THE
HIGH COURT OF SWAZILAND
Civil
Case No.3032/00
In
the matter between:
HANS
C. WEINARD Applicant
VS
MICHELLE
SHEILA Respondent
CORAM: MASUKU
J.
For
Applicant: Mr P. Gwebu
For
Respondent: Mr S.V. Mdladla
JUDGEMENT
1st
August, 2002
On
the 3rd August 2001, a judgement by default was granted by this Court
in the amount E51, 114.59 in favour of the above-named Respondent. As
against that judgement, the Applicant now applies for an Order in the
following terms: -
1. Rescinding
the judgement by Default issued against the Applicant's (sic) on the
9th November, 2001 by the above Honourable Court under case
No.3032/00.
2. Granting
the Applicants (sic) leave to file an appearance to defend the above
matter and such other papers as may be necessary within the time
limits prescribed.
2
3. Costs
of the suit;
4. Further
and/or alternative relief.
It
is necessary that I mention that the citation of the parties in this
matter, being an interlocutory application ensuing from action
proceedings is improper. The proper citation in such and other
matters was outlined by Dunn J. in DUMISA SUGAR CORPORATION LTD VS
SWAZILAND SUGAR ASSOCIATION AND ANOTHER CASE NO.1867/97. The practice
therein set out is salutary and must be followed by practitioners in
this and other Courts. I shall, for purposes of convenience refer to
the parties as Applicant and Respondent, respectively, although the
present Applicant was a Defendant and the Respondent the Plaintiff in
the aforesaid action.
I
also need to point out that the Court file bears no record of any
judgement entered on the 9th November 2001. The only default
judgement entered in this matter was so entered on the 3rd August
2001 as earlier indicated. I will for purposes of dealing with this
matter assume in the Applicant's favour that the date for the
judgement as recorded in the Notice of Motion is erroneous.
Facts.
On
the 1st October 1998, at Ontdekkersroad, Roodepoort, a collision
occurred in which the Respondent's vehicle was extensively damaged.
The Respondent held the Applicant responsible therefor. A letter of
demand was issued to the Applicant by the Respondent's insurers
Santam, demanding payment of the sum of E50 768.03. The Applicant
referred the said letter to this insurers Impilo Yami Insurance
Brokers (Pty) Ltd, who responded to Santam's letter, denying any
liability on the Respondent's part as the latter's vehicle was not
damaged at all.
The
Respondent's attorneys Messrs. Howe and Company then issued a
Combined Summons dated 19th September 2001, claiming an amount of E51
114.59, interest and costs. On the 22nd September, 2000, the
Applicant's Broker wrote a letter to the Swaziland Royal Insurance
Corporation in the following terms: -
3
"POLICY
NO. MA 028261 - H.W. GLASSWORKS
We
enclose herewith a copy of letter dated 7th June 1999 advising your
office a possible third party claim and however our client rejects
liability as their vehicle was never damaged. We do not appear to
have received your advises.
We
also enclosed herewith copies of letter of demand from the third
party's insurers Santam and a copy of our letter dated 07.07.2000
responding to their demand. We now received combined summons from
Messrs Howe & Company and the same enclosed for your attention
and trust that you will refer this matter to your legal department
for their opinion."
It
is clear from the foregoing letter that the Applicant, as deposed to
in his affidavit, on receipt of the Summons immediately transmitted
the same to the Broker, who in turn further transmitted the same to
SRIC's legal department for appropriate action. It is now an
incontrovertible fact that no action in opposition to the claim was
filed by the Applicant's insurer, hence the default judgement.
In
the application for rescission, the Applicant proceeded in terms of
Rule 42, contending that there was error in the granting of the
judgement for the following reasons: -
(a) that
he was labouring under the mistaken belief that the matter was being
dutifully attended to by his insurers
(b) the
Plaintiff's attorneys sought and obtained judgement on the mistaken
belief that he (Applicant) did not wish to oppose the action or was
deliberately not defending the same.
In
argument, Mr Gwebu, in reliance on rescission in terms of Rule 42
stated that the error consisted in the fact that Messrs. Howe &
Co were the Applicants attorneys, who defended him in the criminal
proceedings arising from the said traffic accident but they proceeded
unethically to issue the Summons against him. He contended that had
this fact been brought to the Court's attention the Court may not
have been disposed to granting the judgement in the Respondent's
favour as it did.
