HIGH COURT OF SWAZILAND
CASE NO. 519/2002
the matter between
ENID NDLOVU APPLICANT
ALFRED GCINAPHI DLAMINI RESPONDENT
MAPHALALA - J
the Applicant MS N. GWIJI
the Respondent MR. B. SIGWANE
ON POINT IN LIMINE
the 5th March 2002, the applicant filed an application with a
certificate of urgency for an order compelling the respondent to pay
applicant a sum of El, 082-62 per month until the sum of El 1, 126-20
has been paid off and costs.
application is based on the founding affidavit of the applicant
herself. The respondent opposes this application and has filed an
answering affidavit thereto. The applicant has filed a reply to the
respondent's answering affidavit.
applicant and the respondent are the natural parents of a 24-year-old
Mlungisi Dlamini born on the 20th January 1977. The child was born
out of wedlock. The amount being sought by the applicant in this
matter arose out of a scholarship which
granted to the said Mlungisi by the Swaziland Government to attend
college at the University of Pretoria. It appears from the papers
that the amounts were now due to Government after Mlungisi had
completed his studies, although there is a difference of opinion on
this aspect of the matter. The applicant alleges that there was an
agreement between them that respondent was to pay back these monies
to Government but the respondent denies that there was ever such an
agreement, that whatever payment he has made were on ex gratia basis
to ease any burden that might be visited upon the applicant's income
and budget from time to time.
respondent raised two points in limine. First, that there are
material disputes of fact that are incapable of being resolved
without the calling of evidence, that it is improper for an applicant
to proceed by way of motion proceedings. Secondly, where a litigant
intends to recover a debt or is founding a claim on a breach on the
terms of an agreement, such litigant ought to proceed by way of
the matter appeared before me on the 12th March 2002, Mr. Sigwane
advanced reasons to support the points in limine raised. On the first
point he took the court through a number of material disputes ex
facie the papers before court. These disputes of fact are not
resoluble on the papers. The most crucial point which goes to the
root of the matter is that the applicant alleges that there was an
agreement between them that the applicant was to pay a specific sum
of money towards the liquidation of the monies owing to the Swaziland
Government yet on the other hand the respondent alleges that his
contributions were merely ex gratia as it was his moral obligation as
a parent to assist the child.
Sigwane further contended that this claim by the applicant is based
on contract and as such the proper procedure would be to issue
summons and follow the prescribes of Rule 18 of the High Court Rules.
Gwiji for the applicant argued per contra. I must say though from the
outset that her arguments with the greatest of respect, missed the
point entirely and did not advance her client's case in any way,
except to appeal to the court's sympathy on her client who is
obviously in financial dire straits. However, the law has to take its
shall proceed to determine the points of law in limine in seriatum,
viz i) whether there are disputes of fact, and ii) whether applicant
ought to have proceeded by way of action proceedings.
there are disputes of facts
is trite law that where, at the hearing of motion proceedings, a
dispute of fact on the affidavit cannot be settled without the
hearing of oral evidence (see Plascon - Evans Paints Ltd vs Van
Riebeeck Paints (Pty) Ltd 1984 (3) S.A. 623 (A)). The court may, in
its discretion, a) dismiss the application; b) order oral evidence to
be heard on specified issues in terms of the rules of court; or c)
order the parties to trial. Every claimant who elects to proceed on
motion runs the risk that a dispute of fact may be shown to exit, and
the way in which the court exercises its discretion as to the future
course of the proceedings in such an event will depend very much upon
the extent to which the claimant is found to have been justified in
accepting that risk (see Hassim vs Mohamed 1931 (2) P.H.C 53 (T)).
If, for example, the applicant should have realized when launching
his application that a serious dispute of fact was bound to develop,
the court may dismiss the application with costs. In Room Hire Co.
(Pty) Ltd vs Jeppe Street Mansions (Pty) Ltd 1949 (3) S.A. 1155 (T))
the "principal ways" in which a dispute of fact may arise
are set out as follows:
the respondent denies all the material allegations made by the
various deponents on
applicant's behalf, and produces or will produce, positive evidence
be deponents or witnesses to the contrary. He may have witnesses who
are not presently available or who though adverse to making an
affidavit, would give evidence viva voce if subpoenaed.
the respondent admits the applicant's affidavit evidence but alleges
other facts which the applicant disputes.
the respondent concedes that he has no knowledge of the main facts
stated by the applicant, but denies them, putting the applicant to
the proof and himself gives or proposes to give evidence to show that
the applicants and his deponents are biased and untruthful or
otherwise unreliable, and that certain facts upon which the applicant
relies to prove the main facts are untrue. The absence of any
positive evidence possessed by a
directly contradicting the applicant's main allegations does not
render the matter free of a real dispute of fact.
casu there are numerous glaring disputes of facts which are not
resoluble on the papers. Mr. Sigwane highlighted them with a very
high degree of clarity but the most glaring one is the dispute as to
whether there was an agreement between the parties.
the dicta in Room Hire (supra) one does not employ motion procedure
in claims for damages, in matrimonial matters or in any case where
the applicant's right of relief depends on a fact which is disputed
by the respondent or which may reasonably be expected to be disputed.
In this case I am obliged to dismiss this application in view of the
number of material points which are in dispute which cannot even be
cured by referring the matter for viva voce evidence. The applicant
is well advised to proceed by way of summons in terms of Rule 18 of
the High Court Rules. A totally incorrect procedure has been adopted
in this matter.
view of my findings above I find it not necessary to consider the
second point in limine which is in some way intertwined with the
first point raised.
the result, I dismiss the application with costs.