Kukhanya (Pty) Limited v Maputo Plant Hire (Pty) Limited And Another (11 of 2020) [2022] SZSC 5 (12 April 2022)

# Kukhanya (Pty) Limited v Maputo Plant Hire (Pty) Limited And Another (11 of 2020) [2022] SZSC 5 (12 April 2022) [ __](https://api.whatsapp.com/send?text=https://eswatinilii.org/akn/sz/judgment/szsc/2022/5/eng@2022-04-12) [ __](https://twitter.com/intent/tweet?text=https://eswatinilii.org/akn/sz/judgment/szsc/2022/5/eng@2022-04-12) [ __](https://www.facebook.com/sharer/sharer.php?u=https://eswatinilii.org/akn/sz/judgment/szsc/2022/5/eng@2022-04-12) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://eswatinilii.org/akn/sz/judgment/szsc/2022/5/eng@2022-04-12) [ __](mailto:?subject=Take a look at this document from EswatiniLII: Kukhanya \(Pty\) Limited v Maputo Plant Hire …&body=https://eswatinilii.org/akn/sz/judgment/szsc/2022/5/eng@2022-04-12) [ Download DOCX (49.9 KB) ](/akn/sz/judgment/szsc/2022/5/eng@2022-04-12/source) Toggle dropdown * [Download PDF](/akn/sz/judgment/szsc/2022/5/eng@2022-04-12/source.pdf) Report a problem __ * Share * [ Download DOCX (49.9 KB) ](/akn/sz/judgment/szsc/2022/5/eng@2022-04-12/source) * [Download PDF](/akn/sz/judgment/szsc/2022/5/eng@2022-04-12/source.pdf) * * * * * Report a problem __ ##### Kukhanya (Pty) Limited v Maputo Plant Hire (Pty) Limited And Another (11 of 2020) [2022] SZSC 5 (12 April 2022) Copy citation * __Document detail * __Related documents * __Citations 1 / - Citation Kukhanya (Pty) Limited v Maputo Plant Hire (Pty) Limited And Another (11 of 2020) [2022] SZSC 5 (12 April 2022) Copy Media Neutral Citation [2022] SZSC 5 Copy Court [Supreme Court of eSwatini](/judgments/SZSC/) Case number 11 of 2020 Judges [Annadale JA](/judgments/all/?judges=Annadale%20JA), [Masuku AJA](/judgments/all/?judges=Masuku%20AJA), [Mamba AJA](/judgments/all/?judges=Mamba%20AJA), [Currie AJA](/judgments/all/?judges=Currie%20AJA), [Lukhele AJA](/judgments/all/?judges=Lukhele%20AJA) Judgment date 12 April 2022 Language English Summary Read full summary * * * Skip to document content 3 IN THE SUPREME COURT OF ESWATINI HELD AT MBABANE REVIEW CASE NO. 11/2020 In the matter between l(UKHANYA (PTY) LIMITED and MAPUTO PLANT HIRE (PTY) LIMITED TRANS YUZA (PTY) LIMITED HISLORDSHIP MAPHALALA M.C.B. N.O. HIS LORDSHIP M.J. DLAMINI N.O. HIS LORDSHIP J.M. MAVUSO N.O. In re:- KllKHANYA (PTY) LIMITED and MAPUTO PLANT HIRE (PTY) LIMITED TRANS YUZA (PTY) LIMITED Applicant pt Respondent 2nd Respondent 31·<1 Respondent 4th Respondent 5th Respondent Appellant 1'1 Respondent 2 nd Respondent __Neutral__ ______citation:__ _l(uklumya (Pty) Limited_ I' _Maputo Plant Hire_ _(Pty)_ _Limited and Another_ _(11/2020)_ _/2022/_ \- _**SZSC**_ __ 05 _(12/02/2022)_ **CORAM:****J.P.** **ANNANDALE** **M. D. MAMBA** **J.M. CURRIE** **A.M. LUKHELE S.. M. MASUKU** **J.A.** **A.J.A.** **A.J.A.** **A.J.A.** **A.J.A.** Heard: 10t h MARCH 2022 Delive1y: 1 t 11 APRIL 2022 __SUMi11ARY__ _Civil_ _Procedure_ _Application for Review under Section_ _148_ _(2) <!f the Co11.\·tit11tion_ - _Gromul\'f <1r_ _rePiew_ - _new_ _i\'.\'Ues_ _raised_ - _1111_ _serious_ _miscarriage <!( justice established _\- _s1111111u11y judgement proper(v granted and appeal correctly dismissed_ \- _application f <ir rel'iew dismissed with costs, including cert(fied_ _costv_ _< (Counsel._ _**,JUDGMENT**_ _**A.M. LUKHELE A.J.A.**_ _**INTRODUCTION**_ 1. Serving and falling for consideration before Court is an application to review a judgement of this Court in its appellate jurisdiction in terms of Section 148 (2) of the Constitution ([Act 001 of2005](/akn/sz/act/2005/001)). _**BACKGROUND**_ 2. The Respondent issued out summons against the Applicant for payment of the sum ofEl,206,000.00, interest and costs of suit in the High Court. 3. The cause of action was based on a contract of loading and hauling of certain material as specified in the written agreement the parties had entered into with one another. 4. After some amendments of the summons had been granted, the Respondent applied for summary judgement. Upon hearing of the Summary Judgement Application Hlophe J. granted Summary Judgement against the Applicant for payment of the sum ofEl,206,000.00, interest and costs. 5. The Applicant was dissatisfied with the judgement of the High Court and noted an appeal against it to the Supreme Court. The grounds of appeal in terms of the Notice of Appeal dated the 27th February, 2020 were that: - "(a) That the Court __a quo__ erred in law and in fact in holding that the Appellant did not have a bona fide defence to the Respondent's claim; 2. The Court __a quo__ erred in law and in fact in holding that the Appellant did not raise any triable issues requiring referral to trial; 2. That the Court __a quo__ erred in law and deciding that there is no triable issue and in primarily relying on new evidence raised in a Replying Affidavit for the first time with the Appellant not having had the opportunity to dispute the said evidence. 