Court name
High Court of eSwatini
Case number
1437 of 2011

Nkomondze Attorneys v Motor Vehicle Accident Fund and Another (1437 of 2011) [2011] SZHC 115 (03 May 2011);

Law report citations
Media neutral citation
[2011] SZHC 115













IN
THE HIGH COURT OF SWAZILAND



HELD
AT MBABANE



CIV.
APPLIC. NO. 1437/2011







In
the matter between:















NKOMONDZE
ATTORNEYS …..............................................Applicant



And



THE
MOTOR VEHICLE ACCIDENT FUND
….................1st
Respondent



GIBHITHA
LION TSABEDZE
…...................................2nd
Respondent











Date
of hearing: 27 April, 2011 Date of judgment: 03 May, 2011











Mr.
Attorney M. Nkomondze for the Applicant



No
appearance for the Respondents







JUDGMENT







CASE
SUMMARY







PRACTICE:
Urgent application for
payment of funds allegedly due for services rendered. Whether
financial hardship constitutes a ground for invocation of urgency
procedures. Whether issuance of summons does not provide substantial
relief in due course. Inadvisability of attorneys or those in their
employ to serve applications initiating proceedings where the
attorneys' firms are applicants.
ETHICS:
Advisability of claims
for payment of fees in relation to persons under legal disability to
be taxed or submitted to Fees Committee for consideration and
assessment. Application dismissed.











MASUKU
J.







[1]
This is an unusual and in my judicial experience, an unprecedented
application. It is brought by a firm of attorneys on an urgent basis.
They seek an order compelling the 1
st
respondent to pay
an amount of E72,766-00.







[2]
This amount, it is claimed, is in respect of fees due to the
applicant from the 1
st
respondent. The application was
not opposed by either of the respondents notwithstanding service, an
issue I shall comment on in due course.







[3]
The circumstances under which the amount in question is allegedly due
to the applicant is described as follows: The applicant alleges that
it was instructed to act on behalf of a minor child, Siboniso
Tsabedze, who was involved in a motor vehicle accident and sustained
serious injuries as a result. The child's father, Bhekithemba Vernon
Tsabedze, who initiated the claim unfortunately died and the
applicant was instructed to apply for the appointment of the 2
nd
respondent by this Court as a
curator ad litem, an
application that was granted by this Court on 4 June, 2010.



[4]
The applicant further alleges that an agreement was reached with the
minor's curator that on account of the family's indigence, the fees
due would be settled from the amount that would be adjudged due by
the 1
st
respondent to the minor from the
accident. An amount of E312,668-00, plus a contribution towards costs
in the amount of E2,000-00, was offered for the accident and accepted
by the curator upon advice.











[5]
It is alleged by the applicant that the 1
st
respondent's procedure is that
where an agreement is reached by the claimant and its attorneys for
the payment of the fees due from the settlement amount, the 1
st
respondent issues two cheques;
one to the claimant and another to the attorneys acting for the
claimant for professional fees rendered. It is alleged that in the
instant case, the 1
st
respondent has unreasonably
refused or neglected to issue the cheque in question to the applicant
and that it should be forced to do so on the pain of an Order of
Court.







Service
of application







[6]
The Court,
mero motu
raised the issue of
whether this was an application that should have properly been served
by the applicant as it had a direct interest in the application and
the order sought. The question arose particularly in the light of the
fact that the applicant was not, as it is wont to in many cases,
acting as an agent but as a litigant in its own right and therefor a
direct beneficiary regarding the main order sought.







[7]
I must state upfront that the service conducted
in
casu
is otherwise
sanctioned by the Rules. Rule 4 (1), in particular, provides as
follows:



















"Service
on the person to be served of any process of the court directed to
the Sheriff and any documents instituting application proceedings
shall be effected by the Sheriff or the Deputy Sheriff or in the case
of a document instituting application proceedings by an attorney or
any person in his employ: ..."







