IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
CIVIL
CASE NO. 138/01
In
the matter between:
ROBERT
RICHARD JAMES KIRK N.O. 1st PLAINTIFF
THOMAS
MOORE CARL KIRK N.O. 2nd PLAINTIFF
AND
S.A.
NKOSI AND COMPANY DEFENDANT
CORAM
SHABANGU AJ
FOR
PLAINTIFF MR. G. GODDARD
FOR
DEFENDANT MR. S. A. NKOSI
JUDGEMENT
8th DECEMBER,2004
The
plaintiff's seeks the rescission of an order granted by the court on
2nd June, 2003. The order which the plaintiff seeks to have rescinded
was granted by Mr. Justice Stanley Maphalala on an application which
the defendant had filed and set down for hearing on Monday 2nd June,
2003. The rule 30 application arose from the main action in which the
plaintiff's are suing the defendant in respect of an amount of E41,
000-00 (forty one thousand emalangeni) which the plaintiff's claim is
an amount to which they are entitled to be indemnified in respect of
fees they allegedly paid to the defendant. Their case is that the
defendant has drawn and taxed a bill of costs in respect of the work
covered by the
2
fees
paid and that because the amount the defendant has collected as a
result of the taxed bill is in excess to that which the plaintiff's
paid to the defendant, they are entitled to a full reimbursement of
their costs. The plaintiff's allege that from the total amount of
E50, 767-00 allegedly paid by them to the defendants as legal fees
they (the plaintiffs) have only been reimbursed to the extent of
E9,767-00. The defendant disputes the claim. Most of the pretrial
procedures have been complied with except that a pre-trial conference
as envisaged in rule 37 of the rules of this court had not been held
as at 2nd June, 2003. Inspite of the fact that a pre-trial conference
had not be held by 2nd June, 2003 the matter had been allocated trial
dates and set down by the plaintiff's on at least two occasions prior
to the hearing of the present application. The 2nd June, 2003 was
another date which the Registrar had allocated for the trial of the
action. The plaintiff's had also set the matter down for trial on
this date. In fact the matter had been allocated and set down for
three days from 2nd June, 2003 to 4th June, 2003. The notice
allocating the trial dates was signed and issued by the Deputy-
Registrar
on 26th February, 2003. The plaintiff's attorney issued a notice of
set down of the trial on 16th May 2003. On 20th May, 2003 apparently
after receipt of the notice of set down the defendant delivered a
letter to the Registrar and sent a copy to the plaintiff's attorney,
objecting to the allocation and setting down for trial of the matter
before the holding of a pre-trial conference as required by rule 37
of the rules of this court. Another such letter was written and sent
by the defendant on 28/05/03 to the plaintiffs' attorney and was
copied to the Registrar. It was only Friday 30th May, 2003 that the
Plaintiffs' attorney conceded to the removal of the matter from the
roll by a letter of the same date. On the same date the defendant
filed and served an application in terms of rule 30 wherein an
application was made to set aside the Notice of set down as an
irregular proceeding. The defendant denies having received the
abovementioned letter wherein the plaintiff's conceded that the
matter ought to be removed from the roll of Monday, 2nd June 2003 and
at any rate it appears to be undisputed that the fax did not come to
the attention of Mr. S.A. Nkosi who was scheduled to attend to the
trial. When the matter was called on Monday 2nd June, 2003 there was
no appearance for the plaintiffs. What followed from this is that the
defendant moved its application in terms of rule 30 which application
was granted together with costs on the attorney and client scale and
that such costs were to be taxed
3
and
paid prior to the matter proceeding any further. It is this order of
2nd June, 2003 which the plaintiff's seek to have rescinded.
The
plaintiff's have advanced various grounds upon which they claim
rescission of the judgement. The first ground upon which the
plaintiff claims rescission of the order of 2nd June, 2003, setting
aside the notice of set down and granting costs to the defendant, is
that the order was erroneously sought and granted in the absence of
the plaintiff as contemplated by the provisions of rale 42 (1) (a).