2. The Court __a quo__ erred in holding that the Respondent's claim was a liquid claim. 2. The Court __a quo__ erred in law in holding that the Appellant's Counter­ claim does not warrant referral of summary judgement, whether in part and/or in whole." 6. Upon hearing the appeal the Court, exercising its appellate jurisdiction in a unanimous judgement delivered on the 9th December 2020, dismissed the appeal and confirmed the decision of the High Court. _**PRESENT PROCEEDINGS**_ 7. The Appellant was dissatisfied with the outcome of the appeal and on the 25th January, 2021, launched the present application for review of the judgement of the Supreme Court in terms of Section 148 (2) of the Constitution. 8. In the Notice of Motion, dated the 25th January 2021 the Applicant prays that this Court, in its review jurisdiction, grants the following relief. _**"1. That the rules relating to service and time limits be dispensed with and that this matter be heard a11d enrolled as one**_ ___**of urgency;**_ 2. _**Staying the execution of the Order issued by the above Honourable Court, pending the review of judgeme11t handed down 011 the**_ _**9**_ _**th**_ ___**December, 2020, pending finalisation of this**_ ___**matter.**_ 2. # _Directing that Prayer 2 operates with immediate interim effect_ pending the finalisatio11 of this application. _**4) That the judgement and order of the above Honourable Court sitting as a Court of Appeal and handed down 011 the 9**_ _**th**_ _**December 2020 be reviewed and set**_ ___**aside.**_ 5. _**Costs of**_ ___**suit.**_ 5. _**Further and/or alternative**_ ___**relief."**_ 9. The application for review in this Court is opposed by the Respondent. The grounds of opposition are set out and considered hereunder. _**ISSUES FALLING FOR CONSIDERATION BY THE COURT**_ [1O] It is common cause between the parties that the issues falling for consideration and argued before this Court, are whether there was acquiescence to the judgement of the Court of Appeal; 1. whether the present review application by the Applicant meet the requirements of Section 148 (2); and 2. whether the Applicant has made out a case for the relief sought and costs. _**POINT IN LIMINE**_ 11. The issue of acquiescence or peremption of the judgement has been taken as a _point in limine._ It is pertinent that I first deal with the _point in limine_ raised. _**ACQUIESCENCE/ PEREMPTION OF THE APPEAL**_ 11. It is common cause between the parties that, after the granting of the judgement by the High Court, settlement negotiations took place between the parties. The negotiations culminated in the Respondent forwarding the banking details of Attorneys K. S. Simelane to the Appellant. Following receipt of the banking details a sum ofES0,000.00 was paid by the Applicant into the aforesaid account. 11. There is a dispute as to what this payment was in respect of. The Applicant alleges that the payment had nothing to do with the matter between the parties. It is alleged that it was for a different matter which both Attorneys Firms were handling on behalf of their clients. A draft Deed of Settlement was sent to Applicant's Attorneys. That Agreement was not signed by either of the parties. 11. By letter addressed to the Respondent dated the 11111 January, 2021, and before the delivery of the Supreme Court judgment had been made, the Applicant indicated to the Respondent that it intended to launch review proceedings challenging the Judgment of the Supreme Court on appeal. 11. On the basis of the aforegoing facts, the Respondent, through, Advocate Joubert, submitted before this Court that the act of payment of E50,000.00 by the Applicant to Attorney **K. S.** Simelane, indicated an intention to abide by the judgement of the Honourable Court on appeal. Therefore, Appellant acquiesced and agreed to abide by the judgment. The argument goes that Applicant cannot approbate and reprobate at the same time and is precluded from pursuing the review judgement as he had acquiesced to the judgement. 