IN
THE HIGH COURT
OF
SWAZILAND
HELD
AT MBABANE
CIV.
CASE No. 2002/97
IN
THE MATTER BETWEEN
THE
SWAZILAND GOVERNMENT 1ST APPLICANT
MADZABUDZABU
JOHN SHONGWE 2ND APPLICANT
AND
SANDILE
KENNETH DLAMINI RESPONDENT
IN
RE:
SANDILE
KENNETH DLAMINI PLAINTIFF
AND
SWAZILAND
GOVERNMENT 1ST DEFENDANT
MADZABUDZABU
JOHN BONGWE 2ND DEFENDANT
CORAM
: DUNN
J.
FOR
THE APPLICANTS : MR.
FINE
FOR
THE RESPONDENT : MR.
FLYNN
JUDGMENT
14TH
NOVEMBER 1997
This
is an opposed application for condonation of the late filing of a
notice of intention to defend and the removal of a notice of bar I
shall refer to the applicants as the defendants and to the respondent
as the plaintiff
2
A
summons commencing action was served on the defendants on the 7th
July 1997. The defendants were given 20 days within which to file a
notice of intention to defend. The 22nd of July was a public holiday
and thus the last day for the filing of the notice was the 5th August
1997 The defendants only filed a notice on the 13th August , 6 days
out of time. The notice was not accompanied by an application for
condonation . On the 21st August the plaintiff wrote to the
defendants in the following terms –
We
notice that you purported to file a Notice of Intention to Defend on
the 13th August 1997 when the last day for filing same was the 5th
August 1997.
By
the time you filed your Notice to Defend we had already applied for
default judgment and the matter was before Justice Dunn on the 12th
August and was postponed to a date to be arranged with the Registrar
for us to lead oral evidence in proof of damages.
Your
Notice to Defend is accordingly way out of time and we do not know
what you intend doing about it. We do not know yet if your notice was
filed but if it was we shall apply for it to be struck off.
Note
however that we are still open to negotiations but only on the
quantum of damages.
I
had occasion to point out at the hearing that paragraph 2 of the
plaintiff's letter did not accurately reflect the order I made in the
matter on the 12th August That does not , however, have any bearing
on this application. The plaintiff took no steps whatsoever to have
the notice of intention to defend set aside The plaintiff instead
filed a notice of bar calling upon the defendants to file their plea
within 72 hours The notice was filed on the 18th September 1997 The
defendants did not plead as required and filed the present
application
The
headnote in the case of OOSTELIKE TRANSVAAL KO-OPERASIE v AURORA
BOERDERY 1979 (1)SA 521 (reported in Afrikaans) reads as folows –
A
plaintiff is not entitled simply to ignore the late delivery by a
defendant of his notice of intention to defend and without more to
bring an application for judgment by default. The correct procedure
is first to set aside the irregular proceeding.
This
decision followed a long line of decisions that are refered to in
Herbstein and Van Winsen THE CIVIL PRACTICE OF THE SUPERIOR COURTS IN
SOUTH AFRICA 3rd edition 242 The plaintiff had indicated as far back
as the 21st August that the defendants' notice to defend was out of
time If he objected to the filing of the notice he ought to have
proceeded under Rule 30 and had it set aside His election to file a
notice of bar, giving the
3
defendants
an opportunity to plead, indicates an acceptance and condonation of
the filing of the notice. That being the case the opposition to the
present application comes as somewhat of a surprise. All that the
defendants are seeking to do is to regularise the notice to defend, a
matter which the plaintiff has hitherto not concerned himself with .
Except for pointing out to the defendants the need to comply with the
Rules of court in future, I do not find it necessary in the
circumstances to deal with the reasons advanced by the defendants for
the delay in filing the notice. The late filing of the notice is
accordingly condoned .
The
removal of the bar must follow the condonation of the late filing.
There is , however, another ground on which the plaintiff cannot
resist the application The defendants were given 20 days within which
to file a notice of intention to defend No notice was given to the
defendants as to the time period within which they were required to
file their plea. A Sherifff is required in terms of Rule 17, to
inform a defendant at the time of service of a summons inter alia
that , if he disputes the claim , and wishes to defend he shall –
within
the time stated therein, give notice of his intention to defend;
thereafter,
if the summons is a combined summons, within twenty-one days after
giving such notice, deliver, with or wihout a claim in reconvention
, a plea, or application to strike out.
The
provisions of sub-rule 17(1) appear in form 11 of the First Schedule
to the Rules and are as a matter of practice printed on the standard
form of summons used in this court. 1 have had occasion in another
matter, emanating from the offices of the attorneys who issued the
present summons , to point out this deficiency. As matters stand the
defendants would be perfectly within their rights to await
notification from the plaintiff as to the time period within which to
file a plea. In essence, the defendants cannot be said to have been
in default of a plea necessitating the filing of the notice of bar.
The
application is granted and as a mark of the court's displeasure at
the manner in which the plaintiff has approached the application , 1
order that the plaintiff pass the costs
B.
DUNN
JUDGE.
