Kubuta Agric Design & Civils (Pty) Ltd v Emangweni Holdings Sugar Association (Pty) Ltd (2136/2010) [2019] SZHC 01 (07 January 2019);

IN THE HIGH COURT OF ESWATINI

                                                  JUDGMENT          

 

In the matter Between:                                                                                Case No. 2136/2010

 

KUBUTA AGRIC DESIGN & CIVILS (PTY) LTD                             Plaintiff

 

 

and   

 

 

EMANGWENI HOLDINGS SUGAR ASSOCIATION                       Defendant

(PTY) LTD

 

 

Neutral citation        :           Kubuta Agric Design & Civils (Pty) Limited v Emangweni

Holdings Sugar Association (Pty) Limited (2136/10) SZHC 01 (7^th February, 2019)

 

Coram                        :           M. Dlamini J

 

Heard                         :           2^nd November 2018

 

Delivered                   :           7^th January 2019

 

 

 

 

Civil procedure                    :           Counsel erroneously filling pleading under wrong case number – court postponing matter to allow opposite party to secure representation or appear in court, failing which matter to             proceed – other party not appearing and court proceeding –  present application for rescission of orders granted thereafter

 

Held                                       :           circumstances justify rescission – trend of case was a postponement as a result of non-appearance of both Counsel

 

                                                :           prospect of success considered only on procedural ground – court yet to decide on merits and demerits of Notice by applicant in next hearing

 

 

 

 

 

Summary:     The applicant seeks for a rescission of this court orders granted against it on 3^rd October, 2018 in its absentia.  The application is opposed by the respondent on a number of grounds.

 

The Parties

[1]                   Following that the present application fails to disclose the description of the applicant, the applicant, as per the summons related to this application, is a company duly registered and incorporated in terms of the company laws of this Kingdom with its principal place of business situate at Sidvokodvo, region of Manzini.  The respondent has been described by the applicant as a company incorporated and registered as per the company laws of the Kingdom and has established its principal place of business at Matsapha, Manzini region.

 

                        Brief Synopsis

[2]                   By Registrar’s date stamp, the respondent (plaintiff then) registered a combined summons on 3^rd June 2010 before this court.  This process was served upon the applicant (defendant then) on 14^th June 2010 at 1520 hours.  The return of service filed by the deputy sheriff Mr. Martin Akker reads:

                       

“That on 14 June 2010 at 15h20 I served this process upon the Office Manager who refused to give her name ostensibly responsible and not less than 16 years of age, at their place of business at MANZINI OLD MUTUAL BUILDING, OFFICE NO:9, district of Manzini, by handing to the first mentioned a copy thereof after exhibiting the original and explaining the nature and exigency of the said process.” 

 

[3]                   On 3^rd August, 2010, the respondent filed a notice of application for summary judgement application.  On the hearing date of respondent’s application, the presiding judge referred the matter to the contested roll of 8^th August 2014 for arguments on the question of Notice to Defend before dealing with the application for summary of judgement.  I must hasten to point out that the present applicant had responded by filling an affidavit resisting summary judgement application.

 

[4]                   It is not clear what transpired thereafter.  In fact what appears on the file cover and the pleadings is somehow confusing as the pleadings reflects that the respondent’s attorney moved an application before my then brother Annadale J compelling the applicant to defend the action.  This order was granted on 10^th June 2011.   On 16^th April 2016, however the respondent served upon applicant a notice of abandonment of its application for summary judgement and called upon it to file its plea.

 

[5]                   Pursuant thereto the applicant served a process entitled “Notice to remove cause of Complaint (Rule 23)”.  It did not file a plea.  It was served upon the respondent on 26^th May 2016 but bears no Registrar’s date stamp as evidence of filling before this court.  There is no further evidence that this notice at the hands of the applicant was ever prosecuted before this court.

 

[6]                   On the 15^th December 2015, the matter was enrolled before me.  The respondent applied for trial dates.  The court granted it three days running from the 14^th to 16^th June 2016.  The applicant was absent.  It is not clear what happened on 14^th June 2016.  However, the matter appeared again on 3^rd October 2016 wherein the respondent prayed for trial dates.   The matter was sat down for 1^st and 2^nd November 2016.  Again on these dates the file is silent on what transpired.

 

[7]                   The matter was recalled on 21^st April 2017.  Both parties were represented.  An application for trial dates were noted as 23^rd  and 24^th  May 2017.  On 23^rd May 2017 both parties appeared before court.  As the record bears testimony, Counsel Mr. J. Henwood and Mr. L.R. Mamba submitted similarly as follows:

                                                                                                           

                                                            “I forgot about the matter”.