I
observe, as I did in
Christopher
Velaphi Sibandle v Mapopo Gwebu (infra)
that
the first words "instituting application proceedings" from
line 3 above, are a misnomer. They should have read "action
proceedings". It is clear from the foregoing that whereas the
Sheriff or a lawful deputy is authorised to serve Court process, i.e.
summons and Court orders, in respect of originating papers in
application proceedings, an attorney or a person in his employ may
effect service thereof.







[8]
The reason behind the prohibition of Court process being served by an
attorney or a person in his or her employ, or any person who has an
interest is to be found in certain cases. Cases that readily come to
mind are
Meintjies v
Roets
1936 CPD 59 and
Barkhuizen Conradie
1939 CPD 454. In the
latter case, Davis J. held as follows at page 455, after citing with
approval the
ratio
decidendi in
the
Meintjies case
(supra):







"For
exactly the same reasons, service of a summons by the plaintiffs
attorney, or by a partner in the firm of attorneys which acts for the
plaintiff, is, in my opinion, also thoroughly undesirable. As was
pointed out in that case, the duty of the Deputy Sheriff is not
merely to serve documents, but to explain to the defendant their
nature and exigency, and in circumstances as the present, just as in
circumstances such as those in that case, it seems to me that there
may be a conflict of interest and duty ...
In
a case as the present, the interest of the client of the attorney may
conflict with his duty as Deputy Sheriff."







[9]
The learned authors Herbstein
et
al,
The Civil
Practice of the Supreme Court of South Africa,
4th
ed, Juta, 1997, say the following in this regard:







"The
undesirability of a sheriff or deputy sheriff serving process in a
matter to which he is a party or in which he has an interest has been
stressed in a long line of cases and it has been generally accepted
that a suitable independent person should then be appointed to effect
service."







I
also had occasion to deal with a related matter in
Christopher
Velaphi Sibandze v Mapopo Gwebu
Civ.
Case No. 5/04. In that case, the plaintiffs attorneys applied to the
Sheriff for the appointment of an
ad
hoc
deputy sheriff,
who was in their employ. I found this to have been undesirable and
held that the service effected thereby was bad.











[10]
Although the Rules do allow for an attorney or a person in his
employ, to effect service of originating papers in application
proceedings, I am of the view that if the attorneys themselves are
the applicants, the issue of independence and necessary detachedness
comes to the fore. For the same reasons that an attorney may not
serve Court process because of a conflict of interest and duty,
nothing, in my view, eradicates this concern if the proceedings are
instituted by motion. What is sauce for the goose in this regard,
must, in my opinion, be sauce for the gander. An exception may be
brooked in circumstances where the attorney is acting as an agent for
a client.



















[11]
Where, as here, the attorney is a litigant and has a personal
interest in the matter, different considerations should apply and the
Rules should, in my considered view, be amended so as to prevent an
attorney to serve applications where he or the firm in which he
serves is an applicant. I am well aware, and Mr. Nkomondze, argued
that the attorney is an officer of the Court. That cannot be
disputed. What is, however, paramount, in my view, is that there must
be no basis for suspicion, whether rightly or wrongly held, that the
attorney, or the person in his employ, succumbed and gave in to the
conflict and thereby subjugated his duty to the Court, to his own
personal interest and aggrandizement.







[12]
In this regard, it is worth pointing out that Herbstein
et
al [supra),
state
that in the Republic of South Africa, in terms of the authority of
Willies v Willies 1973
(3) SA 257, "Service of any process of the court directed to the
sheriff and any document initiating application proceedings must be
effected by the sheriff." This shows that there is no
distinction in this regard, unless the person to be served is already
represented by an attorney. This was, in my view, done to ensure that
there is no suspicion of conflict of interest and duty, even in cases
where the attorney is not an applicant. This construction would be in
conformity with the approach of Lord Simmonds in
Attorney-General
v Prince Ernest Augustus of Hanover
(1957)
AC 436 (HL), where he said:-







"I
conceive to be my right to examine every word of a statute in its
context and I use contest in its widest sense which I have already
indicated as including not only other enacting provisions of
particularly the same statute, but its preamble, the existing state
of the law, other statutes in
para
materia
and the
mischief which I can by those and other legitimate means, discern the
statute was intended to remedy."







