 6(5)) instead of the "long form" (Rule
Court a quo, having found that the use of the short form did not
necessarily visit the application with nullity (Mynhardt v Mynhardt
1986(1) SA 456(T) at 464A), then went on to refer to the unreported
judgment of MASUKU J in Ben M. Zwane v The Deputy Prime Minister &
Another case No. 624/2000 where there had been non-compliance with
the rule in question and no application for condonation had been
made. Having emphasized the importance of the rules and the right of
take the point and the fact that no application for condonation had
been made, MASUKU J went on to say:
Respondent is perfectly entitled to raise this point and help the
court set the compliance with the requirements of the rules in proper
can only be done if this court will refuse to entertain matters which
are not exparte but where the use of Form 3 has been jettisoned, less
still, those cases where no condonation for dispensing with Forms is
prayed for. This will be so even if the matter is urgent. It is
important to comply as far as practicable in the circumstances with
the requirements of form 3. The courts of the Republic of South
Africa, which has Rules in pari materia with ours, correctly rendered
this practice unacceptable and it is obedience to our Rules that
dictate that we should adopt a similar stand as the South African
courts without further delay."
do not understand the aforementioned remarks to lay down an
inflexible rule for regard must always be had to the circumstances of
a particular case.
6(9) provides that:
application other than one brought ex parte shall be brought on
notice of motion as near as may be in accordance with Form 3 of the
first schedule and true copies of the notice, the supporting
affidavits and all the annexures thereto, shall be served upon any
party to whom notice thereof is to be given. "
appears from the judgment of the Court a quo that the applicant's
attorney conceded that the wrong form had been used but applied from
the Bar for condonation and further contended that the respondent was
not prejudiced and could have applied for the proceedings to be set
aside as irregular.
referred to the argument of the applicant's attorneys and his
application for condonation the court a quo said this:
this court to endeavour to cure the various mistakes inform,
procedure and citation of parties would not he a proper approach. The
rules are specifically in place to determine the manner in which
relief is to be sought during the course of litigation. To deviate
from the rules require sufficient justification , which I do not find
to be the case in the present issue.
the event, the application.... is dismissed, with costs. "
17 May 2001 the applicant filed a notice of appeal. On 3 October 2001
the respondent's attorneys Millin & Currie filed a notice in
terms of rule 41(2) abandoning the said judgment of 31 October 2001
in so far as it requires Maud Sophocleous and Slotto (Pty) Ltd to
produce any of the documents requested by the plaintiff in terms of
rule 35(4) dated 22 August 2001.
is contended on behalf of the appellant that where an applicant uses
the short form of notice (designed for ex parte applications) in
circumstances where the long form is appropriate this will not
necessarily result in the notice of motion being a nullity which
cannot be condoned.
and Van Winsen: The Civil Practice of the Supreme Court (4th edition)
v Mynhard 1986(1) SA 456
is further urged that where the proceedings are interlocutory in
nature and in content there is no prescribed form of notice of motion
for such applications and that the somewhat cumbersome procedure laid
down in Rule 6(9) need not be followed where the parties are already
litigating. The practice is to use a short form of notice of motion
citing the respondent.
& Van Winsen (supra) at p 351
v Paulsen 1977(3) SA 206(E) at 208
her heads of argument Ms van der Walt for the respondent took certain
points in limine and, in the alternative, addressed argument on the
when the appeal was called Ms van der Walt stated from the Bar that
she was unable to advance any argument in support of the judgment. In
my view Ms van der Walt exercised a wise discretion. The judgment
takes too rigid a view of the Rules of Court because regard must
always be had to all the relevant facts and circumstances of each
particular case . Rules of Court, important as they are, should not
be regarded as if they are the Ten Commandments. Indeed it has been
held that Rules of court should be interpreted so as to provide for
the expeditious disposition of litigation. (see Muller v Paulsen
1977(3) SA 206(E) at page 208E).
and in any event, there is authority that, where the parties are
already litigating the long form need not be followed and the short
form may be used. (see The Civil Practice of the Supreme Court of
South Africa (4th edition), Herbstein and Van Winsen) page 352;
Muller vs Paulsen (supra); Yorkshire Insurance Company Ltd vs Reuben
1967(2) SA 263(E) at 265 F - H.
am firmly of the opinion that the Court a quo was wrong in dismissing
the application. In this regard I have not overlooked the fact that
an application for condonation (which appears to have been
unnecessary ) was made from the Bar and not on application.
is a most unfortunate case which, in my opinion, should have been
settled a long time ago. When Counsel were asked about this we were
informed by Mr. Kades for the appellant that the respondent,
notwithstanding the abandonment of part of the order, had not
returned the documents which had been wrongly discovered. An
undertaking to do this forthwith was given by Miss van der Walt who
explained that her attorneys were merely acting as correspondents for
the respondent's attorneys in Johannesburg.
van der Walt also abandoned all the points in limine which she had
taken with respect to the appellant's heads of argument and the
follows that the appeal must be allowed. There seems to be no reason
why the usual rule should not be followed and the respondent must pay
the costs of appeal.
regard to the costs in the Court a quo I was of the view that, as
both sides were to blame for what had occurred, there should be no
order as to costs in that Court. However Mr. Kades is correct in
drawing attention to the fact that the appellant sought no order as
to costs unless the respondent opposed. The respondent wrongly
opposed. And Miss van der Walt correctly conceded that in these
circumstances the respondent must pay the appellant's costs in the
Court a quo.
the result the appeal is allowed with costs and the judgment altered
to read "application granted with costs ".
this. 10th.......day of June, 2002