IN
THE HIGH COURT OF SWAZILAND
a
elmon
1
CASE
NO. 2557/96
IN
THE MATTER BETWEEN:
ELMON
MAGONGO APPLICANT/RESPONDENT
VS
FANIYA
HLOPHE RESPONDENT/APPLICANT
CORAM:
MR S.B. MAPHALALA - A
J
FOR
APPLICANT: MR NKAMBULE
FOR
RESPONDENT: MR KHUMALO
RULING
ON POINTS IN LIMINE
(21/11/97)
There
is an application that has been brought by the respondent for a
rescission of an order of this court made on the 9th September, 1997.
The import of that order was declaring the applicant as a lawful
possessor in terms of Swazi Law and Custom, of the premises upon
which the respondent had built his homestead at Egebeni area in the
Manzini Region. That order was granted by default of appearance by
the respondent.
The
respondent in the present application who was applicant has raised a
point in limine that this application is irregular and must be
dismissed with costs on the grounds that applicant brought the
application in terms of Rule 31 (3) (b) of the High Court Rules which
deals with default judgements in matter brought by way of summons.
The
applicant as represented by Mr Nkambule opposes the objection in
limine on the ground that this application falls under this rule.
Even if it does not fall under this rule the common law should apply.
a:elmon
2
I
agree with Mr Khumalo that this application was brought under a
totally irrelevant rule of court. The rule applies to default
judgement in actions brought by way of summons "where the claim
is of a debt or liquidated demand.... ". The rule cited by the
applicant being Rule 31 (3) (b) prescribes that a defendant seeking a
default judgement is to furnish to plaintiff security for the payment
of the costs of the default and such application to a maximum of
E200-00 applicant's papers were badly drawn and an application was
brought under an irrelevant rule of court.
I
am not going to outrightly dismiss this application which I can, but
will allow the applicant to amend his papers and for him to pay
wasted costs incurred on the day the matter came for arguments and
today's wasted costs.
S.
B.
MAPHALALA
ACTING
JUDGE
