Court name
High Court of eSwatini
Case number
830 of 2010

Masuku v Masuku and Others, in re: Masuku v SAFA Investments (Pty) Ltd and Others (830 of 2010) [2011] SZHC 85 (08 March 2011);

Law report citations
Media neutral citation
[2011] SZHC 85













IN
THE HIGH COURT OF SWAZILAND



HELD
AT MBABANE







Civil
Case No. 830/10(B)







In
the matter between:







Mario
Masuku
…..................................................................................APPLICANT



AND



Bani
Ernest Masuku
…...............................................................1st
RESPONDENT



SAFA
Investments (PTY) Ltd

…........................................................
2nd
RESPONDENT



MAQBUL
&
Brothers
Investments (PTY) Ltd
…..................................3rd
RESPONDENT







In
re:



Bani
Ernest Masuku
…..............................................................................APPLICANT







And







SAFA
Investments (PTY) Ltd
….........................................................1st
RESPONDENT







MAQBUL
&
Brothers
Investments (PTY) Ltd
…..................................2nd
RESPONDENT







Mario
Masuku
….............................................................................3rd
RESPONDENT











CORAM:
MCB MAPHALALA, J







For
Applicant: Mr. M. Mkhwanazi







For
Second Respondent: Mr. S. Dlamini







3rd
Respondent Smith: Mr. M.
Boxshall-











Summary







Civil
Procedure - Application to rescind a default Judgment - remedy In
terms of the Common Law, Rule 31 (3) (b) and Rule 42 (1)















JUDGMENT



8th
MARCH 2011







[1]
The Applicant brought an urgent application staying execution of an
order of this Court issued on the 12
th
January 2011; he
further sought an order rescinding and/or setting aside the said
order. The application was brought in terms of Rule 42 (1) (a)







[2]
The applicant had received an urgent application on the 5
th
January 2011 filed by the First
Respondent rescinding another court order issued on the 16
th
April 2010; however, he could
not instruct his attorneys immediately because it was a vacation and
his Attorney's offices were closed. His Attorney subsequently filed a
Notice of Intention to Oppose. On the 6
th
January 2011, the matter was
postponed to the next day in the absence of Applicant's Attorney. His
Attorney appeared in court on the 7
th
January 2011 and it was agreed
with the First Respondent's Attorney that the matter should be stood
down till 2 pm for arguments; the reason being that he was engaged at
the University of Swaziland at 10 a.m. where he is lecturing
part-time. Before his departure, applicant's Attorney served the
First Respondent's Attorney with an Answering Affidavit to the
Application.











[3]
Notwithstanding the said agreement, the matter proceeded at 10 am in
the absence of Applicant's Attorney, on the basis that the court was
not informed of the reason why the matter should proceed at 2.15pm.
It is apparent from the pleadings as well as the Court Order of the
12
th
January 2011 that the First
Respondent's Attorney merely informed the court that Applicant's
Attorney wanted the matter to stand down till 2.15 pm; however, he
did not disclose to the court that both parties had agreed to stand
the matter down till 2.15 pm. Furthermore, he did not disclose the
reason why the matter was being stood down.











[4]
When the matter appeared in court for hearing, the Attorney
representing the Second and Third Respondents moved a similar
application for staying execution and rescission of the order of the
12
th January
2011 and other ancillary prayers. They brought their application
under Civil Trial No. 402/2011; however, the court in an attempt to
avoid confusion consolidated the two cases and ordered that the two
applications be heard as one under Civil Case No. 830/2010 (B).











[5]
The applicant has brought the application in terms of Rule 42 (1)
(a); and, the Second and Third Respondents have brought their
application in terms of Rule 42 (1) (a) as well as Rule 31 (3) (b).







[6]
Rule 42 provides that:







"(1)
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:




  1. an
    order or judgment erroneously granted in the absence of any party
    affected thereby;



  2. an
    order or judgment in which there is an ambiguity or a patent error
    or omission, but only to the extent of such ambiguity, error or
    omission;



  3. an
    order or judgment granted as the result of a mistake common to the
    parties.









  1. Any
    party desiring any relief under this rule shall make application
    therefore upon notice to all parties whose interests may be affected
    by any variation sought.



  2. The
    court shall not make any order rescinding or varying any order or
    judgment unless satisfied that all parties whose interests may be
    affected have notice of the order proposed."












[7]
His Lordship Nathan CJ
in the case of Munnik
v Focus Automotive Engineers (PTY) Ltd
1977-1978
SLR 152 at 154 stated the Law as follows:







"But
the Court has an inherent jurisdiction to set aside a judgment in a
proper case.... This power is indeed tacitly recognised in Rule 42
(1) which empowers a court in "addition to any other powers
which it may have", to rescind a judgment on the grounds set out
in the sub-rule."







