IN THE SUPREME COURT OF SWAZILAND
Civil Appeal Case 88/17
In the matter between:
MXOLISI BRIAN MAYISELA Appellant
CELESTINO MARIA LIMA FONSECA Respondent
Neutral citation: Mxolisi Brian Mayisela vs Celestino Mario Lima Fonseca (88/17)  [SZSC ] 16 ( 30th May, 2018).
Coram: R.J. CLOETE JA
S.B. MAPHALALA JA
J.P. ANNANDALE JA
Heard: 17th May, 2018
Delivered: 30th May, 2018
Summary: Civil Procedure – action for damages – quantum of damages – Defendant had not filed a plea – court a quo proceeded to hear evidence on the quantum and allowed Counsel for the Defendant to examine the witnesses –Appellant on appeal – contends that the principle of audi alteram was infringed - However, Appellant failed to comply with the High Court Rules – in respect of filing of a plea – Appeal dismissed with costs.
S.B. MAPHALALA JA
 This is an appeal against a judgment of the High Court delivered on the 24th October, 2017 per J.S. Magagula J where the Respondent (who was Plaintiff in the court a quo) had filed action proceedings for damages against the Appellant (who was the Defendant) in the court a quo arising from injuries sustained by the Plaintiff / Respondent on the 3rd March, 2010 at his place of business in Matsapha.
 The Appellant, in terms of the High Court Rules, was barred from filing a Plea. Judgment on liability was consequently entered in favour of the Respondent. The matter then proceeded in the court a quo where the Appellant participated in the question of the assessment of quantum which included cross examination of the Plaintiff / Respondent. At the conclusion of this exercise, the court a quo entered judgment for the Plaintiff / Respondent in total amount of E102,514.49 made up as follows:
“ The following order is accordingly made:
(a) The Defendant is to pay the Plaintiff the following amount:
(i) Medical expenses E 2514.49
(ii) Pain and suffering 40 000.00
(iii) Permanent disability and loss
of amenities of life 60 000.00
(b) Costs of suit
 The Appellant being aggrieved with the above orders, then filed an appeal to this Court on the 24th October, 2017, the very same day of the of the judgment of the court a quo.
 The grounds of appeal are as follows:
1. The court a quo erred in refusing to grant the Appellant leave to file a plea and thereby committed a gross miscarriage of justice contrary to the tenants (sic) of justice (audi alteram partem rule) and the Bill of Rights, in particular the right to a fair hearing as envisaged by section 21 of the Constitution of the Kingdom of Swaziland Act No. 001 of 2005, the Court a quo having been made aware of the following facts:
1.1 That Appellant was not aware of the Notice of Withdrawal of his erstwhile attorneys of record;
1.2 That Appellant only became aware of the trial through a Newspaper publication and immediately appointed the present attorneys of record;
1.3 The Appellant’s present attorneys of record were ready to immediately file a plea which would have not caused any prejudice to the Respondent which could not be cured by an order for costs.
2. The court a quo erred and / or misdirected itself in holding that the Appellant’s failure to file a plea or to present any evidence led to the logical conclusion that the Respondent was intentionally knocked down by the Appellant who drove a motor vehicle onto him (Respondent) and that Respondent sustained the alleged injuries as a result of such incident.
3. The court a quo failed to apply its mind in finding that the Appellant is liable for the claim only on the basis that the Appellant has not filed a plea or led evidence, inasmuch as the court had a judicious duty to consider the evidence led and the pleadings filed before making a determination.
4. The court a quo erred in falling to have regard to the fact that the Respondent had not called his secretary and / or the Royal Swaziland Police as witnesses to corroborate the Respondent’s evidence.
5. The court a quo erred in not finding that, in respect of medical expenses, the Respondent had failed to file invoices which matched the amount claimed E2 514.49.
6. The court a quo erred and / or misdirected itself in granting an award for “pain and suffering” when the Respondent had not sought /prayed for such relief.
7. The court a quo erred in not finding that the Appellant was entitled to absolution from the instance in respect of the claim for “permanent disability”, the court a quo having found that the Respondent’s witness, Dr. Tempest Fynn, had conceded that he could not say positively that the injuries were permanent since he was not a orthopaedic surgeon.
Wherefore the Appellant prays that the Appeal be upheld with costs”.
 The material facts of the matter as gleaned in the Plaintiff’s Particulars of Claim in paragraph 5 thereof, are that on the about the 3rd March, 2010 at 5th Avenue M and F premises at Matsapha, in the district of Manzini, the Defendant assaulted the Plaintiff by driving his motor vehicle registered SD 438 IN and reversing it intentionally towards the Plaintiff hitting the Plaintiff on the legs and causing Plaintiff to sustain serious injuries on the neck and both knees.
