IN THE SUPREME COURT OF SWAZILAND
JUDGMENT
Case No. 80/2012
In the matter between
JABULILE KHANYISILE NXUMALO Appellant
and
SWAZILANDBUILDINGSOCIETY Respondent
Neutral citation: Jabulile Khanyisile Nxumalo v Swaziland Building Society (80/2012) [2013] SZSC 28 (31 May 2013)
Coram: RAMODIBEDI CJ, MOORE JA and DR. TWUM JA.
Heard: 15 May 2013
Delivered: 31 May 2013
Summary: Appellant sourced and obtained loans from respondent; appellant mortgaged immovable property to respondent to secure due repayment of loans; appellant defaulted in debt repayments; respondent issued writ of summons plus declaration to enforce debt repayment. Notice of application for summary judgment served on appellant; appellant failed to file affidavit to resist summary judgment; application dealt with when called and summary judgment entered in favour of respondent. Neither appellant nor her attorney in court; appellant does not show bona fide defence to claim; appellant appeals against summary judgment; alleges breach of audi alteram partem rule – counsel abandons appeal during hearing; appeal dismissed on merits; costs to respondent.
JUDGMENT
DR. TWUM J.A.
Introduction
This is an appeal from (1) the summary judgment entered by Her Ladyship, Ota J. (as she then was), against the appellant in favour of the respondent on 7th September 2012, and (2) the order of the court dated 24th October 2012 presided over by Annandale J. refusing to set aside that summary judgment.
[1] On or about 30th August 2008, the respondent, as lender, entered into a written agreement with the appellant as borrower, whereby it loaned an initial amount of E171, 000.00 to the appellant upon the following terms:-
(i) The loan was repayable over a period of 10 years
(ii) Interest was exigible at the rate of 14% per annum.
(iii) The first of the loans was to be paid by monthly instalment of
E2656.00 each.
[2] By a number of subsequent loan agreements, the total sum outstanding and owing by the appellant to the respondent stood at E1,522 215.28 as at 25th June 2012.
[3] The appellant’s immovable property, Lot No. 92, situate in Tubungu Township, was mortgaged to the respondent by the appellant to secure the due payment of the total loans advanced to her.
[4] After a series of demand notices served by the respondent on the appellant, the respondent filed a writ of summons on 25th June 2012 against the appellant claiming the sum of E1 822 218.28; being the total monies the respondent said had been loaned to the appellant, plus interest thereon, at her request under those various loan agreements which the appellant had failed or wilfully refused to pay to the respondent.
[5] On 26th July 2012, the respondent served and filed Notice of Application for Summary Judgment against the appellant as follows:-
(i) Payment of the sum of E1 822,218.28
(ii) Interest on E1 822,218.28 at the agreed rate of 8% per annum from the date of issue of the summons to the date of final payment.
(iv) Costs
(v) Declaring Lot No 92 situate in the Tubungu Township District of Manzini held by the Mortgager under Deed of Transfer No. 885/2008 dated the 12th November 2008, executable.
The application was supported by an affidavit in proof of Summary Judgment sworn to by the respondent’s Managing Director – Mr Timothy Robert Nhleko. It was listed for hearing on 10th August 2012. On that day it was adjourned to 7th September 2012, at the request of attorneys instructed by the appellant to enable her file an affidavit resisting the summary judgment application. The matter duly appeared on the cause list for the High Court sitting in the premises located at the Mbabane Magistrate’s Court. The hearing date was 7th September 2012, as previously agreed.
[6] When the High Court started its business for the day, neither the appellant nor her attorneys were in court. Eventually the matter was called for hearing. The appellant had not filed any affidavit resisting the summary judgment application. Counsel for the respondent moved and motivated the application. Summary judgment was entered in favour of the respondent against the appellant on the merits as appeared from the papers filed of record.
Application for rescission
[7] On 6th October 2012, the appellant filed under a Certificate of Urgency, a Notice of Motion praying for an order rescinding and/or setting aside the summary judgment entered against her on 7th September, 2012, and a further order that the sale of appellant’s immovable property scheduled for 26th October 2012 be cancelled and/or set aside.