11. Advocate Vetten, for the Applicant, argued that the claim for peremption of the Applicant must fail because the facts do not establish an intention to acquiesce to the judgement. Applicant at all times intended to pursue the review application. The payment had been made by mistake. The test for unequivocal acquiescence had not been established, so it was submitted before this Court. _THE_ _LAW_ _AND_ ___PRINCIPLES RELATING TO_ ___DOCTRINE OF_ _ACQUIESCENCE AND_ ___(PEREMPTION)_ 11. Herbstein and Van Winsen - in The Practice of the Superior Courts of South Africa at 637 state that:- _"U11der the Commo11 law a perso11 who has acquiesced i11 a judgme11t ca1111ot appeal agai11st it. Acquiesce11ce ca11 be i11ferred from a11y u11equivocal act inco11siste11t with the inte11tio11 to appeal. It is 11ot 11ecessary to show a11 agreeme11t 11ot to appeal or co11duct which would estop the Appella11t from de11yi11g acquiesce11ce, or a11 aba11do11me11t of the appeal, but there must be co11duct leadi11g to a clear co11clusio11 of intentio11 11ot to assail the judgment. The 011us of_ _proof,_ _of_ _course,_ _rests_ _011_ _the_ _perso11_ _allegi11g_ _acquiesce11ce_ _a11d_ _in doubtful cases it must be held 11ot prove11. Dab11er v. S.A.R. 1920 AD 583_ @ _894_ \- _A voluntary a11d u11co11ditio11al payme11t or accepta11ce of payment u11der a judgement therefore perempts the right of appeal at common law_ \- _Hlatslnvayo vs. Mare_ & _Deas 1912 AD@232."_ 11. In African Echo (Pty) Limited t/a Times of Swaziland and two others vs. Inkhosatana Gelane Zwane [77/2013] SZSC this Court stated that: _"[47] The doctri11e of peremptio11 was well e11u11ciated_ _ill_ _the case of Hartley Roegshoa11 and Another v. First Rand Limited a11d Another (supra) where the Court_ _stated:-_ _"[13] According to the common law doctri11e of peremptio11, a party who acquiesces to a judgeme11t_ _ca,mot_ _subsequently_ _seek_ _to_ _challe11ge the judgment to which he has_ _acquiesced._ _This doctri11e is fou11ded 011 the logic that 110 person may be allowed to opportu11ely endorse two conflicting positio11s or to both appropriate a11d reprobate and to blow hot a11d cold. It may eve11 be said that a party will 11ot be allowed to have her cake and to eat_ _too._ " _[14] The doctrine of peremptio11 was e11u11ciated in Hlatshwayo v Mare_ & _Deas [Supra], where Lord De Villiers held that"- where a man has two causes of action open to him and he u11equivocally takes one, be ca1111ot afterwards turn back a11d take the other," Similarly i11 D. Ab11er v. South African Railways a11d Harbours [Supra] In11es CJ stated:_ - _"The rule with regard to peremptio11 is well settled, a11d has bee11 enunciated 011 several occasio11s by this Court. If the conduct of a11 unsuccessful litiga11t is such that as to point indubitably a11d necessarily to the conclusion that he_ _does_ _not_ _i11te11d_ _to_ _attack_ _the_ _judgme11t,_ _the11_ _he is held to have acquiesced i11 it. But the conduct relied upon must be u11equivocal a11d must be i11co11siste11t with a11y i11te11tio11 to appeal. In doubtful cases acquiescence, like waiver, must be held 11011-proven. See Bhekiwe Vumile Hlophe v Sta11dard Ba11k of South Africa, Court ofAppeal Case No. 12/_ _2005._ 11. __Herbstein and Van Winsen. The Practice of Superior Courts of South A,frica at 637__ _fitrther states that. "The onus of proof of course, rests on the person alleging acquiescence and in doubtfitl cases it must be held not proven._ " 11. The law on peremption is settled in this jurisdiction. If the conduct of an unsuccessful litigant is such as to point indubitably and necessarily to the conclusion that he or she does not intend to attack the judgement, then he or she is taken to have acquiesced to it. The conduct relied upon must be unequivocal and must be inconsistent with any intention to appeal. The onus of establishing that position is upon the party alleging it. Innes C. **J.****in Dabner v. South African Railways and Harbours 1920 AD 583****@****594.** states that :- ### _".....and the onus of establishing that position is upon the party_ alleging it." 11. __In casu__ a dispute exists between the Applicant and the Respondent on whether the Applicant acquiesced to the judgement. It is doubtful whether the facts as averred in the papers establish a case for acquiescence. The Applicant stated clearly in its letter to Respondent that it was not satisfied with the judgement and expressed an intention of taking that judgement on review. The legal position is that "in doubtful cases acquiescence like waiver, must be held non-proven." 