1
IN
THE HIGH COURT OF SWAZILAND
a:
Nomine
CASE
NO. 628/97
IN
THE MATTER BETWEEN
JOHN
BENNETT - NOMINE OFFICIO PLAINTIFF
VS
JOSEPH
BUNDU KUSHOKA NDALLAHWA DEFENDANT
CORAM S.B.
MAPHALALA - A
J
FOR
PLAINTIFF MR P. FYNN
FOR
DEFENDANT MR H. FINE
JUDGEMENT
(19/10/98)
This
is an application for summary judgement. The litigation has had a
long history. As far back as the 7th March, 1997 the plaintiff issued
combined summons. The same were served on the defendant on the 12th
March, 1997 whereby the defendant issued a notice of intention to
defend on the 16th March, 1997. Subsequent to that defendant on the
5th June, 1997 filed a plea in accordance with procedure. On the 26th
June, 1997 the plaintiff filed his amended particulars of claim. On
the 9th July, 1997 plaintiff made an application for summary
judgement. On the 24th July, 1997 defendant files an affidavit
raising points in limine and on the merits. On the 12th August 1997
plaintiff files a replying affidavit. Summary judgement is granted by
Sapire ACJ on the 19th September 1997 on claim one of the particulars
of claim. On the 29th September, 1997 defendant files an urgent
application for the rescission of the summary judgement granted on
the 19th September, 1997. The judgement was rescinded and the
defendant on the 31st October, 1997 filed an affidavit resisting
summary judgement and raised points in limine and points on the
merits. The matter was finally set down in the contested roll of the
4th November, 1997. The matter appeared before me on the 4th
December, 1997 prior to that I had made a ruling on a point in limine
raised by defendant in his affidavit resisting summary judgement on
the point that there is no averment therein that John Bennett has
read the amended particulars of claim upon which the application is
founded. That this was not in conformity with rule 32 (3) ® of the
High Court Rules. However, I ruled in favour of the plaintiff. Again
on the 14th November, 1997 Mr Fine opposed an application made by Mr
Fynn to file from the bar a replying affidavit which has for some
reason not filed in the court's file. Mr Fine contended then that the
court can only exercise its discretion on special circumstances being
shown by the party seeking the indulgence. (Per James Brown Hamer LTD
V Simmons No. 1963 (4) S.A. 656 at 660) Again I ruled in favour of
the plaintiff and allowed the filing of
2
a:
Nomine
the
replying
affidavit from the bar.
The
cause of action arise upon the following facts:
The
plaintiff is suing herein in his capacity as the present liquidator
of Swazican Holdings. The defendant was appointed as the liquidator
of the said company in liquidation on the 10th May, 1995. On the 12th
December 1996 the defendant was removed from his office as liquidator
of the said company by order of the court in accordance with the
provisions of the law. The plaintiff alleges that during the period
that the defendant held office as liquidator, he in the execution of
his duties as liquidator received monies on behalf of the company in
liquidation from time to time, while holding office aforesaid, the
defendant deposited monies so received by him into the estate banking
account. Thereafter the defendant proceeded to withdraw cheques
thereon in his own favour or that of his company Ndallahwa (PTY) Ltd
or payable to cash or to the credit card account, or in one instance,
to "Mini Cafe". The total amount of the cheques so drawn
was the sum of E83,204-35. Plaintiff provided a list in his amended
particulars of claim of the cheques drawn.
All
the said payments made by, or at the instance of the defendant, were
unauthorised and were wrongful and unlawful. On the 12th September,
1996 a disciplinary hearing was held by Price Waterhouse regarding
the conduct of the defendant, he admitted to having drawn the said
cheques and removing the monies as afore said, although he admitted
that such taking was wrongful. He undertook, however, to repay such
monies into the said bank account without delay. To date he has
failed notwithstanding demand to do so. Defendant is accordingly
liable forthwith to repay such monies wrongfully taken by him, namely
the sum of E83,204-35 on the alternative to claim 1 in terms of
section 130 (1) of the Companies and Association Act No. 7 of 1912 a
liquidator shall forthwith pay monies received by him to a bank named
by the Master of the High Court. In terms of section 130 (2) of the
Act a liquidator shall not pay any sums received by him as liquidator
into his private banking account. During the period 30th April, 1996
to 31st January, 1997 the defendant failed and/or refused and/or
neglected to pay monies received by him to a bank as aforesaid.
