IN
THE HIGH COURT OF SWAZILAND
CIV.
CASE NO.373/93
In
the matter between
CASH
& CARRY SWAZILAND (PTY) LTD PLAINTIFF/RESPONDENT
And
INTERCON
CONSTRUCTION (SWD (PTY) LTD DEFENDANT/APPLICANT
Coram
S.B.
MAPHALALA- J
For
Plaintiff/Respondent MR. N. HLOPHE
For
Defendant/Applicant MR. L. HOWE
JUDGMENT
(24/0172001)
The
applicant under a certificate of urgency made an application for an
order in the following terms:
That
this application be treated as one of urgency and that for the
purposes thereof condonation is granted to the applicant for the
non-compliance with time limits, service and forms of service in
terms of the rules of this court;
Rescission
of the default judgement granted against the defendant/applicant on
the 5th July 1999, by this court under Case No. 373/93 on such terms
as this court may determine;
Staying
execution of the aforesaid judgement;
Costs,
but only in the event of plaintiff/respondent opposing this
application.
Further
and/or alternative relief.
The
application is supported by the affidavit of one Marcus David Gudgeon
who is presently a Director of the company known as Smith &
Glending Construction (Pty)
2
Limited
which was formerly Intercon Construction (Pty) Limited. In the latter
at the material time he served as Contracts Administrator and
Quantity Surveyor.
The
application is opposed by the plaintiff/respondent. The
plaintiff/respondent duly filed an opposing affidavit of one Meyer
Diamond who is the Director of the said company.
The
facts of the dispute are adequately outlined in the affidavit of
Marcus David Gudgeon that on the 18th March 1993, the
plaintiff/respondent instituted action by way of combined summons
against the applicant. The applicant immediately entered an
appearance to defend the action and in this regard instructed its
then attorneys, Harold Currie & Company to prosecute its defence.
The matter thereafter took its normal course as a defended action.
Plaintiff/respondent's
cause of action as evinced in the particulars of claim is in summary
founded on the following allegations; that plaintiff/respondent is
registered owner of certain property to wit, remaining extent of
Portion 70 (a Portion of Portion 51) of Farm No. 50, Ezulwini Valley
in the Hhohho District. That applicant was in unlawful occupation of
the aforesaid property during the period August 1992 and that
applicant was advised of this position and persisted in its alleged
occupation. By applicant's continued occupation it tacitly accepted
an oral lease with the respondent of the said premises at a
reasonable rental whose estimate was given by plaintiff/respondent to
be E3, 000-00 per month. It was therefore alleged that applicant was
contractually liable to plaintiff/respondent for a rental of
E24,000-00. In the alternative
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx account of the
alleged xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx allegedly
fair estimate by plaintiff/respondent of reasonable rental of like
property.
Alternatively
respondent's claim was for damages in the sum of E24,000-00 allegedly
occasioned by applicant's use and occupation of the
plaintiff/respondent's property which plaintiff/respondent alleges
was unlawful.
The
applicant's defence in summary form is as follows. Applicant whilst
denying that it occupied or used plaintiff/respondent's property,
pleaded that applicant has leased certain machinery to a certain
third party being a company known as Odi Driveways (Pty) Limited
represented by a certain Mike Odendaal. That pursuant to the said
lease and on instruction from the said Odendaal, the machinery was
deposited and placed in the property, which according to Odendaal's
representatives, belonged to him. In this regard applicant contended
it was either Odi Driveways (Pty) Limited or Mr. Odendaal who had
been in occupation of the property. In the alternative applicant
pleaded that if it was found on the facts that it was applicant which
was in occupation of the said property, such occupation or detention
was for the benefit of a third party being the said Odi Driveways
(Pty) Limited.
The
applicant submits that it has a bona fide defence either in the main
or alternative pleas and particularly that where a person hold or
occupies property belonging to another for the benefit of a
principal. Such is a valid defence in law.
The
applicant submitted that during 1991, the third party Odi Driveways
(Pty) Limited represented by Mr. Odendaal entered into an Engineering
contract with the Government of Swaziland in terms of which the third
party undertook certain road
3
construction
works involving the rehabilitation of the old Mbabane/Manzini road.