11. On the question whether the principle of acquiescence or peremption of an appeal is only limited to appeals that is to say whether it is applicable to matters whose decisions are to be reviewed, Hlophe J. in **PSP Properties (Proprietary) Limited vs. Municipal Council of Manzini 1663/2017 [2018) SZHC 86 15****th****June 2018 at Para 21** quoted with approval **the Case of The Commissioner of Labour of three others vs. Judge President of the Industrial Court and Another** where the case of **Vennop v. Cleveland Projects (Pty) Limited and Another** GLD Case No. 14286/2014 was quoted when it was stated that:- _"Although the doctrine of peremption has its genesis in relation to appeals it has been extended to applications for rescission of default judgement (Hlatshwayo v. Mare and Deas 1917 AD 232; Sports vs. David Garlick and Company (Pty) Limited 1963 (2) SA 491 (1) at 496 D L; Nkatha vs. First National Rand Bank (Pty) Limited and others 2014 (2) SA 412 WCC at 421 and The Common Law right of judicial review of Statut01y Authority; see for instance Liberty Life Association of Africa v. Kache Laffer N.O. and others 2001 (3) SA 1094 (C). Although there appears to be no precedent for peremption in the context of an application to set aside an arbitration award there appears to be no reason either in policy or principle not to apply the doctrine of peremption in applications for review aforesaid._ " 11. With regard to the present matter, an application for review in terms of Section 148 (2) of The Constitution, there is in my view, also no reason either in policy or principle not to apply the doctrine of peremption. To the contrary, precedents clearly indicate that the doctrine of peremption has been adopted as part of our law. 11. The Respondent as the party bearing the onus, in my view, has failed to establish the onus that lie on it to establish acquiescence. The reason for the payment of E50,000.00 is disputed between the parties. In any event, Applicant's letter dated the 1ph January 2021, belies any intention to acquiesce to the judgment of the Supreme Court. 11. Accordingly, __in casu__ _,_ there is no merit on the point of acquiescence. The argument on peremption of the judgment must fail. The point __in limine__ is so dismissed. 11. Having made this finding I proceed to deal with the main review application. _**APPLICATION FOR REVIEW**_ 11. The second issue falling for consideration by this Court is whether the application for the reviewing and setting aside the judgement of The Supreme Court, sitting in its appellate jurisdiction, meets the requirements of Section 148 (2) of the Law, and whether the Applicant has made out a case for review and for the relief sought. _**APPLICANT'S CASE IN THIS COURT**_ 11. In paragraph 28 of its Founding Affidavit, the Applicant's case is that The Supreme Court, sitting as a Court of Appeal:- 13 1. misdirected itself in coming to the finding that the payment certificates constituted a liquid document and in allowing amendments to the pleadings; 2. misdirected itself in coming to factual conclusions that were raised by the Respondent in a replying affidavit filed in the application for summary judgement, which replying affidavit raised new issues, which Applicant had no opportunity to contest. Therefore, such constituted a gross violation of the principle of the right to a fair hearing to which the Applicant is entitled in terms of the Constitution of the Country. 11. The Applicant further argues that The High Court also misdirected itself by not referring to trial the matter before it and committed an irregularity in granting the summary judgement application. Consequently, Applicant's case is that the decision of the High Court as confirmed on appeal, stands to be reviewed and set aside. 11. __In casu__ _,_ the Applicant contends that it is entitled to the exceptional remedy of review as that will correct the alleged manifest and gross injustice occasioned to it by the granting of the summary judgement against it. _**RESPONDENT'S CASE IN THIS COURT**_ 11. The Respondent in its answering affidavits and Heads of Argument filed in Court, submits that the application for review stands to be dismissed as having no merit. The argument goes that the summary judgement was properly granted by the Court __a quo__ on the basis that the Applicant failed to show that it had a __bona fide__ defence to Respondent's claim and that its alleged counterclaim was considered and rejected both in the Court __a quo__ and on appeal by the Supreme Court. 11. The Respondent submits that all issues raised by the Applicant in this Court were raised, argued, considered and rejected on appeal. Consequently, the application for review should be rejected as it falls far short of what needs to be shown in an application for review in terms of Section 148 (2). 