THE HIGH COURT OF SWAZILAND
CASE NO. 1154/96
the matter between
BRUSHWARE (PTY) LTD APPLICANT
MARKETING SUPPLIES (PTY) LTD RESPONDENT
S.B. MAPHALALA - J
Applicant MR. S. KUBHEKA
Respondent MR. S. SIMELANE
ON POINTS IN LIMINE
matter was set down in the contested roll of the 19th November 1999,
for the determination of costs. The defendant alleges to have
incurred pursuant to a judgment in favour of the plaintiff which
judgment plaintiff later abandoned. The matter on that day for some
reason was not heard.
notices of set down dated the 11th February 2000, and that of the
15th March 2000 were filed on the issue.
matter was heard on the 17th March 2000 following the aforementioned
notice of set down.
dealing with the issue at hand I think it is imperative to outline a
brief history of the matter.
issued summons against the defendant and obtained a judgement in the
cause of events. A writ of execution was issued and a sale in
execution was advertised. It emerged that defendant had paid the
capital amount on the 9th May 1996 as evidenced by a copy of a cheque
payable to the plaintiff. Summons was only issued on the 14th May
1996 way after defendant had liquidated his indebtedness to the
plaintiff. It appears to me that is when plaintiff abandoned its
reverting back to the matter, Mr. Kubheka for the plaintiff raised a
point in limine that the application for costs was not in conformity
with Rule 41 © of the High Court Rules in that no notice of motion
with the attendant affidavits was served on the plaintiff. The
plaintiff is unaware what are the grounds of this application.
Further, he argued Bheki G. Simelane & Co. were never attorneys
of record. He applied, therefore that the application be dismissed
the other hand Mr. Simelane for the defendant argued that the point
in limine does not hold water in terms of Rule 41 the plaintiff need
not have filed a comprehensive application as contended by Mr.
Kubheka. In any event, if the plaintiff was of the view that this was
an irregular step they ought to have proceeded by way of Rule 30 of
have considered the points raised. Firstly, I do not agree with Mr.
Kubheka that attorney Bheki G. Simelane & Co are not attorneys of
record. On perusal of the court record one comes across a notice of
appointment dated the 4th October 1999. Secondly, Mr. Kubheka's point
in litnine has no substance. Rule 41 (1) © of the High Court Rules
does not require that an applicant proceeds by way of motion. An
applicant for an order for costs needs only deliver a notice of his
intention to ask for an order as to costs - no affidavit is required
since all the material is already before court (see Erasmus on
Superior Court Practice at Bl - 305 and the cases cited thereat). The
respondent is entitled to oppose the application for an order for
costs and to place the grounds of his opposition before the court on
affidavit (see Erasmus (supra)).
dismiss the points in limine and order that the matter be set down
for arguments on the merits.