The error according to plaintiff's counsel is that the learned judge
Mr. Justice Maphalala would not have granted the rule 30 application
had he known that an agreement had been reached on Friday 30th May,
2003 between the plaintiffs' attorney and one Mr. Gwebu to have the
matter removed from the roll of Monday 2nd June, 2003. This agreement
is denied by Mr. Gwebu and the defendant. The Plaintiffs' sought and
obtained a ruling that oral evidence be led oh this issue. From the
evidence given on behalf of all parties it appears to be common cause
that it was known or at least had been communicated on more than one
occasion to the Plaintiffs' attorney that the trial and the matter
was being handled by Mr, S.A. Nkosi. This was so even though Mr.
Gwebu would occasionally sign court documents such as notices on Mr.
Nkosi's instructions. For example on Friday 30th May, 2003 Mr. Gwebu
was instructed by Mr. S.A. Nkosi to sign the application in terms of
rule 30 and ensure that it was served on the plaintiffs' attorney. It
also appears to be undisputed that on the Friday of 30th May, 2003 on
which date the fax in which the plaintiff's attorney finally conceded
that the matter ought to be removed from the roll of Monday 2nd June,
2004, Mr. Nkosi was out of the office for the whole day. Mr Gwebu
testified that in light of the fact that the matter and more
specifically the trial was being handled by another attorney he could
not have reached any agreement with the Plaintiffs' attorney on how
the matter was going to be dealt with on the date of trial, that is
Monday 2nd June, 2003 and in fact no such agreement was reached to
that effect between him and the Plaintiffs' attorney. In any event
any such agreement would have to be sanctioned by the defendant
himself in accordance with basic practice known and adhered to by all
attorneys. Furthermore even if such an agreement was reached the
plaintiff's attorney would still be required to attend court
particularly so because he had set the matter down for trial. The
matter was already
4
on
the roll for hearing and because of this fact it would not have been
appropriate for the attorneys involved to impose their agreement on
the court. The proper thing for the parties to do would have been to
attend court and request that the matter be removed from the roll.
Mr. Gwebu's version is the one most probable having regard to the
fact known to the plaintiffs' attorney that the matter was Mr.
Nkosi's matter. The plaintiffs' attorney explains that he could not
discuss his proposal that the matter be removed from the roll of 2nd
June, 2003 because he was not on speaking terms with Mr. Nkosi. Mr.
Gwebu himself explains the nature of the relationship between Mr.
Nkosi and the plaintiffs' attorney, that is Mr Nhlabatsi as being
sour. On a previous occasion namely on 29th July, 2002 the matter
could not proceed because Mr. Nkosi had been hospitalised in South
Africa. The Plaintiffs' attorney was advised of this fact in a letter
dated 16th July, 2002. That letter was handed in during the hearing
of the oral evidence as exhibit R1. The letter which was written and
signed by Mr. Gwebu also expressly informs the Plaintiffs' attorney
that "Mr Nkosi is personally handling the matter." In the
circumstances I am not persuaded that there was an agreement between
Mr. Gwebu and Mr. Nhlabatsi in the terms alleged by the latter
.
A
further basis argued by counsel for the plaintiff's in support of the
application for rescission is that the application can be granted on
the basis of the common law. Mr Goddard who appeared for the
plaintiffs' relied upon the leading case of DE WET &
OTHERS
V. WESTERN BANK LTD 1979 (2) SA 1031 (A) at 1042 wherein the court
stated ;
"Thus
under the common law, the courts of Holland were, generally speaking,
empowered to rescind judgements obtained on default of appearance, on
sufficient cause shown. This power was entrusted to the discretion of
the courts. Although no rigid limits were set as to the cause ....the
courts nevertheless laid down certain general principles, for
themselves, to guide them in the exercise of their discretion.