Owing to the extensive and fairly complex nature of the works and the
fact that Odi Driveways (Pty) Limited lacked the technical and
capacity to sustain the works, the parties entered into a SUB
CONTRACT AGREEMENT with PROVISIONS OF CONTRACT incorporating GENERAL
CONDITIONS OF SUB-CONTRACT 1978. In terms of the sub-contract, Odi
Driveways (Pty) Limited was the main contractor and applicant the
sub-contractor. The conditions of the aforesaid contract which are
material hereto were that applicant would supply certain equipment
machinery and plant together with the personnel to man or operate
such equipment. It was a specific and special condition of the
aforesaid contract that Odi Driveways (Pty) Limited provide YARD OR
BASE CAMP FACILITIES at Plot 70 of Farm 50 (a Portion of Farm 51)
Ezulwini in "free of charge" terms. Pursuant to the
agreement, the road works were commenced and applicant's leased and
supplied the plant and equipment to Odi Driveways (Pty) Limited at
certain rates.
The
court's attention is drawn to the fact that during February 1993,
plaintiff/respondent brought an application before this court for an
interdict or ejectment order against the third party (Odi Driveways
(Pty) Limited), one Elizabeth Busisiwe Odendaal and Michael Odendaal
seeking to evict them from the property in question. An order was
accordingly obtained by plaintiff/respondent's attorneys. The
defendant/applicant submits that the plaintiff/respondent's interdict
application against the third party constituted an admission of the
fact that the said third party and not the defendant/applicant had
taken occupation of the property. This is also consistent with
defendant/applicant's defence in the pleadings.
In
the event defendant applicant's attorneys issued a third party notice
in terms of Rule 31 of the court rules to join Odi Driveways (Pty)
Limited in the proceedings. When the said third-party failed to
intervene without notice to the defendant/applicant,
plaintiff/respondent moved an application for default judgement
before this court against the third party on the 14th March 1997.
Judgement was granted as prayed against the third party with costs.
The
defendant/applicant is of the view that this was highly irregular for
respondent to proceed against the applicant having already obtained
judgement against the third party, as by then the matter was res
indicata.
During
January 1997, applicant's present attorney, Cyril Maphanga took over
the matter from Mr. Currie. Respondent's attorney, Mr. Phesheya
Dlamini like wise took over the matter from Mrs. Currie.
Owing
to the fact that this was now a rather old matter involving archived
documentation, the applicant in the process of giving further
instructions came upon the sub-contract agreement referred to above
and other vital documents which were previously not available. This
information and documentation, which had not been discovered
previously in terms of the rules necessitated that the parties, in a
genuine attempt to narrow down the issues and reach an agreement of
certain facts, have a further pre-trial conference. The opportunity
had not arisen by the time respondent's attorney set down the matter
for hearing on the 5th and 6th July 1999.
At
paragraph 28 to 34 applicant describes the reasons why this further
pre-conference was held culminating in the respondent obtaining
default judgement against the applicant on the 5th July 1999, owing
to the absence of the applicant and Mr.
4
Maphanga.
The applicant avers that the non-appearance of Mr. Maphanga was not
due to wilful neglect or default on his part but was as a result of
genuine error, which had occurred when he diarised the dates for
hearing. The full circumstances in this regard are canvassed in
Maphanga's accompanying affidavit.
Applicant
further referred the court to another fact that respondent in setting
judgement against the applicant, it has also sought and awarded
interest at the rate of 9% calculated from the 19th March 1993.
Applicant submit that this was irregular on the following grounds:
36.1
Nowhere in its combined summons had the plaintiff/respondent claimed
any interest whatsoever in its cause of action.
36.2
Plaintiff/respondent has failed to set out such interest in its
prayers.
Per
contra the affidavit of one Meyer Diamond outlines the
plaintiff/respondent's version. In opposition the
plaintiff/respondent states that there was no misunderstanding on its
part, which led to it obtaining the judgement after
defendant/applicant and its attorneys failed to attend court on
trial. The judgement obtained by the plaintiff/respondent is of a
final nature in so far as evidence was led before the court, pursuant
to which evidence the court gave judgment. Defendant/applicant has no
defence and that this rescission application has been filed solely as
a means to delay the execution of the judgement. Plaintiff/respondent
knows nothing about the alleged arrangement between the
defendant/applicant and Odi Plaintiff/respondent denies
defendant/applicant averments in paragraph 12 and 15. The plaintiff
further submits that the defendant/applicant is only trying to use
the ejectment of the said Mike Odendaal to its advantage and thereby
deliberately mislead
this
court. The truth of the matter is that Odi Driveways (Pty) Limited
and Mike Odendaal had been squatters in the plaintiff/respondent's
property in as much as they were in unlawful occupation of it.