11. The law of review is now settled, **In Xolile Gama v. Foot the Bill Investments (Pty) Limited (68/2018)[[2019] SZSC 35](/akn/sz/judgment/szsc/2019/35) Page 13 **\- **17** as set the Law and principles on review, as follows: - ### " __THE LAW AND PRINCIPLES RELATING TO SECTION__ _148_ __(2)__ _**[17] The Legislature in its wisdom promulgated Section**_ ___**148**_ _**(2) in the Constitution[Act 001 of 2005](/akn/sz/act/2005/001) **__**(the**_ _**Constitution) that provided that:**___ - _**"The Supreme Court may review any decision made or given by it**_ _**011**_ _**such grounds and subject to such**_ _conditions as may be prescribed by an Act of Parliame11t_ _or_ _rules_ _of_ _Court._ " _/18] This Court has in 11umerous judgeme11ts pro11ou11ced itself in so far as the application of Sectio11 148 (2) a11d the guidi11g pri11ciples are_ _co11cer11ed._ _/19] The following are some of the cases in which the applicatio11s u11der Sectio11 148 (2) and the guiding principles were considered by this Court:___PRESIDENT__ __STREET__ __PROPERTIES__ __(PTY)__ __LIMITED__ __v__ __MAXWELL__ __UCHECHEKWU__ __AND__ __4__ __OTHERS__ __(1112014)________[20151__ ______SZCS__ ______11__ ______(29__ __th__ __July__ ______2015):________SIBONISO__ __CLEMENT__ __DLAMINI__ __v WALTER__ __P. BENNETT.__ __THABISO__ __G. HLANZE N.O: REGISTRAR OF THE__ __HIGH__ __COURT__ _.___FIRST__ __NATIONAL__ __BANK__ __SWAZILAND__ __(45/2015) [20151 SZSC 21 (30__ __th__ __May,__ __2017) and SIMON VILANE N.O. AND OTHES__ __y__ __LIPNEY__ __INVESTMENTS__ __(PTYJ LIMITED IN-RE__ __SIMON__ __VILANE__ __N.O.__ __MANDLENKOSI__ __VILANE__ __N.O. : UMFOMOTI INVESTMENTS (PTYJ__ ______LIMITED__ __(78/2013)________/20141__ __SZSC 62__ __(3__ __rd__ __December 2014).__ to mention but a few. 20. In the __Sibo11iso Dlami11i__ _case, His Lordship Dr. Justice Odoki cited_ with approval _the dictum in the_ __President__ __Street__ __Properties__ __(Pty)__ __Limited__ _case_ and stated m Paragraph 32 at pages 28 to 31 as follows: - _"[32] His Lordship Justice M. J. Dlamini AJA, as he then was, in PRESIDENT STREET PROPERTIES (PTY) LIMITED v_ _MAXWELL_ _UCHECHEKWU AND OTHERS had this to say with regard to the review jurisdiction of this Court_ _under_ _Section_ _148_ _(2)_ _of_ _the_ _Constitution:_ - 26. _111 its appellate jurisdiction the role of this Supreme Court is to prevent injustice arising from the normal operation of the adjudicative system; and in its newly endowed review jurisdiction this Court has the purpose of preventing or ameliorating injustice arising from the operatio11 of the rules regulati11g fi11ality in litigation whether or not attributable to its own adjudication as the Supreme Court. Either way, the ultimate purpose and role of this Court is to avoid in practical situations gross injustice to litigants ill exceptional circumstances_ _beyo11d_ _ordi11ary_ _adjudicative_ _contemplation. This exceptio11al jurisdiction must, when properly employed, be conductive to a11d productive of a higher sense a11d degree or quality of justice. Thus, faced with a situation of manifest injustice, irremediable by normal Court processes, this Court cannot sit back or rest 011 its laurels and disclaim all responsibility 011 the argument that it is fu11ctus officio or that the matter is res judicata or that finality in litigation stops it from further i11terve11tio11. Surely, the quest for superior justice, among_ _fallible beings is a 11ever-e11di11g pursuit i11_ _our Courts of justice, in particular,_ _the_ # _apex Court with the advantage of being the_ Court of the last resort. 26. _It is true that a litigant should not ordinarily_ _have_ _"a_ _seco11d_ _bite_ _at_ _a_ _cherry", in the sense of another opportunity of appeal or hearing at the Court of the last resort. The review jurisdiction_ _must_ _therefore be narrowly defined a11d be employed with due sensitivity_ _if_ _it is not to open a floodgate of reappraisals of cases otherwise res judicata. As such this review power is to be invoked in a rare and compelling or exceptional circumstance as_ _it is not review in the ordinary sense._ 26. _I accept that this inherent power of review has always been with the Court of Appeal, hidden from and forgotten by all concerned. Now, the Constitution has reaffirmed it to be so. It is nothing new. The fear and hesitation to i11voke it or invoke it frequently, has been a fear of the unknown. Once unleashed, how was it to be regulated or controlled and exercised only for the greater good in the administration of Justice? But judges ill their "eternal" wisdom have always been able to open and shut legal doors and windows unless somehow stopped and co11trolled by superior authority. In this the Courts have otherwise relied_ _011_ _their inhere/It_ _discretio11ary_ _authority._ " 20. His Lordship Justice