THE HIGH COURT OF SWAZILAND
CASE NO. 1050/2000
the matter between
INVESTMENTS (PTY) LIMITED
DANDI FURNISHERS APPLICANT
BREWERS LIMITED 1st RESPONDENT
DEPUTY SHERIFF 2ND RESPONDENT
ATTORNEY GENERAL 3rd RESPONDENT
S.B. MAPHALALA - J
Applicant MR. L. MAZIYA (Instructed
Respondents MS VAN DER WALT
by Millin & Currie)
ON POINTS IN LIMINE
this application which is brought under a certificate of urgency, the
with forms of service and the time limits prescribed by the rules of
the court and hearing this matter urgently calling upon the
respondents to show cause, if any, on a date to be fixed by the
garnishee notice dated the 19 May 2000 issued under case number
1050/2000 should not be declared as having been issued and or
the first and third respondents, jointly or severally the one paying
the other to be absolved to return and or pay applicant a sum of
Further/alternative relief. The applicant, in his founding affidavit
deposed as follows:
in March 2000, the first respondent caused summons to be issued
against the applicant. The first respondent's claim was for payment
of the sum of E94, 451 -02 with interest to be calculated at the rate
of 12% per annum and costs of suit. On the 12th May 2000, an
agreement of settlement which had been entered into between the
parties (applicant and first respondent) was made an order of court.
Subsequent to the agreement of settlement having been made an order
of court, the first respondent proceeded to issue a writ of
execution. The Deputy Sheriff for the district of Manzini proceeded
to attach certain property belonging to the applicant. The writ was
issued on the 15th May 2000.
the 19th May 2000, the first respondent proceeded to issue a
garnishee notice in terms of Rule 43 (13) (a). This notice was only
served upon the garnishee, the third respondent
herein. The applicant who was then the judgment debtor never received
of the notice.
the 23d May 2000,
manager, signed a surety bond in
45 (6) undertaking not to remove and or dispose of the attached goods
and further, binding himself, his personal goods and effects to pay
and satisfy the sum of E94, 451 - 02 to the Deputy Sheriff in the
event the goods were disposed of. Notwithstanding the signing
the Deputy Sheriff, for the district of Hhohho, who is the
second respondent proceeded to attach and remove the goods for safe
or about the 21st September 2000, the applicant's manager proceeded
to collect money due to the applicant from the Accountant General's
offices. The sum he was going to collect was the sum of E129, 735.00.
When he reached the Accountant General's office he was then advised
that the cheques had been collected by the first respondent, on the
of the garnishee
notice. He was informed that the amount was forwarded to the first
He then took the matter with the respondent's attorneys and was
refunded a sum of E27, 735-00.
deposed that the garnisheeing of the amounts due to the applicant is
illegal. The applicant, put forth a number of reasons of holding this
view and these
are fully canvassed at paragraph 16.1 up to 16.9 of the founding
affidavit. Of significance
though is an averment at paragraph 16.7 to the effect that in terms
of the writ of execution the Deputy Sheriff was directed to attach
and take into execution the movable goods of "Dandi Investments
(Pty) Ltd T/A Dandi Bottle Store Industrial Sites, Matsapha, instead
of doing as directed, he proceeded to attach goods belonging to Dandi
Investments (Pty) Ltd T/A Dandi Furnishers, situated in Matsapha
to having paid out the sum of E129, 735-00 to the first respondent,
the third respondent has provided applicant with copies of cheques
totalling the aforesaid amount. As to how these cheques were
honoured, the applicant does not know because they were drawn in
favour of the applicant and clearly marked not transferable.
went on to relate at paragraph 22.1, 22.2 and 22.3 how this action
which he considers as unlawful and illegal of garnisheeing of funds
destined for Dandi Investments (Pty) Ltd T/A Dandi Furnishers are
causing applicant irreparable harm. Applicant's electricity to the
premises has been disconnected by the Swaziland Electricity Board.
The Swaziland Post and Telecommunications Corporation has also
stopped calls destined to applicant. Further, salaries for all
applicant's ten employees, for the month of September have not been
paid and it is inconceivable that they will be paid for this month.
Also applicant's suppliers have sent letters of demand as they
expected payment at the end of September 2000.
opposition to the orders prayed for by the applicant, the 1st
respondent, raised the following main points of law, on the basis of
which this court was moved to dismiss the application with costs, on
the attorney and own client scale, namely;
Notice of Motion
notice of motion is fatally defective
does not comply with High Court Rute' 6 (9). in this connection
the court in
Ben Zwane vs Deputy Prime Minister & Another Case No. 624/00 a
judgement by Masuku J dated 24th March 2000, at pages 7 to 9 (and the
authorities cited therein).
applicant does not dispute that it is indebted to the first
respondent, not that it was indebted to it in the sum of El02, 000-00
(i.e. the garnishee amount minus the refund). The applicant is not
relying on any recognised cause of action, and if it is, same is not
disclosed in the papers. As such, the basis of the application is
invalid in law.
applicant failed to set forth explicitly the circumstances which it
avers renders the matter urgent, and the reasons why it claims it
could not be afforded substantial redress at a hearing XXX
as is required by
Court Rule 6 (25).
