Court name
High Court of eSwatini
Case number
830 of 2010

Masuku v Masuku and Others (830 of 2010) [2011] SZHC 42 (12 January 2011);

Law report citations
Media neutral citation
[2011] SZHC 42
Coram
Ota, J

 

IN THE HIGH COURT OF SWAZILAND

 

 

HELD AT MABANE                                  Case No. 830/2010

 

BETWEEN

 

BANI ERNEST MASUKU                          Applicant

 

And

 

SAFA INVESTMENT(PTY) LTD                Respondent    

       

 

Coram                                                     OTA J.

 

 

For the Applicant                             MR. S.C. DLAMINI                                                                                          

 

For the Respondent                         MR. MKHWANAZI   

 

 

 

 

_____________________________________________________________

 

JUDGMENT

12TH JANUARY, 2011

 

This application which the applicant commenced on the premises of urgency prays the Court for the following relief’s

 

  1. Rescinding the order of the Court in this matter which was granted on the 16th April 2010.
  2. Declaring that the applicant is the person entitled to the rentals in respect of portion six of farm 271, Manzini.
  3. Costs.
  4. Further and / or alternative relief.

 

The application is founded on an affidavit of 22 paragraphs sworn by the applicant Bani Ernest Masuku on the 4th day of January 2011.  Attached to this affidavit are the following  1) BME 1:- a copy of the liquidation and  distribution accounts of the estate of the late Winnington Ernest (W.E.) Masuku.

  1. BME 2:- Deed of Transfer No 508/1912.
  2. BME 3:-  Deed of Sale
  3. BME 4:-  copy of letter of appointment to collect rentals.

When this matter served before me for hearing on Thursday the 6th of January 2011, none of the Respondents appeared inspite of the fact that an affidavit of service evidencing the fact that service of the processes herein, were duly effected on the 1st, 2nd and 3rd Respondents, respectively, on the 4th of January 2011, was deposed to by Mr S. C. Dlamini, learned counsel for the applicant.  Mr S. C. Dlamini who appeared in Court, intimated the Court, that counsel for the 3rd Respondent was seeking for a postponement of the matter to enable him file opposing papers.  Based on this representation the matter was postponed  to Friday the 7th  of January 2011, for argument at 10.00am.

 

It is on record that counsel for the 3rd Respondent filed opposing papers to this application on the 6th of January 2011. When the Court reconvened for the hearing of this matter on the 7th by January 2011, Mr S. C. Dlamini for the applicant appeared.  The Respondents were absent and unrepresented.  Mr S. C. Dlamini informed the Court that counsel for the 3rd Respondent had again approached him earlier in Court and was asking for a postponement of this matter to 2.15pm.  The Court refused to entertain a postponement and proceeded with the matter, on the grounds that counsel failed to communicate to it any reason why the postponement should be entertained. The Court further noted that it cannot just postpone a matter at the whims and caprices of counsel.

 

I will consider the process filed by the 3rd Respondent in opposition of this application in the process of determining same.  The foregoing said and done, let me now consider the substantiality of this application.

 

In its opposing papers the 3rd Respondent raised two points of law seeking to defeat this application in limine, as follows

  1. That the matter is not urgent because eight months have elapsed since the 16th of April 2010, when the order sought to be rescinded was made and the date when the application for rescission was filed.  That the grounds advanced for bringing this application on the premises of urgency,

i.e  financial hardship  and or constraints are not good grounds to have a matter heard on urgent basis.

 

  1. That the applicant has failed to pay the costs awarded by this Court between the same parties and over the same subject matter, even after a taxed bill of costs was served on him.

 

The question of urgency is one that has been settled in this jurisdiction in a long line of cases.  The judicial consensus on this matter is as follows:-

 

  1. Applicant shall in his affidavit or petition set forth explicitly the circumstances which he avers render the matter urgent.
  2. The affidavit or petition should state the reasons why applicant claims he would not be effected substantial redress at a hearing in future course.
  3. The foregoing facts must appear ex facce the papers filed.

 

See Humprey Henwood V Maloma Colliery and Another Civil Case No. 623/94, Megalith Holdings Vs RMS Tibiyo and Another Civil Case No. 199/2000  and Protonics Networking Co-operating V Emcon Africa (Pty) Ltd and Themba Dlamini Case No. 852/2000.

 

The applicant stated his reasons for bringing this application on the premises of urgency as follows in his affidavit:-

 

  1. The reason set out in applicants founding affidavit.
  2. The applicant is deprived of his means of livelihood and will thus be unable to return his dependants back to school in two weeks when schools open.

