IN THE SUPREME COURT OF SWAZILAND

JUDGMENT
Civil Appeal Case 88/17
In the matter between:

MXOLISI BRIAN MAYISELA Appellant

And
CELESTINO MARIA LIMA FONSECA Respondent

Neutral citation: Mxolisi Brian Mayisela vs Celestino Mario Lima Fonseca

(88/17) [2018] [SZSC ] 16 ( 30th May, 2018).

Coram: R.J. CLOETE JA

S.B. MAPHALALA JA
J.P. ANNANDALE JA

Heard: 17th May, 2018

Delivered: 30th May, 2018

Summary: Civil Procedure – action for damages – quantum of damages –

Defendant had not filed a plea – court a quo proceeded to hear evidence
on the quantum and allowed Counsel for the Defendant to examine the
witnesses –Appellant on appeal – contends that the principle of audi
alteram was infringed - However, Appellant failed to comply with the
High Court Rules – in respect of filing of a plea – Appeal dismissed with
costs.

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 JUDGMENT

S.B. MAPHALALA JA

Introduction

[1] This is an appeal against a judgment of the High Court delivered on the 24 th
October, 2017 per J.S. Magagula J where the Respondent (who was Plaintiff
in the court a quo) had filed action proceedings for damages against the
Appellant (who was the Defendant) in the court a quo arising from injuries
sustained by the Plaintiff / Respondent on the 3 rd March, 2010 at his place of
business in Matsapha.

[2] The Appellant, in terms of the High Court Rules, was barred from filing a Plea.
Judgment on liability was consequently entered in favour of the Respondent.
The matter then proceeded in the court a quo where the Appellant participated
in the question of the assessment of quantum which included cross examination
of the Plaintiff / Respondent. At the conclusion of this exercise, the court a
quo entered judgment for the Plaintiff / Respondent in total amount of
E102,514.49 made up as follows:

“[28] The following order is accordingly made:

(a) The Defendant is to pay the Plaintiff the following amount:
(i) Medical expenses E 2514.49
(ii) Pain and suffering 40 000.00
(iii) Permanent disability and loss
of amenities of life 60 000.00
Total E102,514.49
(b) Costs of suit
[3] The Appellant being aggrieved with the above orders, then filed an appeal to
this Court on the 24th October, 2017, the very same day of the of the judgment
of the court a quo.
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[4] The grounds of appeal are as follows:
1. The court a quo erred in refusing to grant the Appellant leave to
file a plea and thereby committed a gross miscarriage of justice
contrary to the tenants (sic) of justice (audi alteram partem rule)
and the Bill of Rights, in particular the right to a fair hearing as
envisaged by section 21 of the Constitution of the Kingdom of
Swaziland Act No. 001 of 2005, the Court a quo having been made
aware of the following facts:

1.1 That Appellant was not aware of the Notice of Withdrawal

of his erstwhile attorneys of record;
1.2 That Appellant only became aware of the trial through a
Newspaper publication and immediately appointed the
present attorneys of record;
1.3 The Appellant’s present attorneys of record were ready to
immediately file a plea which would have not caused any
prejudice to the Respondent which could not be cured by an
order for costs.

2. The court a quo erred and / or misdirected itself in holding that the
Appellant’s failure to file a plea or to present any evidence led to
the logical conclusion that the Respondent was intentionally
knocked down by the Appellant who drove a motor vehicle onto
him (Respondent) and that Respondent sustained the alleged
injuries as a result of such incident.

3. The court a quo failed to apply its mind in finding that the
Appellant is liable for the claim only on the basis that the
Appellant has not filed a plea or led evidence, inasmuch as the
court had a judicious duty to consider the evidence led and the
pleadings filed before making a determination.

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 4. The court a quo erred in falling to have regard to the fact that the
Respondent had not called his secretary and / or the Royal
Swaziland Police as witnesses to corroborate the Respondent’s
evidence.

5. The court a quo erred in not finding that, in respect of medical

expenses, the Respondent had failed to file invoices which matched
the amount claimed E2 514.49.

