THE
HIGH COURT OF SWAZILAND
SIBUSANGANI
KHABA
Applicant
And
SUPREME
FURNISHERS (PTY) LTD
Respondent
Civil
Case No. 3681/2004
Coram
S.B. MAPHALALA – J
For
the Applicant MR. P. MSIBI
For
the Respondent MR. NSIBANDZE
RULING
(On
points of law in limine) 26/11/2004
[1]
Serving before court is an application brought under a Certificate of
Urgency for an order, inter alia, ordering and directing the
Respondent to return the wardrobe and bedset which was unlawfully
taken from Applicant's possession home at Vusweni area in the
Shiselweni district; declaring the Court Order issued by the Manzini
Magistrates Court on the 9th November 2004, to be null and void and
rescinding and setting it aside and; ordering Respondents to pay
costs at a scale between attorney and own client.
2
[2]
The Applicant in her Founding affidavit advances facts in support of
the application.
[3]
The Respondent has raised two points of law in limine. These are the
subject-matter of this ruling. They are formulated in the following
terms:
1.
AD URGENCY.
1.1
The Applicant has failed to set out, in the Founding affidavit the
circumstances in terms of which she avers that this matter is urgent
as required by Rule 6 (25) (a) and (b) and furthermore has failed to
indicate why she cannot be afforded substantial relief at a hearing
in the due course;
1.2
In the circumstances it is submitted that the matter is not urgent
and that the Honourable Court should dismiss the Applicant's claim
with costs.
[4]
In support of the points raised Mr. Nsibandze for the Respondent
argued that the Applicant has failed to comply with the provisions of
Rule 6 (25) (a) and (b) of the Rules of the High Court. The court was
referred to many judgments of this Court on this Rule including the
celebrated case of Humphrey Henwood vs Maloma Colliery and another,
High Court Case No. 1625/94 (unreported). He argued that paragraph 13
of the Applicant's founding affidavit which purports to prove urgency
falls far too short in satisfying the rigours of the peremptory
provisions of the rule.
[5]
Rule 6(25) (a) and (b) provides as follows:
"25
(a) In urgent applications the court or a judge may dispense with the
forms and service provided for in these rules and may dispose of such
matter at such time and place and in such manner and in accordance
with such procedure (which shall as far as practicable be in terms of
these rules) as to the Court or Judge, as the case may be, seems fit.
(b)
In every affidavit or petition filed in support of an application
under paragraph (a) of this sub-rule, the applicant shall set forth
explicitly the circumstances which he avers render the matter urgent
and the reasons why he claims that he could not be afforded
substantial redress at a hearing in due course".
[6]
Paragraph 13 thereof of the Applicant's founding affidavit which
seeks to lay the basis for urgency in this case reads as follows:
3
"I
further ask that this matter be handled on an urgent basis because I
use the bed for sleeping on and now I suffer great prejudice because
I literally sleep on a floor mat together with my child and we are at
risk of contracting of all sorts of diseases. Further, my clothes and
those of my child were scattered by the Respondent's agents all over
the floor and life is just unbearable without the items I was
dispossessed of. I am already suffering from severe back pains
because of sleeping on the floor,"
[7]
Nothing more than this is said regarding the requirements of the
Rule. It is clear from the above-cited paragraph that no attempt has
been made to address the provisions of Rule 6 (25) (b) as there are
no facts averred which clearly demonstrate that the Applicant cannot
be afforded substantial redress at a hearing in due course.
[8]
The proper approach in these matte/was formulated in the judgment of
H.P. Enterprises (Pty) Ltd vs Nedbank (Swaziland) Ltd - Civil Case
No. 788/99 (unreported), where Sapire CJ (as he then was) correctly
analysed the applicable principles and reasoned as follows at pages 2
— 3:
"A
litigant seeking to invoke the urgency procedures must make specific
allegations of fact which demonstrate the observance of the normal
procedures and time limits prescribed by the Rules will result in
irreparable loss or irreversible deterioration to his prejudice in
the situation giving rise to the litigation. The facts alleged must
not be contrived or fanciful but give rise to a reasonable fear that
if immediate relief is not afforded, irreparable harm will follow".
[9]
Clearly in casu such allegations mentioned by Sapire CJ above are not
there. The Applicant wants the court to make some finding on urgency
without supplying any relevant allegation. The court is expected to
make such finding based on surrounding circumstances not alleged in
the Founding affidavit.
[10]
When Mr. Msibi was pressed on the absence of allegations per Sub-Rule
(b) viz that Applicant could not be afforded substantial redress at a
hearing in due course he cited a Court of Appeal judgement to the
proposition that Rules of Court, which constitute the procedural
machinery of courts, are intended to expedite the business of the
Court. In this instance though, I agree in toto with the submissions
made by Mr. Nsibandze that the rule which is presently being examined
is mandatory.
4
[10]
For afore-going reasons I find that the point of law in limine
succeeds and consequently the application falls to be dismissed.
Costs to follow the event.
S.
B MAPHALALA
JUDGE
