THE
HIGH COURT OF SWAZILAND
AMKA
PRODUCTS (PTY) LTD
Plaintiff
EVUKUZENZELE
WHOLESALERS
Defendant
Civil
Case No. 2090/2001
Coram S.B.
MAPHALALA - J
For
the Plaintiff Advocate P. Flynn (Instructed by
Robinson
Bertram)
For
the Defendant Mr. O. Ndzima
JUDGMENT
(17/09/2002)
The
Application.
The
application before me is in terms of Rule 30 (1) of the Rules of this
court where the defendant seeks for an order in the following terms:
"a) Setting
aside as an irregular step for proceedings, Plaintiff's following
pleadings:
i) Notice
to discover
ii) Discovery
affidavit
iii) Notice
to compel discovery and
iv) Notice
of bar
2
The
basis of the application is that the plaintiff made an application
for summary judgment which application was left hanging after an
affidavit resisting same was filed. Thereafter plaintiff sought to
file the other pleadings without following proper procedure and steps
in terms of the rules of the court.
b) Awarding
defendant costs of suit at the scale as between attorney and own
client.
c) Any
further and/or alternative relief.
Plaintiff's
Submissions.
The
matter was set-down as a contested matter by the plaintiff before me
on the 28th August 2002, at 2.15 pm. It appears from page 2 of the
Notice of Set-down that defendant's attorneys (Maphalala &
Company) were served with the Notice of Set-down the previous day the
27th August 2002, at 11.47am as attested by a signature after the
following words:
"Received
copy hereof this 27th day of August 2002
.......11.47
Signature"
When
the matter was called at 2.15pm on the 28th August 2002 there was no
representative for the defendant and the matter proceeded in his
absence. I allowed Mr Flynn to argue the matter on behalf of the
plaintiff.
It
was contended on behalf of the plaintiff that the defendant has
failed to comply with Rule 30 (1) in that it has failed to bring the
Notice within fourteen (14) days of becoming aware of the
irregularities complained of. To buttress this point the court's
attention was drawn to the case of Uitenhage Municipality vs Uys 1974
(3) S.A. 800 (E). Defendant has failed to show that it has or will
suffer prejudice (see Foster vs Carlis & Houthakkes 1924 T.P.D.
247). It was further contended that a party should not wait until the
trial to invoke the provisions of Rule 30 as this amounts to an abuse
of the court process (see Hanson Tomkin of Finkelstein vs DBN
Investments (Pty) Ltd 1951 (3) S.A. 765 (U)).
3
The
court has a discretion and it is not intended that a breach of the
rules should necessarily be visited with a nullity (see Northern
Assurance Co. Ltd vs Somdaka 1960 (1) S.A. 588 (AD); and Trans Africa
Insurance Co. Ltd vs Maluleka 1956 (2) S.A. 273). It was argued
further in this regard that in any event the present trend of the
decisions is to condone irregularities (see Northern Assurance Co.
Ltd vs Somdaka (supra)).
Lastly,
Mr. Flynn applied that in the event the court dismisses the
application in terms of Rule 30 (1) to grant the plaintiff default
judgment in terms of Rule 31 (2) as prayed for by the plaintiff in
its notice of application for default judgement dated the 6th August
2002.
The
History of the matter.
The
plaintiff prepared a Practice Directive in its notice of set-down of
the 22nd August 2002, where the history of the action is outlined in
the chronological order of the events. The events are as follows: On
the 3rd August 2001 the plaintiff issued summons against the
defendant. The defendant filed a Notice of Intention to Defend on the
22nd August 2001. On the 11th September 2001, defendant served a
Notice to Furnish Security in terms of Rule 47. On the 25th September
2001, plaintiff filed a notice in terms of Rule 42 (2). On the 30th
October 2001, defendant requested for further particulars to enable
it to plead.
On
the 22nd October 2001, plaintiff served and filed its declaration. On
the 14th November 2001, further particulars were supplied to the
defendant by the plaintiff. On the 6th December 2001, plaintiff filed
an application for summary judgment. The defendant served and filed
an affidavit resisting summary judgment on the 21st January 2002. The
defendant was granted leave to defend the action by the court on the
25th January 2002.