 In paragraph 6 of the said Particulars of Claim, it is averred by the Plaintiff / Respondent that as a result of the unlawful attack and consequences of the injures, the Plaintiff / Respondent;
“6.1 sustained soft tissue injury to his neck;
6.2 sustained soft tissue injury to his left shoulder;
6.3 sustained soft tissue injuries to both knees;
6.4 suffered severe blunt trauma to the neck; and
6.5 suffered severe blunt trauma to both knees”.
 The matter was defended by the Appellant / Defendant through his erstwhile attorneys. In that he filed a Notice to Defend. According to the Respondent in this appeal, the Defendant through its attorneys, in an attempt to protract the proceedings instituted by the Plaintiff through its lawyer, opted to file a Notice in terms of Rule 42 of the High Court Rules.
 According to the Respondent /Plaintiff the Appellant having been afforded twenty one (21) days after service of his Notice to defend still failed to file a plea.
 The Respondent on the 16th July, 2012 duly filed a Notice of Bar. The Appellant again failed to file a Plea after being put to terms to file its plea within three (3) days failing which he shall be ipsi facto barred according to Rule 26 of the High Court Rules.
 The Respondent further contends that the Appellant not only failed to file a plea, but rather elected to file a Notice for Security for costs in the sum of E50,000.00 (Fifty Thousand Emalangeni).
 Furthermore, it is contended by the Respondent that the Appellant wilfully failed to plead over the Notice in terms of Rule 47 for security for costs. Therefore, the Applicant having failed to follow its rights in filing a plea and could therefore after pleadings had been closed in terms of the Rules could not now say that his constitutional rights to be heard were infringed.
 On the 17th May, 2017 the attorneys of the parties advanced their arguments after filing Heads of Arguments.
 In the arguments before this court grounds 1, 2, 3 and 4 were argued together by the attorney for the Appellant under the rubric of the audi alteram partem rule on the point that the court a quo disallowed the Plaintiff from filing a plea and therefore committed a gross injustice contrary to the tenets of justice and the Bill of Rights. In particular the right to a fair hearing as envisaged by section 21 of the Constitution of the Kingdom of Swaziland Act No. 001 of 2005. Grounds 5, 6 and 7 dealt with further issues and 6th ground dealt with the issue of whether the award was sustainable as for pain and suffering” the Respondent has not sought/ prayed for such relief.
 I shall therefore consider the arguments of the Appellant against those of Respondent and the facts of the case under the following headings:
(i) Whether the principle of the “audi alteram partem” was infringed in casu.
 The main argument of the Appellant in this regard is that the court a quo having been made aware of the facts and / or circumstances that caused the Appellant not to file a plea after the withdrawal of his former attorney, erred in refusing to grant the Applicant leave to file his plea. That the court a quo had been made aware that Applicant was ready and willing to immediately file his plea which was an indication that the had a defence to the claim. That the refusal by the court a quo to allow the filing of the plea violated the right to be heard (audi alteram partem principle) resulting in a gross miscarriage of justice.
 Further under this Head of Argument it is contended for the Appellant that the court a quo reasoned that there was no rule which allowed the Applicant to file a plea at that stage. The court a quo overlooked the fact that procedure should never be permitted to exclude the presentation of a litigant’s defence. That the mere fact that there is no rule covering a certain situation is not a bar to the court from exercising its judicial discretion or become creative in order to administer justice between the parties. In support of this arguments the attorney for the Appellant cited a plethora of decided cases. In this regard see the High Court case of Commissioner of Correctional Services vs Hlatshwako (67/09)  SZSC 31 (28 May 2010 at paragraph  and Dlamini & Another vs David Themba Dlamini 28/2015  SZSC 06 (29 July 2015) at pages 12 to 13,
 On the other hand the Respondent simply contended that the Appellant failed to follow the rules of the High Court and now he is crying foul after a default judgment has been granted by the court a quo yet all the pertinent High Court Rules were complied with by the Plaintiff / Respondent.
 It is contended by the Respondent that the Appellant through its attorneys in an attempt to protract the proceedings instituted by the Respondent opted to not file a Plea but instead the Applicant filed a Notice in terms of Rule 42 for security of costs.
 Respondent further contends that the Applicant having been afforded twenty one (21) days after service of the Notice to defend still failed to file a plea. The Notice to defend was served on the Respondent’s attorneys on the 2nd June, 2012. The Respondent on the 10th July, 2012 duly filed a Notice of Bar. That again the Appellant failed to file a plea even after being put to terms to file its plea within three (3) days or being barred ipso facto in accordance with Rule 26 of the High Court Rules.