                       

[8]                   Indeed their submission was supported by the evidence that the court waited from 9:30am until it requested the Registrar to telephonically summon them to court.  They duly appeared at 11:03am.  The court then reissued new trial dates as 9^th and 10^th August 2017.  The matter however returned to court on 22^nd September 2017 for a set down on 21^st and 22^nd October 2017.   I must point out that this consistent disarray in observance of the trial dates could be attributed to the fact that one party indicated that it intended to be represented by Senior Counsel who unfortunately changed his schedule every now and again. 

 

[9]                   On the 21^st February 2018, the matter was struck off the roll following that there was no appearance, as at 1025 hours, with the court having waited from 0930 hours.  At 1050 hours of the same date, respondent’s Counsel then responded to the Registrars call  which had been made prior to the  struck off.  A new trial date was set as 17^th September 2018.    

 

[10]                 On 17^th September 2018, respondent was represented by Senior Counsel.  There was no appearance for the present applicant.  She submitted that defence Counsel served a notice of withdrawal of its services in the matter.  The matter was then postponed to 3^rd October 2018 for setting of trial date in the event applicant instructed another Counsel and that should applicant decide not to, the matter was to be heard on the said date.

 

[11]                 On 3^rd October 2018, the court called the matter at 1012 hours.  There was still no appearance for the applicant.  This was noted after the court orderly was ordered to call the name of applicant three times and upon the court satisfying itself on the postage of Notice of Withdrawal to applicant that ten days had lapsed.

 

[12]                 Viva voce evidence was led on the cause of action by the respondent’s Counsel.    The court albeit that there was no plea filed, considered the evidence, pleadings together with the affidavit resisting summary judgement.  It came to the conclusion that the defence raised therein could not sustain.  I must hasten to point out that the court, in considering the affidavit for summary judgement even though in law strict sense was not supposed to do so following that it was faced with summons as the application for summary judgement had been abandoned, was guided by the fact that the claim by the respondent was of significant sum and the dictate of justice favoured such step.  At the end, the court granted some of the prayers sought.

 

                        Present application

 

[13]                 In support of its application for rescission the applicant has deposed:

 

                        “8.       During or around October 2006, the Respondent served the applicant  with an application dated the 13^th October 2006 under High Court Case No. 3420/2006 in which the following orders were prayed for;

                       

                                               “1.       Ordering the Respondent [now Applicant] to forthwith              

                                                           Restore and/ or deliver to Applicant the property described as:      

                                              

                                               Two (2) new Agrico Seven Tower Centre Pivot Irrigation Systems.

 

                                                 2.         Authorising the Deputy Sheriff to take whatever steps he deems appropriate to give effect to prayer 1 above.

                                                3.         Costs of suit.

                                                4.         Further and/or alternative relief.

 

                        11.     Mr. L.R. Mamba proceeded to defend the application and I believe it is still pending in Court as I was never informed that same has been either been withdrawn or abandoned by the Respondent.”

 

[14]                 The applicant immediately averrs further:         

 

                        “12.    As a matter of fact, Mr. L. R. Mamba only withdrew as an attorney of record under High Court Case No. 3420/2006 during or around the 17^th September 2018.  The Notice of Withdrawal as attorneys of record by L.R. Mamba in the matter was only received by the Applicant during or around the 18^th October 2018.  I attach hereto the said withdrawal by L.R. Mamba marked as “EM 2”.  It is self-evident from the notice of withdrawal that this matter is still pending because otherwise there would have been no need for L.R. Mamba to file a notice of withdrawal in the matter if it was no longer pending in court.”

 

[15]                 On the above averments, the court recalled file No. 3420/2006 to ascertain the veracity of applicant’s averment.

 

                        File 3420/2006

[16]                 It appears that on 14^th May 2009, the responded filed a Notice of Motion together with a founding affidavit.  The case number is not reflected.  The prayers read mainly:

 

                                    “1.       Ordering the respondent to forthwith restore possession    and/or

                                                deliver to the applicant the property described as:

 

                                    Two (2) new Agrico Seven Tower Centre Pivot Irrigation Systems.

2.       Authorisng the Deputy Sheriff to take whatever steps he deems appropriate to give effect to prayer 1 herein above.”

          

[17]                 The applicant opposed the Notice of Motion by raising a lis pendis point in limine.  The case was said to be pending under case No: 2765/2005.  Subsequent to this point in limine, respondent filed a notice of withdrawal of the lis under case No. 2765/2005.  Thereafter the recordings on the file cover reflects several postponements of the matter until to 2^nd May 2008.  On this date, the matter was by consent of the parties referred to the 8:30am roll.  It is not clear as to which date this 8:30 a.m. roll was.   There are no further entries on the file whose book of pleadings reflect case No; 3420/2006.

