IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE Case No: 1793/15
In the matter between:
PHINDA SIBONGINKOSI MATSE 1ST APPLICANT
SWAZI TRUCK AND BUS (PTY) LTD 2ND APPLICANT
JABULILE BEUTY DLAMINI 1ST RESPONDENT
THE DEPUTY SHERIFF OF THE HIGH COURT
SILENCE GAMEDZE NO 2ND RESPONDENT
JABULILE BEAUTY DLAMINI PLAINTIFF
PHINDA SIBONGINKOSI MATSE 1ST DEFENDANT
SWAZI TRUCK AND BUS (PTY) LTD 2ND DEFENDANT
Neutral Citation : Phinda Sibonginkosi Matse; Swazi Truck & Bus (Pty) Ltd and Jabulile Beauty
Dlamini; The Deputy Sheriff of the High Court Silence Gamedze NO. (1793/15)
 SZHC 272 (15 DECEMBER 2016)
Coram : MABUZA -J
Heard : 29 July 2016
Delivered : 15 DECEMBER 2016
Civil Procedure: Application for rescission of judgment – Two requirements
to be satisfied – Applicant to show good reason for failure to enter appearance to defend – Applicant to show bona fide defence with prospects of success – Application granted – Costs to the 1st Respondent.
 The background hereto is that the 1st Respondent sued out a summons in this Court against the Applicants. The 1st Applicant is employed by the 2nd Applicant as a driver. On the 17th August 2015 at or near Esibayeni Lodge along the MR31 public road a collision occurred involving a motor vehicles driven by the 1st Respondent and the 1st Applicant.
 The 1st Respondent attributed blame of the collision to the first Applicant whom the police charged for negligent driving. Her motor vehicle was damaged to the extent of E42,100.00 (Forty two thousand one hundred Emalangeni).
 It is this amount that she sued out summons for as well as interest at 9% thereon and costs; claiming the Defendants jointly and severally each paying the other to be absolved.
 The summons was served on the 2nd Applicant on the 20th January 2016. The service on an employee of the 2nd Applicant, Gugu Khumalo has not been disputed or challenged.
 Because there was no notice to defend the action by either Applicant, the 1st Respondent sought and obtained default judgment on the 26th February 2016.
 By application dated 10th March 2016, the Applicant seeks the following prayers:
1. Dispensing with the Rules of this Honourable Court regarding the normal time, manner and form of service to hear this application as one of extreme urgence;
2. Granting an Order rescinding and/or setting aside the Judgment granted by Default against the 1st and 2nd Applicants on the 26th of February 2016;
3. Staying execution of the said Judgement pending finalization of the present application;
4. The 2nd Respondent be ordered to return the ISUZU bakkie, Registration Number: DSD 423 BM, and attach the alternative vehicle, an IVECO TRAKKER TRUCK;
5. That prayers 1, 2, 3 and 4 operate with immediate effect pending finalization of this matter.
6. Costs of suit in the event that the matter is opposed;
7. The 1st and 2nd Applicant’s be granted leave to be allowed to enter into the main action, with condonation of the late filing of their Notices to Defend.
8. Directing that a rule nisi do hereby issue, returnable on a date to be determined by the Honourable Court, calling on the 1st Respondent to show cause why an Order in terms of 1; 2; 3; 4 and 6 should not be made final;
9. Further and/or alternative relief.
 The application is brought in terms of Rule 31 (3) (b) of the High Court Rules which provide as follows:
“A Defendant may, within twenty-one days after he has had knowledge of such judgment, apply to court upon notice to the Plaintiff to set aside such judgment and the Court may upon good cause shown and upon the Defendant furnishing to the Plaintiff security for the payment of the costs of the default judgment and of such applicationto a maximum of E200, set aside the default judgment on such terms as it seems fit.”
 It is not disputed that the Applicants brought the application during the time frame provided for by the aforesaid Rule. It is further not disputed that the Applicants have provided security for costs in terms of the Rule to the satisfaction of the Registrar of this Court.
 It has now been legally accepted that there are two thresholds to overcome in order for an application for rescission of judgment to succeed. These are:
- That the Applicant has to show good cause for the default; and
- That on the merits the Applicant has a bona fide defence which
prima facie carries some prospects of success.
