THE
HIGH COURT OF SWAZILAND CHARLES MBINGO
Applicant
AND
PROPERTY HOLDINGS LIMITED
Respondent
CIVIL
CASE
NO. 3155/2000
Coram S.B.
MAPHALALA - J
For
the Applicant MR. L.MALINGA
For
the Respondent MR. J. KENWOOD
RULING
ON POINTS IN LIMINE
(18/07/2002)
This
is an application brought under a certificate of urgency and in which
the applicant prays for inter alia an order directing the respondents
to release to the applicant his personal goods as listed in annexure
"A",
The
application is founded on the affidavit of the applicant himself. The
respondent have filed their Notice of Intention to Oppose and also a
Notice in terms of Rule 6 (12) © raising points of law.
2
This
matter is long outstanding in that a similar application was launched
by the applicant sometime in October 2000, for the same relief and
this matter is still pending under the same case number and is to
appear before court on the 19th July 2002. When the matter came
before me on the 11th July 2002, I heard the points of law raised by
the respondent and reserved my ruling thereon to the following day
the 12th July 2002. However, due to the heavy roll before me I had
not prepared a full judgement but delivered my ruling dismissing the
application with costs on the ordinary scale in open court and I
indicated to counsel that reasons for judgement would follow in due
course. Following is my reasons for dismissing the application on the
12th July 2002.
Mr.
Henwood on behalf of the respondent raised four points in limine.
First, that the matter is not urgent in that the applicant has failed
to set out any reasons, sufficient to comply with Rule 6 (25) (a) why
the present application has been brought on an urgent basis. Second,
that this application does not conform with Form 3, the applicant
herein brought the same in accordance with Form 2, which is expressly
designed for exparte applications. Third, that this matter is lis
alibi pendens in that the present application seeks an identical
relief in the proceedings pending under case no. 3155/2000 and as
such cannot obtain identical relief herein. Fourth, that the
applicant states on his own version the goods sought by him being
certificates are not included in annexure "A1" and "A2"
mentioned in paragraph 6 of the applicant's founding affidavit at
page 5 of the Book of Pleadings and are thus not in the possession of
the respondent.
I
have heard submissions from both Mr. Henwood and Mr. Malinga for the
applicant where I was directed to various portions of the pleadings
before me and legal authorities cited for and against the points
raised.
My
finding is that all but one point raised by Mr. Henwood for the
respondent ought to succeed and thus vitiating the whole application.
The respondent cannot succeed on the last point raised. I shall
proceed to briefly determine the points of law, ad seriatim:
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1. Whether
applicant has proved urgency in conformity with Rule 6 (25) (a) and
(b).
The
applicant in the present case approaches the court on an extreme
urgent basis and it is incumbent on him to make out a case justifying
the urgency with which the application was brought. The respondent
was given a mere three hours to respond to the application.
In
the case of Humprey H. Henwood vs Maloma Limited, Civil Case No.
1623/94 (unreported) Dunn J (as he then was) clearly outlined the
approach to be adopted by litigants in such instances. The principle
was succinctly enunciated in Luna Meuber Vervaardigers (EDMS) BPK vs
Makin and another t/a Makins Furniture Manufactures 1977 (4) S.A. 135
(W) at 1366 - 1376 where Coetzee J had this to say, and I quote:
"Practitioners
should carefully analyse the facts of each case to determine, for the
purpose of setting the case down for hearing, whether a greater or
lesser degree of relation of the Rules and of the ordinary practise
of the Court is required. The degree of relaxation should not be
greater than the exigency of the case demands. It must be
commensurate therewith. Mere lip service to the requirements of Rule
6 (12) (b) will not do and an applicant must make out a case in the
founding affidavit to justify the particular extent of the departure
from the norm, which is involved in the time and day for which the
matter be set down"
See
also Gallagher vs Norman's Transport Lines (Pty) Ltd 1992 (3) S.A.
500 and Patcor Quarries CC vs Issroff 1998 (4) S.A. 1009 (SE) at
1075.
In
Rule 6 (25) (b) of the rules of this court, the following is stated:
"(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". (my emphasis).
