THE
HIGH COURT OF SWAZILAND
CIVIL
CASE NO.1276/01
In
the matter between:
VAYINA
ANGELINA MAKHANYA Applicant
AND
MATHIUS
MAKHANYA Respondent
CORAM: MASUKU
J.
For
Applicant: No appearance
For
Respondent: Mr Z.W. Magagula
JUDGMENT
19th
June 2002
On
the 1st June 2001 the above named Applicant moved an application to
Court seeking the following relief: -
1. An
Order of spoliation directing the Respondent to restore Applicant to
the Status quo ante, to wit peaceful and undisturbed possession of
the:
1.1. The
matrimonial home.
1.2. The
grain tanks.
1.3. The
ploughing fields.
2. Costs
of suit in the event the matter is opposed.
2
The
matter served before Matsebula J. on that day, who noted some
anomalies on the papers, and therefor postponed the matter sine die.
It would appear from the papers that the Respondent was in attendance
on that day. The Applicant then set the matter down on the 13th July
2001, without notice to the Respondent and an Order was granted to
her in terms of the prayers hereinabove set out.
On
the 5th October 2001, the Applicant filed another application in
which the Court was moved to commit the Respondent to the Manzini
Remand Centre for contempt of the Order dated 13th July 2001. The
Court issued a rule nisi calling upon the Respondent to show cause
why he should not be so committed.
In
response, thereto the Respondent filed an Answering Affidavit in
which he pointed out that he was never served with the application of
the 13th October 2001, although he was eventually served with the
related Court Order. The Respondent's contentions find support from
the papers filed of record. In the Answering Affidavit, the Applicant
made an application in limine for the rule nisi issued on the 5th
October 2001 to be discharged with costs and that the Order granted
on the 13th July, be likewise set aside with costs.
The
Applicant appears to have run out of the steam necessary to prosecute
this matter. As a result, no replying affidavit to the Respondents
contentions was filed, necessitating that the Respondent set the
matter down for the granting of his cross-application raised in the
Answering Affidavit. In this regard, I have before me a notice of
re-instatement, in which the following Orders as set out in the
aforesaid Answering Affidavit are prayed for, namely:-
1. That
the Rule nisi issued by this Honourable Court on the 5th October 2001
be discharged with costs
2. That
the order granted by this Honourable Court on the 13th July 2001 be
set aside with costs.
3. Costs
of suit.
4. Further
and/or alternative relief.
3
This
notice was served on the Applicant's attorney, Mrs Matse on the 6th
of June, 2002 and the matter was postponed by consent on the 7th
June, 2002, to the 14th June, 2002, on which date there was no
appearance by the Applicant's attorney and there is no explanation
for the non-appearance. Mr Magagula addressed me on the issues
arising but there were no submissions for and on behalf of the
Applicant. I granted the Orders as prayed and indicated that the
reasons therefor would follow. These now follow.
(i) Dismissal
of Order dated 13th July 2001.
It
is clear from the papers filed by the Respondent that the Order was
granted without prior or any notice to the Respondent. This
allegation stands uncontroverted in view of the Applicant's failure
to file a replying Affidavit. In any event, the Notice of Set Down
dated 13th July 2001 was not served on the Respondent and it is clear
from the said Notice, that there was in fact no intention to serve
and notify him of the new hearing date.
Rule
42 (1) (a) of the Rules of Court 1990, as amended, provides as
follows:-
(1) 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
terms of the provisions of the said Rule it is clear that this Order
is liable to be rescinded or set aside as it was granted in the
absence, of the Respondent, who had not been notified of the date of
hearing but was affected by the Order. Had the Court been aware of
this error, I have no doubt that it would not have granted the said
Order. See NYINGWA VS MOOLMAN 1993 (2) SA 508 (TkG.D.); SHISELWENI
INVESTMENTS VS SWAZILAND DEVELOPMENT AND SAVINGS BANK CASE
NO.2391/96; BAKOVEN LTD VS G.J. HOWES (PTY) LTD 1992 (2) SA 466 at
471 F-H. I therefor rescind and set aside the aforesaid Order for
non-service. It is clear that the subsequent application for
committal and the resultant rule nisi were predicated upon the Order
of the 13th July 2001. Once that Order is rescinded, as I have done,
its offspring, being the Rule
4
nisi
as it were being umbilically tied to it, must as of necessity fall
away. I must however mention that it would appear that the Rule nisi
in question lapsed on or about 26th October 2001, when the matter
removed by consent. There is no indication from the papers that the
Rule was ever revived. It was for the above reasons that, I granted
an Order in terms of prayers 1,2 and 3 of the Notice of
Reinstatement.
The
absence of Applicant's attorney and the lackaidesical approach to
litigation as exhibited by her in this matter has been the subject of
comment by me in the case of SANELISIWE VILANE (BORN DLOMO) VS
PHUMAPHI DLAMINI in re: PHUMAPHI DLAMINI VS SANELISIWE DLOMO H.CT
CASE NO. 2622/98, where I commented as follows on Mrs Matse's
non-attendance at page 6 of the judgement:-
"There
is a side issue that caused spasms of disquiet. This relates to the
unfortunately growing incidences in which some attorneys absent
themselves from Court for no apparent reason and no explanation is
proffered to the Court whether before or after the matter has been
heard. The instant matter is a classical example. Notwithstanding
sufficient notice that the matter would be heard on the 27th July
2001, Mrs Matse did not attend Court to represent her client for
reasons unknown to the Court to date. Such conduct is unbecoming
officers of this and other Courts. It should be nipped in the bud as
it is cancerous and may have ghastly consequences for the respect and
dignity of the Courts, not to mention the calamitous consequences to
clients, when their legal representative does not appear in Court.
Furthermore, the Courts need the assistance of Counsel in reaching
the correct decisions and where Counsel does not appear in Court to
fulfil his/her main duty of assisting the Court, balanced
presentation of the case is compromised. Should the practitioners'
ethical duties to assist the Court be reviewed accordingly in order
to suit the convenience of erring practitioners? I think not. I hope
this will mark the last time any such complaint is made by a Judge of
this Court concerning a legal practitioner not attending Court."
5
This
behaviour is indicative and smacks of contumacy of this Court's
authority and procedures which is intolerable. It is my view that
time has come for practitioners guilty of such behaviour to be
reported to the Law Society for appropriate action. A stitch in time
saves nine.
T.S.
MASUKU
JUDGE