[8] The respondent replied to the matters deposed to in the affidavit in support of the Notice of Motion filed by the appellant by a comprehensive affidavit sworn to by Timothy Robert Nhleko, Managing Director of the respondent. In sum, the respondent pointed out that the judgment of 7th September was a summary judgment, not a default judgment. No error or irregularity was alleged to have vitiated the judgment. The overwhelming evidence on record, even by the appellant herself or by the respondent, was to the effect that the appellant truly owed the respondent as alleged and had indeed defaulted in paying up the scheduled instalments. Consequently, the respondent submitted, that the appellant’s application for rescission or setting aside of the summary judgment should be dismissed. On 24th October 2012, the application for rescission and/or setting aside of the summary judgment was dismissed as wholly unmeritorious with costs at the attorney and client scale by Annandale J.
The Appeal
[9] On 25 October, 2012, the appellant filed a combined Notice of Appeal against
(i) The summary judgment; and
(ii) The refusal by the court a quo to have the summary judgment rescinded/or set aside.
Seven grounds of appeal were noted as follows:-
“1. The Court aquo erred in law and in fact in finding that Summary Judgment Application was in order and that judgment against Appellant was proper in the circumstances of the case.
2. The Court aquo erred in law and in fact in finding that Appellant was indebted to the Respondent in the sum of E182 218-28 (One Million Eight Hundred and Twenty Two Thousand Two Hundred and Eighteen Emalangeni and Twenty Eight Cents) in view of the allegations in the declaration.
3. The Court a quo erred in law and in fact in finding that the Summary Judgment was not rescindable in the circumstances of the case.
4. The Honourable Court aquo erred in law and in fact by holding that the matter was not urgent in the circumstances of the case taking into account that the sale in issue was to take place on the 26th October 2012.
5. The Honourable Court aquo erred in law and in fact in find that Appellants application was not a proper case for rescission in the circumstances.
6. The Honourable Court aquo erred in law and in fact in finding that in holding the Appellant did not give a reasonable and/or that she was not in default of appearance on the 07th September 2012 when the judgment was issued.
7. The Honourable Court aquo erred in law and in fact in finding that Appellant did not show that she has a defence on the merits of the case.”
Turn-over of Appellant’s Attorneys
[10] It is on record that on 16th July 2012 T.L. Dlamini Attorneys filed Notice of Intention to Defend on behalf of the appellant, (then designated as defendant). Subsequently, the appellant decided to negotiate with the respondent personally. Not unnaturally, T.L. Dlamini withdrew as attorney for the appellant. When her negotiations with the respondent did not yield the results she expected, she instructed Malinga and Malinga as her attorneys. Even though Attorneys Malinga and Malinga had appeared on behalf of the appellant in court on 10th August 2012 and had succeeded in persuading the court to postpone the hearing of the application for summary judgment to 7th September 2012 to enable the appellant to file an affidavit resisting the summary judgment application, when the matter was called for hearing on the adjourned date, they were late in attending court. They finally arrived a considerable time after the application for summary judgment had been called and granted. As it has been pointed out above there was no opposing affidavit on record as they had promised to do on 10th August 2012. The appellant was also not present. Perhaps, the appellant took umbrage at their default and withdrew her authority on 8th October 2012. Attorneys Malinga and Malinga withdrew as attorneys of record representing the appellant.
[11] After the withdrawal of Attorneys Malinga and Malinga, the appellant appointed, Nzima and Associates as her attorneys on 8th October 2012. These new attorneys prepared the Notice of Motion under a Certificate of Urgency to have the summary judgment rescinded and/or set aside. When that application was refused, these attorneys filed the Notice of Appeal as well as the Appellant’s Heads of Argument on 6th May 2013.
[12] The appeal was scheduled to be heard on 15th May 2013. However, on 14th May 2013, Attorneys Nzima and Associates filed Notice of Withdrawal as Attorneys of Record and on the same day, S.C. Simelane filed Notice of Appointment and Substitution of Attorneys. It was Mr S. C. Simelane who ultimately appeared on behalf of the appellant during the hearing of the appeal.
