Chaundry Investments (PTY) Ltd v Motsa and Another (404/2018) [2019] SZHC 29 (26 February 2019);

 

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

 

and

                                                                                                                       

THABISO MOTSA                                                                         1^ST RESPONDENT

SIFISO VILAKATI N.O.                                                                2^ND RESPONDENT

                

In re:

THABISO MOTSA                                                                          APPLICANT

and          

CHAUNDRY INVESTMENTS (PTY) LTD                                1^ST  RESPONDENT

t/a CAR ZONE

 

THE NATIONAL COMMISSIONER OF POLICE                    2^ND RESPONDENT

 

THE ATTORNEY GENERAL                                                      3^RD RESPONDENT

 

 

Neutral Citation                      :           Chaundry Investments (PTY) Ltd t/a Car Zone vs Thabiso

Motsa & Another (404/18 [2019] SZHC  29   (26 FEB 2019)

 

Coram                                     :           MABUZA – PJ

Heard                                      :           31 JULY 2018    

Delivered                                :           26 FEBRUARY 2019

 

SUMMARY

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.         

 

JUDGMENT

           MABUZA -PJ

[1]     This is a rescission application.   The Applicant herein sought an order inter alia as follows:

 

1. 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;

 

1. Condoning the Applicant’s non-compliance with the rules of the above Honourable Court;

 

1. Staying the sale in execution of the motor vehicle to wit:

 

1.  
2.  
3.  

CHASIS NUMBER:WDB2030452f10D482

ENGINE NUMBER:11195532176054E93

Attached pursuant to the execution of the order granted by this Honourable Court on the 16^th day of March 2018 under case number 205/2018 for an application under case number 404/2018, pending finalization of this application;

 

1. Rescinding and/or setting aside the said order granted by the Honourable Court on the 16^th day of March 2018;

 

1. 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.

 

1. Costs of suit at a punitive scale

 

[2]     The application is opposed by the Respondent.

 

[3]     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

[4]     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 1^st Respondent is called upon to show cause on the 6^th day of April 2018 why an order in the following terms should not be made final.

 

1. The deputy sheriff, Mr. Sifiso Vilakati, is ordered to execute the writ of execution on this matter against the 1^st Respondent at Matsapha with the assistance of the members of the Royal Swaziland Police stationed at Matsapha Police Station.

 

1. The 2^nd 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 1^st Respondent by providing security and assisting him in the execution.

 

1. That the 1^st Respondent is ordered to pay the costs of this application of attorney and own client scale.

 

1. It is ordered that prayers 2.1 and 2.2 should operate with interim and immediate effect.
2. Further and/or alternative relief.”

 

[5]     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 1^st Respondent admits at paragraph 35.3 of his answering affidavit.  Even though the 1^st 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

[6]     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

and exparte.

 

                        2.         A rule is hereby issued by this Court returnable on the

                                    23^rd February 2018 at 0900 hours calling upon the 1^st

                                    Respondent to show cause why an order in the following

                                    Terms should not be made final;

 

                                    2.1       The 1^st 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

                                                Relief.

 

                        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 1^st Respondent and keep it under attachment.

 

4.         The 2^nd 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

            1^st Respondent and arrest anyone who defies the court order on sight. 

 

5.         Granting the Applicant further and/or alternative relief.”

 

[7]     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 16^th 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 2^nd 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).

 

[8]     Because the 1^st 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 2^nd Respondent.  The latter informed him that he did not have instructions to do a set off.  The 2^nd Respondent denies this.

 

[9]     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 2^nd 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 1^st 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.

               

[10]   I have read the submissions in the parties respective heads of argument and my conclusions are as follows:

1.       The amount of  money in respect of costs is not a large amount of money

and the 1^st Respondent could have attached a cheaper motor vehicle or opted for cash as the Applicant correctly states.

 

1.       The files (205/2018 and 408/2018) should have been consolidated. 

Alternatively the 1^st Respondent ought to have brought the action in 404/2018 under 205/2018.

 

1.       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.

 

1.       The interim order was confirmed by mistake under a wrong case

number and;

 

1.       Any court process in particular the attachment   

that followed thereafter is tainted.

                 

[11]   In view of the foregoing I make the following order:

1.       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.

 

1.       The stay of the sale in execution is hereby confirmed.

 

1.       Costs are awarded to the Applicant on the ordinary scale.

                                               

 

 

____________________

Q.M. MABUZA

PRINCIPAL JUDGE

 

 

 

          For the Applicant          :         Mr. T. Fakudze

          For the Respondent       :         Mr. N.D. Jele