[13]
Having said this, I have no doubt from the affidavits of service
filed in the instant matter, read together with a facsimile
transmission letter addressed to and received by the 1
st
respondent, that
both respondents were undoubtedly aware of the application and that
as they did not attend Court, it cannot in any way be attributed to
them not having been notified by the applicant firm because it stands
to have easy passage if the respondents do not come to Court. For
future purposes however, I am of the firm view that attorneys, in
cases such as the present, particularly for the payment of money, and
which all things being equal, would have had to be instituted by
action proceedings, should be served by an independent person in
order to exude the necessary independence and detachedness, eschewing
any suspicions of conflict of interest.











Urgency
alleged and related matters







[14]
It is now trite that a party which seeks to have its matter heard as
one of urgency must comply with the mandatory requirements set out in
Rule 6 (25) (b) of this Court's Rules, as amended. In particular, the
applicant should explicitly state in the founding affidavit the
reasons (i) why he avers that the matter is urgent; and (ii) why he
claims he cannot be afforded substantial redress at a hearing in due
course. See
Humphrey
H. Henwood v Maloma Colliery Ltd and Another
Case
No. 1623/98;
HP.
Enterprises (Pty) Ltd v
Nedbank (Swaziland) Ltd
Case
No. 788/99 and
Deputy
Prime Minister and Another v Ben M. Zwane
Case
No. 199/2000, to mention but a few.







[15]
In the present case, the applicant claims that this matter is urgent
because it is unable to meet its financial obligations to
inter
alia
its members of
staff and its landlord. An application for the landlord's hypothec
has been attached in support of the applicant's allegation that it
has been sued by its landlord for failure to pay its rentals. Do the
above allegations render the matter urgent so as to justify the
invocation of the special procedures availed by the above sub-Rule?











[16]
In answer to this question, Mr. Nkomondze referred the Court to the
case of
Twentieth
Century Fox Film Corporation and Another v Anthony Black Films (Pty)
Ltd
1982 (3) SA 582
(W). In that case, Goldstone J. held at page 586, that, "In my
opinion the urgency of commercial interests may justify the
invocation of Uniform Rule of Court 6 (12) no less than any other
interests. Each case must depend upon its own circumstances."
There is no doubt that the learned Judge was in this case correct and
I fully incline to his reasoning as being impeccable.







[17]
The question in the instant matter, is whether this is a case where
the applicant, by applying for the invocation of Rule 6 (25) (b),
seeks to preserve commercial interests, as envisaged in the
Twentieth
Century Fox Film
case
(supra). Put
more bluntly, is a debt owed to an alleged creditor an issue that can
be properly regarded as one of "commercial interest" such
as to warrant the invocation of the urgency procedures?



















[18]
I think not. Commercial interests, in the sense used above, in my
view, have to do with situations where certain actions and/or
decisions are likely to affect another party's operation
:
regarding the latter's
aggregation of rights, privileges, powers and immunities and which
vitally attach to that party's ability to effectively conduct or
engage in commerce.







[19]
Indebtedness, is not, in my view, one circumstance that should be
allowed to fall in this category of commercial interests. To do so,
would in my view open a Pandora's box, and fling wide open the
floodgates and create a precedent leading to a multiplicity of
application proceedings in which persons, both natural and legal,
would be entitled to claim debts allegedly owing in a matter of
hours, most often, without sufficient notice and literally decimating
the alleged debtor's right to a fair hearing. This would be a
catastrophic innovation which this Court should decisively steer away
from.



















[20]
For many creditors, it can be accepted that the late or non­payment
of debts owed to them, exposes them to ridicule and other harsh
economic consequences, including failure to meet their own financial
obligations as a result, and their business becoming moribund. This
risk is unfortunately, one of the unfortunate realities of doing
business. To elevate this hardship to qualify as a reason for urgency
would be to introduce a dangerous doctrine which can usher ghastly
consequences for the alleged debtors and decimate the smooth,
effective and equitable functioning of the Court machinery.











