SWAZILAND DEFENCE FORCE
Case No. 609/2001
Applicants Adv. E. Thwala
Respondents Ms. S. Shongwe
applicants seek an order
the applicants' failure to lodge a written demand timeously in terms
of the limitation of Legal Proceedings against the Government act 21
if 1972 ;
special leave be granted to the applicant allowing applicant to lodge
a claim and institute proceedings in terms of the Act and that
Annexure "E" be accepted as the Demand in terms of the Act.
applicant seeks costs from the respondent only in the event of
application arises in the following circumstances that are set out in
the founding affidavit attested to by the 1st applicant. The 1st
applicant is an adult married female of Manzini who claims to be
assisted in so far as is necessary by her husband. The 2nd applicant
is a brother Bulisani Tofile also an adult male of Manzini. He was
born on the 25th October 1985 and accordingly he is still a minor.
The respondents are the Government of Swaziland. The 1st applicant
recites in the founding affidavit that their parents were Tony Meyer
Chechene and Bhela Maria Dlamini both of whom are now deceased. The
1st applicant recites that she was born on the 24th July, 1968. She
states that the 2nd Respondent was born on the 15th February 1976.
The meaning of this is not quite clear as the 2nd applicant is said
in paragraph 3 to have been born on the 25th October 1985. The 1st
applicant carries on to relate that in or about the month of October
1985 and at or near Ndzevane Refugee Camp in the Lubombo their
parents were wrongfully and unlawfully killed by a member of the
Umbutfo Swaziland Defence Force.. The name and further particulars of
the person are unknown. She relates that on the fateful day their
parents were travelling to Siteki from the Republic of South Africa
through the Lavumisa Border Post where two members of the Umbutfo
Swaziland Defence Force requested a lift to Siteki where they had
other duties to perform.
the way one of the soldiers alighted but the other continued and at
or near Ndzevane Refugee Camp he killed both the applicants' parents
and robbed them of
car. The miscreant, whose name is unknown, later killed himself when
the car overturned.
indication is given by the applicant as to how she knows of these
facts and what references there are to testify to these events is
largely if not completely hearsay.
also goes on to say that at the time of the killing the soldier was
acting in the course of and within the scope of this employment with
the Swaziland Government. There again nothing is stated from which
this can be deduced and it is difficult to see how the applicant who
was not present and a little girl at the time is able to testify to
claims that as a direct result of the soldiers' wrongful and unlawful
killing of their parents they suffered damages for loss of support in
the sum of E4 000 000.00 and in words she says it is four hundred
thousand Emalangeni. She also claims that there was emotional trauma
arising from their remaining without parents, as they were still
minors at the time. This is a most laconic way of stating a claim, so
lacking in particularity that there is little material on which the
court could assess the prospect of an award being made thereon.
the 27th January 1995 the she instructed the firm of Attorneys
Shilubane Ntiwane & Partners to act on their behalf to sue the
Government for loss of support. Nothing appears to have been done
however to advance the applicant's case and the 1st applicant was
later advised that the attorney in question had taken no action in
1st applicant then, again, somewhat ingenuously, states that in the
circumstances it has become clear to her that notice in terms of
limitation of legal proceedings against the Government Act has not
been given timeously or at all. No condonation for the late filing
thereof was ever prior to this application ever sought. She says that
it has always been her intention and that of her brother to institute
proceedings against the Government claiming damages.
submits that it is apparent from the foregoing that the prospects of
success in the proposed action are reasonable and that the Government
will not suffer any prejudice by reason of the fact that the demand
was made after the statutory period. The
as I have observed, has not disclosed what evidence there is of the
matter which will have to be proved in the trial and there is nothing
to show that the Government will not be prejudiced by the passing of
time. It is not known who the witnesses are, and whether they are
still available and how the matter is to be dealt with.
respondent opposed the application and raised the point is that while
it may have
possible to grant special leave in terms of Section 4 of the Act but
only in regard to default under Section 2(1)(a).
applicants would have had to show that they have reasonable prospect
of succeeding in the proceedings. About which there is some doubt.
is nothing in the papers to show that the Government would in no way
by reason of a failure to make demand within a stipulated period.
special circumstances in the case justifying the granting of special
not been demonstrated.
are debarred in terms of Section 2(l)(c) from instituting proceedings
the Government in respect of the debt, which became due on a day far
more than 24 months ago. The Section reads Limitation of time in
connection with the institution of legal proceedings against the
Government of Swaziland.
to section 3 no legal proceedings shall be instituted against the
Government in respect of any debt -
a written demand, claiming payment of the alleged debt and setting
out the particulars of such debt and cause of action from which it
arose, has been served on the Attorney-General by delivery or by
that in the case of a debt arising from a delict such demand shall be
served within ninety days from the day on which the debt became due;
the expiry of ninety days from the day on which such demand was
served on the Attorney-General unless the Government has in writing
denied liability for such debt before the expiry of such period;
the lapse of a period of twenty-four months as from the day on which
the debt came due.
terms of this Section, the relevant portion of which I have
emboldened, it is no longer possible to institute action in respect
of applicants claims. The provisions of Section 4 which reads
of special leave.
High Court may, on application by a person debarred under section
2(1)(a) from instituting proceedings against the Government, grant
special leave to him to institute such proceedings if it is satisfied
has a reasonable prospect of succeeding in such proceedings;
Government will in no way be prejudiced by reason of the failure to
receive the demand within the stipulated period; and
regard to any special circumstances he could not reasonably have
expected to have served the demand within such period:
that the Court in granting such leave may impose such conditions as
it deems fit (including the payment of any costs) and notwithstanding
section 2(1)(c) stipulate the date by which such proceedings shall be
High Court may, on application by the Government, and if it is
satisfied that Government has a reasonable prospect of succeeding in
such proceedings, on good cause shown, grant special leave to extend
the period of ninety days referred to in section 2(1)(h):
that the Court in granting such application, may impose such
conditions as it deems fit (including the payment of any costs), and
at the same time shall extend the period of twenty-four months
referred to in section 2(1)(c) to such extent as it may deem fit.
not cover this situation at all. It is clear that the court may grant
relief where the claimant is barred under section 2(1)(a) but not
under 2(1)(c). This has been decided in FORBES Peter v SWAZILAND
GOVERNMENT (as yet unreported) and there is no reason why the
decision in that case cannot govern the present application.
application is dismissed with costs.