THE
HIGH COURT OF SWAZILAND
UNISON
RISK MANAGEMENT ALLIANCE (PTY) LTD
Applicant
In
Re:
THE
ATTORNEY GENERAL 1st Applicant
THE
COMMISSIONER OF POLICE 2nd Applicant
And
SENZO
NXUMALO
1st
Claimant UNISON RISK MANAGEMENT ALLIANCE (PTY) LTD
2nd
Claimant Civil Case No. 2138/2003
Coram
S.B. MAPHALALA – J
For
the Applicants No Appearances
For
the 1st Claimant No Appearances
For
the 2nd Claimant MR. S. DLAMINI
JUDGMENT
(22/10/2004)
2
The
history of this matter is well chronicled in the judgment of Masuku J
delivered on the 4th June 2004, and in the judgement I delivered on
the 26th August 2004. In the latter judgment the issue before Court
concerned the power of the Court to condone the late filing of
process by a party in an application. The 1st Claimant had made the
said application. The Court however, dismissed the application for
condonation on the basis that the averments made by 1st Claimant to
show good cause fell far too short in meeting the requirements of the
law as spelt out in Erasmus, Superior Court Practice, Juta, 1997at B1
-171
In
the present inquiry the Court is called upon to examine whether the
2nd Claimant has shown good cause for the court to condone the late
filing of its Particulars of Claim. In the event the Court finds that
it has proved good cause then to consider the ownership of the motor
vehicle that is the subject matter herein.
In
casu it appears to me that the averments made by the 2nd Claimant in
paragraphs 6 to 12 in the affidavit of Sabela Dlamini show good cause
for the court to exercise its discretion in 2nd Claimant's favour.
Therefore condonation is granted as prayed for by the 2nd Claimant.
The
1st Claimant has failed to file its Particulars of Claim not only in
accordance with the Interpleader notice filed by the Attorney General
on the 10th March 2004, but also as per the Order of the Court dated
the 30th April 2004 in terms of which the 1st Claimant should have
filed same by the 5th may 2004, The Court dismissed 1st Claimant's
application for condonation in the unreported judgment of the 26th
August 2004. Accordingly, the 1st Claimant is barred from making any
claim on the subject matter of the dispute herein in accordance with
Rule 58 (5) of the Rules of this Court.
The
next question for consideration therefore, is the substantive relief
on ownership of the motor vehicle. In my opinion, having considered
the 2nd Claimant's affidavit, the Particulars of Claim reflect an
unanswerable claim of ownership on 2nd Claimant's behalf. The motor
vehicle was positively identified at the Lobamba Police Station by
the 2nd Claimant's insured driver, Alan Rees. Annexure K2 and
paragraph 3.3 of Alan Rees's affidavit at page 32 of the Book of
Pleadings attest to this fact. Further,
3
during
his inspection of the motor vehicle, Alan Rees also found in the
cubbyhole of the motor vehicle Annexure K3 which he had written in
his own handwriting and left in the motor vehicle before it was
stolen.
A
further indicator pointing towards the 2nd Claimant is that the
engine number is still the motor vehicle's original number. In this
regard the manufacturer's affidavit support this conclusion. So is
the deregistration certificate and the affidavit of Gerhardus
Wilhelmus De Jager.
It
is clear therefore from what I have said above that the 2nd Claimant
is entitled to the relief sought in the application dated 23rd June
2004.
When
the matter came for arguments Mr. Dlamini for the 2nd Claimant
contended that the costs in this matter ought to be levied at
attorney and own client scale. It was submitted that the 1st Claimant
was stubborn and vexatious throughout the proceedings which he has
managed to drag for over a year and that he has abused the court
process and that his conduct was highly reprehensible. In this regard
the court was referred to the South African cases of Nel vs Waterberg
Landbouwers Ko-operative Vereeniging 1946 A.D. 597; In Re: Alluvial
Creek Ltd 1929 C.P.D. 532; Levirtsohns Meat Products (EDMS) BKK vs
Addisionele Landdros, Keimoes En 'n Ander 1981 (2) S.A. 562 (NC) at
570 A.
I
agree with the submissions made by Mr. Dlamini in this regard that
lst Claimant's right to possess the motor vehicle has always been
seriously tainted due regard being had to the evidence presented
before the court in the 2nd Claimant's Particulars of Claim. This
raises the presumption of theft on the 1st Claimant's part in
accordance with Section 4 of the Theft of Motor Vehicles Act No. 16
of 1991. From the facts of this case it can easily be deduced that
the 1st Claimant's behaviour amounted to stubbornness bordering on
vexatiousness. Therefore an order for costs in the scale of
attorney-and-client will not be out of place in the present case.
In
the result, the following order is accordingly recorded;
4
The
2nd Claimant is granted an order in terms of the application dated
23rd June 2004;
The
order in terms of which the 2nd Claimant provided security for 1st
Claimant's costs in the sum of E13, 500-00 is discharged forthwith;
and
The
1st Claimant is to pay costs at attomey-and-elient scale.
S.B.
MAPHALALA
JUDGE