[21]
Another difficulty that attaches to this particular application and
which concerns the other leg of Rule 6 (25) (b), is the question of
whether the applicant has a suitable alternative remedy in terms of
which it can be afforded substantial redress at a hearing in due
course. In this regard, I must emphasise that the standard set by the
law giver, is "substantial redress" in due course.
According to the Collins Concise Dictionary, this word means "of
or related to the basic fundamental substance or aspects of a thing;
an essential or important element". In other words, the relief
need not be exactly the same in measure or degree. It must, however,
be a remedy that will be effective and one to be afforded in due
course without the need to interpose itself as an urgent panacea.







[22]
In the founding affidavit, the deponent claims that the observance of
the time limits which attach to ordinary application proceedings and
the issuance of a summons shall not afford the applicant substantial
relief "because by the time the matter could be heard under the
normal Rules in respect of motion proceedings, the Applicant's
creditors would have long obtained judgment against the Applicant and
executed the same against Applicant's office furniture and equipment
thereby causing Applicant to shut down".







[23]
What these allegations lose sight of is the traditional requirement
that claims for payment must ordinarily be initiated by way of a
summons in terms of Rule 17 (1). furthermore, if; as the applicant
claims, the 1
st
respondent has no justification
at law for not releasing the funds demanded from it, there are speedy
mechanisms even in action for proceedings for obtaining a judgment
against it, being a default judgment application or a summary
judgment application, if the latter files a notice to defend the
claim.



[24]
This, in my view, puts paid to the applicant's allegations that it
cannot be afforded substantial redress at a hearing in due course.
Issuance of a summons would in my view, if the MVA has no defence, as
alleged, provide a speedy, effective and adequate remedy. To resort
to granting such orders on urgency, as earlier indicated, would usher
in a wave of worrisome trends. An example in this regard would do to
show how dangerous and unpropitious this approach can be.







[25]
For instance, with the economic meltdown, of which this Court can
properly take judicial notice of, as it affects this Court's very
Operations
1
at'present, it would mean-that
a
r'-financial;
institution may
approach this Court on urgency and claim payment of money lent and
advanced, allegedly due to it. In this regard, it would file a
statement, together with an acknowledgement of debt and claim
immediate payment on urgency and cite the fact that if the claim is
not paid immediately, it will be unable to pay its staff their
salaries and benefits at the end of the month. This would be a
very-dangerous precedent indeed which should be nipped in the bud and
which should not be allowed to take root.







[26]
Another matter of grave concern to me, regardless of the fact that
the MVA Fund has not opposed this application is that when one has
regard to the Act of Parliament that sets it up, it is only in
specified circumstances that the MVA can properly be sued for payment
of monies related to injury claims. The current one is not, strictly
speaking, one such claim and the arrangement alleged by the applicant
herein has not been verified and more importantly, has no support
from the relevant legislation. It would be calamitous and possibly
irresponsible of this Court, in view of the murky waters mentioned
above, to proceed to grant the claim only because there is no
opposition from the Fund. I must be satisfied that the Order that the
Court is being asked to grant, is sanctioned by the Act, apart from
an unverified practice alleged by the applicant in its depositions.







[27]
I now deal with the last issue but
en
passant.
This is the
question of the very amount claimed by the applicant herein. From a
claim of E312,668.00, plus the contribution to costs, the applicant
claims a whooping E72,766,00, which amount it is claimed, was agreed
between the curator and the applicant. On first principles, this
amount appears excessive regard being had to the various amounts
claimed for attendances, considered in juxtaposition to the work
quoted to have been done. It is my view that payment of such amounts,
particularly where they involve minors or persons under legal
disability as beneficiaries, should actually be taxed by the Taxing
Master or be referred to the Fees Committee of the Law Society of
Swaziland for assessment of reasonableness. This Court should not be
left with a bad after-taste, that a vulnerable person may well have
been conveyed some injustice by its processes.











[28]
For the following reasons, it is my view that the application ought
to be dismissed as I hereby do.







DELIVERED
IN OPEN COURT IN MBABANE ON THIS THE 3
rd
DAY OF MAY, 2011.







T.
S./MASUKU



JUSTICE
OF THE HIGH COURT











Messrs.
Nkomondze Attorneys for the Applicant



No
appearance for the Respondent