THE
HIGH COURT OF SWAZILAND
ALPHEOUS
MALANCHI
1st
Applicant
GLADYS
MALANCHI
2nd
Applicant
And
ALBERT
MAMBA
Respondent
In
re:
ALBERT
MAMBA
Applicant
And
ALPHEOUS
MALANCHI
1st
Respondent
GLADYS
MALANCHI
2nd
Respondent
THE
COMMISSIONER OF POLICE
3rd
Respondent
THE
ATTORNEY GENERAL
4th
Respondent
Civil
Case No, 2087/2002
Coram S.B.
MAPHALALA - J
For
the Applicants MR. E. MAZIYA
2
For
the Respondents MR. Z. MAGAGULA
JUDGEMENT
(On
application for rescission in terms of Rule 42)
(04/04/2002)
This
is an application for rescission of a spoliation order on the grounds
that such Order was granted by the court in error. The rescission is
being sought under Rule 42 of the High Court Rules. The Order was
issued by Sapire CJ on the 9th July 2002.
On
the 3rd October 2002, a further Order was issued by the learned Chief
Justice as follows:
"Having
heard Counsel for the 1st and 2nd Respondent and there being no
appearance for the Applicant:
It
was ordered that a rule nisi and us hereby issued returnable on the
18th October 2002, for the Applicant Albert Mamba to show cause why
on the following terms should not be
granted;
a) The
application (Notice of Motion) is postponed to the 18th October 2002.
b) That
this order, together with the Notice of Motion and Supporting
affidavits be served on the
Applicant
namely Albert Mamba.
c) That
the Applicant is interdicted and restrained from in anyway disposing
of, slaughtering, or otherwise parting with possession of the cattle
which are the subject matter of these proceedings pending the final
order and determination therein.
d) That
the Applicant, may file affidavits to oppose by not later than 15th
October 2002.
e) That
the Deputy Sheriff when serving this order shall make an inventory of
the cattle subjects to the interdict.
f) That
the costs be are hereby reserved".
Reverting
to the matter at hand, viz the application for rescission in terms of
Rule 42 the Applicant pray for an order inter alia that the order
granted in favour of Albert Mamba on the 9th July be rescinded;
interdicting and restraining the Respondents from in anyway disposing
of the herd of cattle attached under the said order pending
finalization of this application for rescission of judgement of the
said order; and the attached herd of cattle
3
be
returned to the rightful 2nd Applicant Gladys Phongwane Malanchi
(born Dlamini) with immediate effect.
The
founding affidavits of both Applicants are filed in support thereto.
The gravamen of the Applicants' case is that the order of the 9th
July 2002, was granted in error since the grounds upon which it was
granted are not correct in that the Respondents omitted to inform the
court about the correct events leading to him being unlawfully
deprived of his possession of the said herd of cattle. The 1st
Applicant's version of events is that she is the owner of the sixteen
(16) herd of cattle in dispute having owned same since sometime in
the 1970's. She brought theses cattle from his natural father's
homestead at Mankayane to keep some on behalf of her younger brother
at her present homestead.
She
deposed that 1st Respondent who is her husband to one Winile Myeni,
alias Mamba by Swazi Law and Custom, sometime in 1995 and said Winile
deserted her husband sometime in 1997 to date hereof. After the
expiry of 3 years since Winile had deserted her husband's common
marital homestead Albert Mamba approached the chiefs kraal and
demanded payment of lobola. Subsequently on or about the 15th June
2002, which is the period alleged by Mamba to have been paid lobola
of her 16 herd of cattle. Mamba was in fact not paid lobola by her
husband or herself. The truth of the matter is that the 1st
Respondent stole the said 16 herd of cattle from her kraal and drove
some to his homestead without any court order or lawful authority on
the 15th June 2002.
She
avers that in the circumstances, it is not true that the 1st
Applicant enjoyed undisturbed possession of the said cattle. Since he
forcefully stole her herd of cattle on the 15th June 2002, he
slaughtered one of them on the same day. For this reason she reported
a case of theft of the said cattle and requested the assistance of
the Royal Swaziland Police stationed at Manzini to endeavor to
recover same from the 1st Respondent.