 Rule 26 thereof provides the following:
“Any party who fails to deliver a replication or subsequent pleading with in the time stated in Rule 25 shall be ipso facto barred ..... Any party failing to deliver the pleading referred to in the notice within the time therein required or within such further period as may be agreed between the parties, shall be in default of filing such pleading and ipso facto barred”.
 In my assessment of the papers and the arguments of the parties, the arguments of the Respondent are correct that the Appellant in the circumstances of the case wilfully failed to plead over the Notice in terms of Rule 42 for security of costs. Therefore, the Appellant waived its rights in filing a plea as the pleadings had been closed in terms of the Rules and could not be seen to later allege that his constitutional right to be heard was infringed.
 It would also appear to me that on the facts of the case that the Appellant is bound “hand and foot” by his participation in the cross-examination of the two witnesses including the Respondent which were called for proof of damages. He was also availed of the opportunity to put his own version of the events and challenge that the claimant, and also through his legal representative, to put his defence to the witness. The Appellant cannot now come to court to vitiate those proceedings which he himself participated in.
 Furthermore, in my assessment of the facts, the Appellant’s erstwhile attorneys withdrew their services and in terms of the Rules and there was no irregularity in this regard. The said attorneys withdrew in 2013 and the matter was in court in 2017. It is contended by the Respondent’s attorney that it is impossible for the Appellant not to have checked on the interim status of his matter with his erstwhile attorneys even if he did not know that they had withdrawn. It would also appear that the Appellant was duly served through registered post.
 On the facts it would also appear to me that Appellant ought to have applied for rescission of the judgment of the court a quo in accordance with the Rules of the High Court, it held the view that the judgment against him was defective. He did not do so.
 Therefore, for the above reasons, I find that the Appellant failed to comply with the Rules of the High Court in respect of the filing of his plea and he also failed to utilise the various indulgences provided for in the Rules of the High Court. Therefore, in the circumstances, the Appellant’s argument that his constitutional rights have been infringed rings hollow and in this regard I agree with the arguments advanced by the Respondent’s attorneys.
 Finally, for these reasons, ground of appeal number 1 is accordingly dismissed.
(ii) Failure by the Court a quo to find intention on the part of the Defendant
 In this regard it is contended for the Appellant in ground 2 thereof that the court a quo ordered / or misdirected itself in holding that the Appellant’s failure to file a plea or to present any evidence led to the logical conclusion that the Respondent was intentionally knocked down by the Appellant who drove a motor vehicle into him (Respondent) and Respondent suffered the alleged injuries as a result of such incident.
 It further argued on behalf of the Appellant that the court a quo disregarded the facts and / or circumstances of the case. That the conclusion that the Respondent was intentionally knocked down by the Appellant is misplaced. That the court a quo was obliged to apply its mind in deciding whether the Respondent had in fact proved all the essential elements of his cause of action.
 Furthermore, it is contended for the Appellant that the burden of proof lay on the Respondent to establish on a balance of probabilities delictual liability which consist of the following:
(i) Voluntary conduct;
(iv) Fault (intention or negligence);
(vi) Causation; and
 On the other hand, it is contended for the Respondent that the Plaintiff in the court a quo proved its case on a balance of probabilities for the claim for damages through personal injuries. In that the evidence led by the Plaintiff in proving his was case confirmed the day of the incident. It was never disputed that the incident did not occur except that Appellant did not mean to cause the accident by knocking the Appellant with the motor vehicle. That the Police Report confirms the incident and parties involved. The medical examination form also confirms the nature and extent of bodily injuries. Furthermore evidence by Dr Fynn was led to prove the damages eventually awarded by the court a quo to sustain the claim.
 In respect of its position the Respondent has cited the English case of Miller vs Minister of Pensions (1947) 2 All er at 374 where Lord Denning stated the following:
‘It must carry a reasonable degree of probability but not so high as is required in a criminal case. If evidence is such that the tribunal can say “we think it more probable than not, then the burden is discharged.”
 It would appear to me that in the totality of all the evidence before court, that the Respondent has discharged the burden of proof. It is without question that the Plaintiff was knocked by a motor vehicle driven by the Appellant. From the evidence in the record it is quite clear that there was a dispute between the parties where the Appellant reacted in a rage, leading to the incident. There is no other way of looking at it.
 It would also appear to me that the second ground cannot succeed for the above reasons, and likewise in respect of the third ground.
(iii) Whether the failure by the Appellant in the Court a quo to also call certain witnesses was fatal to his claim.
 The argument of the Appellant in this regard is that the court a quo erred in failing to have regard to the fact that the Respondent had not called his secretary and / or the Royal Swaziland Police as witnesses to corroborate the Respondent’s evidence as advanced in the fourth ground of appeal.
