1
IN
THE HIGH COURT OF SWAZILAND
CIV.
CASE NO. 3544/97
In
the matter between
ELIAS
MAHLALELA PLAINTIFF
And
LOVELACE
MDLULI DEFENDANT
Coram S.B.
MAPHALALA - J
For
Plaintiff MR. T. SIMELANE
For
Defendant MR. SIMELANE
JUDGEMENT
(11/12/98)
Maphalala
J:
The
issue that came for determination in respect of this matter on the
contested motion of the 30th October 1998 was whether or not a
certain paragraph should be struck off or not before proceeding with
the application for summary judgment.
Mr.
Simelane from Robinson Bertram and Company argued before the court a
notice in terms of Rule 23 (2) has been filed by the defendant to
have paragraph 4 of the plaintiff's replying affidavit in the summary
judgment proceedings and that further the plaintiff is to pay the
costs of suit. To support his arguments he cited the case of
Sommerick vs Computronics 1982 - 86 S.
L.
R.
511 by Hannah CJ and the case of Victor vs Victor 1938 W.
L.
D
16.
Mr.
Simelane from Bheki G. Simelane took the view that there is no
application before court for striking out in that what purports to be
such an application lack two essential elements namely:
1. It
does not indicate the offending paragraph;
2. The
grounds on which the paragraph is offending.
To
this effect he referred the court to Herbstein 's Van Winsen The
Civil Practice of the Supreme Court of South Africa (4th ED) at page
356 paragraph H where the learned authors stated that within ten days
of service upon him of the answering
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affidavit
and relevant documents, the applicant may deliver a replying
affidavit. In his replying affidavit the applicant may adduce any
testimony that is relevant to the issue and that serves to refute the
case put up by the respondent in his answering affidavit. He argued
further that the application to strike out should be dismissed with
costs.
This
is the issue before court for determination. The question to be
determine is whether or not the notice of application to strike out
in terms of Rule 23 (3) by the defendant is properly before court. It
is trite law that applications to strike out are taken by way of
motion (see Cyril Smiedt (Pty) Ltd vs Lourens 1966 (1) S.A. 150 (o)).
Upon proper notice to the other party, indicating the passages
objected to, together with a short statement of the grounds of the
objection (see Abromowitz vs J acquest & another 1950 (2) S.A.
247 (w)). In the case in casu in appeals ex facie from defendant's
notice to strike out that the former requirement has been met but the
latter has not been complied with. The notice reads as follows:
"Be
pleased to take notice (sic) will be made to the above honourable
court on Friday the 11th September 1998 for the application to be
made on behalf of the defendant for an order in the following
proceedings:
a) Striking
out paragraph 4 of the plaintiff's replying affidavit in the summary
judgement proceedings.
b) Costs
of suit.
c) Further
and/or alternative relief.
The
paragraph which is sought to be strike out reads as follows:
-4-
I
annex to a copy of my personal cheque that I advanced to the
defendant marked E.
M.
L.".
It
has not been shown by the defendant what are the grounds on which the
said paragraph is objectionable (as per Ether (Pty) Ltd (supra)). It
has not been shown why the defendant is of the view that the said
passage is vexations and scandalous and that it introduces new matter
(see Vatz vs Law Society of Namibia 1991 (3) S.A. 371). For this
reason it is my considered conclusion that the notice falls short in
satisfying the requirement of Rule 23 (2) of the High Court Rules.
I
thus rule that the application to strike out fails and is therefore
dismissed with costs.
S.B.
MAPHALALA
JUDGE
