Lobulawu Investments appeal dismissed ǮǤǤǤ ƒ’’‡ŽŽƒ– †‹† ‘– ƒ’’Ž› ˆ‘” …‘†‘ƒ–‹‘ǯ
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APPOINTMENTS
Members of the Eswatini Cotton Board
● Samson Mavuso – Chairman
● Daniel Khumalo – Member
● Thabsile Dlamini – Member
● Tokky Hou – Member
● Sikelela Fakudze – Member
● Victor Masile – Member
Appointment was made by Minister of Agriculture Jabulani Mabuza.
This is as per notice published in the Eswatini Government Gazette.
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MBABANE – The Supreme Court of Eswatini has dismissed Lobulawu Investments (Pty) Ltd’s appeal against a default judgment granted by the High Court on March 9, 2022.
The Supreme Court further referred the matter for trial in the High Court.
Lobulawu Investments (Pty) Ltd was the appellant in the matter and Ngwane Mills (Pty) Ltd was the respondent.
Last year, Ngwane Mills issued combined summons to Lobulawu Investments claiming the sum of E1 026 956 together with costs and interest. At that time, Lobulawu Investments applied for a summary judgment and was granted in terms of the particulars of claim.
On October 4, 2021, the Supreme Court of Eswatini ruled in their favour.
Default
Thereafter, On March 9, 2022 Ngwane Mills’s attorneys applied for a default judgment in the sum of E400 000 plus interest from the date the debt arose until final payment.
According to the judgment, the notice of application for the default judgment was not served to Lobulawu Investments’ attorneys.
The Supreme Court said the default judgment was granted in terms of the notice of the set down, but in breach of the order of the Supreme Court which specifically ordered the matter to trial.
“Although a trial did not proceed the respondent was obliged to lead oral evidence or produce evidence on oath in proof of the damages,” reads the judgment.
Dissatisfied with the default judgment, Lobulawu Investments then proceeded to file a notice of appeal, stating that their matter against Ngwane Mills should be referred to trial for the specific purpose of evaluating all the relevant facts around the disputed sum of E400 000.
Lobulawu Investments said the other reason the matter should be referred to trial was because the court erred in law by failing to order that their affidavits resisting the summary judgment to stand as a plea and let the matter proceed to trial.
Reason
The third reason submitted by Lobulawu Investments as reason for appealing the matter was that the court further erred in law by granting costs against them on the scale between an attorney and own client without the basis justifying same. The fourth reason submitted by the appellant was that the court made another error by granting the default judgment, as the judgment undermined the authority of the Supreme Court as a higher court.
‘‘Once the Supreme Court had recognised the need for a trial the High Court had to give effect to the judgment of the Supreme Court as opposed to contradicting it by granting the default judgment,” submitted Lobulawu Investments.
MBABANE – Lobulawu Investments (Pty) Ltd is said to have not applied for an extension of time to file heads of argument.
The Supreme Court, in its judgment, said at the date of hearing there were no heads of argument filed by the appellants while Ngwane Mills, the respondent, had filled its heads of argument on August 18, 2022.
“Despite the filing of these heads of argument and service of the same on appellants’ attorneys on August 19, 2022, there was no response from appellant’s attorneys.
“No application for an extension of time was sought in terms of Rule 16, nor was there an application for condonation in terms of Rule 17,” reads the judgment. The Supreme Court further mentioned that when Lobulawu Investments’ counsel was questioned in this regard by the Supreme Court, the counsel stated that the reason there were no heads filed was because the registrar of the Supreme Court refused to accept same as they were out of time.
The Supreme Court added that in this appeal, they gave Lobulawu Investments’ counsel considerable latitude to persuade the court that condonation should be granted, however, there was nothing submitted by them to justify deviation from the well-established practice.
“If he does not he should apply, without delay, for an extension of time in terms of Rule 16 and apply for condonation in terms of the Rule 17 and must fully address the prospects of success on appeal,” reads the judgment.
Requirement
The Supreme Court added that the requirement that a full and detailed application for condonation be filed was in accordance with the basic practise that the other side should have an opportunity to respond to the affidavit filed matters of fact, depending on the circumstances.
“Taking into account the fact that default judgment was granted in the court a quo, in the absence of Lobulawu Investments legal representatives, this court gave the appellants considerable latitude.
“Although there was nothing to justify such a radical departure from the rules and the respondent’s counsel wished to proceed to the merits of the appeal in order to avoid further delay,” further reads the judgment. Lobulawu Investments contended that the default judgment should have not been granted by the High Court since it was not entitled to disregard an order of the Supreme Court.
In granting the default judgment, the High Court subverted the authority of the Supreme Court, which specifically ordered that the disputed amount of E400 000 was reffered to trial in the High Court. The second issue appellant’s counsel argued at some length was that the High Court should have ordered that the affidavit opposing summary judgment stand as a plea although no application had been made in court to have the said affidavit converted to a plea.