6. The court a quo erred and / or misdirected itself in granting an

award for “pain and suffering” when the Respondent had not
sought /prayed for such relief.

7. The court a quo erred in not finding that the Appellant was
entitled to absolution from the instance in respect of the claim for
“permanent disability”, the court a quo having found that the
Respondent’s witness, Dr. Tempest Fynn, had conceded that he
could not say positively that the injuries were permanent since he
was not a orthopaedic surgeon.

Wherefore the Appellant prays that the Appeal be upheld with costs”.

The background

[5] The material facts of the matter as gleaned in the Plaintiff’s Particulars of
Claim in paragraph 5 thereof, are that on the about the 3 rd March, 2010 at 5th
Avenue M and F premises at Matsapha, in the district of Manzini, the
Defendant assaulted the Plaintiff by driving his motor vehicle registered SD
438 IN and reversing it intentionally towards the Plaintiff hitting the Plaintiff
on the legs and causing Plaintiff to sustain serious injuries on the neck and
both knees.

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[6] In paragraph 6 of the said Particulars of Claim, it is averred by the Plaintiff /
Respondent that as a result of the unlawful attack and consequences of the
injures, the Plaintiff / Respondent;

“6.1 sustained soft tissue injury to his neck;

6.2 sustained soft tissue injury to his left shoulder;
6.3 sustained soft tissue injuries to both knees;
6.4 suffered severe blunt trauma to the neck; and
6.5 suffered severe blunt trauma to both knees”.

[7] The matter was defended by the Appellant / Defendant through his erstwhile
attorneys. In that he filed a Notice to Defend. According to the Respondent in
this appeal, the Defendant through its attorneys, in an attempt to protract the
proceedings instituted by the Plaintiff through its lawyer, opted to file a Notice
in terms of Rule 42 of the High Court Rules.

[8] According to the Respondent /Plaintiff the Appellant having been afforded
twenty one (21) days after service of his Notice to defend still failed to file a
plea.

[9] The Respondent on the 16th July, 2012 duly filed a Notice of Bar. The Appellant
again failed to file a Plea after being put to terms to file its plea within three (3)
days failing which he shall be ipsi facto barred according to Rule 26 of the
High Court Rules.

[10] The Respondent further contends that the Appellant not only failed to file a
plea, but rather elected to file a Notice for Security for costs in the sum of
E50,000.00 (Fifty Thousand Emalangeni).
[11] Furthermore, it is contended by the Respondent that the Appellant wilfully
failed to plead over the Notice in terms of Rule 47 for security for costs.
Therefore, the Applicant having failed to follow its rights in filing a plea and

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 could therefore after pleadings had been closed in terms of the Rules could not
now say that his constitutional rights to be heard were infringed.

The arguments

[12] On the 17th May, 2017 the attorneys of the parties advanced their arguments
after filing Heads of Arguments.

[13] In the arguments before this court grounds 1, 2, 3 and 4 were argued together
by the attorney for the Appellant under the rubric of the audi alteram partem
rule on the point that the court a quo disallowed the Plaintiff from filing a plea
and therefore committed a gross injustice contrary to the tenets of justice and
the Bill of Rights. In particular the right to a fair hearing as envisaged by
section 21 of the Constitution of the Kingdom of Swaziland Act No. 001 of
2005. Grounds 5, 6 and 7 dealt with further issues and 6 th ground dealt with
the issue of whether the award was sustainable as for pain and suffering” the
Respondent has not sought/ prayed for such relief.

[14] I shall therefore consider the arguments of the Appellant against those of
Respondent and the facts of the case under the following headings:

(i) Whether the principle of the “audi alteram partem” was

infringed in casu.