On
claim 2 the plaintiff alleges that the facts set out in claim 1 are
repeated in terms of section 72 of the Insolvency Act No. 81 of 1935
retention by a trustee of monies exceeding E40-00 give rise to the
liability of such trustee, in addition to any other penalty of which
he may be liable, to pay into the estate of the amount equal to
double the amount so retained. In terms of the said section read with
section 183 of the Companies Act the defendant is liable to the
plaintiff in the sum of E1 66,648-70 being the amount equal to double
the amount so retained.
When
the matter came for arguments before me on the 14th November, 1997 in
the contested roll Mr Flynn argued that his client was entitled to
summary judgement in respect of claim 2. That the defendant cannot
now argue that the matter was res iudicata but judgement was
rescinded and plaintiff relies on paragraphs 7, 7.1, 7.5 and 7.6 of
his amended particulars of claim. In his answering affidavit the
defendant does not deny that the money was taken and used by him.
3
a:
Nomine
Factual
allegation on which a defence may arise do not exist at all according
to Mr Flynn contention. He does not deal with paragraph 7. He must
address material facts to show that there is a triable case. The
answering affidavit does not disclose a defence.
On
the other hand Mr Fine argues that the matter is res judicata and to
this effect he directed the courts attention to the South African Law
of Evidence by Hoffmann and Zefferit (4th ED) at page 337 where the
teamed authors citing voet
in
his Commentarius Ad Pandectas. 44.2.3 (translation from Bertram V
Wood (1893) 10 S.G. 177 of 1811 thus:
"Under
no circumstances is the exception allowed than where the concluded
litigation is again commenced between the same persons, in regard to
the same thing, and for the same cause of action, so much so, that if
one of these requisites is wanting the exception fails".
The
authors proceed to state that our courts have followed these writers
and it is now trite that, to succeed in defence of res judicata. the
defendant in civil judgement had been given in proceedings involving:
(a) The
same subject matter;
(b) Based
on the same res or thing;
© Between
the same parties
Mr
Fine's contention is that there are two affidavits made by the
plaintiff John Bennett and these are the same in substance. The
plaintiff has come to court on the same issues. He applied that the
application for summary judgement be dismissed with costs.
These
are the issues before me. It is trite law that the remedy for summary
judgement is an extraordinary remedy, and a very stringent one,
in that it permits a judgement to be given without trial. It closes
the doors of the court to the defendant. That can only be done if
there is no doubt but that the plaintiff has an answerable case. If
it is reasonably possible that the plaintiffs application is
defective or that the defendant has a good defence, the issue must be
decided in favour of the defendant. (See Mowschenson and Mowschenson
vs Mercantile Acceptance Corporation of South Africa Ltd 1959 (3)
S.A. 362). I have taken this into consideration in dertemining this
matter.
I
do not agree with Mr Fine that the matter is res judicata. The
rescission of the summary judgement on the 29th September, 1997 was
granted because the amended particulars were filed under a filing
certificate which was signed by the plaintiff's attorneys but the
particulars of claim themselves were unsigned and because judgement
was granted in the absence of the defendant's attorney. It cannot
therefore, be said that the court on the 29th September, 1997 had
come to a decision on the merits of a question in issue, that
question, at any rate as a causa petendi of the same thing between
the same parties cannot be resuscitated in subsequent proceedings. I
fully
4
a:
Nomine
a
gee
with Mr Flynn that defendant in his answering affidavit does not deny
that the monies were take
and
used by him. Factual allegation on which a defence may arise do not
exist. I find as a matter of fact that the is no triable matter.
I
thus grant summary judgement in terms of claim 2 of the application
with costs.
S.B.
MAPHALALA
ACTING
JUDGE
