IN THE HIGH COURT OF SWAZILAND
JUDGMENT
Case No. 405/09
In the matter between
RHODA ZIKALALA Applicant
and
THOMAS MOORE CARL KIRK 1st Respondent
THE DEPUTY SHERIFF – MANZINI 2nd Respondent
Neutral Citation: Rhoda Zikalala v Thomas Moore Carl Kirk (405/09)
[2012] SZHC 08 (20 January 2012)
Coram: Mamba J
Heard: 10 January 2012
Delivered: 20 January 2012
[1] It is regrettable that what started or began as a simple action for eviction from a farm by the first respondent has degenerated into no less than four (4) interlocutory or interim applications herein, including the one before me wherein the applicant seeks, on an urgent basis, for an order; inter alia
“3.1 staying the execution of the order granted against the defendants by
this honourable court on the 2nd December 2011.
3.2 rescinding and/or setting aside the judgement granted against the
Defendants by this Honourable court on the 2nd December, 2011.”
[2] This application was filed with the Registrar on 27th December 2011 and the applicant states that her major reason or ground for bringing it on an urgent basis is “…that I have been ordered to vacate the premises I call my home by the 31st December, 2011.”
[3] Amongst the four or so ancillary or interlocutory applications I have referred to in paragraph 1 above, was a long and protracted Rescission application by the present applicant. At least two of these were under rule 35 of the Rules of this court – as each had something or the other to do with discovery; also known as disclosure in England and Wales. These applications could have been avoided altogether if the parties concerned had strictly and deligently observed the relevant rules of court. The rules are there for the smooth and orderly processing of cases before the court. They have to be followed or observed by all who come within their scope or sphere. For instance, there would have been no need for an application to compel disclosure, if the applicant had made such disclosure timeously. Such and similar non-observance of the rules of court regrettably unnecessarily clog and burden the court roll. The upshot of this is that cases are not concluded or finalised timeously and in a less expensive way. Litigants and their legal representatives must know and realise that the court will not lightly come to their aid in the exercise of its discretion in respect of a litigant, who is adjudged to have been remiss in the conduct or prosecution of his or her case.
[4] I have referred above to the purpose and or function of the rules of court and one of these rules is rule 35 which governs the issue of discovery or disclosure. The mechanism or procedure provided by this rule is to promote and foster fair and open dealing in litigation. Each party is required and expected to place its cards – evidence – on the table before going to trial. Disclosure is aimed at preventing a party from ambushing his opponent by concealing evidence at the pre-trial stage and only to disclose it at the trial and thus prevent the other side from dealing with it timeously and adequately. Justice and fairness is fundamental to or at the centre of our system of court adjudication.
[5] The order that was granted by the court on 2nd December, 2011, whose execution the applicant seeks to stay and eventually rescind is not an eviction order. There is no order that was granted by the court for the eviction of the applicant from the relevant farm. The order that was granted by My Brother Justice S.B. Maphalala on the said date was an order “…in terms of prayers 1 and 2 of the Notice of set down under rule 35 (11).” That notice sought an order:
“1. Dismissing defendant’s defence on failure to file her discovery affidavit.
2. Costs of suit.”
(The first prayer is clumsily worded and is unfamiliar to the ear of a lawyer: a claim is dismissed and a plea or defence is struck out).
However, the order that was obviously prepared by 1st respondent’s attorneys and signed or endorsed by the Registrar of this Court has the eviction of the applicant as its second component. There is no order for the payment of the costs of suit as indicated in that order. This is the order that was served on the applicant and this is the order that she immediately seeks to stay and later rescind.
[6] When I queried the variance between the order granted by the court and that endorsed and issued by the Registrar herein, Mr. Fakudze, Counsel for the first respondent, candidly admitted having drawn up the order that was endorsed by the Registrar. He explained that the prayer for the eviction of the applicant from the farm in question was the main prayer in the summons. He reasoned that, the court having struck out the applicant’s plea or defence, the substantive or main prayer in the summons, was ipso facto granted. He argued further that this was the practice in this jurisdiction i.e. where the defendant’s plea is struck out for failure to make disclosure, the main prayer in the summons is automatically granted, without the court actually saying so. I, with respect, cannot agree with this reasoning and if indeed this is or has been the practice in this Court, I am not prepared to follow it. The reasoning is illogical, skewed and convoluted and so is the alleged practice.
[7] The mere fact that one’s plea or defence has been struck out does not, in my judgment, mean that the court has in effect granted the plaintiff’s action or that this should follow as a matter of logic, or even law. For instance, in an application for default judgment, the fact that either a notice of intention to defend has not been filed or the defendant has been barred from filing a plea, a court is not by that fact alone, obliged or enjoined to find in favour of the plaintiff. The Court must examine the papers and only if satisfied that the plaintiff has made out a case for the relief claimed, grant it. The particulars of claim or declaration may for example, disclose no cause of action and a court would be obliged in law, not to grant the relief sought.
[8] I accept that Counsel for the first respondent acted honestly in drawing up the order for signing by the Registrar. He did not intend to steal a court order. He was genuinely mistaken and his mistake had its origin in the practice that he referred me to. I suspect that is what he told the Registrar as well in persuading him to sign and endorse the eviction order. The Registrar has not had the opportunity to state his case on why and how he signed an order that was at variance with that granted by the court. In the circumstances of this case as canvassed above, there is no need for me to order the Registrar to make a report on the matter. But, for future guidance, the Registrar is expected to sign only those orders and judgments as issued by the court. It is vitally important that such orders should be in the precise terms as issued by the court. Should he, for whatever reason, entertain any doubt on the terms of the order granted by the judge, he should clarify this with the judge concerned.