[8]
In the case of
De Wet
and Others v Western Bank Ltd
1979
(2) SA 1031 at 1042 F-
1043
Trengove AJA stated
the Common Law position as follows:











"Thus,
under the Common Law, the courts of Holland were, generally speaking,
empowered to rescind judgments obtained on default of appearance, on
sufficient cause shown. This power was entrusted to the discretion of
the courts. Although no rigid limits were set as to the circumstances
which constituted sufficient cause... the courts nevertheless laid
down certain general principles, for themselves, to guide them in the
exercise of their discretion. Broadly speaking, the exercise of the
court's discretionary power appears to have been influenced by
considerations of justice and fairness, having regard to all the
facts and circumstances of the particular case. The onus of showing
the existence of "sufficient cause" for relief was on the
applicant in each case, and he had to satisfy the court,
inter
alia,
that there was
some reasonably satisfactory explanation why the judgment was allowed
to go by default. It follows from what I have said that the court's
discretion under the Common Law extended beyond, and was not limited
to, the grounds provided for in Rules 31 and 42 (1) ....Those grounds
do not, for example cover the case of a litigant, or his legal
representative, whose default is due to unforeseen circumstances
beyond his control; such as sudden illness, or some other
misadventure; one can envisage many situations in which both logic
and common sense would dictate that a defaulting party should, as a
matter of justice and fairness be afforded relief."







8.1
In the case of
Promedia
Drukkers & Uitgewers (EDWS) BPK v Kaimowitz and Others
1996
(4) S.A. 411 at 417-418,
Van
Reenen J
stated as
follows:











"In
terms of the Common Law, a Court has a discretion to grant rescission
of judgment where sufficient or good cause has been shown. But it is
clear that in principle and in the long-standing practice of our
Courts two essential elements of "sufficient cause" for
rescission of a judgment by default are:







(i)
that the party seeking relief
must present a reasonable and acceptable explanation for his default;
and



(ii)
that on the merits such party
has a
bona fide
defence which, prima
facie,
carries some
prospect of success."







8.2
This judgment was issued pursuant to that of the Appeal Court in the
case of
Chetty v Law
Society, Transvaal
1985
(2) SA 756 at 764-765 and that of
De
Wet and Others v Western Bank Ltd
1979
(2) SA 1031 (A) at 1042, and
Athmaram
v Singh
1989 (3) SA
953 at 957 (D & CLD)











[9]
This judgment shows that under the Common Law the court has a wide
discretion to rescind judgments obtained on default of appearance.
The court's discretion under the Common Law extends beyond and is not
limited to the grounds provided for in Rules 31 and 42 (1). The
overriding principle in the exercise of the Court's discretion is the
consideration of justice and fairness having regard to all the facts
and circumstances of the particular case. The onus lies on the
applicants in each case to show the existence of a sufficient cause
or some reasonably satisfactory explanation why the judgment was
allowed to go by default.



















[10]
Rule 42 (1) acknowledges that the High Court has a discretion to
rescind or vary an order or judgment granted by the court.
Furthermore, the Rule acknowledges that the discretionary powers of
the court is derived not only from the Rules but from other sources
of law including the Common Law, the constitution and the High Court
Act No. 20 of 1954. Furthermore, the applicant has to show that the
order or judgment was granted erroneously; in so doing he has to
outline the circumstances or legal basis why he avers that the order
or judgment was granted erroneously. Lastly, he has to establish that
when the order or judgment was made neither the applicant nor his
legal representative was in attendance in court.











[11]
In the case of
Bakoven
Ltd v G.J. Howes (PTY) Ltd
1992
(2) SA 446 at 471 (EC)
His
Lordship Erasmus J
put
the law as follows:











"Rule
42 (1) (a) ... is a procedural step designed to correct expeditiously
an obviously wrong judgment or order. An order or judgment 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
record. It follows that a court in deciding whether a judgment 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 the 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. It is only when he cannot
rely on an error that he has to fall back on Rule 31 (2) (b) (where
he was in default of delivery of a notice of intention to defend or
of a plea) or on the Common Law (in all other cases). In both latter
instances he must show good cause."











[12]
At page 468 H,
His
Lordship Erasmus
stated
as follows:











"There
are three ways in which a judgment taken in the absence of one of the
parties may be set aside, viz in terms of Rule 31 (2) (b), or Rule 42
(1).. or at Common Law."



















[13]
The Second and Third Respondents argue that they were not served with
the application wherein First Respondent obtained the order of the
12
th
January 2011; they further argue
that the application was brought during the Christmas vacation when
their Attorney's offices were closed. Neither their Attorney nor
themselves were present in court when the Order issued on the 16
th
April 2010 was rescinded and set
aside. The said order interdicted the First Respondent from
collecting rentals on the property purchased by the Second Respondent
from the Applicant.















