HIGH COURT OF SWAZILAND
NHLABATSI & FOUR OTHERS
Case No. 2961/99
MAPHALALA - J
the Plaintiff MR. P. SHILUBANE
the Defendants MR. J. MAGAGULA
application to strike out)
Applicant has served a notice to strike out in terms of Rule 30 that
the following be struck out:
replying affidavit dated 11th December 2002.
confirmatory affidavits of Peter Dumisani Nhlabatsi dated 11th
annexures filed of record received on the 3rd December 2002, on the
ground that same should have been annexed to defendant's founding
Respondents object to the notice of application on the following
notice is vague, ambiguous and is calculated to embarrass the
Respondents in as far as it is not clear whether it is an application
to set aside an irregular proceeding in terms of Rule 30 or a notice
to strike out in terms of Rule 23 (2).
facie the notice is made in terms of Rule 30 but it does not meet the
requirements of the sub-rule (2) thereof.
ex facie the notice to strike out and such notice could only be
brought in terms of Rule 23 (2) and in any event the notice fails to
meet the requirements of the Rule either.
Respondent applies that the notice to strike out be set aside.
matter was argued before me in the contested motion of the 31st
January 2003. In the course of arguments Mr. Shilubane for the
Applicant conceded that the replying affidavit can be allowed to
stand and therefore I will not concern myself with that aspect of the
matter in this judgment and would thus confine myself to prayer 2 and
3 of the notice to strike out.
considering this issues in this matter, it appears Mr. Magagula for
the defendant is correct in his submission. It is not clear whether
this is an application to set aside an irregular proceeding in terms
of Rule 30 or a motion to strike out in terms of Rule 23 (2). Ex
facie, the notice is made in terms of Rule 30 but it does not meet
the requirements of sub-rule (2) thereof. The said sub-rule reads as
in terms of sub-rule
be on notice to all parties specifying particulars of the
or impropriety alleged"...(my emphasis).
the present case no particulars of the irregularity or impropriety is
ex facie the notice is a motion to strike out and such notice could
only be brought in terms of Rule 23 (2) and in my view, fails to meet
the requirements of that Rule either.
thus and set aside the notice to strike out, in any event no
prejudice have been shown that the Applicant will suffer as a result
of the inclusion of the items objected to.
the main I agree with the submissions made by Mr. Magagula and would
sustain the objection.
to be costs in the main application.