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The
Law Applicable to Rescission.
In
the case of LEONARD DLAMINI VS LUCKY DLAMINI CIVIL CASE NO.1644/97
(unreported), Dunn J. stated quite correctly in my view that in our
jurisdiction, rescission can be obtained under one or more of the
following heads: -
(a) the
common law;
(b) Rule
31 (3) (b)
(c) Rule
32 (11); and/or
(d) Rule
42
Rule
42 (1) under which this application was moved 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;
(b) an
order or judgement in which there is an ambiguity, or a patent error
or omission, but only to the extent of such ambiguity, error or
omission;
© an
order or judgement granted as the result of a mistake common to the
parties.
The
application of this Rule has been the subject of generous comment in
this and other jurisdictions. In BAKOVEN VS G.J. HOWES (PTY) LTD 1992
(2) SA 466 at 471 E - G, Erasmus J. held the following regarding the
application of this Rule: -
"Rule
42 (I) (a), it seems to me, is a procedural step designed to correct
expeditiously an obviously wrong judgement or order. An order or
judgement is 'erroneously granted' when the court commits an 'error'
in the sense of a mistake in a matter of law appearing on the
proceedings of a Court of record...
5
It
follows that a Court in deciding whether a judgement was 'erroneously
granted' is, like a Court of appeal, confined to the record of
proceedings. In contradistinction to relief in terms of Rule 31 (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. "
I
whole-heartedly embrace these remarks as reflective of the position
in this jurisdiction and are therefor fully applicable. In NYINGWA VS
MOOLMAN N.0.1993 (2) SA 508 (TK G.D.) at 510, White J. reasoned as
follows regarding the circumstances in which it can be said that a
judgement has been erroneously granted: -
"It
therefore seems that a judgement has been erroneously granted if
there existed at the time of its issue a fact which the Judge was
unaware, which would have precluded the granting of the judgement and
which would have induced the Judge, if he had been aware of it, not
to grant the judgement."
I
again find these remarks fully applicable to our Rule 42, which I may
say is in pari materia with the corresponding South African Rule. See
also POLO DLAMINI VS MARTHA SIPHIWE NSIBANDE in re: MARTHA SIPHIWE
NSIBANDE VS POLO DLAMINI AND TWO OTHERS CASE NO. 1581/00
(unreported); DOMINIC MUHOHO VS YVONNE SELBEA AND ANOTHER CASE NO.
2743/98 (unreported).
Applying
the Law to the facts.
Can
it be said, in view of the Applicant's depositions that he has
succeeded in making out a case under this Rule? I think not. The
various reasons advanced by the Applicant for contending that Rule 42
applies, would, on a proper consideration, particularly of the
above-cited authorities not hold. Regarding the conflict of interest,
it is clear from the record that Howe & Co. immediately withdrew
as attorneys of record for the Applicant. The judgement was actually
obtained by the Respondent's present attorneys. Although the
Affidavit explaining Messrs Howe & Co's handling of this matter
was not filed, it does
6
happen
in large firms that the right hand does not know what the left is
doing resulting in a member of a firm acting for a client in one
matter and another against him in another.
Deplorable
and unfortunate as this may be, the main test is what the firm does
once it becomes apparent that a conflict has arisen. In casu, Howe &
Co. took right decision and withdrew. There is no indication that in
drafting the summons some information and confidences in respect of
which they were repositories in the criminal matter were used in
drafting the summons. I am not persuaded, on a full appraisal of the
facts that a Judge would have held that an error was committed. It is
more difficult to fathom why the reasons appearing as (a) and (b)
above were included as a basis for alleging error. They are
hopelessly inadequate and do not meet the rigours and the approach
set out in the instructive decisions cited above.
On
a conspectus of the facts above and the law applicable, it is my
finding that the application for rescission under Rule 42 must fail.
That
does not however mark the end of the enquiry, following the useful
observations of White J. in NYINGWA VS MOOLMAN (supra) at page 510 ©.
The learned Judge stated the following:-
"'Although
I agree with Mr Locke's submission that the application cannot be
brought under Rule 31 (2) (b), I do not believe that this is the end
of the matter. That would be too formalistic an approach. This Court
must also decide whether the application can succeed under provisions
of either Rule 42 (1) (a) or the common law."