[13] There is no doubt in my mind that this rapid turn-over of appellant’s attorneys unsettled her and blurred her perception of the legitimacy of her defence to the respondent’s case against her. At the very least, it must have compounded her problems and goaded her to file an appeal.
[14] The quintessential claim put up by the respondent against the appellant in the court a quo was a demand for the payment of the sum of E1 822 218.28 which it had loaned to the appellant under a series of loan agreements. Copious documentary evidence was provided as annexures to the respondent’s Founding Affidavit. There was no iota of evidence by the appellant that she did not receive those loans fully documented in the respondent’s evidence. Indeed, in paragraph 8 of her Founding Affidavit in support of her own application to have the summary judgment rescinded or set aside, she admitted that she took the loans to build a house which was then ready for occupation and that if she got a tenant to rent it, she could get about E10, 000.00 per month rental which she would deposit with the respondent in repayment of the debt.
[15] Notwithstanding the contents of paragraph 8 of her Founding Affidavit referred to above, the appellant claimed that she had a good and bona fide defence to the respondent’s claim and that she was not indebted to the respondent in the sum of E1 822 218.28, or at all. According to her, the respondent rather owed her the sum of E170 000.00 on account of retention money which the respondent had wrongfully withheld from her, even though the respondent had explained with documentary proof to her that the retention money belonged to the contractor, as security for executing the building contract in a workmanlike manner. If there was no complaint about his work, the retention money was payable to him, not the appellant.
[16] One major ground of appeal was that the summary judgment was prematurely entered against her in her absence.
In my view that statement is false, disingenuous and even malicious.
[17] This defence cannot avail the appellant. The record shows that the appellant’s new attorneys, Malinga and Malinga appeared in court on 10th August 2012 and applied for an adjournment of the application for summary judgment from 10th August 2012 to 7th September 2012 to enable her file an affidavit resisting the application. This was acceded to but on the adjourned date, the appellant had not served or filed any such affidavit. Indeed on the 7th of September 2012, neither the appellant nor her counsel was in court when the matter was called. In a subsequent application filed by the appellant to set aside or rescind the summary judgment, the appellant said her attorney was late in going to the court and that when he got there the matter had already been called and disposed of. That was no good reason, in my view, for the court a quo to have acceded to her application to have the summary judgment rescinded or set aside. The summary judgment complied fully with Rule 32 of the High Court Rules. It was regularly obtained. It was not prematurely entered. The record shows that she was truly a delinquent debtor. This ground of appeal is accordingly dismissed.
Fair Hearing – audi alteram partem
[18] In paragraph 9 of her Heads of Argument the appellant argued that her main contention was that she had been denied her constitutional right to be heard. She claimed that the principles of audi alteram partem were not applied by the court. That is how it came about that summary judgment was entered against her.
[19] A cursory reading of the grounds of appeal reveals that no such ground was noted in the Notice of Appeal. Rule 7 of the Court of Appeal Rules, 1971, provides that “the appellant shall not, without the leave of the Court of Appeal, urge or be heard in support of any ground of appeal not stated in the notice of appeal, but the Court of Appeal in deciding the appeal shall not be confined to the grounds so stated.”
[20] I was minded to ignore the appellant’s resort to the constitutional defence in view of the fact that it was not posited as a ground of appeal. That notwithstanding I have waived the non-compliance. I will deal with the ground based on the audi alteram partem rule to advance the jurisprudence on fair hearing.
[21] Now, what procedural safeguards does the audi alteram partem principle provide for litigants in court. First, section 21 (1) of the Constitution of the Kingdom of Swaziland, 2005, provides that in the determination of civil rights and obligations or any criminal charge, a person shall be given a fair and speedy public hearing within a reasonable time by an independent and impartial adjudicating authority.
[22] There is no evidence before the Court that the High Court that adjudicated on the appellant’s matter was not independent or that the judges were biased against her. On the contrary, it will be recalled that when appellant’s attorneys pleaded for an adjournment to enable the appellant to file an affidavit resisting the summary judgment application, it was acceded to and the matter was adjourned from 10th August 2012 to 7th September 2012. The truth is that come 7th September, 2012 and no affidavit had been filed and the attorneys were late to court. The appellant herself was absent.
