Tsabedze v Standard Bank of Swaziland Ltd and Another (2796 of 2005) [2006] SZHC 15 (1 February 2006)

IN THE HIGH COURT OF SWAZILAND

CIVIL CASE NO.2796/05

In the matter between:

SHELTON MANDLA TSABEDZE APPLICANT/DEFENDANT
AND

STANDARD BANK OF SWAZILAND LTD 1^st RESPONDENT

DEPUTY SHERIFF (HHOHHO DISTRICT) 2^nd RESPONDENT

CORAM MATSEBULA
FOR THE APPLICANT/DEFENDANT
FOR THE RESPONDENTS

APPLICATION FOR AN ORDER FOR RESCISSION OR SETTING ASIDE SUMMARY JUDGMENT GRANTED ON 2^nd SEPTEMBER 2005

FEBRUARY 2006

Applicant is applying to have a summary judgment set aside and relies on

Rule 32(11) which states:-

(a) Any judgment given against a party who does not appear at the hearing of the application under sub-rule (11) or sub-rule (6) may be set aside or varied by the Court on such terms as thinks first (sic).

First respondent issued summons against the applicant in terms of which it sought payment of E440.464.82 in respect of an overdraft facility and an amount of E208.987.00 in respect of mortgage loan.

(i) It is common cause that 1^st respondent properly served a notice of
motion for summary judgment on applicant on the 18^th August 2005.

(ii) Applicant did not file any opposing affidavit and judgment was
granted on 2^nd September 2005. This was followed by a writ of
execution issued out by the Registrar on 5^th September 2005.

(iii) On 7^th September 2005 applicant's attorney wrote a letter to first
respondent's attorneys and indicated that it was not opposing the
claim.

(iv) Some instructions were needed on the part of the first respondent's
attorneys as to how the claim was to be settled.

(v) There was further correspondence that followed and this court does
not deem it necessary to go into details.

Considering the fact that applicant's attorneys were aware all along of the proceedings in the matter and that they even engaged first respondent's attorney in correspondence after the grant of the summary judgment. This court is not satisfied that applicant has advanced an acceptable and reasonable explanation why it should be granted the rescission it is seeking.

In the result, the application is dismissed with costs, costs should include those of counsel in terms of Rule 68(2) of the Rules of Court.

J.M. MATSEBULA

Judge