Court name
High Court of eSwatini

Government of Swaziland and Another v Atlas Invectments (Pty) Ltd () [2000] SZHC 25 (23 February 2000);

Law report citations
Media neutral citation
[2000] SZHC 25
Coram
Sapire, CJ









THE
HIGH COURT OF SWAZILAND


THE
GOVERNMENT OF THE KINGDOM OF SWAZILAND


Applicant


ATLAS
INVESTMENTS (PTY) LIMITED


Respondent


Civ.
Case No. 1955/99


Coram S.W.
SAPIRE,


For
Applicant Mr. L. Maziya


For
Respondent Mr. P. Flynn


JUDGMENT


(23/02/2000)


This
is an application for rescission of judgment. The judgment which it
is sought to have rescinded was granted as a summary judgment in
terms of the rules.


The
Respondent in these proceedings had instituted an action against the
applicant as defendant claiming payment of amounts said to be owing
in terms of an agreement providing for the acquisition by the
applicant of property to be registered in the respondent's name. The
issue of summons had been preceded by the delivery of a letter of
demand as required when the Government is sued, and the applicant had
opportunity at least from the time of receipt of such letter to
investigate the validity of the claim. The applicant had at that
point made part-payment in terms of the agreement and there was no
reason to believe that any defence existed to the plaintiff's claim.


The
applicant gave notice of intention to defend the action. The
plaintiff in response made application for summary judgment and in
due course set the matter down for hearing.


At
the hearing the applicant was represented by Mr. Simelane of the
Attorney General's office. When the matter was called Mr. Simelane
informed the court that he had not yet had instructions as to what
the defence was and was not in a position to obtain instructions
because the Minister of State involved was overseas at the time no
affidavit had ever been filed.. In reply to a question as to why the
Principal Secretary could not furnish the details of any defence
which the applicant may have, Mr. Simelane told the court that his
instructions from the Principal Secretary were that


2


there
was in fact no defence to the action. He went on to mention that
Parliament had directed that no further payments were to be made.
This of course is in itself no answer to the plaintiffs claim. The
court cannot take cognisance of the directions of Parliament unless
in the form of a duly promulgated statute assented to by the King. If
indeed such a directive had been given one would have expected that
the principal Secretary knew about it and would have been able to
inform the court thereof and the reason therefor. There was however
no affidavit before the court, and no acceptable reason advanced for
the non-filing. In these circumstances there was no option but to
refuse the application for postponement and to enter summary judgment
as prayed.


It
is important to bear in mind in relation to this application that the
respondent was not in default and that the summary judgment was
granted after the applicant had an opportunity of being represented
presenting its defence and arguing the same. That this was not done
does not constitute a default in the technical sense, of
non-appearance which would entitle the applicant to a rescission of a
judgment given in the absence of the defendant. The applicant seeks
to rescind the judgment on the basis of having found a defence which
it was not able to disclose to the court hearing the application for
summary judgment.


There
are a number of ways in which rescission of judgment can be granted.
Rules also provide for variation of judgment in certain
circumstances. None of these are applicable because the applicant was
not in default when the summary judgment was granted.


Once
the judgment was granted this court became funetus officio and the
granting of a rescission of a judgment is incompetent either in terms
of the rules or under the common law.


Both
Counsel appearing at the hearing of this application referred to
Chetty V Law Society, Transvaal 1. The relative potions of the
Judgment of Miller J

A
to which my attention was drawn reads as follows: -


"In
the Supreme Court, a judgment granted by default can be set aside in
terms of Rule 31 (2)(b); in terms of Rule 42 (1); and under the
common law. De Wet and Others v Western Bank Ltd 1979 (2) SA at 1037H
- 1038A. Neither Rule 31 (2) (b) nor Rule 42 (1) has any application
to the facts of the present case. The appellant can only seek relief
under the common law."


This
it was common cause is the position in the present case. Later the
Learned Judge said: -


"It
must be noted that a distinction is drawn between "the
rescission of default judgements, which had been granted without
going into the merits of the dispute between the parties, and the
rescission of final and definitive judgements, whether by default or
not, after evidence had been adduced on the merits of the dispute".
De Wet and Others v Western Bank Ltd (supra at 1041

B
- D). In the case of default judgment granted without going into the
merits of the dispute between the parties, the Court enjoyed the
relatively wide powers of rescission described above. In the case of
a final and definitive judgment, whether by default or not, granted
after evidence had been adduced, the Court was regarded as functus
officio. Such judgements could only be set aside on the limited
grounds mentioned in the case of Childerly Estate Stores v Standard
Bank of South Africa Ltd 1924 OPD 163; De Wet and Others v Western
Bank Ltd (supra at 1041D - E); Seme v Incorporated Law Society 1933
TPD 213."


1
1985 (2) SA 756 (A)


3


In
the present case, there were at the time of the application for
summary judgment, no merits to be canvassed. The applicant had failed
to put a defence before the court. On the contrary Counsel for the
applicant disavowed any knowledge of a defence and went so far as to
inform the court that the Permanent Secretary, who presumably was
informed of the issues, was of the view that there was no
maintainable defence. The Applicant now seeks to reopen the case to
advance a defence not previously raised or even contemplated. If
contemplated such contemplation was not intimated to the court,
timeously or at all. The defence would appear to have been thought of
after judgment had been given. The judgment is however final, subject
to appeal but not capable of being rescinded.


Again
the Learned Judge observed: -


The
appellant's claim for rescission of the judgment confirming the rule
nisi cannot be brought under Rule 31 (2) (b) or Rule 42 (1), but must
be considered in terms of the common law, which empowers the Court to
rescind a judgment obtained on default of appearance, provided
sufficient cause therefor has been shown. (See De Wet and Others v
Western 1985(2)SA

p765
Bank Ltd 1979 (2) SA 1031 (A) at 1042 and Childerly Estate Stores v
Standard Bank of SA Ltd 1924 OPD 163.)


What
is important to notice is that the common law remedy of rescission is
available only in respect of judgments given where the party was in
default of appearance. Only judgments, which may be rescinded, are
those granted where the defending party was in default. Where there
is no default no claim for rescission lies.


In
this case if there was any error in the granting of the summary
judgment the applicant's remedy would lie in an appeal. If not and if
there is still any reason why the judgment should not be observed and
obeyed then it is open to the applicant to institute fresh
proceedings probably by way of action to seek restitutio in intergrum
on the grounds of mistake or fraud.


See
De Wet and Others v Western Bank Ltd2


I
therefore hold that I have no power to grant the relief sought in
this misconceived application. The application is accordingly
dismissed with costs.


S.W.
SAPIRE, CJ


2
1979 (2) SA 1031 (A)