[23] There are two great central principles, “audi alteram partem” and “nemo judex in causa sua” inherent in the concept of natural justice. The requirements of natural justice must depend on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates.
[24] In court proceedings, the rules applicable are published in the Rules of Court for the benefit of all – lawyers, litigants, judges and even ordinary members of the society. The Latin tag, “audi alteram partem” means hear both sides before making a decision. To be able to do this, other sub-rules must be in place. In particular:-
(i) Notice of the proposed hearing of any matter must be published in sufficient time for the information of lawyers, litigants and even other members of the public.
(ii) The principle requires that the court should hear both sides in court (except in special circumstances) before making a binding determination of the parties’ rights and obligations.
(iii) The courts’ business is published in the court’s roll. That gives litigants opportunity to prepare their defence or answer. It also gives litigants the right to respond to allegations, both fair and foul, and give evidence to disabuse the minds of their adversaries; either by themselves or by their witnesses. This includes the right to be cross-examined and to cross-examine the adversary or his witnesses.
(iv) Parties are also to be afforded opportunities to make final submissions or addresses both on the facts and the law to the court.
(v) Most importantly, all these must happen within the public sitting hours of the court.
[25] In the case before this Court, Rule 32 of the High Court Rules was fairly applied. The appellant complains that when her attorneys failed to file the affidavit and also turned up in court late, somehow, the court should have re-arranged its schedule to accommodate her.
[26] The presiding judge is not in court merely to see to it that the Rules of Court are applied. Most importantly, he/she is there to administer justice. Where the presiding judge decides that he/she should not disrupt her schedule in order to accommodate a delinquent attorney or a party to the suit, that is not evidence of a breach of the audi alteram partem principle. The judge is perfectly entitled to keep to the court’s time-table; particularly if on the merits as adumbrated on the papers of record, the litigant does not have a good and bona fide defence to the claim. Fair hearing does not mean that the rules should be changed for any particular litigant. It means the hearing must be fair to both sides. In my view, changing the rules mid-stream could be misconstrued as evidence of bias. Judges are sworn to do justice to all manner of person, without fear or favour affection or ill-will. That is the kingpin of most judicial oaths.
[27] In my considered view, there was no breach, whatsoever of the appellant’s constitutional right of fair hearing. That ground fails and it is dismissed accordingly.
[28] It does the court injustice for the appellant to accuse it of a denial of her constitutional right to be heard, as through it constituted some kind of “open sesame” for all her misfortunes. If anybody let her down, it was first and foremost, herself. The truth is that she simply did not have sufficient income, to undertake that adventure. Nobody knows the income she was earning in Portsmouth, England. There was no evidence of any remittances she made in gradual amortization of those loans. It may well be that her attorneys were partly to blame for not perhaps advising her of the futility of her efforts to avoid paying the loans. May be they advised her but she turned a deaf ear to such advice. One thing that must be emphasized is that the basis of summary judgment is that the defendant has no bona fide defence to the plaintiff’s claim. The simple truth was that she owed the respondent and she had no means to repay the debt. Her Ladyship Ota J was right in refusing to reopen the summary judgment – for it to be re-argued when Attorneys Malinga and Malinga eventually turned up in her court, late. After all, there was no evidence that the respondent’s claim against her was spurious. Summary judgment is a final judgment and obviously the judge had become functus officio after entering it in favour of the respondent.
[29] Mr S. C. Simelane, attorney for the appellant who finally appeared for the appellant informed the Court during the hearing of the appeal that he was unable to support the appeal. He was therefore abandoning making submissions to the Court. Be that as it may, after a very careful consideration of all the matters submitted by the parties in their Heads of Argument I have come to the inexorable conclusion that the appeal is without any merit whatsoever. It is accordingly dismissed with costs to the respondent on the ordinary scale, considering the financial status of the appellant. Ordered accordingly.
_____________________
DR. SETH TWUM
JUSTICE OF APPEAL
I agree.
____________________
M.M. RAMODIBEDI
CHIEF JUSTICE
I also agree.
____________________
S.A. MOORE
JUSTICE OF APPEAL
COUNSEL:
For Appellant : Mr S.C. Simelane
For Respondent : Mr. K.J. Motsa