[15] The main argument of the Appellant in this regard is that the court a quo having
been made aware of the facts and / or circumstances that caused the Appellant
not to file a plea after the withdrawal of his former attorney, erred in refusing to
grant the Applicant leave to file his plea. That the court a quo had been made
aware that Applicant was ready and willing to immediately file his plea which
was an indication that the had a defence to the claim. That the refusal by the

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 court a quo to allow the filing of the plea violated the right to be heard (audi
alteram partem principle) resulting in a gross miscarriage of justice.

[16] Further under this Head of Argument it is contended for the Appellant that the
court a quo reasoned that there was no rule which allowed the Applicant to file
a plea at that stage. The court a quo overlooked the fact that procedure should
never be permitted to exclude the presentation of a litigant’s defence. That the
mere fact that there is no rule covering a certain situation is not a bar to the
court from exercising its judicial discretion or become creative in order to
administer justice between the parties. In support of this arguments the attorney
for the Appellant cited a plethora of decided cases. In this regard see the High
Court case of Commissioner of Correctional Services vs Hlatshwako (67/09)
[2010] SZSC 31 (28 May 2010 at paragraph [7] and Dlamini & Another vs
David Themba Dlamini 28/2015 [2015] SZSC 06 (29 July 2015) at pages 12
to 13,

[17] On the other hand the Respondent simply contended that the Appellant failed to
follow the rules of the High Court and now he is crying foul after a default
judgment has been granted by the court a quo yet all the pertinent High Court
Rules were complied with by the Plaintiff / Respondent.

[18] It is contended by the Respondent that the Appellant through its attorneys in
an attempt to protract the proceedings instituted by the Respondent opted to not
file a Plea but instead the Applicant filed a Notice in terms of Rule 42 for
security of costs.

[19] Respondent further contends that the Applicant having been afforded twenty
one (21) days after service of the Notice to defend still failed to file a plea. The
Notice to defend was served on the Respondent’s attorneys on the 2 nd June,
2012. The Respondent on the 10th July, 2012 duly filed a Notice of Bar. That
again the Appellant failed to file a plea even after being put to terms to file its

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 plea within three (3) days or being barred ipso facto in accordance with Rule
26 of the High Court Rules.

[20] Rule 26 thereof provides the following:

“Any party who fails to deliver a replication or subsequent pleading with

in the time stated in Rule 25 shall be ipso facto barred ..... Any party
failing to deliver the pleading referred to in the notice within the time
therein required or within such further period as may be agreed between
the parties, shall be in default of filing such pleading and ipso facto
barred”.

[21] In my assessment of the papers and the arguments of the parties, the arguments
of the Respondent are correct that the Appellant in the circumstances of the
case wilfully failed to plead over the Notice in terms of Rule 42 for security of
costs. Therefore, the Appellant waived its rights in filing a plea as the
pleadings had been closed in terms of the Rules and could not be seen to later
allege that his constitutional right to be heard was infringed.

[22] It would also appear to me that on the facts of the case that the Appellant is
bound “hand and foot” by his participation in the cross-examination of the two
witnesses including the Respondent which were called for proof of damages.
He was also availed of the opportunity to put his own version of the events and
challenge that the claimant, and also through his legal representative, to put his
defence to the witness. The Appellant cannot now come to court to vitiate those
proceedings which he himself participated in.

[23] Furthermore, in my assessment of the facts, the Appellant’s erstwhile attorneys

withdrew their services and in terms of the Rules and there was no irregularity
in this regard. The said attorneys withdrew in 2013 and the matter was in court
in 2017. It is contended by the Respondent’s attorney that it is impossible for

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 the Appellant not to have checked on the interim status of his matter with his
erstwhile attorneys even if he did not know that they had withdrawn. It would
also appear that the Appellant was duly served through registered post.

[24] On the facts it would also appear to me that Appellant ought to have applied for
rescission of the judgment of the court a quo in accordance with the Rules of
the High Court, it held the view that the judgment against him was defective.
He did not do so.

[25] Therefore, for the above reasons, I find that the Appellant failed to comply with
the Rules of the High Court in respect of the filing of his plea and he also failed
to utilise the various indulgences provided for in the Rules of the High Court.
Therefore, in the circumstances, the Appellant’s argument that his
constitutional rights have been infringed rings hollow and in this regard I agree
with the arguments advanced by the Respondent’s attorneys.

