THE
HIGH COURT OF SWAZILAND
MBABANE
MOTORS (PTY) LTD T/A
SWAZI
DELTA Plaintiff
And
LOFANA
MASILELA Defendant
Civil
Case No. 1967/2004
Coram
S.B. MAPHALALA – J
For
the Plaintiff MR. B. MAGAGULA
For
the Defendant MR. M. MABILA
JUDGMENT
(12/11/2004)
[1]
The Plaintiff has issued summons in terms of Rule 8 (1) of the High
Court Rules for provisional sentence against the Defendant in the
amount of E35, 000-00 together with interest thereon at the rate of
9% per annum from date of summons to date of final payment as well as
costs.
2
[2]
The plaintiff's claim is based on a cheque annexed to the plaintiff's
summons marked "MMA". The Plaintiff avers in its summon
that on or about the 9th March 2004, Defendant paid a sum of E8,
518-42 towards this debt. It appears on the face of the cheque that
payment was stopped and thus the present action, but it is not clear
on the summons what is the basis of the Defendant's liability,
[3]
The Defendant has filed an affidavit reflecting its opposition to the
provisional sentence summons.
[4]
When the matter came for arguments a number of submissions were made
on behalf of the Defendant. The first argument advanced was in the
present case the summons do not describe the instrument sued upon as
to show on the face of the summons the ground of Defendant's
liability to Plaintiff and where this is absent provisional sentence
will be refused. In this regard the Court was referred to the legal
authority in Herbstein and Van Winsen, The Civil Practice of the
Supreme Court of South Africa, 4th ed at page 1009.
[5]
It appears to me that the plaintiff's summons do not conform to the
cardinal principle in provisional sentence cases that there should be
a liability by the Defendant to the Plaintiff apparent from the face
of the summons and the document upon which the claim is founded, (see
Joseph Bond & Jeans Ltd vs National Implement Co. (Pty) Ltd 1949
(2) S.A. 659).
[6]
In the South African case of Malmesbury Board of Executors vs Van Der
Riet 1939 (2) P.H. F133 (C) provisional sentence on a mortgage bond
was refused where the summons failed to allege why the capital had
become due and payable.
[7]
In the present case no allegations have been made on the summons to
satisfy the above-mentioned legal requirement and therefore the
provisional sentence in casu should be refused.
[8]
I was further persuaded by the arguments advanced by Mr. Mabila for
the Defendant that where there is a probability that Defendant will
be successful in the principal case provisional sentence should bee
refused. On the basis of the facts