They
had to be evicted from it through a court order. The plaintiff denies
that such eviction is proof that Odi Driveways (Pty) Limited had
given the defendant/applicant the right to occupy its property.
Even
if it were to prove that the said third party had given
defendant/applicant the right to occupy plaintiff/respondent's land,
it would not avail defendant/applicant as a defence in as much as
defendant/applicant had no cognisance right to do so in law.
All
in all plaintiff/respondent holds the view that the
defendant/applicant has no bona fide defence and has no reasonable
and acceptable explanation for the default.
The
matter then came for arguments. It was submitted on behalf of the
defendant/applicant that defendant/applicant has contested the action
substantially on the basis that it was a defector on behalf of
another third party and issued a third party notice in terms of Rule
31 claiming indemnity for it. In the event, the third party failed to
intervene and the plaintiff/respondent on the 14th March 1997, by a
Rule 31 notice sought and was granted judgement against the third
party for the relief claimed by the plaintiff with costs. The third
party notice in terms of Rule 31 does not create a Us between the
plaintiff and the defendant, the third party does not become a joint
5
defendant
vis-a-versa the plaintiff. For this proposition the court was
referred to the cases of Shield Insurance Company Ltd vs
Zervolirdatius 1967 (4) S.A. 785 (E) and Swart vs Scottish Union and
National Jus and National Insurance Company Ltd 1971 (1) S.A. 384.
It
follows therefore that it is not competent for the court to give a
judgement against the third party for the payment of a sum of money
in respect of the amount claimed in the action (see Herbstein &
Van Winsen (4thED) at page 184). The only exception to this rule is
in instances where the plaintiff itself issues a third party notice
under Rule 31 (1). It was submitted on behalf of the defendant that
the judgement granted by the court against the third party on the
14th March 1997, was in error.
Nonetheless
the judgement obtained against the third party in the action
notwithstanding that it was in error, was res indicata and as much
could only be set aside upon application to the court. (see Herbstein
& Van Winsen (3rdED) at page 469).
It
was submitted that it was not open for the plaintiff to seek a
further judgement from . defendant without setting aside the
judgement against the third party. At best there has been such a
procedural error in these proceedings as would warrant the setting
aside or rescission of the judgement against the defendant. There is
good cause, which has been demonstrated explaining defendant's
failure to appear in court on the final date. Such default was not
wilful but due to a certain mistake or misunderstanding on the
defendant's attorney's part.
The
applicant has provided the grounds for the relief he has sought at
common law vs Western Bank Limited 1977 (4) S.A. 1042 F-1043 A).
It
was argued further that Rule 42 of the High Court Rules also applies
in the case in casu. It is clear from the applicant that the
respondent was not present at the hearing and the reason for him not
being there has been explained to the court. The applicant through no
fault of his own had a judgement granted against him. He however took
immediate steps to remedy the default or defect. In such a case the
court should exercise its discretion in his favour. To buttress this
proposition the court was referred to the cases of Theron NO vs
United Democratic Front and others 1984 (2) S.A. 532 at 536 F- H;
Tshivhase Royal Council vs Tshivhase 1992 (4) S.A. 853 and Topol and
others vs L.S.
Group
Management Services (Pty) Limited 1988 (1) S.A. at 650 G - J. The
application in terms of Rule 42 must be within a reasonable time and
thus it complies with the requirements of the Rule when applying for
rescission of the judgement under Rule 42. It was further argued that
the application in terms of Rule 42 must be within a reasonable time
and thus it complies with the requirements of the Rule when applying
for rescission of the judgement under Rule 42. (see First National
Bank of Southern Africa Limited vs Van Rensburg NO. and others in re:
First National Bank of Southern Africa Limited vs Jargans and others
1994 (1) S.A. 667 at 680 D - G).
The
circumstances surrounding the reasons for the defendant and its
attorney's absence are adequately canvassed in the founding
affidavits. It would be just and fair
6
that
the default judgement be rescinded and the defendant be offered an
opportunity to defend the action.
It
was submitted that the defendant has a bona fide defence to the
plaintiff's action in the following respects:
Defendant's
contention is that it denies that it was in occupation of the said
premises and if it is found it was, a defector on behalf of another
third party namely Odi Driveways (Pty) Ltd.
The
defendant further avers that the property in question was a site
which was provided by a third party for the storage of certain road
construction plant and equipment on behalf of and for the benefit of
a third party.