[26] Finally, for these reasons, ground of appeal number 1 is accordingly dismissed.

(ii) Failure by the Court a quo to find intention on the part of the
Defendant

[27] In this regard it is contended for the Appellant in ground 2 thereof that the court
a quo ordered / or misdirected itself in holding that the Appellant’s failure to
file a plea or to present any evidence led to the logical conclusion that the
Respondent was intentionally knocked down by the Appellant who drove a
motor vehicle into him (Respondent) and Respondent suffered the alleged
injuries as a result of such incident.

[28] It further argued on behalf of the Appellant that the court a quo disregarded
the facts and / or circumstances of the case. That the conclusion that the
Respondent was intentionally knocked down by the Appellant is misplaced.

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 That the court a quo was obliged to apply its mind in deciding whether the
Respondent had in fact proved all the essential elements of his cause of action.

[29] Furthermore, it is contended for the Appellant that the burden of proof lay on
the Respondent to establish on a balance of probabilities delictual liability
which consist of the following:

(i) Voluntary conduct;

(ii) Unlawfulness;
(iii) Capacity
(iv) Fault (intention or negligence);
(vi) Causation; and
(vii) Loss

[30] On the other hand, it is contended for the Respondent that the Plaintiff in the
court a quo proved its case on a balance of probabilities for the claim for
damages through personal injuries. In that the evidence led by the Plaintiff in
proving his was case confirmed the day of the incident. It was never disputed
that the incident did not occur except that Appellant did not mean to cause the
accident by knocking the Appellant with the motor vehicle. That the Police
Report confirms the incident and parties involved. The medical examination
form also confirms the nature and extent of bodily injuries. Furthermore
evidence by Dr Fynn was led to prove the damages eventually awarded by the
court a quo to sustain the claim.

[31] In respect of its position the Respondent has cited the English case of Miller vs
Minister of Pensions (1947) 2 All er at 374 where Lord Denning stated the
following:
‘It must carry a reasonable degree of probability but not so high as is
required in a criminal case. If evidence is such that the tribunal can say
“we think it more probable than not, then the burden is discharged.”

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[32] It would appear to me that in the totality of all the evidence before court, that
the Respondent has discharged the burden of proof. It is without question that
the Plaintiff was knocked by a motor vehicle driven by the Appellant. From the
evidence in the record it is quite clear that there was a dispute between the
parties where the Appellant reacted in a rage, leading to the incident. There is
no other way of looking at it.

[33] It would also appear to me that the second ground cannot succeed for the
above reasons, and likewise in respect of the third ground.

(iii) Whether the failure by the Appellant in the Court a quo to also
call certain witnesses was fatal to his claim.

[34] The argument of the Appellant in this regard is that the court a quo erred in
failing to have regard to the fact that the Respondent had not called his
secretary and / or the Royal Swaziland Police as witnesses to corroborate the
Respondent’s evidence as advanced in the fourth ground of appeal.

[35] The Appellant contended that there was not sufficient evidence or any evidence
at all proving intention or that it was Appellant who caused the alleged harm.
That it is common cause that the Respondent failed to call his secretary as a
witness yet she had allegedly witnessed the wrestling between himself and the
Appellant. That the court a quo simply relied on the Respondent’s ipse dixit
without any other corroborating evidence.
[36] The Appellant further took issue that Respondent failed to call the police
officer in support of his claim. The Appellant was neither arrested nor charged
with the alleged unlawful conduct and the police would have explained why
such had not happened. That the only probable explanation according to him
is that there was no such assault as pleaded by the Respondent.

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[37] Furthermore on the question of medical expenses, the Respondent had filed a
claim in the sum of E2,814.49. There were invoices filed in an effort to
support this claim. However, a particular invoice in the sum of E250.00
reflected the Respondent’s wife as the patient ex facie the document. It also
reflects that the medical expense to have been for a consultation, not
medication.