Broadly speaking, the exercise of the courts' discretionary power
appears to have been influenced by considerations of justice and
fairness, having regard to all the facts and circumstances of the
particular case. The onus of showing the existence of sufficient
cause for relief was on the applicant in each case, and he had to
satisfy the court, inter alia, that there was some reasonably
satisfactory explanation why the judgement was allowed to go by
default."
5
Mr
Goddard went on to rely on HDS CONSTRUCTION PTY LTD V. WAIT 1979 (2)
SA
298 (E) for what he submitted the courts generally require for
sufficient cause, which requirements are that an applicant for
rescission under the common law must show;
a
reasonable explanation of his default
that
his application is made bona fide; and
that
he has a bona fide defence which prima facie has some prospect of
success.
On
the assumption that the requirements for sufficient cause as set out
by Mr. Goddard are correct I am unable to find that the plaintiff's
have given a reasonable explanation for their default of appearance
in court on Monday 2nd June, 2003. Mr Nhlabatsi had set the matter
down for trial by a notice of set down dated 16th May, 2003. That
notice of set down was served on the defendant on 19th May, 2003 at
09.33 hours. On 20th May, 2003 the defendant objected to the notice
of set down on the basis that it was an irregular proceeding because
a pre-trial conference had not been held. There was no response from
Mr. Nhlabatsi by 28* May, 2003 when once again the defendant sent
another letter re-iterating the defendants concerns on the manner the
matter had been allocated a trial date and set down by the
plaintiffs' attorneys. The Plaintiffs' attorney, that is, Mr
Nhlabatsi only responded on 30th May, 2003 which was the last court
day before the trial date informing the defendant that he had "met
with counsel who after considering you letter of 20th May advised
that the matter be adjourned or removed from the roll and that a
meeting be held with a view to discuss the issues involved."
There is nothing in that letter to the effect that Mr. Nhlabatsi
would not attend court or that it would be unnecessary for him to do
so, and that Mr. Gwebu would attend court and move an application
that the matter be removed from the roll in the absence of Mr.
Nhlabatsi the plaintiffs' attorney. The letter of 30th May, 2003 does
not even tender or undertake to pay the defendant's wanted costs.
This letter does not provide a reasonable explanation for the
plaintiffs' default of appearance in court on 2nd June, 2003. However
the plaintiff's attorney has stated during oral evidence that there
was, as already observed, an agreement between him and Mr, Gwebu not
only that the matter would be removed from the roll but also that Mr.
Gwebu would attend court on the date of trial and there apply that
the matter be removed from the roll in the absence of the plaintiff's
and their attorney.
6
I
have already expressed my finding on whether such alleged agreement
has been proved. Because of the reasons already stated above I am not
persuaded that there was such an agreement and for that reason the
alleged agreement cannot provide the plaintiff's with a reasonable
explanation for their default or non appearance on the day in
question. The failure by the plaintiff's attorney to attend court on
Monday 2nd June, 2004 cannot be said to have been reasonable under
the circumstances, even if there had been an agreement between him
and Mr. Gwebu, because the plaintiffs' attorney ought to have
realised that any such agreement would at least require the
defendants' approval. The application can be disposed of by this
point alone.
Furthermore
Mr. Goddard has argued that the present application is being made
bona fide and that the applicant has a bona fide defence to the rale
30 application which prima facie has some prospects of success.
Counsel in developing his argument on this says,that a claim for
rescission must be made with the true intention of entering into the
principle case. The principal case referred to in the instant is the
defendants' application in terms of rule 30. Counsel further argues
that there cannot be any other reason for the plaintiff's pursuing
this rescission application. I am not satisfied that there can be any
bona fides on the part of the plaintiff's in seeking an order setting
aside another order which in turn had set aside a notice of set down
which had set a matter down on a date which has passed.
