IN THE HIGH COURT OF ESWATINI
HELD AT MBABANE CASE NO. 404/2018
In the matter between:
CHAUNDRY INVESTMENTS (PTY) LTD APPLICANT
t/a CAR ZONE
THABISO MOTSA 1ST RESPONDENT
SIFISO VILAKATI N.O. 2ND RESPONDENT
THABISO MOTSA APPLICANT
CHAUNDRY INVESTMENTS (PTY) LTD 1ST RESPONDENT
t/a CAR ZONE
THE NATIONAL COMMISSIONER OF POLICE 2ND RESPONDENT
THE ATTORNEY GENERAL 3RD RESPONDENT
Neutral Citation : Chaundry Investments (PTY) Ltd t/a Car Zone vs Thabiso
Motsa & Another (404/18  SZHC 29 (26 FEB 2019)
Coram : MABUZA – PJ
Heard : 31 JULY 2018
Delivered : 26 FEBRUARY 2019
Civil Procedure – Application for rescision of judgment – Judgment issued in error – Interim
orders issued under one case number – Confirmed under a different case
number – Application granted with costs.
 This is a rescission application. The Applicant herein sought an order inter alia as follows:
- That the rules of this Honourable Court relating to manner of service form and time limits be dispensed with and that this application be heard as urgent;
- Condoning the Applicant’s non-compliance with the rules of the above Honourable Court;
- Staying the sale in execution of the motor vehicle to wit:
Attached pursuant to the execution of the order granted by this Honourable Court on the 16th day of March 2018 under case number 205/2018 for an application under case number 404/2018, pending finalization of this application;
- Rescinding and/or setting aside the said order granted by the Honourable Court on the 16th day of March 2018;
- That a rule nisi do issue forthwith with immediate and interim relief returnable on a date to be determined by this Honourable Court, calling upon the Respondents to show cause why:
- An order in terms of prayers 3 and 4 should not be made final.
- Costs of suit at a punitive scale
 The application is opposed by the Respondent.
 It is stated on behalf of the Applicant that the rescission application is brought under Rule 42 and Rule 31 (3) of the Rules of this Court; and the common law.
re: Case No. 404/2018
 An application under case number 404/2018 was moved whose prayers are as follows:
“1 The Applicant is condoned for non-compliance of service and this matter is enrolled to be heard as one of urgency and exparte.
2. That the 1st Respondent is called upon to show cause on the 6th day of April 2018 why an order in the following terms should not be made final.
- The deputy sheriff, Mr. Sifiso Vilakati, is ordered to execute the writ of execution on this matter against the 1st Respondent at Matsapha with the assistance of the members of the Royal Swaziland Police stationed at Matsapha Police Station.
- The 2nd Respondent, represented by all officers stationed at Matsapha Police Station, is directed and/or ordered to assist the deputy sheriff Mr. Sififso Vilakati to execute the writ against the 1st Respondent by providing security and assisting him in the execution.
- That the 1st Respondent is ordered to pay the costs of this application of attorney and own client scale.
- It is ordered that prayers 2.1 and 2.2 should operate with interim and immediate effect.
- Further and/or alternative relief.”
 Mr. Ahmed Nareed is the deponent for the Applicant. He says that the application and interim order obtained on the 16/3/2018 was never served on the Applicant. He says that the interim order obtained under Case No. 404/2018 was confirmed on the 6/4/2018 under Case No. 205/2018. This is obviously an error which the 1st Respondent admits at paragraph 35.3 of his answering affidavit. Even though the 1st Respondent says that there was nothing wrong with the learned Judge using the two files interchangeably. I disagree. The learned Judge would not have confirmed the order had he been informed that he was using the wrong file.
re: Case No. 205/2018
 Hereunder are the prayers in respect of case no. 205/2018:
“1. The Applicant is condoned for non-compliance of service
and this matter is enrolled to be heard as one of urgency
2. A rule is hereby issued by this Court returnable on the
23rd February 2018 at 0900 hours calling upon the 1st
Respondent to show cause why an order in the following
Terms should not be made final;
2.1 The 1st Respondent is ordered to restore possession
To the Applicant of the motor vehicle to wit;
Make: Toyota Noah
Registration No. RSD 526 CM
2.2 Granting the Applicant further and/or alternative
3. Pending the finalization of the matter, the deputy sheriff for the
District of Manzini is ordered to remove the motor vehicle from
The possession of the 1st Respondent and keep it under attachment.
4. The 2nd Respondent, represented by the station commander and/or
all police officers at Matsapha Police Station, is ordered and directed
to assist the deputy sheriff in removing the motor vehicle from the
1st Respondent and arrest anyone who defies the court order on sight.
5. Granting the Applicant further and/or alternative relief.”
 In case No. 205/2018 Mr. Thabiso Motsa obtained an interim spoliation order for the return of his motor vehicle from the Applicant. This was on the 16th February 2018. The interim order was served on the Applicant but not the application. It was confirmed on the 28/02/2018. On the 05/03/2018 2nd Respondent (the deputy sheriff) followed up with a writ of execution for costs granted under Case No. 205/2018 which amounted to E13,987.49 (Thirteen thousand nine hundred and eighty seven Emalangeni forty nine cents).
 Because the 1st Respondent owed the Applicant some money in the region of E11,000.00 or thereabouts, the Applicant says that he suggested a set off of this amount to the 2nd Respondent. The latter informed him that he did not have instructions to do a set off. The 2nd Respondent denies this.
 I have some difficulty in comprehending the import of pleading a set off at execution stage and moreso to plead it to a deputy sheriff. Nevertheless, the 2nd Respondent denies that the incident occurred. In fact he says that he was not successful in obtaining the amount of costs on the 05/03/2018. The 1st Respondent through his attorneys moved an application on the 16/3/2018 under case 404/2018 for the execution of a writ in respect of taxed costs incurred under Case No. 205/2018. The order was granted and it included the assistance of the police in executing for the costs that remained outstanding in case 205/2018 on the 18 May 2018 when the motor vehicle was removed.
 I have read the submissions in the parties respective heads of argument and my conclusions are as follows:
- The amount of money in respect of costs is not a large amount of money
and the 1st Respondent could have attached a cheaper motor vehicle or opted for cash as the Applicant correctly states.
- The files (205/2018 and 408/2018) should have been consolidated.
Alternatively the 1st Respondent ought to have brought the action in 404/2018 under 205/2018.
- I accept the Applicant’s evidence that the interim order and application
were not served on it.And that had they been served Applicant would have defended the matter.
- The interim order was confirmed by mistake under a wrong case
- Any court process in particular the attachment
that followed thereafter is tainted.
 In view of the foregoing I make the following order:
- The Application for rescission is granted and the order granted on
the 16/3/2018 is hereby rescinded and set aside.The Applicant
is to file its defence.
- The stay of the sale in execution is hereby confirmed.
- Costs are awarded to the Applicant on the ordinary scale.
For the Applicant : Mr. T. Fakudze
For the Respondent : Mr. N.D. Jele