[18]                 The last pleading under Case No: 3420/2006 is a Notice of withdrawal as Attorneys of record filed on 17^th September 2018 and reflects service upon respondents counsel on the same date.  

 

                        Issue

                        Notice of withdrawal of 17 September 2018

[19]                 The Notice of withdrawal served upon respondent’s attorney reads:

 

                                                            “IN THE HIGH COURT OF ESWATINI

                       

                                    Held at Mbabane                                                                     CASE NO. 3420/2006

                                    In the matter between:

                       

                                    KUBUTA AGRIC DESIGN & CIVILS (PTY) LIMITED         1^st Applicant

                       

                                    A & A PROPERTIES (PTY) LIMITED                                                2^nd Applicant

 

                                    And

                                    EMAGWENI HOLDINGS SUGAR ASSOCIATION

                                    (PROPRIETARY) LIMITED                                                    Respondent”

 

                        _______________________________________________________________

                                   NOTICE OF WITHDRAWAL AS ATTORNEYS OF RECORD

                        _______________________________________________________________

                        PLEASED TO TAKE NOTICE that L.R. MAMBA AND ASSOCIATES hereby withdraws as attorneys of record for the Respondent in these proceedings.

 

                        TAKE NOTICE FURTHER that the Respondent must within ten (10) days of receipt of this notice, appoint and notify the applicant and the Registrar of this Court of his address where it may be served with all process in these proceedings.

 

                        TAKE NOTICE FURTHER that if the Respondent fails to appoint an address of service, his claim will be dismissed for failure to comply with the Rules of Court.

 

                        DATED AT MBABANE ON THIS 12^th DAY OF AUGUST, 2018.”

 

[20]                 Now the question is, did the applicant’s erstwhile attorney withdraw his services under the present application?   Put in the language of the respondent, did L.R. Mamba erroneously insert the incorrect case number in withdrawing its services?

 

                        Determination

[21]                 I must on the onset point out a very glaring difference under case No: 3420/2006 and the present case.  The parties under case No: 3420/2006 are: “KUBUTA AGRI DESIGN & CIVILS (PTY) LIMITED and A & A PROPERTIES (PTY) LIMITED vs EMANGWANENI HOLDINGS SUGAR ASSOCIATION (PROPRIETARY) LIMITED.”

 

[22]                 On the other hand the parties in the action proceedings whose orders are now impugned are: ‘EMANGWANENI HOLDINGS SUGAR ASSOCIATION (PTY) LTD vs KUBUTA AGRIC DESIGN & CIVILS (PTY) LTD.”

 

[23]                 Now this calls for me to ascertain who the parties were under the Notice of Withdrawal under scrutiny.   The Notice reflects:

 

                                                            “IN THE HIGH COURT OF ESWATINI

                       

                        Held at Mbabane                                                     CASE NO. 3420/2006

                        In the matter between:

                        KUBUTA AGRIC DESIGN & CIVILS (PTY) LIMITED     1^st Applicant

                        A & A PROPERTIES (PTY) LIMITED                                   2^nd Applicant

                        And

                        EMAGWENI HOLDINGS SUGAR ASSOCIATION

                        (PROPRIETARY) LIMITED                                                 Respondent”

 

[24]                 Clearly from the above alone, the evidence supports the assertion by the applicant that Mr. L.R. Mamba withdrew under Case No; 3420/2006 and not Case No: 2134/2010.  What further supports this action by Mr. L.R. Mamba was that no withdrawal application was served upon this court file.  The original copy of the application by L. R. Mamba was filed under the relevant court file (3420/2006) and not Case No: 2136/2010.  Only a copy of the Notice of Withdrawal was filed by respondent’s Counsel from the bar on the hearing date of 17^th September 2018.  The court did not have a copy in its file on the 17^th September, 2018.

 

[25]                 It is not clear why respondent’s Counsel chose to file the withdrawal of another matter in the present case.  Clerks of this court were vigilant of the case number and the parties.   They duly filed the Notice in the correct file.  However, it appears to me that the filling error was at the instance of respondent’s attorney.   This is regrettable as the court proceeded to deal with the matter under the comprehension that the attorney of record had withdrawn his services whereas this was not the case.

 

 

 

                        Absence of applicant’s attorney on 17^th September 2018

[26]                 The respondent argued that even if it could be said for a second that there was no Notice of Withdrawal serving before court, the attorney of record nevertheless absented himself from the proceedings.  For this reason, the respondent was entitled to the grant of the orders prayed.  Generally speaking, courts are not bound to postpone a matter due to the absence of Counsel without reasonable grounds. 

