Court name
High Court of eSwatini
Case number
Civil Case 2007 of 2000

Swaziland Building Society v Ndzimandze (Civil Case 2007 of 2000) [2003] SZHC 119 (05 December 2003);

Law report citations
Media neutral citation
[2003] SZHC 119
Coram
Maphalala, J









1


THE
HIGH COURT OF SWAZILAND


SWAZILAND
BUILDING SOCIETY


Applicant


And


MUSA
PATRICK NDZIMANDZE


Respondent


Civil
Case No. 2007/2000


Coram S
.B. MAPHALALA - J


For
the Applicant MR. L. MAMBA


For
the Respondent MR. T. MAGAGULA


JUDGMENT


(05/12/2003)


This
is an application brought in terms of Rule 42 (1) of the Rule; of the
High Court for rescission of judgement which was granted against the
Applicant by default.


According
to the averments contained in the founding affidavit of the Applicant
the said judgment sought and granted against the Applicant was in
error in that there was no proper service of the summons. Annexure
"B" of the summons being a Deed of Suretyship, reflects
that the chosen domicilum citandi et executandi to be "the
mortgaged property". The Applicant contends that ex facie the
said surety there is no


2


description
of the so-called "mortgaged property" and accordingly there
is no chosen domidlum citandi et executandi. The Applicant further
contends that even if one could assume on reading the summons as a
whole that the "mortgaged property" referred to is the
property mortgaged in terms of the mortgage bond annexed to the
summons (which is denied) such assumption becomes untenable because
that property was bonded on the 4th October 1995, whereas the surety
was entered into on the 20th September 1995. Accordingly there was no
"mortgaged property" on the date the surety was signed.


Furthermore,
the Applicant contends that according to paragraph 2 of the
Particulars of Claim and the Deputy Sheriff's return marked "MN2"
the summons was served at Portion 1 of Lot 220 Matsapha Township
which is neither his residence, place of employment, or place of
business.


In
any event, even if one were to assume that Portion 1 of Lot 220
Matsapha was his chosen domicilum citandi et executandi, it was
unfair for the Respondent to serve at such address because the
Respondent had caused that property to b sold in execution and had
itself purchased such property and placed somebody else in occupation
of the premises.


The
Applicant further makes an allegation in the founding affidavit that
the Respondent knew very well that Applicant would not receive the
summons. The Respondent was a deliberately contriving to obtain
judgement against him by default.


The
Respondent answers to these allegations at paragraphs 8, 9, 10, 11
and 12 of its answering affidavit. The answer thereto is essentially
that the "mortgaged property" is as a result of the chosen
domicilum citandi et executandi as stated in the Deed of Suretyship
as entered into by the Applicant duly signed by him. The Applicant
chose this address as his domicilim citandi et executandi. It was not
incumbent on the Respondent to serve on any other address, if it was
not officially advised of such change of domicilum citandi et
executandi. No knowledge can be attributed to the Respondent with
regards to the whereabouts of the Applicant. ' "he Respondent is
obliged to serve on the address so chosen.


3


As
to the property being sold in execution the Respondent avers that the
said sale in execution was subsequent to the default judgment being
obtained. It is clear that the Applicant is trying to misrepresent
the factual situation to the court. It was only after the summons was
served, which the Applicant had been made aware of, and after the
judgement was obtained, that the Respondent had sold the property in
execution of the judgment.


The
Respondent further contends that at a meeting at the offices of the
erstwhile attorney of the Respondent, a Mr. E.J. Henwood, a copy of
the summons which had been served on the domicilum citandi et
executandi, was shown to the Applicant, one day prior to judgment
being obtained. Notwithstanding having been informed of summons
having been issued against him, the Applicant was in

default
at the hearing of the matter on the 9th September 2000.

The
judgment was executed upon and the mortgaged property was sold in
execution after a sale in auction had failed to achieve a market
related price.


This
application for rescission falls under Rule 42 (1) which provides as
follows:


"The
court may, in addition to any other powers it may have, men motu or
upon application of any party affected, rescind or vary.


a) An
order or judgment erroneously granted in the absence of any party
affected

thereby".


Therefore
by the words "in addition to any other powers it may have"
it is clear that the powers of the court are not limited to the
instances set out in the rule and the fact that the application is
brought under this sub-rule does not preclude the court from granting
the order for rescission in terms of the common 1aw (see Mutebwa vs
Mutebwa 2001 (2) S.A. 193 at 198 C - E).


On
the facts of this matter it is clear that the judgment was granted in
the absence of the Applicant. It is also clear that in terms of the
application or default judgement that such judgment was granted on
the basis of summons having been served at Portion 1 of Lot No. 220
Matsapha Town. The question therefore in this case is


4


whether
or not there is any legal basis for the summons to be served at such
an address in terms of the Deed of Suretyship.


The
clause whereby the domicillum citandi is allegedly chosen provides
that:


"We
hereby choose domicillum citandi et executandi for all purposes
hereunder at the

premises
of the mortgaged property"


The
Applicant argues that no property is described in the papers and no
property was as that date mortgaged and if the parties intended to
state that it Was a property to be thereafter mortgaged by either
Senderwood or the Applicant the parties would have so

stated.
In any event in terms of the contra proferentum rule, the clause
ought to be


interpreted
against its author, the Respondent. Accordingly no domicillum citandi
was chosen by the Applicant and he ought to have been served
personally.


The
Respondent states that it was common cause that Portion 1 of Lot 220
Matsapha Town would be mortgaged and that such property must be taken
to be the domicillum citandi and service thereat was sufficient in
terms of the rules of court. Rule 4

provides
that it is competent to serve process at the domicillum citandi.


It
would appear to me that reference to the "mortgage property"
is as a result of the chosen domicillum citandi as stated in the Deed
of Suretyship as entered into by the Applicant and duly signed by
him. The suretyship was entered into with regards to a specific
property which was to be mortgaged. The Applicant chose this address
as his domicillum citandi. It was not incumbent for the Respondent to
serve on any other address, if it was not officially advised of such
change of domicillum citandi.


According
to the dicta in the case of Van Der Merve vs Bonaero Park (EDMS) BPK
1998 (1) S.A. 697 (T) fat 700 - 701c in fin E/F) where an
acknowledgement of debt, makes provision for the debtor's domicillum
citandi et executandi, but does not make provision for a change of
the domicillum, the debtor has to ensure that notice of a change of
address actually comes to the creditor's attention. In the absence of
such notice there will be proper service of a summons at the debtor's
chosen domicillum citandi et executandi.


5


Further,
it would appear on the facts that the Applicant was aware of the
summons in

this
matter. There is evidence that Mr. E. J. Kenwood, who was then
attorney for the Respondent showed a copy of the summons to the
Applicant, one day prior to the judgment being obtained.


In
casu on the facts I am unable to find that there was an irregularity
in the proceedings or that it was not legally competent for the court
to have made such an order. Further, I am unable to find that there
existed at the time of

its
issue a fact of which the court was unaware, which would have
precluded the granting of the judgment and which would have induced
the court, if it had been aware of it, not to grant the judgment.


In
the result, the application for rescission of the judgment ought to
fail and costs to follow the event.


S.B.
MAPH
ALALA


JUDGE