HIGH COURT OF SWAZILAND
HOLDINGS (PTY) LIMITED
Case No. 2291/2002
MAPHALALA - J
the Plaintiff MR. MAGAGULA
the Defendant MR. P. DUNSEITH
is an opposed application for summary judgment.
Plaintiff is seeking for an order for payment of the sum of E17,
438-24 (seventeen thousand for hundred and thirty eight emalangeni
twenty four cents); interest on the aforesaid sum of El7, 438-24 at
the rate of 9% per annum calculated from the date of summons to date
of final payment; and costs of suit.
Defendant in its opposing affidavit contends that the Declaration is
defective and excipiable in that paragraphs 5 and 6 are
incomprehensible, the Plaintiff computes its claim at E19, 894-84,
but in duplicate paragraph 6 the Plaintiff alleges that it has
written off a sum of El9, 894-84, Consequently the declaration is
vague and embarrassing and does not disclose a cause of action.
Defendant alleges further that the Plaintiff was given an opportunity
to remedy these defects in the Declaration (per annexure "A").
However, the plaintiff failed to amend the Declaration and applied
for summary judgement instead.
Defendant denies that it has entered an appearance to defend solely
for purpose of delaying the final outcome of the action and state
that Defendant has a valid and bona fide defence to the Plaintiff's
defence put forth by the Defendant is that it denies that the goods
described in the invoices marked "A", "B", "C",
"D", "E", "F", "G" and "H"
attached to the Declaration were ordered by or delivered to the
Plaintiff appears to have been the victim of a fraud as follows:
invoices "A" - "F" are addresses to P. O. Box
1270, Mbabane whereas the postal address of the Defendant is P. O.
Box 1279, Mbabane.
invoices "G" and "H" are addressed to P. O. Box
879, Matsapha but this has never been the address of the Defendant.
documents attached to the invoices purport to be orders, yet there
are not made out on the Defendant's letterhead, they do not bear the
Defendant's official stamp, they were not prepared or signed by any
duly authorised representative of the Defendant.
goods were not in fact ordered by the Defendant, nor were they ever
the application came for arguments Mr, Magagula for the Plaintiff
making submissions in respect of the allegation that the Plaintiff's
Declaration is defective applied that it be amended. He contended
that there is clearly a typographical error herein, the Plaintiff is
writing off the balance hence the sum of El9, 894-84. Further,
Magagula applied to court that paragraph 5 of the declaration be
amended to read "it was a specific term of..." instead of
"to the specific term ..." and that this does not go to the
root of the matter and cannot render a Plaintiff's Declaration
defective and excipiable. He further directed the court to legal
authorities to the effect that the court has a discretion to grant or
refuse an application for amendment. So long as there would be no
prejudice on the other side the court would grant an amendment.
Dunseith on the other hand argued per contra that the Plaintiff moved
an application for summary judgement on pleadings which it sought to
amend on the day of moving the application and that this cannot be
allowed. Mr. Dunseith went on to demonstrate to the court why the
Defendant is taking the view that the Plaintiff's Declaration is
defective and excipiable. He also submitted that the Defendant has a
defence to the claim as reflected in the Defendant's opposing
have considered the issues in this matter and I am inclined to agree
with the submissions by Mr. Dunseith in this case that the
Plaintiff's Declaration is defective and excipiable. Following the
dicta in the case of Dowson's Dobson Industries Limited vs Van Der
Werf and others 1981 (4) S.A. 417 (c) it is clear to me in casu that
the Plaintiff's Declaration is defective and open to exception.
Paragraph 5 of the declaration may be a typographical error but
paragraph 6 thereon discloses no cause of action and cannot be said
to be typographical error. Further, the Plaintiff was alerted of
these discrepancies as per letter from the Defendant's attorney dated
the 23rd September 2002, (annexure "D") requesting for
further particulars which reads in part as follows:
averment is vague and embarrassing. Please amend.
paragraph 6 (duplicate)
averment is vague and embarrassing. Please amend.
Plaintiff did not amend these discrepancies but now comes to court on
the day of the moving of the application for summary judgment and
applies for amendment.
the instant case the Plaintiff has not followed the rules of court as
regards application to amend a pleading. Rule 28 provides that any
party desiring to amend any pleading or document other than a sworn
statement, filed in connection with any proceedings, must give notice
to all other parties to the proceedings of his intention to amend and
furnish particulars of the amendment. The notice must state that
unless written objection to the proposed amendment is delivered
within ten days of delivery of the notice, the amendment will be
effected. In casu no such notice was issued. It is undesirable
therefore, for Plaintiff to move an application for amendment from
the bar outside the requirements of this rule afore-mentioned. I
agree with Mr. Dunseith in this regard that this cannot be allowed.
also take the view that the Defendant has advanced a bona
defence to the claim and thus renders the matter triable.
the result, I dismiss the application for summary judgment and order
that costs to be costs in the cause.