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NEDBANK (SWAZILAND) LIMITED v H P ENTERPRISES (PTY) LTD T/A HEATHER FASHIONS [1999] SZHC 11 (12 April 1999)

Difference between rescission application and appeal


CIV. CASE. NO. 788/99

In the matter between

NEDBANK (SWAZILAND) LIMITED APPLICANT

And

H P ENTERPRISES (PTY) LTD RESPONDENT
T/A HEATHER FASHIONS


In re:

H P ENTERPRISES (PTY) LTD APPLICANT
T/A HEATHERS FASHIONS

And

NEDBANK (SWAZILAND) LIMITED RESPONDENT

Coram S.B. MAPHALALA – J
For the Applicant MR. P. FLYNN
For the Respondent MR. P. SHILUBANE

RULING ON POINTS OF LAW IN TERMS OF RULE 6 (12) (O) OF THE HIGH COURT RULES
(12/04/99)

Maphalala J:

This application is brought with a certificate of urgency for an order in the following terms:

Alternatively

The application is founded by the affidavit of attorney Earl John Henwood with the supporting affidavit of the Managing Director of the applicant Peter Rubridge Southey. Various annexures are annexed to the papers.

The order which is sought to be varied or rescinded was issued on the 1^st April 1999, and reads as follows:

“It is hereby ordered that:

The urgent application is precipitated by an impending contempt proceeding against the Managing Director for the non-compliance of the aforegoing order. Coincidentally, an application for such proceedings was enrolled for the same time and date as the present application.

The gravamen of the applicant’s case is that the order of the court of the 31^st March 1999, is that the court was clearly incorrect in granting interim relief as the order sought in effect grants the respondents the right to utilize funds which it never had in the first place and the final effect of the order could not have been intended. Consequently, the applicant (Nedbank Swaziland Limited) is being asked to capitalize the respondent in respect of the funds which the applicant should have received had the cheque been cleared. Should this court ultimately discharge the rule, the discharge will be meaningless, as the respondent herein would already have had the benefit of the order. The applicant herein would in all likely-hood need to institute further proceedings to recover the funds.

Mr. Shilubane on behalf of the respondent raised points of law in terms of Rule 6 (12) © of the rules which my present concern in this ruling. These points are as follows:

The matter came for arguments on the points in limine on the 8^th April 1999, and it was agreed that these be argued first and then after the court has made its ruling on them to consider the application for contempt.

Mr. Shilubane in motivating the points of law dealt with them in the order in which they appear in his notice.

Firstly, on the point of urgency he contended that the applicant has not proved urgency in this matter in as much as the so-called urgency is of the applicant’s own making.

Secondly, that the court has no power to rescind an order made by another judge that this power was within the preview of the Court of Appeal and that is where applicant ought to seek refuge.

Thirdly, that there is no basis whatsoever in law that an application for rescission in this matter and this is tantamount to an abuse of the court process.

On the fourth point Mr. Shilubane argued that applicant cannot anticipate rule as it was made ex parte. Mr. Henwood for the applicant was present when the order was made and the judge heard full arguments from him.

Fifthly, Mr. Shilubane contended that applicant should first purge its contempt as in this case there is prima facie as case of contempt. To support this proposition he referred the court to page 827 of Herbstein and Van Wissen’s the Civil Practice of the Supreme Court of South Africa (4^th ED).

Sixthly, the applicant has not challenged paragraph 4.2. of the respondent’s founding affidavit in that the learned judge in the court which is being challenged based his finding on the dicta in the case of Freeman vs Standard Bank of South Africa 1905 T.H. 26 where it was heard that a bank which was in the habit of crediting a customer with the amount of cheques as soon as they are paid in, and of treating the cheques as cash by allowing the customer to draw against the amount so credited before the cheques were cleared. That once the amount of a cheque had been placed to the credit of the customer the bank was not entitled to dishonour a cheque drawn by the customer against such amount, and to set up as against the customer a usage entitling it to exercise a discretion as to whether each particular cheque so credited should be treated as cash or not.

Lastly, on the seventh point Mr. Shilubane directed the court’s attention to the ratio in the case of Photo Agencies (Pty) Ltd vs Commissioner of the Swaziland Royal Police and the Government of Swaziland 1970 – 76 S.L.R. 398 at page 307 on the doctrine of clean hands.

Per contra Mr. Flynn for the applicant took the court to the applicant’s founding papers to show that the applicant has proved urgency in this matter. I am not going into his submissions for the sake of proxility save to mention that the thrust of his argument is that the order was granted on the 1^st April 1999, and there was the Easter weekend which prevented the applicant do anything about this matter. That whatever contempt on the part of the applicant occurred during the long weekend where businesses were closed.

On the second point in limine Mr. Flynn relied on Rule 42 (1) (B) which reads thus:

“42 (1) (B) the court may, in addition to any powers it may have, mero motu or upon the application of any party affected, rescind or vary:

They are not relying on Rule 42 (1) (a) as argued by the other side. Mr. Flynn argued point two and three together.