In
order to avoid adopting the highly formalistic and fastidious
approach, I will, to ensure that justice is done, consider whether
the Applicant has made a case under the common law, it being common
cause that Rule 31 (3) (b) and Rule 32 (11) are, in light of the
facts of the matter in applicable.
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Rescission
under the common law.
According
to LEONARD DLAMINI VS LUCKY DLAMINI (supra) at page 2 Dunn J.
correctly held that an applicant for rescission in terms of the
common law must: -
(a) present
a reasonable and acceptable explanation for his default; and
(b) show
that he has, on the merits, a bona fide defence which prima facie
carries some prospect of success.
Regarding
(a) immediately above, the Applicant, in his Founding Affidavit
states that on receipt of the Summons, he immediately proceeded to
his insurers and handed the same over to them. He was also advised by
them that all necessary processes would be attended by them and he
believed this would be the position. As mentioned earlier, annexure
"C" appears to confirm the Applicant's assertions in this
regard.
It
is my considered view, regard had to the foregoing that the Applicant
has successfully presented a reasonable and acceptable explanation
for his default. Any person in the Applicant's position, who enters
into an insurance contract would ordinarily expect the insurer, in
the absence of a repudiation, when handed a summons to take
appropriate action for and on behalf of their insured, including
causing the matter to be defended in Court. The Applicant cannot
therefor be faulted for reposing his trust and confidence in his
Broker as he did.
Regarding
(b) i.e. showing that he has a bona fide defence, the test was set
out with absolute clarity by Brink J. in GRANT VS PLUMBERS (PTY) LTD
1949 (2) SA 470 (O). Although the learned Judge was dealing with
rescission in terms of Rule 31, it is my view that the test whether
the defence is bona fide is the same in both Rule 31 and under the
common law.
At
page 478, the learned Judge stated the following: -
8
"I
am satisfied, however, that applicant has made out a bona fide
defence to respondent's claim i.e. he has made sufficient allegations
in his petition, which if established at the trial would entitle him
to succeed in his defence. "
Commenting
on the same subject, Erasmus, in his work entitled, "Superior
Court Practice", Juta, 1995 at B1 203 - 204 stated the
following: -
"The
requirement that the applicant must show the existence of a
substantial defence does not mean that he must show a probability of
success: it suffices if he shows a prima facie case, or the existence
of an issue which is fit for trial. The applicant need not deal fully
with the merits of the case, but the grounds of defence must be set
forth with sufficient detail to enable the court to conclude that the
application is not made merely for the purpose of harassing the
respondent."
The
Applicant's defence in casu is simply that although the Particulars
of Claim allege a collision between the above parties' vehicles, the
Applicant denies that there ever was such a collision as his vehicle
was never damaged. A cursory look at certain paragraphs of the
Particulars of Claim, particularly 5,5.1 to 5.6 would suggest that
there was a collision between the motor vehicles, which, as I have
said the Applicant denied. This, standing alone is a triable issue,
consisting of a bona fide defence.
Paragraph
5.7. of the Particulars of Claim, which appear to run counter to 5.1
to 5.6 records the following of the Applicant: -
"He
forced the Plaintiff (i.e. Respondent) to take evasive action thereby
creating a sudden emergency, which caused the Plaintiff to collide
with an embankment next to the road."
This
allegation is again denied by the Respondent. He claims that the
accident resulted entirely from the Respondent's fault. This is also
a triable issue, not to mention the somewhat ambivalent contents of
paragraph 5.1. to 5.6 viewed in contradistinction to 5.7. On the
whole, I am of the view that the Applicant has managed to satisfy
this leg as well.
9
In
the premises, the default judgement dated 3rd August 2001, be and is
hereby set aside. The Applicant be and is hereby granted leave to
file his notice to defend within ten (10) days from the date hereof,
whereafter the normal provisions of the Rules regarding further
pleadings will apply.
Costs.
The
Applicant was seeking an indulgence and as a result of his default,
the Respondent has incurred costs, both for the default judgement and
the rescission application. I do not consider the Respondent's
opposition to this application as being unreasonable. I accordingly
order the Applicant to bear costs of both the default judgement and
this application.
T.S
MASUKU
JUDGE