The
police then went ahead to recover the cattle from the Respondent who
had hidden them at Dzingabaleni Mazibuko's homestead and drove some
back to her homestead.
4
She
was informed by her husband that certain man whom she believes was
the Deputy Sheriff of this court did bring some papers in relation to
this matter to him while she was away from her homestead but he had
refused to accept service of same and had requested the Sheriff to
serve same to the "mgijimi" of the area since he was
illiterate to read same and further because the community had been
warned not to sign any papers from strangers for fear of being
defrauded.
She,
therefore never received any papers regarding this matter to-date
hereof and she was shocked when the Deputy Sheriff arrived to drive
her cattle away on Thursday the 12th September 2002.
The
Applicant avers therefore, that this court granted the order in
favour of the Respondent because of an error and incorrect facts as
furnished by Applicant and because she was not present during the
hearing of this matter to give this court the true facts leading to
the attachment of her cattle.
The
2nd Applicant also filed an affidavit in support of the application
for rescission of judgment in terms of Rule 42. His affidavit in the
main compliments that of the 1st Applicant. He deposed that when the
Deputy Sheriff arrived with the High Court Order to drive all the
cattle away from his homestead, he informed the "white man"
whom he was informed was Mr. Mark Akker that he never had any cattle
in the homestead since he was a foreigner and that the cattle
belonged to his wife the 2nd Applicant. He further informed him that
he must approach the Veterinary Attendant at the dipping tank to
verify the truthfulness of his statement.
The
Respondents have joined issue with the Applicants and an opposing
affidavit of Albert Mamba is filed in opposition thereto. The
Respondents have raised three points of law in limine as follows:
"Points
in limine.
i) Security
for costs.
5
ii) Applicant
has not paid security for costs either to Registrar of Respondent's
attorneys in terms of the rules of this honourable court.
iii) The
Applicant's have brought their application to court out of time as
the notice was served on Respondent on the 20th November 2002, yet
the Order against them was granted on the 9th July 2002, and the
became aware of the Order on the 12th September 2002.
Mr.
Magagula for the Respondent further put forth two additional points
of law in limine in the Respondents amended Heads of Argument, these
are;
i) The
2nd Applicant as a married woman has no locus standi in judicio to
move this application unassisted by her husband;
ii) .........................................................
iii) ..........................................................
iv) Ex
facie the affidavit of the Applicants no irregularity has been shown
to have been committed.
When
the matter came for arguments on the 25th February 2003, Mr. Magagula
for the Respondent abandoned the point of law that the Applicant has
not paid security for costs in terms of the rules of court.
Therefore, no further comment is required thereto. The points which
were covered can be summarised as follows:
i) The
2nd Applicant as a married woman has no locus standi in judicio to
move this application unassisted by her husband; and
ii) The
application is time barred in that it was not brought to court within
a reasonable period of time;
iii) Ex
facie the affidavit of the Applicant no irregularity has been shown
to have been committed.
6
Counsel
filed comprehensive Heads of Argument for which I am most grateful. I
shall proceed to examine these points sequentially, thus:
i) Whether
2nd Applicant has locus standi in judicio.
The
requirement of Rule 17 (4) that a Plaintiff or Defendant, if a
female, must state her "marital status" renders it
necessary to indicate whether she is a married or unmarried, widow or
divorced. Failure to allege a female party's marital status in
compliance with Rule 17 (4) has been held to render summons defective
(see Rich & others and Lagerwey and another 1973 (1) S.A. 485
(w)).
With
regard to application proceedings, it has been held that it is not
necessary to state the sex of the party, whether a female party is
married or not and, if married, her marital status, since Rule 6 does
not require this (see Carson & others NNO vs Spencer 1982 (2)
S.A. 755 (T)). In this respect, I agree with the learned authors
Herbstein et al The Civil Practice of the Supreme Court of South
Africa (4th ED) at page 130 that the decision in Rich and others
(supra) appears to overlook the fact that a civil summons is defined
as including a notice of motion. My considered view, is that it is
necessary to state the "marital status" of a party.