 In response to the query whether the Applicants have shown good cause for their default this is what is stated in the founding affidavit deposed to by Willem Robberts a director of the 2nd Applicant:
“6. On or about 18 January 2016, the 1st Respondent served a Combined Summons and Particulars of Claim at the Second Applicant’s business premises.
7. In the Summons and Particulars of Claim, the First Respondent claimed damages from the 1st and 2nd Applicants arising out of a motor vehicle accident which occurred on or about 17 August 2015. The 1st Respondent claims that the 1st Applicant was acting within the course and scope of his employment when he negligently and recklessly drove into the 1st Respondent’s vehicle. I refer to the Confirmatory Affidavit deposed to by the 1st Applicant attached hereto marked “A”.
9. On or about 21 January 2016, I caused an email to be sent to the Attorney representing the 2nd Applicant, Ms Marisa Boxshall Smith, and the attorney representing the First Applicant in the criminal matter, Mr. Gcina Mhlanga. I scanned the Summons received and attached it to the email as document 20160121054040216. A copy of this email is attached hereto marked “B”.
10 I heard nothing further from my attorneys and did not follow up the matter with Ms. Boxshall Smith.
11. On or about 4 March 2016 and at approximately 3.30 p.m. the 2nd Respondent arrived at the 2nd Applicants business premises with a Warrant of Execution dated 2nd March 2016. He advised me that Default Judgment had been granted against the First and Second Applicants on 26th February 2016 and he was now instructed to attach and remove moveable items from the business premises.
12. I immediately contacted Ms. Boxshall-Smith to find out what had happened. After some investigation, she advised me that she had received the email dated 21 January 2016 but had not opened the attachment as I had written that it was “further correspondence regarding the accident matter” and she was of the opinion that it had to do with the Criminal matter. I refer to Ms Boxshall Smith’s Confirmatory Affidavit attached hereto marked “C””
 In confirmation of the facts attested to by Mr. Robberts, Miss Marisa Boxshall-Smith, an attorney of this Court has the following to say:
“(3) I confirm that I am the attorney of record for the 1st and 2nd Applicants herein.
(4) I have read the contents of the affidavit deposed to by Mr. Willem Roberts and confirm the contents thereof in so far as they relate to me.
5.4 I confirm that I received the email dated 21 January 2016, attached to Mr. Robberts Affidavit, marked “B”.
5.5 When I read the email, it stated that it was further correspondence relating to the accident and I assumed that it related to the criminal proceedings which have been set down for trial on 3 May 2016. There was no need for me to forward this to Mr. Mhlanga as he had been copied in on the email dated 21st January 2016 (Annexure “B” of Mr. Robberts affidavit);
5.6 I would have expected Mr. Robberts to state in the email that they had been served with a Summons and we are instructed to defend it;
5.7 I did not open the attachment as it was not titled “Combined Summons” nor did I, on reading the email, realise the importance of the attached document.
5.8 It is also imperative to point out that all correspondence that I have on email in my offices, dating as far back as October 2015 show that the Applicants always had the intention of defending the matter.
 I have difficulty in believing learned counsel when she says that she failed to read the attachment to the email which was only a click away. Furthermore the email of 21 January 2016 is addressed to both Marisa/Gcina Mhlanga. In it Mr. Roberts says “herewith further correspondence regarding the accident matter”.
 Even though I have difficulty in believing her, learned counsel’s story sounds plausible. The email dated 21 January 2016 (Annexure “B”) is ambiguous. The contents refer to the appearance of the 1st Applicant which are addressed mainly to Mr. Mhlanga who is handling the criminal matter. There is no reference to the combined summons therein which would have been for the attention of Miss Boxshall-Smith who has been handling the civil aspect of the matter which initially involved a legal opinion sought by the 2nd Applicant.
 The 1st Respondents learned counsel argues that, the conduct of the Applicants in that notwithstanding that they had allegedly given an instruction to their Attorneys, did nothing in the following days to enquire on the status of the said matter. It is contended for the 1st Respondent that such conduct is consistent with a willful default. The amount of money sought against them is so substantial that one can simply not follow up on the said matter.
