Times Of Swaziland: ESWATINIBANK E5M CLAIM: QHAWE WINS ROUND 1

ESWATINIBANK E5M CLAIM: QHAWE WINS ROUND 1
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Mbongiseni Ndzimandze on 05/03/2024 14:20:00


MBABANE – Channel YemaSwati Director Qhawe Mamba has been granted an order
setting aside the concessions that were made by his erstwhile attorney in the
matter between him and EswatiniBank.
The lawyer is said to have made the concession without Mamba’s approval. This
is in the matter in which EswatiniBank is demanding E5 million from Mamba. Other
applicants in the matter are Mamba’s mother, Princess Sifuga and Nonkululeko
Ndzinisa. The application setting aside the concession signed by Mamba’s
previous attorney and the bank on August 29, 2022, was granted by Judge Mumcy
Dlamini. The judge said it was common cause that the matter had to be postponed
several times at the instance of Mamba’s erstwhile attorney. She said these
postponements were mostly sought in chambers.
Judge Dlamini further mentioned that the sum of his (erstwhile lawyer) conduct
was that at no stage was he ready to prosecute his client’s case. The judge
said the end result was that his conduct prior to the hearing was inconsistent
with an attorney who held ostensible authority to compromise his client’s
defence.  The court said logic alone suggested that the answer must be in the
negative. According to the court, the position was fortified by the fact that
the erstwhile attorney did not even draft the plea that served in the matter.
“To demonstrate his laxity, this court is on record for having urged the
erstwhile attorney to go and prepare his client’s case and stay away from the
waters of immortality,” said Judge Dlamini. In the rescission application,
Mamba of Nkoyoyo, told the court that sometime in March 2017, Eswatini
Development and Savings Bank (EswatiniBank) instituted court proceedings against
him and the other applicants. He said they defended the matter.
In the present matter, Mamba submitted that on or about August 29, 2022, his
former attorney, Sandziso Khoza, held a meeting with the bank’s attorneys and
made certain concessions and/or agreements, which were then reduced into writing
and produced before the court. At the outset, according to Mamba, who is now
represented by Osborne Nzima of Nzima and Associates, he and the other
applicants, who are defendants in the main matter, never agreed to the
concession by Khoza at the time, and they never gave him instructions to concede
to the issues that were in dispute.
Instructions
“I further wish to state that we never gave instructions to Mr Sandziso Khoza
to negotiate for the curtailment of the issues as the matter, according to us,
was heavily involved and clouded with contentious issues. “To me and the other
applicants hereto, we were expecting the matter to take place in the normal
process and that we would have our day in court when the matter was ripe for
trial. We never consented to the conversion of the trial proceedings. We are
advised and verily believe to be true that it was not the correct procedure in
the first place. “I am further advised and verily believe to be true that it
was not the correct procedure to hold some sort of a pre-trial conference when
the pleadings were not closed. I am advised and verily believe to be true that
in terms of the rules of this honourable court, this honourable court can
rescind and/or set aside on its own any order that may have entered once it has
been discovered that it was not supposed to be entered.,” Mamba submitted.
The director averred that the court may also rescind and/or set aside its own
order once an issue had been brought to the fore, to which the court was not
aware when the order was granted.  He argued that the court was not aware that
they had not consented to the agreement that was entered by Khoza. “I am
advised and verily believe to be true that the conversion of the action
proceedings to application proceedings was not done in terms of the rules, and
such conversion is further confusing in that it is not clear how it was done.
Moreover, in the said conversion, either party was allowed to lead oral
evidence. I am advised that this was a mistake that was done by the parties
whether intentionally or not,” Mamba submitted.