In
casu, this has not been done. The founding affidavit of the 2nd
Respondent/Applicant merely states the following at paragraph 1:
"I
am an adult Swazi female of Luhlokohla, near Engculwini School,
Manzini district and cited in the above matter as the 2nd Respondent
and I am duly authorised to make this affidavit, facts stated herein
being within my personal knowledge and belief, true and correct".
In
the premise I would uphold the point of law raised by the other side
that she has not established her locus standi in terms of the law.
ii) That
the Applicant is time barred in that it was not brought to court
within a reasonable period of time.
7
I
have considered the arguments for and against this point of law in
limine and my considered view is that this point has no substance in
law. There are no time limits under Rule 42 of the High Court Rules.
I have considered the facts in this matter I do not think that the
Applicants can be time barred in enforcing their rights. I must say
though that in casu there is no explanation given ex facie the papers
why the application for rescission is only moved on the 19th November
2002 when the order which is sought to be rescinded was granted on
the 9th July 2002.
I
hold therefore, that this point of law in limine ought to fail.
iii) Ex
facie the affidavit of the Applicant no irregularity has been shown
to have been committed.
Rescission
may be granted in this jurisdiction under one or more of the
following Heads:
a)
Rule 31 (3) (b);
b) Rule
32 (ii);
c) Rule
42; and
d) The
common law (see Leornard Dlamini vs Lucky Dlamini Case No. 144/97
(per Dunn J, unreported).
Rule
42 reads as follows:
"The
court may, in addition to any other powers it may have mero motu or
upon the application of any party affected, rescind or vary:
a) an
order or judgement erroneously sought or erroneously granted in the
absence of any party affected thereby.
In
Bakoven Ltd vs G.J. Howes (Pty) Ltd 1992 (2) S.A. 466 at 471 F - H
Erasmus J delineated the scope of application of this Rule in the
following terms:
8
"Rule
42 (1) (a), it seems to me, is a procedural step designed to correct
expeditiously an obviously wrong judgment or order. An order or
judgment is erroneously granted when the Court commits an 'error' in
the sense of a mistake in a matter of law appearing on the
proceedings. In contradistinction to relief in terms of Rule 32 (2)
(b) or under the common law, the Applicant need not show "good
cause" in the sense of an explanation for his default and a bona
fide defence ... Once the Applicant can point to an error in the
proceedings, he is without further ado, entitled to rescission".
There
is no dispute in the present case that the application is confined to
the provisions of Rule 42(1) (a).
It
is my view that the above statement of law is clearly and accurately
reflective of the application of our Rule 42, which is in part
materia with that in the Republic of South Africa. I will therefore
follow the requirements set out as operative in casu. The question I
am now called upon to answer is whether in relation to the points
raised by the Applicants, there is an error by the court, which if
had been aware of would have induced it not to grant the order that
it did. In the instant case the Applicants in my view have not shown
the "error" in the sense of a mistake in a matter of law
appearing on the proceedings. The "error" which the
Applicants are relying on is that the court only had one version of
events when it granted the Order it did not have the Applicants'
version. Had the court heard, so the argument ran, the Applicant's
version it would not have granted the Order. In my view, this cannot
be an error contemplated by Rule 42, in any event the nature of
spoliation proceedings is that invariably courts grant such Orders on
the basis of the Applicant's version ante omnia. The mandament van
spoile is aimed at summary restoration of unlawfully disturbed
control without an investigation into the merits of the dispute, in
order to undo the results of the spoliation, thus the maxim spoliatus
ante omnia restituendus est. (see Olivier et al, Law of Property (2nd
ED) at page 189 paragraph (4.4.4).
For
the above-mentioned reasons the Applicants cannot succeed under Rule
42.
The
point of law in limine is therefore good in law and ought to succeed.
9
It
would appear to me that the only course open to the Applicants is to
proceed by way of rei vindicatio or any other possessory actions
which may be available to them.
In
the result, the application is dismissed with costs.
S.B
MAPHALA
JUDGE