Furthermore
the plaintiff's say that they have a defence to the rule 30
application which the defendant moved on 2nd June, 2003. First, the
plaintiff's contend that they could have successfully argued that the
rule 30 application was procedurally defective. The argument is
developed by saying that because rule 30 (2) requires that such an
application be on notice and that the length of such notice is the
one stated in rule 6 (10) which is seven days. With the greatest of
respect to counsel rule 6 (10) has no application to an application
to set aside an irregular proceeding in terms of rule 30 of the rules
of this court. A rule 30 application being an interlocutary
application may be set down in accordance with the provisions of rule
6 (24) of the rules of this court. Secondly, Mr. Goddard submits that
the rale 30 application could have been successfully opposed on the
basis that it was not supported by an affidavit and therefore did not
comply with rule
7
6(1),
and because of this it is argued that the application was defective.
Again as I have already stated above rule 6(1) is not applicable to
an application to set aside an irregular proceeding brought in terms
of rule 30. The applicable rule is rule 6 (24) which rule is
applicable to all interlocutary applications and such applications
may only be supported by such affidavits as the case may require. If
the nature of the case being brought is such that no affidavit is
required for the purpose of placing before the court evidence which
is not before court, then an affidavit is not necessary. That is
consistent with logic, common sense and prevailing practice both in
this jurisdiction and in the Republic of South Africa. At page 353
HERBSTEIN AND VAN WINSEN in their "THE CIVIL PRACTICE OF THE
SUPREME COURT OF SOUTH AFRICA 4th edition state;
"It
is not essential to file affidavits in support of an interlocutory
application since 6 (11) provides that such an application may be
"supported by such affidavits as the case may require." It
has been held that if an interlocutory matter can be decided without
affidavits, this an appropriate course and* one sensible conserving
costs."
Rule
11 of the South African rule referred to by the learned authors in
the abovequoted passage is identical to our present rule 6 (24). In
fact even in this jurisdiction before the ammendment of the rules of
this court in August, 1990 the present rule 6 (24) used to be rule 6
(11). In the circumstances and with the greatest of respect to
Plaintiffs' counsel the fact that the rule 30 application was not
accompanied by an affidavit did not render the application defective.
There
is also the complaint that serving the rule 30 application on the
plaintiffs' correspondent attorneys on Friday 30th May, 2003 when the
application was enrolled for hearing on 2nd June, 2003 which day was
the next court day after the date of service of the rule 30
application deprived the plaintiffs' of adequate notice thereof.
Again
in commenting on rule 11 (a rule identical to our rule 6 (24) of our
rules of court) of the South African uniform rules of court, the
learned authors, that is HERBSTEIN
AND
VAN WINSEN supra state;
"There
is no prescribed form of notice of motion for interlocutary
applications. Rule 6 (11) provides that notwithstanding subrules (1)
- (10) interlocutary and other applications incidental to pending
proceedings may be brought on notice
8
supported
by such affidavits as the case may require and set down at a time
assigned by the Registrar or as directed by a judge. The somewhat
cumbersome procedure laid down in rule 6 (5) need not be followed
where the parties are already litigating. The practice is to use a
short form of notice of motion similar to Form 2, but citing the
respondent. It has been held that the applicant is free to allow any
period he deems fit between delivery of his application and the
hearing of it, but that he bears the risk of the respondent having
inadequate opportunity to oppose the application."
Regarding
the rule 30 application filed by the defendant on 30th June, 2003 one
has to take into account that the trial was already set down for
hearing in less than ten days from 19th May, 2003 which is the date
of service of the notice of set down upon the defendant. The
defendants' had communicated as early as 20th May, 2003 their
contention that the notice of set down had been irregularly issued by
the plaintiffs. The notice of set down itself did not even give the
defendant adequate notice of the trial as it gave the defendants'
less than ten court days to prepare for trial contrary to what is
required by the proviso to rule 56 (1) (a) and rule 56 (1) (b).
Therefore
in light of the aforegoing the application for rescission of the
order of 2nd June, 2003 is dismissed with costs.
ALEX
S. SHABANGU
ACTING
JUDGE
