IN THE INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE
CASE NO. 7/2006
In the matter between:
MASTER COPY SERVICES CENTRE [PTY] LTD APPLICANT
and
LUNGILE HLUBI RESPONDENT
IN RE:
LUNGILE HLUBI APPLICANT
AND
MASTER COPY SERVICES CENTRE [PTY] LTD RESPONDENT
CORAM:
NKOSINATHI NKONYANE: ACTING JUDGE
GILBERT NDZINISA: MEMBER
DAN MANGO: MEMBER
FOR APPLICANT : Mr. J.N. HLOPHE
FOR RESPONDENTS: Mr. S.L. MADZINANE
JUDGEMENT 16.05.06
[1] This is an application brought on notice by the applicant who was the respondent in the main application.
[2] The application was brought under a certificate of urgency. The applicant is seeking an order for rescission of an order of this court granted on the 24th January 2006 allowing an application for costs at attorney and own clients scale.
[3] The history leading to the granting of that order is as follows:-
The respondent had brought an urgent application before the court for an order directing the present applicant to pay her her December 2005 within five days amounting to E2f200:00. She also prayed for an order for costs at an attorney and own client scale.
[4] When the matter was heard in court on the 19th January 2006, the applicant was represented by Mr. Sicelo Dlamini of SBD and Associates. An intention to oppose the application had been filed. On that day, the 19th January 2006, Mr. Dlamini advised the court that the parties have reached a consensus and that the respondent would be paid the said sum of E2,200:00. He said they however still oppose the prayer for costs. The application was postponed until the 24th January 200€for the sole purpose of arguing the questions of costs.
[5] On the 24 January 2006 however, Mr. Dlamini did not show up in court. The reason for such default was not know to the court or the respondent's attorney. The court went on to grant the order for costs on attorney and own client scale. It is against that order that the present proceedings have been instituted.
[6] Both counsel made spirited arguments before the court. A number of authorities were also submitted to support the submissions made. For that the court is grateful to counsel as they truly assisted the court. The court is especially mentioning this because there is a practice in this court whereby attorneys simply make submissions and fail to support them with authorities. That practice is frowned upon by the court and is clearly not to be encouraged.
In the case of NYINGWA Vs. MOOLMAN N.O. 1993 (2) S.A. 508, WHITE J, dealing with a rescission application held as follows on pages 511-512:-
"It follows that any judgement, including summary judgement, can be rescinded under the common law. If the merits of the dispute were considered before summary judgement was granted, rescission can follow only on the grounds set out in the Childerley case; if the merits were not considered and the judgement was granted by default, the grounds for rescission are virtually unlimited, and the only prerequisite is that sufficient cause' therefore must be shown...."
In the case of CHETTY Vs LAW SOCIETY, TRANSVAAL 1985
(2) S.A. 756 (A.R.) also dealing with a rescission application, Miller 1A. stated as follows at page 765:-
"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 judgement 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 prospects of success."
As regards the default the applicant said that it did instruct its representative in court, Mr. Sicelo Dlamini to oppose the application for costs. The applicant said it does not know why he thereafter failed to appear in court. Mr. Dlamini however did not file any affidavit to explain his default. The question now is whether the applicant should be blamed for its representaitve's shortcomings. The answer is to be found in the judgement of Maphalala 3, in the case of PETER DE VILLIERS Vs. FEEDMASTER SWAZILAND (A DIVISION OF NGWANE MILLS) IN RE: FEEDMASTER SWAZILAND (A DIVISION OF NGWANE MILLS) Vs. PRO-FEEDS AND PIETER DE VILLIERS, CIVL CASE NO. 647/2005.
In that case an urgent application had also been brought before the High Court for an order rescinding a default judgement. In that case the case of NYINGWA Vs. MOOLMAN (OP CIT) was also
h
referred to.$t page two MAPHALALA 3 held that:-
"The judgement was granted solely as a result of applicants attorneys shortcomings/or inattentiveness and not because of his default No blame therefore can be apportioned to applicant for the resultant award of the judgement against him."
[12] Similarly, in this matter it has not been shown that there is any blame which could be apportioned to the applicant for the resultant award of the judgement against it. The evidence showed that at all material times the applicant intended to oppose the application for costs.
[13] We now come to the second requirement that the applicant must prove that it has a bona fide defence on the merits, which prima facie carries prospects of success.
[14] During the submissions it seems that the attorneys lost sight of the fact that the rescission application was against the order for costs at attorney and own client only, and not against the payment of the December 2005 salary. The order in terms of prayer 3 of the applicant's application in the main action was granted by consent. The parties agreed on that day that the only issue remaining to be contested was the prayer for costs.
[15] The proper question before the court now therefore is whether the present applicant has a bona fide defence to the granting of the order for costs at attorney and own client scale. Mr. Madzinane argued that since the applicant was in breach of a peremptory provision of the Employment Act, the costs at that scale were justified. That is clearly a plausible argument. We do not however think, in the circumstances of this case it could be pushed that far.
[17 ]In this case the application was not opposed. The employer tendered to pay the salary on the first day the matter appeared before the court. There is a dispute of fact as to what led to her non-pay of the December 2005 salary. Such dispute can only be cleared through oral evidence.
[18] Because of these factors the court will come to the conclusion that the applicant has a bona fide defence which, prima facie, carries some prospects of success.
[19] Taking into account the aforegoing reasons, the applicant is granted an order for rescission of the court's order that was granted on the 24th January 2006.
No order for costs is made.
The members agree.
NKOSINATHI NKONYANE A.J.
INDUSTRIAL COURT