Dr. Odoki proceeded to opine in paragraphs 33 to 34 (pages 32 to 33) as follows: _"[33] It is well settled in our law that this Court has review jurisdiction over its previous decisions in accordance with Section 148_ _(2) of the Constitution. In exercising this jurisdiction, the Court has to sit as a full bench. This constitutional jurisdiction is exercised and invoked upon such grounds and subject to such conditions as_ _111ay_ _be prescribed by an Act of_ _Parlia111e11t_ _and Rules of Court. However, it is_ _co111111011_ _cause that currently neither an Act of Parliament nor Rules of Court have been promulgated prescribing the grounds and conditions upon which the review jurisdiction may be exercised. However, this Court faced with legal suits requiring urgent_ _legal_ _remedies_ _to_ _disputes_ _instituted by members of the public could not fold their_ _ar111s_ _ill_ _the absence of the requisite Act of Parliament or Rules of Court. General_ _principles_ _guiding_ _this_ _Court_ _when exercising its review jurisdiction under Section 148 (2) of the Constitution have since been_ _formulated._ _[32] The review jurisdiction of this Court u11der Secti011 148 (2) of the Co11stitutio11 is an exceptional remedy to the well-k11ow11 legal pri11ciples of fu11ctus officio a11d res judicata whose object is to ensure finality in litigation. This legal remedy does 11ot allow for a second appeal to litiga11ts whose appeals have been heard and determined, being an exceptional circumstance beyond the nor111al Court_ _process."_ 20. The Learned Judge in paragraph 37 at pages 34 to 35 stated that: - _"[37] It is apparent from the review application that the Applica11t has failed to establish_ _011_ _a bala11ce of probabilities the basis upo11 which this Court should i11voke and exercise its review jurisdiction u11der Sectio11 148 (2) of the Constitutio11. The Applica11t has failed to establish the existe11ce of a gross and manifest injustice which requires to be prevented, ameliorated or corrected by this Court exercising its review jurisdiction under the Constitution. What the Applica11t has presented to this Court is another appeal disguised as a review under Section 148 (2) of the Constitution."_ _APPLICATION_ _OF_ _THE_ _LAW_ _AND_ _PRINCIPLES_ _IN_ _THE_ _PRESENT_ ___MATTER_ _AMENDMENTS_ 11. On appeal, the Court at great length, set out the chronological events leading up to the Respondents successful launch of the proceedings and the summary judgement in The High Court. I quote _in extenso_ what the Court (in paragraph 7 of the Supreme Court judgement) stated that: - _"[7] No sooner had the Appellant defe11ded the action proceedings, the Respondents filed a notice in terms of Rule 28 seeking to amend its Summo11s. The effect of the amendment, which was unopposed by the Appellants, is that the amount due i11creased to El,206,960.78_ _(O11e_ _Millio11_ _Two_ _Hu11dred_ _and_ _Six_ _Thousa11d_ _Nine_ _Hundred a11d Sixty Emala11ge11i Seve11ty-Eight Ce11ts) and the Respo11dent's Summons was amended to reflect this_ _amou11t."_ _[8} Thereafter, the Respo11de11ts filed an application for summary judgement seeking an Order ill the following terms:_ - 1. _Payme11t of the sum of_ _El,206,960.78;_ 2. _Interest on the aforesaid amount at the rate of9% per_ _annum;_ 3. _Costs of_ _suit;_ 4. _Further a11d/or alternative_ _relief._ _[9} The Appella11t filed a "Preliminary Affidavit Resisting Summary Judgement" in which it raised a point i11 limine. The poi11t i11 limine raised was that there was no legal entity by the 11ame of "Kukhanya Co11structio11 Limited." And that i11 view of the aforegoi11g the Summons was expiable 011 the grounds of misjoinder for the aforegoillg reason, the Appella11t sought to have the application for summary judgme11t dismissed immediately after the poi11t in limine was raised, the Responde11t filed a notice in terms of Rule 28 of the High Court Rules. A11 objection was raised to the amendment. After, the parties were heard 011 the amendment, the court having found the ame11dme11t to have been technical, granted the Respondents the right to amend the citation by substituting Kukhanya Construction (Pty) Limited to Kukhanya (Pty)_ _Limited_ ### _[10/ After the Court papers were settled as aforesaid, the Respondents_ again, lodged an application for summary judgment to which the Appellant filed a "Supplementary Affidavit Resisting Summary Judgment." 