 

[27]                 It is correct that on the 17^th September 2018, the applicant’s attorney did not appear in court.  However, as I have taken time to outline the genesis of this matter under the sub-heading “brief synopsis,”  it is clear that both parties took a laissez-faire attitude in dealing with this mater.  Trial dates fell off without evidence of the reason behind.   On several occasions if Counsel appeared before court it was because the court went out of its way to summon Counsel to appear.  This attitude resonates into both parties not being spared from the blame. In other words, respondents’ Counsel cannot benefit from the same ill he is guilty of.

 

[28]                 I have already stated that on the trial date of 21^st February 2018, the court had to call the offices of both Counsel.  The Registrar reported that Mr. L.R. Mamba could not be reached.  As the record bears Mr. Maseko appeared in chambers for the respondent and sought a trial date.  It was set for the 17^th September 2018. 

 

[29]                 On the 17^th September 2018, upon the court noticing the absence of applicant’s attorney, enquired on the notice of set down.  It was then that the notice of withdrawal of services was handed over the bar, an attempt by respondent to explain the non-appearance of applicant’s attorney.  This notice was never intended for the action proceedings pending before me on 17^th September 2018 as I have demonstrated above.  The justice of the matter dictated that a postponement be sought as the other party was not before court.   This is because the trend in this matter was a postponement due to both Counsel’s failure to appear as I have demonstrated above.  There is therefore no justiciable ground why the case could not be postponed even then on the 17^th September on the basis of applicant’s failure to appear.  It is obvious that the case was postponed on the 17^th September, 2018 for the wrong reason, viz., that applicant secure representation or appear in person instead of absenteeism by applicant’s attorney.  For the above two reasons alone, it is imperative that I grant applicant’s application.

 

                        Prospect of Success

[30]                 I have alluded above that when I considered the action proceedings, I took into account the affidavit resisting summary judgement application.  I have pointed out that I was not to do so in terms of procedural law.  However, I needed to inform myself if the applicant had prospect of success in its defence.   My conclusion was that there were no prospects of success.

 

[31]                 However, as I scrutinised the file while preparing to write this judgement, I noted that the applicant had filed a notice termed:  “Notice to Remove Cause of Complaint (Rule 23)”.  This notice raises a number of defences, some of which are not in the affidavit resisting summary judgement application.  These defences were not considered by me as I had an oversight of this pleading.  On the above, justice would best be served by granting the application. 

 

[32]                 I must however emphasised that this is not tantamount to saying that applicant’s defences as raised in the notice under Rule 23 has any prospect of success.  The application is allowed solely on procedural aspect following that it was not brought to the court’s attention both on the hearing of the action proceedings and on the rescission application as well that applicant had filed a notice under Rule 23 for the court’s consideration.  I shall consider its merits and demerits on the next hearing date.

 

                        Future procedure

[33]                 It is clear that after the applicant served the notice under Rule 23, the matter ought to have been set down for its arguments.   However, it appears to me that both Counsel were under the erroneous understanding that the matter was ready for a fully blown trial.  This was obviously not the case.  I understand the error by both Counsel as each once submitted, “I forgot about the case” when the court ordered their appearance for trial of the matter.  In the result the matter stands to be postponed for argument on the applicant’s Rule 23 Notice.

 

[34]                 For the reason that Counsel indicated the engagement of Senior Counsel, the matter is postponed to a date to be agreed by both parties to be communicated to the Registrar not later than seven days after judgement.  Mr. L. R. Mamba is considered not to have withdrawn in this matter.  Present applicant’s Counsel is ordered to ensure the necessary procedure in order to secure representation, if applicant is so inclined, in this matte at process. I say so in order to impress upon the parties that no postponement shall be granted in this matter once a consent hearing date is granted except by establishing exceptional circumstances.  The consented date must not be beyond 30^th June 2019. 

 

[35]                 In the result, it is unnecessary for the court to consider other grounds raised.  I therefore enter the following orders:

 

1. Applicant’s application succeeds;

 

35.2        The orders of this court are hereby rescinded and set aside;

 

1. The main action is postponed to a date compliant with paragraph 34 of this judgment;

 

  35.4       Costs of this application to be costs in the main   course.

 

 

 

 

 

________________________________

M. DLAMINI J

 

For the applicant                  :           Mr. B. S. Dlamini of B.S. Dlamini and Associates

For the respondents             :           Mr. S. Maseko of Henwood and Company