Court name
Industrial Court of eSwatini
Case number
114 of 2006

Maxi Prest Tyres (Pty) Ltd v Du Point (114 of 2006) [2006] SZIC 25 (01 December 2006);

Law report citations
Media neutral citation
[2006] SZIC 25


IN THE INDUSTRIAL COURT OF
SWAZILAND







HELD AT MBABANE CASE
NO. 114/2006







In the matter between:







MAXI PREST TYRES (PTY)
LTD Applicant







and







SANDRINO DU POINT Respondent











CORAM:







P. R. DUNSEITH : PRESIDENT



JOSIAH YENDE : MEMBER



NICHOLAS MANANA : MEMBER







FOR APPLICANT : W. MKHATSHWA



FOR RESPONDENT : C. MOTSA











J U D G E M E N T – 1/12/06










  1. On 15 November 2006 the court granted
    judgement against the present Applicant in favour of the present
    Respondent for payment
    of the sum of E73,429.04. This judgement was
    granted ex parte in the absence of the Applicant which had failed to
    attend court
    to oppose the matter or file any defence.



  2. The Applicant has now applied under a
    certificate of urgency for rescission of the ex parte judgement and
    leave to defend the
    main application. An interim interdict was
    granted by consent, staying execution of the judgement pending
    finalization of the
    rescission application.









  1. Mr. Mkhatshwa, who appeared on behalf
    of the Applicant, argued that the judgement had been erroneously
    granted in the absence
    of the Applicant. As such, the court has the
    power to set it aside (see Rule 10 (a) of the Industrial Court
    Rules, 1984 as read
    with Rule 42 (1) (a) of the High Court Rules,
    1954).









  1. Mr. Mkhatshwa raised two issues in
    support of his submission that the judgement was erroneously
    granted:










    1. service of the main application was
      defective because it was served at the Respondent’s branch office
      and not at the Respondent’s
      principal place of business within
      Swaziland;











    1. the Respondent’s claim is res
      judicata
      , having already
      been dismissed by the Industrial Court under Case No. 77/2005.










  1. Service of the main application was
    effected by one Bonginkosi Sibusiso Mkhabela, a messenger employed
    by the Respondent’s attorneys.
    In his affidavit of service, he
    attested that he served the application “to Bheki Mathabela a
    Manager at Maxi-Prest (Pty)
    Ltd who is more than 16 years, after
    explaining the nature and exigency of the said application.”













  1. In its founding affidavit in support
    of the rescission application, the Applicant’s Regional Manager
    states that the main application
    was served at the Applicant’s
    Matsapha branch on the Branch Manager, Bheki Mathabela. Mathabela
    confirms in a supporting affidavit
    that he referred the messenger to
    the Applicant’s head office. Mathabela did however sign the
    original application and it
    can be accepted that it was served upon
    him.









  1. Rule 4 (2) (e) of the High Court
    rules provides that in the case of a corporation or a company
    service shall be effected at the
    registered office or the
    principal place of business within Swaziland of the corporation or
    company. In the absence of any
    provision for manner of service in
    the Industrial Court Rules, Rule 4 (2) of the High Court Rules has
    application.









  1. In Federated
    Insurance Company Limited v Malawana 1986 (1) SA 751 (A),

    The South African Appellate Division stated in respect of sub rule
    4 (2) (e) that “
    if a
    company has more than one place of business within the court’s
    jurisdiction, the summons would have to be served at the
    company’s
    chief or principal place of business within that area…………”









  1. In the result, service at the branch
    office was not good service on the Applicant in terms of the Rule.









  1. This case is a good illustration of
    the principle behind requiring service on a company at its principal
    office. Corporate administration
    is normally conducted from the head
    office, and branch administration may have no mandate nor capacity
    to deal with court process.
    In this particular matter it transpires
    that an identical application was previously served on the
    Applicant, which vigorously
    opposed and filed a substantive defence
    on the merits. That application was dismissed on a technicality.
    It can be accepted
    that the Applicant would have opposed the renewed
    application also, if it had come to the attention of senior
    management at head
    office. The inference can be drawn that Mathabela
    never properly briefed head office about the application served on
    him.









  1. Although the Industrial Court may
    condone procedural irregularities and technically defective service,
    it cannot do so where
    a party has been prejudiced by the
    irregularity or defective service.









  1. A judgement or order is erroneously
    granted if there was no proper service on the party in default.








See
Prahbudas Chandrakant v Victor Mashinini & Another (I.C. Case No.
528/2006) at page 4
.








  1. The party in default does not have to
    go further and show that there is good cause for the rescission of
    the judgement (ibid).









  1. Due to the defective service of the
    main application, the Applicant is entitled to a rescission of the
    exparte judgement granted
    in its absence.









  1. On the issue of the Respondent’s
    claim being
    res judicata,
    it is unnecessary for the court to make any finding in this regard
    in view of our decision on the issue of defective service.
    The
    Applicant may, if so advised, raise this defence in the main
    application. Suffice it to say that on the papers before court,

    including the pleadings and court records in Case No. 77/2005, it
    does not appear that any judgement was given which finally

    determined the substantive rights of the parties. If the
    application under Case No. 77/2005 was dismissed on the technical
    ground that it should not have been issued under the same case
    number as a previously-withdrawn application, then the Respondent
    is
    certainly not precluded from re-instituting the proceedings based on
    the yet-unadjudicated cause of action.









  1. The issue of costs requires careful
    consideration. Although the court has found that service of the
    main application was defective,
    it cannot be ignored that the
    Applicant’s Branch Manager Mathabela was negligent in bringing the
    application to the attention
    of head office management. The fact
    that the trial proceeded exparte in the absence of the Applicant was
    due to a minor procedural
    error on the part of the Respondent,
    compounded by serious neglect of duty by the Applicant’s Branch
    Manager.








An unnecessary ex parte trial could
also have been avoided if the Respondent’s attorney had alerted his
colleague to the renewed
application, as a matter of professional
courtesy.








  1. Taking account of all these factors,
    the court considers that each party should settle its own costs.









  1. An order is granted in the following
    terms:











      1. The exparte judgement entered
        against the Applicant on the 15
        th
        November 2006 under Case No. 114/2006 is hereby rescinded and set
        aside;













      1. The Applicant is granted leave
        to defend the main application under Case No. 114/2006, and is
        required to file its Reply
        within 14 days from the date of this
        order;













      1. Each party is to pay its own
        costs.


















The members agree.















PETER R. DUNSEITH



PRESIDENT OF THE INDUSTRIAL
COURT












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