[9] On the merits of the application, the Applicant has stated that the order of 2nd December, 2011 was granted in her absence and that of her then attorneys who had withdrawn from the case. She also argued that the order was erroneously sought and granted as envisaged in rule 42 of the rules of court. It was her argument that an application and order under rule 35(11) was incompetent in the absence of an order compelling her to make discovery. She argued that an order compelling disclosure and non compliance therewith was a pre-condition or a prerequisite for an application and order under rule 35(11). I agree with this proposition. Indeed the final part of rule 35(11) states that where a court has ordered a party to comply with a request to make disclosure, upon such failure to comply, the court shall be at liberty to “dismiss the claim or strike out the defence.” (Our rule 35(11) is similarly worded to rule 35(7) of South Africa).
[10] In the present case, there is no indication in any of the files that were made available to me, that the court ever ordered the applicant to comply with a notice to make disclosure. Counsel for the 1st respondent was, however, adamant that such an order was made. He informed the court that at one stage the court file could not be traced and a supplementary one had to be made and used by the court. This supplementary record, he said, had also disappeared and thus the relevant order compelling discovery could not be traced too. Also ‘missing in action’ was the applicant’s former attorneys who had merely telephoned her to inform her that they had withdrawn their services. No formal withdrawal by them was filed with the Registrar or served on any of the other litigants herein. I have heard nothing from the attorney(s) concerned in this regard and I am not sure if these damning allegations against them have been brought to their attention. For this reason, no adverse comments pertaining to their alleged conduct may be made.
[11] It is the above alleged withdrawal of her attorneys, the applicant stated, that deprived or denied her the chance to be in court and oppose the application to strike out her defence. She argued, with some justification, that if the presiding judge knew then that her attorneys were absent from court because they had withdrawn in the manner stated by her, he, the judge would not have granted the order striking out her defence. Though irregular, the court would not have treated the said withdrawal as a non-act.
[12] In the absence of any indication why applicant’s attorneys were not in court on 2nd December, 2011, the court was entitled to deal with the matter in the manner it did. If any blame has to be ascribed at all, it has to be on the applicant’s attorneys. Their sins have, unfortunately, to be visited on their client; the applicant. The saying goes that one deserves the attorney he or she hires. See FAIZELLATIF v SWAZILAND MILLING COMPANY OF SWAKI INVESTMENTS CORPORATION LTD Civil Appeal Number 19/97 and the cases therein cited. The withdrawal of the attorneys in this case appears to be similar to that in DE WET AND OTHERS v WESTERN BANK LTD, 1979 (2) 1031 (AD). However, in DE WET’s case the first applicant had been informed of the attorneys withdrawal and set down three days before default judgment was granted and the first appellant took no steps to inform his co-applicants or to appear in court. Dismissing the appeal, Trengove AJA at 1044 A-D said “However, the appellants too cannot be absolved from blame. They appear to have manifested a complete disinterest in the conduct of the case after the interim settlement …and they have not proffered any acceptable explanation for their failure to keep in touch with Coligionis, or with Lebos for that matter, as to the progress of the proceedings during the three and a half year period subsequent to the interim settlement. In this regard I fully agree with MELAMET J’s observation at 780E of the full court judgment, that the appellants
“Cannot divest themselves of their responsibilities in relation to the action and their complain vis-à-vis the other party to the action that their agents, in whom they have apparently vested sole responsibility, have failed them.”
Having regard to all the relevant facts and circumstances, I am of the view that, on common law principles, this court would not be justified in exercising its discretion in favour of granting the appellants the relief sought. They are, as MELAMET J correctly remarked at 780G “the authors of their own problems and it would be inequitable to visit the other party to the action with the prejudice and inconvenience flowing from such conduct.”
[13] But, as the applicant has argued, if there was no order compelling her to make discovery, the order striking out her defence was incompetent and thus it was erroneously sought and granted as stipulated under rule 42 of the rules of this court. Counsel for the first respondent, very properly in my view, conceded the point that, even if it could be ascertained by this court that indeed an order compelling disclosure was issued, this court would still have to enquire and determine whether the applicant’s attorneys’ non-appearance in court on 2nd December, 2011 was sufficient excuse or cause to warrant a rescission under the common law. To allow the parties to investigate and establish the existence or otherwise of the said order would mean yet another postponement, expense and time. And finally, Counsel conceded that whilst it may prima facie appear that the applicant’s attorneys were remiss in withdrawing in the manner described above, having regard to the particular circumstances of this case, the court may be justified in ruling that the applicant’s remedy lies in rescission rather than in a civil action against her former attorneys. Some of the particular and weighty circumstances of this case are that this case involves a dispute over land where applicant claims she has her home. One’s home or residence is a very fundamental human right, which whenever claimed should be examined with care and attention. This is also true of the right of the person claiming ownership of the land. The other consideration is the fact that the pleadings are almost closed. It is at the disclosure stage and it would be too harsh to shut the doors of the palace of justice to her at this final stretch of the journey. I fully accept the principles stated in De Wet (supra). However, The crucial facts and circumstances of these two cases are substantially distinguishable and thus the different conclusions.
[14] Taking the above matters into consideration, the parties agreed and it was ordered as follows:
(a) The order of this court issued on 2nd December, 2011 striking out the applicant’s defence be and is hereby rescinded or set aside.
(b) The applicant is ordered to pay the costs of the rescission application (in view of her attorney’s conduct).
(c) The applicant is ordered to make discovery within seven (7) days from date hereof.
MAMBA J
(Ex tempore judgment delivered on 10th January 2012)
FOR APPLICANT Mr. S. Motsa
FOR RESPONDENT Mr. T. Fakudze
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