 

There is no doubt that the applicant seeks this recission.

eight months after the order was granted.  However I am compelled to countenance this application on the platform of urgency upon which it is premised because of the reason of lack of service upon which it is predicated which reason is not challenged in this application.  This is coupled  with the issue of the necessity to send applicants dependents back to school in a matter of 2 weeks.  It is thus obvious to me that the applicant cannot be adequately redressed at a hearing in future course in the circumstances.

 

Similarly, the point taken in limine on the question of none payment of costs must fail.  This is because modes of execution of the taxed bills of costs abound  in our rules.  There is no evidence that the 3rd Respondent had explored any of the modes of execution prior to this application. In the circumstances it is my considered view that to invoke this fact as a ground for, dismissal, of the application, for recession is therefore untenable.  It would have been more tenable if the prayer was for the Court to refuse to hear the recession application until the costs have been paid and not for a dismissal of same.  I therefore on these premises dismiss the points taken in limine.

 

Now the application for  recission is brought pursuant to rule 42 (1) (b) of the rules of this Court which provides as follows:-

‘‘  The Court may in addition to other powers it may have meri motu  or upon the application of any party affected, rescind or vary (a) an order or judgement erroneously granted in the absence of any party affected thereby’’.

 

Therefore, if the Court commits an error in the record, in the sense of a mistake which if it had been aware of, would have induced it not to grant judgement, then the Court in that instance would be entitled to rescind the judgement in question.

 

See Tasneens Investments (Pty) Ltd V Choice Investments (Pty) Ltd Civil trial No. 287/09, Bakoven Ltd V G. J.  Howes (Pty) Ltd 1992 (22) SA 466 (E).

 

The applicant contends that the Court erred in granting the order sought to be rescinded.  This according to the applicant is because he was not served with the  processes upon which the order was predicated.  He contends that this is because, as demonstrated by the affidavit of the deputy sheriff, the  process was affixed to the door   of applicant’s residence, instead of being served on a person apparently in charge of the residence and apparently above the age of 16 years.  Therefore the service did not comply with the rules and this entitles the Court to rescind its orders.

 

The Respondents failed to depose to any facts in opposition of the foregoing allegation of the applicant.  Therefore, the allegation must be taken as admitted by them and as establishing the facts alleged therein.  Since it is proved that the deputy sheriff affixed the process on the door of the applicants residence, the only question that remains to be answered is whether that was wrong service pursuant  to our rules, as is alleged by the applicant.

 

The question of service of the notice of motion, is a statutory one.  It is governed by  section 4 of the rules of the High Court of Swaziland, which advocates, that personal service of the process should be effected by delivering the process personally to the applicant or by leaving a copy there of at the place of residence or business of such person, guardian, tutor, curator or with the like person apparently in charge of the premises at the time of delivery being a person apparently not less than sixteen years of age.

 

It appears to me in the circumstances, that service of the notice of motion which was effected by affixing same on the door of the applicants residence was wrong service pursuant to our rules.  The service is tantamount to no service by virtue of our rules.  It is thus indisputable that the Court erred in proceeding with the application predicated on this service and granting the orders sought.  I am persuaded that the lack of service is an error which if the Court was aware of would have compelled it not to grant the orders sought.

 

The law is that once the applicant shows that an error was committed by the Court, it is without more, entitled to a recission of the judgement.  See Bakoven Ltd V G. T. Howes (Supra).

 

Therefore, since the applicant herein has demonstrated that the Court erred in granting the  order sought to be rescinded, he is entitled to the recission sought. Now let us go to the second prayer wherein the applicant seeks a declaration that he is the party entitled to the rentals in respect of portion six of farm 271, Manzini.  By his own showing the applicant deposed in paragraph 12 of the founding affidavit, that proceedings to set aside the alleged fraudulent sale of portion 6 of farm 271 Manzini by one Mario Masuku, has been launched before the Supreme Court under appeal No. 55/2010.  That the transfer of the property is interdicted pending finalization of the appeal.  It appears to me that since this matter  is pending before the Supreme Court, that this Court cannot make any declarations in respect of same.  I will thus dismiss this prayer and it stands dismissed.

 

In conclusion therefore, the order granted by this Court in this matter on the 16th April 2010 is hereby rescinded.  Respondents to pay costs of this application.                                                             

 

 

 

OTA  J.

HIGH COURT OF SWAZILAND