Form of Proceedings
so far as it may be said that the applicant had a valid cause of
action, it should have foreseen disputes of fact incapable of
on the papers, and should have used action procedure instead of
applicant argued in contra as represented by Mr. Maziya. Rule 25 of
the High Court Rules of Swaziland, does not stipulate any form that
is to be followed nor does it require certain allegations to be made
in fulfilment of its provisions. Alternatively, applicant has in his
application applied for dispensation of forms of service and the
limits prescribed by the rules of this court. Further, that legal
justification for the relief sought has been advanced. The fact that
applicant is indebted to 1st respondent does not entitle it to act
illegally and unlawfully in recovering its debt, furthermore, in the
papers, as they stand, there is no dispute of fact which would render
the hearing of oral evidence necessary.
arguing the matter Mr. Maziya for the applicant stated that the
applicant has not disputed its indebtedness to the 1st respondent.
The debt is in respect of Dandi Bottle Store not Dandi Furnishers in
whose name the cheque was made. With respect to Mr. Maziya this is
not so. Annexure "E1" of the founding affidavit viz, the
two cheques referred to by Mr. Maziya do not state, as Mr. Maziya
would like the court to believe that the said cheques were destined
for Dandi Furnishers. The two cheques clearly state the payee to be
Dandi Investments. Nowhere on the cheques does the name Dandi
Furnishers feature. Mr. Maziya's argument therefore on this point
does not hold water.
the question of whether there are any disputes of fact it is Mr.
Maziya's view that there
are no genuine
of fact. On the main issue there is no dispute of fact. There is no
provision in Rule 45 (13) (a) of a cheque to be attached by a law
firm in contravention of the Sheriffs Act.
the question of urgency Mr. Maziya contended that the averments in
paragraph 22 clearly established the basis to hold that the matter is
the issue of whether the applicant has a cause of action it was
contended that there is no reason why applicant should allege a link
between the cheques and the applicant. The cheque belonged to the
the question of form of application Mr. Maziya submitted that there
is no dispute that the application has not been brought in terms of
Rule 6 (9). To this effect he cited a number of South African decided
cases to the effect that although it is appreciated that without
formal rules of procedure no legal system of any sophistication could
function. But be that as it may, the insistence upon the inflexible
observance of the rules should not be allowed to frustrate
substantive justice. The court is to look at the issue of prejudice
to decide this aspect of the matter. In casu the 1st respondent
cannot be prejudiced by this form.
now proceed to determine the points in limine thus:
Notice of Motion
is common cause that the notice of motion is lacking in so far as it
does not comply with Rule 6 (9) of the High Court Rules. On this
point I agree in toto with the ratio in the case of Ben M Zwane
(supra). The practice in the past on such matters has been wrong in
that the strict procedure envisaged in Rule 6 (9) was not followed. I
agree with the sentiments expressed by the learned judge in that case
that time has come for this court to insist on the strict
requirements of Rule 6 (9), regarding the use of form 3. It is not
enough for counsel to argue as Mr. Maziya that he was not aware of
the dicta in that case. I am not persuaded by applicant's submission
that the 1st respondent will not be prejudiced. I thus find that this
point in limine is valid.
is trite law that an applicant in application proceeding has to
a recognised cause of action. This has to be clearly disclosed
on the papers. It is not enough for counsel to argue from the bar the
mere averment that the cheque belonged to applicant. From the papers
one cannot make a connection between Dandi Furnishers and the said
cheques in view of what I observed earlier on in the judgement.
thus uphold the point in limine in view of what I outlined above.
this respect the guiding principle was crisply expressed in the case
of Henwood vs Maloma Colliery and another Case No. 1623/93 where Dunn
J held that the provisions of Rule 6 (25) (a) and (b) are peremptory
and I need not to go through it as it has since become a locus
classicus in this court.
the dicta in the case of Megalith Holdings vs RMS Tibiyo (Pty) Ltd
and another Case No. 199/2000 is instructive in this regard. The
following trenchant observations at page 5 were expressed:
provisions of Rule 6 (25) (b) above exact two obligations on any
applicant in an urgent matter. Firstly, that the applicant
affidavit or petition set forth explicitly the circumstances, which
he avers, renders the matter urgent. Secondly, the applicant is
enjoined, in the same affidavit or petition to state reasons why he
claims he could not be afforded substantial redress at a hearing in
due course. These must appear ex facie the papers and may not be
surrounding circumstances XXX attention
from the bar in an embellishing address
counsel (my emphasis)".
casu averments of irreparable harm are reflected in paragraph 22 of
the founding affidavit.
harm is not alone sufficient in law
ground urgency. The circumstances giving rise to the urgency should
be explicitly outlined. The requirements of the rule were not
followed. It was not also established in the papers reasons applicant
claims it cannot be afforded substantial redress at a hearing in due
course as prescribed by Rule 6 (25) (b) (see also Megalith Holdings
thus uphold this point in limine. iv) AD Form of Proceedings.
number of disputes of fact were outlined by Miss Van Der Walt on
behalf of the 1st respondent viz, paragraphs 6.9, 16.1, 16.3, 16.9
and 21. These have not been explained away save to say these should
be genuine disputes of fact. In my view they are germane in the
proper resolution of this case.
thus uphold this point in limine.
an aside it is an unatable argument to submit that the court should
go beyond points in limine as there may be used by one party who has
no case on the merits to frustrate an applicant. Any party is
entitled to put forth points of law and it is for the court to decide
their efficacy or otherwise. A party bringing an application ought to
cover all grounds lest he be taken in limine.
the totality of things, therefore in view of my finding outlined
application with costs. I however am not convinced 'that there are,
in the circumstances reasons why costs should be on a punitive scale.
Costs be and are hereby declared to be on the ordinary scale.