In the fourth point in limine that applicant has not compiled with Rule 6 (22) of the rules. Mr. Flynn is of the view that applicant in prayer 1 of its notice of application has prayed for the abridgement of rules and time limits. To support this proposition he referred the court to Prest on the Law and Practice of Interdicts (1996 publication) at page 33 more particularly pages 4 and 5.

On the fifth point in limine he argued that the question of contempt is open to doubt in view of his submissions on the first point in limine. They say there is no contempt as a matter of law (see Herbstein and Van Wissen (supra).

On the sixth point of law Mr. Flynn is of the view that paragraph 4.2. begs the question. This will be fully be addressed in the answering affidavit they were ordered by the court on 9^th April 1999, whether the rule is to be confirmed or discharged does not take the matter any further.

On the last point in limine he referred the court to his submissions when he was dealing with the question of contempt.

Mr. Shilubane replied at length on points of law raised by Mr. Flynn.

These are the issues before me. I shall endeavour to address them in seriatum.

On the first point that there is no urgency I tend to respectfully disagree with Mr. Shilubane. The applicant has canvassed adequate reasons to establish urgency in terms of the rules. I am also persuaded by Mr. Flynn’s submissions on this matter that a case of urgency has been established.

Coming to the second point in limine my considered view on the matter is that there is not entirely correct that the court has no jurisdiction to rescind the court order of the 1^st April 1999, on the grounds that the applicant’s application amounts to an appeal. This point goes together with point three. There are ample authorities at common law that a court has the power to vary its own orders. To this effect I refer to the case of Eckard vs Olyott 1962 (4) S.A. 189 (o) where the court in that case held that power only arises because the order is a temporary one granted on the facts put to the court at the time. The “court” it was clarified in that case was meant a court of equal jurisdiction. Further in the case of Papadakis vs Wessels 1976 (3) S.A. 593 was held as follows: (per Greenberg J):

“It is clear or course that this court has no appellate or reviewing jurisdiction over the Eastern District Court, and ordinarily the only court which can set aside or vary a judgment of any court is a superior court which has such appellate or reviewing jurisdiction. There are certain exceptions where the same court can alter or amend its own orders; I need not deal with all the cases in which that can be done. The only class of case which affects the present dispute is in the case of temporary orders, viz. orders granted not with the intention of permanently regulating the relations between the parties, but merely regulating them for a certain time. The two examples that occur to one of orders of that sort are orders for judicial separation and orders for civil imprisonment and in it under the latter head that the present application falls. It seems to me that the basis of the power that the court has to vary its own order, is that the order is an interim order subject to variation as circumstances vary, and it seems to me inherent in that power that the court which has granted the original order is the proper court to vary that order The power only arises because the order is a temporary one granted on the facts put before the court at the time, and in my opinion the right to vary that order as circumstances alter is confined to that court. When I say confined to that court, I do not mean to exclude the jurisdiction of a superior court, which has power to vary any order, but I am speaking of a court of equal jurisdiction (my emphasis).

In view of these case I find that this court does have this jurisdiction.

On the third point, I agree with Mr. Flynn that they have approached the court in terms of Rule 42 (1) (B) as opposed to Rule 42 (1) (a) as contended by the respondent. It appears to me that the interim effect of the order of the 31^st March 1999 renders the determination of the matter after the parties have joined issue on the return date being the 16^th April 1999 purely academic. My considered view is that there seem to be an ambiguity and there would be no prejudice either way if the interim effect of the order is removed at this stage and the parties argue on the return date the substantive issues, viz. the sixth point in limine which appears to me to be pivotal to the lis between the parties. I am also fortified by the authorities I have cited earlier on in my judgement to arrive at this conclusion.

On the fourth point in limine I am satisfied that prayer one of the applicant notice of motion that they have adequately prayed for the abridgement of the rules and time limits stipulated in the rules. I am of the view that in view of the urgency of the matter and using my discretion I condone the non-compliance with Rule 6 (22) of the rules of the court.

As for the fifth point my view is that in the circumstances the applicants have not displayed a willful or reckless disregard to the order (see Trencor Services (Pty) Ltd vs Muller T/A S.A Trucking 1983 (4) S.A. 893 at page 894). Further from the applicant’s papers and submissions by Mr. Flynn I could not detect any mala fides on the part of the applicant. It appears to me to be a genuine case not knowing what the import of the order was on the part of the bank (see Clement vs Clement 1961 (3) S.A. 866).

On the sixth point raised in this ruling that it will be fully argued on the return date as directed by the court that affidavits be filed in accordance with the law.

On the last point that applicant has not complied with the doctrine of “clean hands” my view on the matter is that my comments on the issue of contempt equally apply.

In the result, for the reasons I have advanced grant the applicant prayer 2 of the its notice of motion.

Costs to be costs in the course.

S.B. MAPHALALA
JUDGE