 Mr. Ndlovu for the 1st Respondent cited the following authorities in support of his submissions namely; the case of Salooje vs The Minister of Community Development 1965 (2) SA 135 at  cited with approval by Hlophe J in the case of Sizwesonkhe Kuhlase & 2 Others v Yongmo and Another which stated as follows:
“There is a limit beyond which a litigant cannot escape the results of his attorney’s lack of diligence or the insufficiency of the explanation tendered”.
 And the case of Johannes Hlatjwayo v Swaziland Development and Savings Bank and Others unreported High Court Case No. 1649/11 Civil Appeal Case No. 2/2010, wherein the Appeal Court stated as follows:
“… Matters may well be struck from the roll where there is a flagrant disregard of the Rules even though this may be due to the negligence of the Legal Practitioner concerned. It follows therefore that if clients engage the services of Practitioners who fail to observe the required standards associated with the sound practice of the law, they may find themselves not suited.”
 I am almost persuaded by Mr. Ndlovu’s arguments. However my conscience tells me otherwise for the following reasons:
- The amount claimed is the sum of E42,100.00 (Forty two thousand one hundred Emalangeni) which is a large amount which would deplete the resources of the second Applicant to a large extent for it to willfully fail to defend;
- Both vehicles were extensively damaged and according to the police report “MTN1” the driver of motor vehicle OSD 841 AS was the major contributory factor to the accurrence of the accident. He will be charged for negligent driving. In my considered view, the police report leaves room for contributory negligence to be assessed and this being a damages case cannot be the final arbiter, only a court of law can be. Furthermore, a criminal conviction does not mean the driver is necessarily liable for the payment of damages. His liability has still to be proved in a civil court; see the case of Hollington v Hewthorn and Co. Ltd (1943) KB 587 (C.A).
- The Applicants have raised a good and bona fide defence. They contend that they are of the view that the accident was as a result of the 1st Respondent’s daughter’s negligence. They then set out the following facts; that there were three vehicles in front of the 1st Applicants motor vehicle. Applicants contend that the 1st Applicant indicated to overtake the three vehicles and pulled out into the right-hand lane. According to the Applicant’s version, the Applicant had passed the other two cars and as she came behind Ms. Dlamini she suddenly put her indicator on and turned right hence the collision. Applicants contend that the said Miss Dlamini failed to keep a proper look out nor did she exercise any reasonable caution in making a right turn.
- Erasmus in his work, The Superior Court Practice, Juta 1995 at 8 1 203-204 states the requirements for establishing a bona fide defence as follows;
“The requirement that the Applicant for Rescission must show the existence of a substantial defense 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 defense must be shown with sufficient detail to enable the Court to conclude that the application is not made merely for the purposes of harassing the Respondent…”
- What we have is an error of the legal advisor. Should this Court allow that error to be visited on the Applicants. In my view the error of the legal advisor should not necessarily be visited on her clients. In saying so I find support in the case of Phillip Chemwolo & Another v Augustine Kubende [1982 – 88] KAR 103 where the Court of Appeal of Kenya held:
“ Blunders will continue to be made from time to time and it does not follow that because the mistake has been made that a party should suffer the penalty of not having his case heard on merit … the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The courts, as is often said, exist for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline”.
- This Court in my view exists to decide rights, which in this case will be prevented from doing if the Applicants are not allowed rescission of judgment.
- I am also mindful of the audi alterem partem rule to hear also the other side. And the constitutional provision that says that a person has a right to a fair hearing.
 In the final analysis I find that the Applicants have satisfactorily explained why they did not file their notice to defend. I further find that they have raised a bona fide defence which has prospects of success.
 The order of the Court is as follows:
- An Order rescinding the Judgment granted by Default against the 1st and 2nd Applicants on the 26th of February 2016 is hereby granted;
- An order staying execution of the said Judgement pending finalization of the present application is hereby granted.
- The 2nd Respondent is ordered to return the ISUZU bakkie, Registration Number: DSD 423 BM, and attach the alternative vehicle, an IVECO TRAKKER TRUCK;
- The 1st and 2nd Applicants are granted leave to enter into the main action, with condonation of the late filing of their Notices to Defend granted. The time limits set by the Rules of this Court are to apply.
 The Applicants are hereby ordered to pay the 1st Respondent’s costs on the ordinary scale.
JUDGE OF THE HIGH COURT
For the Applicants : Miss M. Boxshall-Smith
For the Respondents : Mr. T. Ndlovu