A
fact, which is not disputed by the plaintiff, is that during the time
of the alleged occupation it sought and obtained an ejectment order
against the third party premised on the said third party's occupation
of the said premises. That this has always been uppermost in
plaintiff's mind is evident in its readiness to obtain a default
judgement against the third party as it did on the 14th March 1977,
albeit in error.
Mr.
Hlophe for the plaintiff argued in contra. The stance taken by the
plaintiff is that defendant/applicant is not entitled to rescind the
judgement in as much as it was final in nature.
Defendant/applicant
could only appeal against the judgment, which it has Superior Court
Practice - page BI - 309 and the case of XXXXXXXXX
Plaintiff/respondent submits that it was entitled to obtain judgement
against the third party who has never bothered himself to defend the
matter, alternatively, no prejudice has been suffered by the
defendant/applicant, alternatively, defendant has itself stated the
judgement was not competent which means that the subsequent judgement
against the defendant/applicant was competent.
It
was further argued on behalf of the plaintiff/respondent that the
application brought by the other side has a serious flaw in that it
has failed to allege a reasonable and acceptable explanation as well
as a bona fide defence to the plaintiff/respondent's action.
In
this respect the court was referred to the case of Lucky Dlamini vs
Leonard Dlamini Civil Case No. 1644/97.
It
was further argued that the alleged contract between the
defendant/applicant and the said third party cannot exonerate the
defendant/applicant from its own liability to pay for occupation of
the said premises.
These
are the issues before court. It is common cause that the
defendant/applicant had issued a third party notice calling upon the
third party to join the proceedings. The third party never defended
the proceedings, resulting in the plaintiff/respondent obtaining
judgement against the third party. The matter was subsequently
allocated a trial date and accordingly set down. On the day of trial
neither the
7
defendant/applicant
nor its attorneys attended court resulting in the matter being
proceeded with in defendant/applicant's absence. On the day in
question the plaintiff/respondent's director, Mr. Diamond was called
to give evidence, which he did. The court having heard him give
evidence granted judgement in favour of the plaintiff/respondent. In
law the third party notice in terms of Rule 31 does not create a Us
between the plaintiff and the defendant, the third party does not
become a joint defendant vis-a versa the plaintiff. It follows
therefore, that it would not be proper for the plaintiff to obtain a
judgement against the third party for the payment of a sum of money
in respect of the amount claimed in the action. According to
Herbstein and Van Winsen et al (4thED) at page 184 the only exception
to this rule is in instances where the plaintiff itself issues a
third party notice under Rule 31 (1). It is clear, therefore that
judgement was granted in error. Mr. Hlophe in argument also agreed
with this conclusion. It would appear to me that it was not open for
the plaintiff to seek a further judgement from the defendant without
setting aside the judgement against the third party. That as it may,
the question still remains as to whether or not this court has the
power to rescind the judgement granted in favour of the plaintiff
against the defendant. The law is that as a general rule once a court
has duly pronounced a final judgment or order, it has itself no
authority, to correct, alter or supplement it. The reason is that it
thereupon becomes fuctus officio; its jurisdiction in the case having
been fully and finally, exercised its authority over the subject
matter has ceased. However, there are exceptions to this general
rule. A court may set aside its own final judgement in terms of the
provisions of Rule 42 or in terms of the common law.
It
would appear to me that there was a procedural error in the
proceedings in favour of the plaintiff to warrant the setting aside
or rescission of the judgement. Such a rescission is justified and
this court can.
Further,
in my view the defendant has shown good cause, which is amply
demonstrated in the papers explaining defendant's failure to appear
in court on the final date. Such default in my view was not wilful
but due misunderstanding on defendant's attorney's part, with the
remit that the defendant was represented at court during the date set
for trial. The defendant has provided the grounds for the relief
being sought at common law and thus the court cannot disregard it. In
coming to this conclusion I have sought refuge in the dicta in the
case of De Wet and others vs Western Bank Limited (supra).
Furthermore,
it would appear Rule 42 (1) (a) is applicable in this case.
The
defendant has a bona fide defence to the action.
On
the question of interest, the law requires that such should be
pleaded in the summons. I am not going to make any specific ruling on
this issue in view of my finding that defendant is entitled to a
rescission.
8
I
thus grant an order in terms of prayer 2 of the notice of motion and
costs to be costs in the main action.
S.B.MAPHALALA
JUDGE