In
casu, the averments which seek to establish urgency are found at
paragraph 6 of the applicant's founding affidavit and reads as
follows:
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"
I now need items listed annexure "A" as a matter of urgency
in order to enrol at the Management College of Southern Africa
"MANCOSA among whose requirements is the submission of my
academic certificates. The closing date for the submission of these
certificates is the 15th day of July 2002 and failure to do so will
mean an opportunity lost. A copy of the letter of acceptance by
"MANCOSA" is annexed hereto marked annexure "B""
This
paragraph fails dismally to satisfy the requirements of Rule 6 (25)
(b) in that the applicant does not advance reasons why he claims that
he could not be afforded substantial redress at a hearing in due
course.
The
letter from "MANCOSA" (annexure "B") is dated the
6th May 2002 and there is no explanation why the applicant is
approaching the court only now. The court was only told by Mr.
Malinga from the bar the reasons for this delay and that was
tantamount to giving evidence by Mr. Malinga on motion proceedings. I
thus cannot take cognisance of evidence advanced by counsel from the
bar.
On
this aspect of the matter my considered view, is that the applicant
has failed to establish urgency as required by Rule 6 (25) (a) and
(b) of the rules of court but Mr. Malinga merely paid lip service
that the applicant's papers satisfies the strictures of the rule.
The
point in limine ought to succeed.
2. Notice
of motion a nullity.
Mr.
Henwood argued that instead of bringing this application in
conformity with Form 3, the applicant herein brought the same in
accordance with Form 2, which is expressly designed for ex parte
application. Mr. Henwood's contention is correct and is fully
supported by the rules.
Rule
6 (9), which is peremptory, states as follows:
"Every
application other than one brought ex parte shall be brought on
notice of motion as near as may be in accordance with Form 3 of the
first schedule and true copies of notice, the
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supporting
affidavits and all annexures thereto, shall be served upon any party
to whom notice thereof is to be given".
My
brother Masuku J in the case of Ben M. Zwane vs The Deputy Prime
Minister Civil Case no. 624/2000 (unreported) postulated the
requirements of this rule with considerable force, thus: (at page 7):
"Form
3 requires the respondent, in addition to other issues to be informed
of when a notice to oppose, if any, should be filed and also when
answering affidavits should be filed. Form 2, which is presently
being used is clearly for ex parte applications as envisaged by the
provisions of Rule 6 (4) and the said Form 2, itself clearly
stipulates so".
In
casu the Form adopted is clearly not in conformity with the rules.
Mr. Malinga for the applicant when making submissions was hard
pressed to explain this anomaly consoling himself that what is
important is that the respondent is before court. With the greatest
of respect, to Mr. Malinga that is a total incorrect approach to
adopt in these matters were rules are clear as to what should be
done.
I
hold that the point in limine in this respect ought to succeed on the
basis of the above-mentioned reasons.
3. Whether
the matter is lis pendens.
It
is trite law that if an action is already pending between parties and
the plaintiff/applicant brings another action/application against the
same defendant/respondent on the same cause of action and in respect
of the same subject, matter whether in the same or in a different
court, it is open to the other side to take the objection of lis
pendens (see Herbstein et al The civil Practice of the Supreme Court
of South Africa (4"' ED) at 249 and the case cited thereat).
Clearly,
in the present case the matter is lis pendens the applicant ought to
have anticipated the return date of the main application which is
coming before court on the 19th July 2002 and file a supplementary
affidavit in accordance with the rules of court not to launch a fresh
application under the same case number and on the same subject
matter.
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For
the above reasons the point in limine raised by the respondent ought
to succeed.
4. Whether
goods sought are not included in annexure "A1" and "A2".
It
would appear to me from the reading of the papers that the items
being sought in the present application, viz academic certificates
are included in annexure "Al" under item 10 as "1
suitcase with clothes and certificates". These items are listed
as items in the possession of the respondent. For whatever it is
worth, I agree with Mr. Malinga that this point in limine ought to
fail.
5. The
issue of costs.
Mr.
Henwood urged the court to award the costs on an attorney and client
basis on the basis of Mr. Malinga's conduct in these proceedings. I
have considered the matter being guided by what was said by Tindall
JA (Schreiner JA and Feetham AJA concurring) in Nel vs Waterberg
Landbouwers Ko-operative Vereeniging 1946 A.D. 597 and I an unable to
impute dishonest or fraud or that the applicant's motives have been
vexations, reckless and malicious, or frivolous.
I
would rule that in the circumstances the applicant pays costs in the
ordinary scale.
6.
The Court Order.
In
the result, the application is dismissed with costs on the ordinary
scale.
S.B.
MAPHALALA
JUDGE