On
the 20th March 2002, plaintiff filed a Notice to Discover but
erroneously served it on wrong attorneys. On the 29th April 2002,
defendant filed a Notice to Compel Security for Costs in terms of
Rule 47 (3) which was never argued. The plaintiff filed
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a
Notice of Intention to Oppose the application in terms of Rule 47 (3)
advancing reasons that the matter was already pending with the
Registrar.
On
the 2nd May 2002, the plaintiff filed a Notice to Compel Discovery
and the matter was removed from the court's roll on the 3rd May 2002.
On the 6th May 2002, the plaintiff notified the defendant that
security for costs was already in the trust account.
On
the 23rd May 2002 the defendant served and filed a Notice of Set-down
without any explanation.
On
the 3rd June 2002, the plaintiff served and filed Notice to Discover.
On the 8th July 2002, the plaintiff made an application to compel the
defendant in terms of Rule 35 (11). On the 31st July 2002, the
plaintiff filed a Notice of Bar. On the 6th August 2002, defendant
filed a Notice of Appearance for default judgment. On the 8th August
2002, the defendant filed a Notice in terms of Rule 30 (1). On the
same date the plaintiff filed a Notice of Intention to Oppose the
application in terms of Rule 30. The matter was struck off the roll
on the 16th August 2002, for lack of Practice Directive.
The
plaintiff set the matter for argument on the 28th August 2002. The
Applicable Law vis a vis the facts of this matter
Rule
30 (1) of the High Court Rules reads as follows:
"A
party to a cause in which an irregular step has been taken by any
other party may apply to court to set it aside".
The
basis of the application by the defendant to set aside as an
irregular step or proceedings, Plaintiff's are the following
pleadings:
i)
Notice to discover.
ii) Discovery
affidavit.
iii) Notice
to compel discovery and,
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iv) Notice
of bar.
That
the plaintiff made an application for summary judgment which
application was left hanging after an affidavit resisting same was
filed. However, this allegation is not borne out by what is reflected
in the Practice Directive dated 22nd April 2002, where in item 10 the
plaintiff submitted that on the 25th January 2002, the defendant was
granted leave to defend the action. Mr. Flynn who was instructed to
argue the matter contended on this point that there is correspondence
between the parties to confirm this point.
In
my view, it cannot be said therefor on the face of the above
mentioned that the issue of the summary judgment was left hanging as
that issue was disposed of in the sense that the defendant was
allowed to defend the action. All the pleadings by the plaintiff
after the summary judgment was disposed of were therefore not
irregular.
Further,
the plaintiff filed a Notice of Bar calling upon the defendant to
file its plea to the Plaintiff's summons within three (3) days of
receipt thereof, failing which it will be ipso facto barred from
doing so and the plaintiff will apply to court for a judgment by
default. The said notice was dated the 31st July 2002, and was served
on the defendant 's attorneys on the same date. Defendant did not
file the plea as required and therefore it was ipso facto barred. I
wish to re-emphasise that there was nothing irregular about the
notice of bar in the light of the fact that the summary judgment
application had been disposed of after defendant was granted leave to
defend the action.
In
any event, the defendant has failed to comply with Rule 30 (1) in
that it has failed to bring the notice within 14 days of becoming
aware of the irregularities complained of (see Uitenhage Municipality
vs Uys (supra). The defendant has failed to show that it has or will
suffer prejudice (see Foster vs Carlis & Houthakkes (supra). A
party should not wait until the trial to invoke the provisions of
Rule 30 as this amounts to an abuse of the court process (see Hanson
Tomkin of Finkelstein vs DBN Investments (Pty) Ltd (supra)).
6
For
the above-mentioned reasons I would dismiss the application in terms
of Rule 30 (1) and grant plaintiff default judgement in terms of Rule
31 (2).
In
the result, the application in terms of Rule 30 (1) is dismissed and
default judgment in favour of the plaintiff is granted in terms of
Rule 31 (2) of the rules with costs.
S.
B. MAPHALALA
JUDGE