[38] It is contended for the Applicant that ex facie the invoice, the Respondent was
not entitled to this claim of E250.00.

[39] On the other hand it is contended for the Respondent that the medical expenses
did amount to E2,514.49 (Two Thousand Five Hundred and fourteen
Emalangeni Forty Nine Cents). That the invoice paid reflects Respondent’s
wife was purchasing medication on his behalf. Further, it does not vitiate the
fact that the Respondent did incur medical expenses.

[40] In my assessment of the arguments of the parties it would appear to me that the
arguments of the Appellant are correct that it appears to be that a mistake had
occurred in the calculations and this ground of appeal succeeds to the extent
that the amount of E250 claimed under the controversial invoice of Dr. Moira
Lemmer stands to be deducted from the awarded amount.

(iv) Award of “pain and suffering”

[41] The court a quo granted an award for “pain and suffering” in the amount of
E40,000.00. The Appellant contends that the Respondent had not sought the
relief in his Particulars of Claim. In the circumstances the court a quo erred
and / or misdirected itself in or granting an award for “pain and suffering”

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 when the Respondent had not sought / prayed for such relief. It is trite law in
this jurisdiction that a litigant cannot be granted what he / she had not prayed
for in the lis. In this regard the Court was referred to the Supreme Court case
of Commissioner of Correctional Services vs Hlatshwako (67/09).

[42] On the other hand it is contended for the Respondent that even though “pain
and suffering” was not expressly prayed for it forms part of the integral general
damages suffered by the unlawful act of the Appellant by hitting the
Respondent with his motor vehicle. That the court was justified to award such
damages as part of the general damages.

[43] In this regard the attorney for the Respondent has cited the legal text book by
Visser, 2nd Edition, Law of Delict (1993), Butterworths at page 209 to the
following:

“The term general damages is also used to describe non-patrimonial loss

(pain, suffering etcetera) as well as prospective patrimonial damage (such
as future medical expenses, loss of earning capacity and support) amounts
to general damage while monetary losses sustained up to the date of trial
(medical expenses already incurred, loss of past income and support) are
seen as special damage”.

[44] Having considered the evidence before the court a quo and the arguments of
the attorneys of the parties it would appear to me that the court a quo
determined the damages for “pain and suffering” under the all encompassing
rubric of general damages.

[45] It would appear to me that there is nothing wrong with the approach by Court a
quo in determining the case as a whole without separating certain aspects of
the case.

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[46] Therefore, I would not dismiss the award granted by the court a quo in the
circumstances.

(iii) Absolution from the instance

[47] The Appellant in respect of ground 7 contends that he was entitled to

absolution from the instance in respect of the claim for “permanent disability”
as the Respondent failed to call an orthopaedic surgeon to support his claim.
That there was no explanation regarding this failure to call for such a necessary
expert witness especially so when the Plaintiff’s doctor specifically testified
that he was unable to give an expert opinion regarding the permanency of the
injuries. Further that it is trite law that a litigant who fails to adduce evidence
which was available to this has only himself to blame.

[48] In the light of my finding relating to the first six grounds of appeal, I am of the
considered view that this ground of appeal has no substance at law nor has it
any relevance to the outcome of this matter.

[49] In the result, for the aforegoing reasons, I order that:

1. The appeal in respect of grounds 1, 2, 3, 4, 6 and 7 is dismissed;

2. The appeal in respect of ground 5 thereof partially succeeds;

3. The order of the Court a quo is amended as to read:

“a) The Defendant is to pay the Plaintiff the following amounts:

1. Medical expenses E 2,264. 49
2. All inclusive general damages E100,000.00
Total E102,264.49
b) Costs of suit.”

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 4. The Appellant is to pay costs of the Appeal.

For the Appellant Mr. A. Motsa

(from L.R. Mamba and Associates)

For the Respondent: Mr. H. Mdladla

(from S.V. Mdladla & Associates)

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