11. It is apparent from the papers filed of record that the amendments complained of were applied for in terms of the Rules of the Court __a quo__ and were properly granted, and rightly so. The amendments did not introduce a new cause of action and were not prejudicial at all to the Applicant. The complaint about such amendments is unmerited and stands to be dismissed. _**LIQUIDITY OF CLAIM**_ 11. The issue of the liquidity or otherwise of the amount claimed was also dealt with in the Court __a quo__ _._ The Court found that there were no issues regarding the claim. The amount was just a matter of simple computation. The Court _q_ ______quo 's__ finding on this issue cannot be faulted. 11. The Court __a quo__ also dealt with the issue regarding the certificates which were prepared by the Appellant and found that the contents and all amounts therein were agreed to and acknowledged by the Appellant as correct. The Court also correctly found that such Certificates constituted a liquid document, justifying the granting of the summary judgement. 11. The Supreme Court at Paragraph 25 of its judgement found that: - ### _"From the above detailed facts, it is clear that the amount claimed by the_ Respondents from the Appellant was liquid and justified in as much as it was agreed after the reconciliation exercise undertaken by the parties. " 11. This Court sees no fault with this analysis and the application of the law by the Learned Judge on appeal. Once again Applicant's complaint on this point should fail. _**ARGUMENTS ON REPLYING AFFIDAVIT**_ _& __**AMENDMENTS**_ 11. The Complaint by the Applicant on review is that serious irregularities occurred in the High Court resulting from the granting of the amendments. The Applicant contends that the irregularities resulted in a gross miscarriage of justice to it. Therefore, the Court must consider the aforesaid amendment irregular resulting in exceptional circumstance as a ground of review and ought to be granted relief in terms of Section 148 (2) of The Constitution. 11. __In casu__ _._ the amendments were properly granted by the Court __a quo__ _._ The summons and declaration do disclose a cause of action. The contents and signatures of the letters of acknowledgment were not in issue. 11. With regard to Applicant's contention that Respondent's case was made on its replying affidavit instead of the particulars of claim and affidavits, there is no merit in such an argument. 11. In terms of Rule 32 (5) of the High Court Rules, the Respondent, with leave of court, was entitled to file the Replying Affidavit complainant of. The Replying Affidavit was filed with leave of the Court __a quo__ _._ Applicant did not object to such replying affidavits being filed. The Replying Affidavit did not raise any new issues or new claim. A good and valid claim had already been made in the summons, declaration and amendments thereto. _**ARGUMENTS THAT SUMMARY JUDGEMENT OUGHT NOT TO**_ _**HAVE BEEN GRANTED**_ 11. The Appellant submitted in this Court that Summary Judgement ought not have been granted by the Court _gJJ1JQ_ in the circumstances of this case. The argument was that Summary Judgement is an extra-ordinary remedy and the Court ought to have been slow in granting summary judgement in this case. 11. The Appeal Court upheld Respondents argument that the Applicant had, in its papers, failed to raise any __bonajide__ defence and as such, its papers raised no triable issues, warranting the matter to be referred to trial. This was a finding of the Court _gJJ1JQ_ and also confirmed on appeal. 11. The Court __a quo__ correctly applied the law and principles regarding the Summary application in the Court __a quo__ and the Court on Appeal correctly found that Applicant had no __bona fide__ defence to Respondents' claim. The counter-claim was properly rejected. 11. ## In Small Enterprises Development Company v Collete Ntombi Bhembe t/a Computer Training Centre and Business College (38/2014) [2014) SZCS 43 (3rd December 2014) Ramodibedi CJ (as he then was) at Page 8 (Paragraph 12) stated as follows: - ::..a _"[12]_ _Now,_ _the_ _principles_ _governi11g_ _summary_ _judgme11t_ _are_ _well_ _settled_ _in_ _this jurisdiction. The Court proceeds from the premise that summary judgment is an extraordi11ary a11d stringe11t procedure which is primarily designed to provide a speedy remedy to a Plaintiff_ _in_ _a case where the Defenda11t has_ _,w_ _bona fide defence and where appearance to defend has bee11 made solely for the purpose of delay. See, for example, such case as_ __Zanele Zwa11e v Lewis Stores (Pt)?)__ __Limited__ __t/a__ __Best__ __Electric__ _-_ __Civil__ __Aupeal__ __No.__ __22/07__ _.___Ber11ard__ __Nxumalo v The Attorue__ _v Ge11eral. Civil A_ __o__ _oeal Case No. 50/2013. It ishowever, necessary to bear in mind that ill this jurisdiction, a11d_ _in_ _terms of Rule 32 (4) (a) of the High Court Rules, the Court is entitled to dismiss an application for summary judgment simple_ _011_ _the ground that there are triable issues in the matter.