 The Appellant contended that there was not sufficient evidence or any evidence at all proving intention or that it was Appellant who caused the alleged harm. That it is common cause that the Respondent failed to call his secretary as a witness yet she had allegedly witnessed the wrestling between himself and the Appellant. That the court a quo simply relied on the Respondent’s ipse dixit without any other corroborating evidence.
 The Appellant further took issue that Respondent failed to call the police officer in support of his claim. The Appellant was neither arrested nor charged with the alleged unlawful conduct and the police would have explained why such had not happened. That the only probable explanation according to him is that there was no such assault as pleaded by the Respondent.
 Furthermore on the question of medical expenses, the Respondent had filed a claim in the sum of E2,814.49. There were invoices filed in an effort to support this claim. However, a particular invoice in the sum of E250.00 reflected the Respondent’s wife as the patient ex facie the document. It also reflects that the medical expense to have been for a consultation, not medication.
 It is contended for the Applicant that ex facie the invoice, the Respondent was not entitled to this claim of E250.00.
 On the other hand it is contended for the Respondent that the medical expenses did amount to E2,514.49 (Two Thousand Five Hundred and fourteen Emalangeni Forty Nine Cents). That the invoice paid reflects Respondent’s wife was purchasing medication on his behalf. Further, it does not vitiate the fact that the Respondent did incur medical expenses.
 In my assessment of the arguments of the parties it would appear to me that the arguments of the Appellant are correct that it appears to be that a mistake had occurred in the calculations and this ground of appeal succeeds to the extent that the amount of E250 claimed under the controversial invoice of Dr. Moira Lemmer stands to be deducted from the awarded amount.
(iv) Award of “pain and suffering”
 The court a quo granted an award for “pain and suffering” in the amount of E40,000.00. The Appellant contends that the Respondent had not sought the relief in his Particulars of Claim. In the circumstances the court a quo erred and / or misdirected itself in or granting an award for “pain and suffering” when the Respondent had not sought / prayed for such relief. It is trite law in this jurisdiction that a litigant cannot be granted what he / she had not prayed for in the lis. In this regard the Court was referred to the Supreme Court case of Commissioner of Correctional Services vs Hlatshwako (67/09).
 On the other hand it is contended for the Respondent that even though “pain and suffering” was not expressly prayed for it forms part of the integral general damages suffered by the unlawful act of the Appellant by hitting the Respondent with his motor vehicle. That the court was justified to award such damages as part of the general damages.
 In this regard the attorney for the Respondent has cited the legal text book by Visser, 2nd Edition, Law of Delict (1993), Butterworths at page 209 to the following:
“The term general damages is also used to describe non-patrimonial loss (pain, suffering etcetera) as well as prospective patrimonial damage (such as future medical expenses, loss of earning capacity and support) amounts to general damage while monetary losses sustained up to the date of trial (medical expenses already incurred, loss of past income and support) are seen as special damage”.
 Having considered the evidence before the court a quo and the arguments of the attorneys of the parties it would appear to me that the court a quo determined the damages for “pain and suffering” under the all encompassing rubric of general damages.
 It would appear to me that there is nothing wrong with the approach by Court a quo in determining the case as a whole without separating certain aspects of the case.
 Therefore, I would not dismiss the award granted by the court a quo in the circumstances.
(iii) Absolution from the instance
 The Appellant in respect of ground 7 contends that he was entitled to absolution from the instance in respect of the claim for “permanent disability” as the Respondent failed to call an orthopaedic surgeon to support his claim. That there was no explanation regarding this failure to call for such a necessary expert witness especially so when the Plaintiff’s doctor specifically testified that he was unable to give an expert opinion regarding the permanency of the injuries. Further that it is trite law that a litigant who fails to adduce evidence which was available to this has only himself to blame.
 In the light of my finding relating to the first six grounds of appeal, I am of the considered view that this ground of appeal has no substance at law nor has it any relevance to the outcome of this matter.
 In the result, for the aforegoing reasons, I order that:
1. The appeal in respect of grounds 1, 2, 3, 4, 6 and 7 is dismissed;
2. The appeal in respect of ground 5 thereof partially succeeds;
3. The order of the Court a quo is amended as to read:
“a) The Defendant is to pay the Plaintiff the following amounts:
1. Medical expenses E 2,264. 49
2. All inclusive general damages E100,000.00
b) Costs of suit.”
4. The Appellant is to pay costs of the Appeal.
S.B. MAPHALALA JA
I AGREE R.J. CLOETE JA
I ALSO AGREE J.P. ANNANDALE JA
For the Appellant Mr. A. Motsa
(from L.R. Mamba and Associates)
For the Respondent: Mr. H. Mdladla
(from S.V. Mdladla & Associates)