[14]
It is common cause that when the First Respondent obtained the Order
of the 12
th
January 2011 he told the Court
that the Second and Third Respondents had been duly served with the
application; this is denied by the Second and Third Respondents.
Furthermore, in order to justify urgency, the First Respondent
informed the court that he was deprived of his means of livelihood
and needed money urgently to pay school fees for his children.
However, he did not disclose to the court the following important
facts: that the property in respect of which he collected rental had
been sold by the applicant to the Second Respondent, that he did not
transmit the monies collected to the Applicant, that the purchase
price had been paid in full, that his mandate to collect the said
rental is disputed on the basis that there is no company resolution
authorizing him, and, that the Applicant is the majority shareholder
and sole Director of W.E. Masuku Investments in whose name the
property in dispute is registered. Furthermore, the First Respondent
did not disclose to the court that on the 11
th
August 2010 his urgent
application under Civil case No. 3075/2010 to prevent the transfer of
the property into the name of the Third Respondent was dismissed by
this court on the basis that he did not have a clear legal right to
the interdict sought; he has appealed this judgment to the Supreme
Court.



















[15]
The Second and Third Respondents argue that the First Respondent is
the surviving grandson of the late Sylvinah Carina Masuku who was a
minority shareholder in W.E. Masuku Investments (PTY) Ltd, and he is
merely a beneficiary of the deceased estate and does not have
authority to act on behalf of the Applicant. It
is
further argued that during the sale of the property, the First
Respondent was represented by Attorneys S.M. Kubheka and Associates
based in Manzini; hence, he is aware of the sale.



















[16]
I have no doubt in my mind that if the court had been aware of these
factors it would not have granted the application for rescission. It
suffices for the applicant in terms of Rule 42 (1) (a) to establish
the existence at the time of the granting a fact of which the judge
was not aware, which would have precluded the granting of the
judgment and which would have induced the judge, if he had been aware
of it, not to grant the judgment.











Per
Masuku J: Jika Ndlangamandia v Zeiss Investments (PTY) Ltd t/a Zeiss
Bearings and Joseph Dlamini N.O
Civil
Trial No. 3289/08 at page 11.











[17]
The facts and circumstances disclosed by the applicant, the Second
and Third Respondents do establish the Common Law grounds for
rescission of a judgment obtained by default. The overriding
principle under the Common Law is the considerations of justice and
fairness having regard to the overall peculiar circumstances of the
case.
Trengove AJA
goes further to say
that the grounds under the Common Law are wider than those provided
for in Rule 42 (1) (a) and Rule 31 (3) (b) in the sense that the
judge's discretion is very wide. The non-disclosure by the Attorney
for the First Respondent the reason for the non-appearance of
applicant's Attorney in Court is very serious. Similarly, the failure
to serve the application on the Second and Third Respondents is
equally serious. The failure by the First Respondent to disclose that
he is aware of the sale of the property and that a full purchase
price has been paid shows a fraudulent intent, the collection of the
rental without a proper legal document authorizing same is equally
serious, the failure to disclose that he is merely a beneficiary in
the estate and not an Executor or Shareholder of the company in whose
name the property is registered is equally important in deciding this
matter.







[18]
Rule 31 (2) (b) which is now cited as Rule 31 (3 (b) of the High
Court (Amendment) Rules of 1990 provides 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 application to a
maximum of E200.00, set aside the default judgment on such terms as
to it seems fit."















[19]
The Second and Third Respondents have brought their application on
the basis of both Rule 42 (1) and Rule 31 (3) (b) of the High Court
Rules. It is apparent from Rule 31(3) (b) that five essentials have
to be established.
His
Lordship Nathan C.J.
in
the cases of
Shongwe v
Simelane, Msibi v. Simelane
1977-1978
SLR 183 approved and applied two of his earlier decisions of
Msibi
v Mlawula
Estates
(PTY) Ltd,
Msibi v
G.M. Kalla and Co.
1970
SLR 345 at 348 (HC) His Lordship stated as follows:











"...the
tendency of the court iS to grant the application where the applicant
has given a reasonable explanation of his delay, where the
application is made bona fide and not with the object of delaying the
opposing party's claim, where there has not been a reckless or
intentional disregard of the Rules of court, where the applicant's
case is clearly not ill-founded, and where any prejudice to the
opposite party could be compensated for by an appropriate order as to
costs."











[20]
In the light of the findings of the Court above, it is apparent that
the Applicant as well as the Second and Third Respondents do comply
with the requirements of Rule 31 (3) (b). They have given the
requisite explanation for the delay, the applications were made
within the requisite period of twenty-one days; furthermore, there
was no reckless or intentional disregard of the Rules of Court and
their case is not ill-founded.











[21]
In the circumstances, I make the following order:




  1. That
    the Order issued by the above Honourable Court on the 12
    th
    January 2011 is hereby
    rescinded and set aside.



  2. The
    execution of the Order issued by the above Honourable Court on the
    12
    th
    January 2011 is hereby stayed.



  3. The
    First Respondent is directed to pay costs of suit on the ordinary
    scale.








M.C.B.
MAPHALALA



JUDGE
OF THE HIGH COURT