___See Jeke__ ______(Pty)__ _Limited v Samuel Solomon Nkabinde. Civil Case No. 5412013_ • _oer_ __Ramodibedi CJ. (Moore a11d MCB Map/ta/ala JJA.___concurring)._ _I_ _should be prepared to add that it is the duty of the Court to determine whether a "triable" issue is genui11e and not raised simply to defeat Plaintiff's rights to a speedy resolutio11 of the_ _case._ _[13] Similarly, I discer11 the need to approach the present matter on the basis of the fu11dame11tal pri11ciples laid down in_ __Du Setto__ ______(Su1111y__ __Side__ __11__ __(Pt)'____)____________and__ ______Other__ __s__ __v__ __Filla11cia__ __l__ __________Services__ _Con_ _w_.... _a_ _n_._v_.- _o_.._f_ __Botswa11a Ltd [1994{ BLR 274 (CA) at 287__ _to the effect that the Court should "11ot be astute to extend liberality to Defe11da11ts_ _in_ _**summary judgme11t matters who raise bogus defe11ces i11 order to evade their obligatio11s a11d to keep Plai11tiffs with valid claim out of their mo11ey." This Court adopted the pri11ciple i11 Jeke's case supra. The Court cautio11ed, however, that each case must depe11d 011 its ow11 peculiar**_ ___**circumsta11ces."**_ _**CONCLUSIONS IN RESPECT OF THE REVIEW APPLICATION**_ 11. Having considered both parties' arguments in this matter I am unable to fault the reasoning and conclusion of the Court __a__ ______quo__ and the Appeal Court in this matter. The Applicant's application for review does not show the existence of any exceptional circumstances or any gross and manifest injustice necessitating the intervention of this Court envisaged in Section 148 (2). 11. In this Court, no arguments were advanced by the Applicant on the issues of the existence of a __bona fide__ defence to Respondent's claim. Similarly, the argument on the existence of a counter-claim was not pursued in this Court. 11. __In casu__ _,_ in my view, the Applicant has repeated arguments advanced on appeal. In a lot of instances, in an attempt to have "a second bite of the cherry" as it were. The criticism and attacks of the High Court were canvased and rejected on appeal. 11. In **Principal Secretary, Ministry of Public Service and others vs. Xolile Sukati** \- **Civil Case No. 45/2014,** in dismissing an application for review, at Paragraph 21 Nkosi A.J.A. warned that: - ### _"It is thus competent to rationalise Section 148(2) as an exception to the_ res judicata doctrine. The Section must of necessity be applied with caution as it goes against the underlying principle that the Court must prevent the recapitulation of the same action and must always (be used) to just a limit needless litigation. It must ensure that certainty be maintained in cases which have been decided by Courts. Therefore, where any cause of action has been prosecuted to finality between the parties, any attempt by one party to bring the matter to Court _011_ _the same cause of action_ should not be permitted. " 11. For the aforesaid reasons, I find that the Applicant's application fails to establish a case for a review and there is no merit in any of the grounds advanced by the Applicant for review in this Court. There were, in my view, no irregularities occasioned in the Supreme Court on appeal that resulted in any gross miscarriage of justice. The Applicant has failed in this Court to advance any exceptional circumstances establishing a case for a review in terms of Section 148 (2) of the Constitution. Therefore, the application for review should fail. It is accordingly so dismissed. _**COSTS OF THE REVIEW APPLICATION**_ 11. It is trite in our law that costs follow the event, except in exceptional circumstances. __In casu__ _,_ there are no exceptional circumstances justifying the departure from such a well-established principle. Therefore costs, including certified costs of Counsel, are awarded to the Respondent. _ORDER_ 11. In the result, the Court makes the following Order:- 1. The application for review under Section 148 (2) of The Constitution be and is hereby dismissed; 2. Costs are awarded to the Respondent, and such costs to include certified Costs of Counsel. A.. LUKHELE ACTING JUSTICE OF APPEAL I agree, I agree, ________:::2 ::=- .__ **PEAL** JJ.UP.SATNNICANEDlALE I agree, __J.ct__ ____ ACTING JUSTICE OF APPEAL I agree, ACTJN_G,JUS'TICE OF APPEAL Counsel for Applicant: Counsel for Respondent: * Advocate D. Vetten (Instructed by S. V. Mdladla & Associates) Advocate F. Joubert (Instructed by **K. N.** Simelane & Associates) #### __Related documents ▲ To the top >