HIGH COURT OF SWAZILAND
TIMBER POLES & PLANKS (PTY) LTD
Case No. 2218/2002
MAPHALALA - J
the Applicants MR. L. HOWE
the Respondent IN PERSON
in terms of Rule 30 (1) and Rule 6 (17)
me is an application in terms of Rule 30 (1) and Rule 6 (17) of the
High Court Rules. The application is for an order in the following
aside the step and proceeding whereby the applicants set the matter
the application in terms of Rule 6 (7)
application is premised on the founding affidavit of the Respondent
himself where he outlines the substantive facts in support thereto.
The application is opposed by the Applicants.
Respondent contends that the Applicants filed a notice of set-down
which was an irregular step. The first reason advanced by the
Respondent in this connection is that on about Wednesday 18th
September 2002, attorney Lucky Howe, the Applicants and the
Respondent, met with the Chief Justice in his chambers concerning
this matter. The matter could not be resolved on the papers. He
further informed the parties that the mater would require oral
evidence and cross-examination and that if would require a full
second reason advanced to buttress this application is that the
matter also cannot be resolved without full discovery as it is clear
that critical documents are not before the court some of which have
been withheld by the Applicants.
documents inter alia include:
lease agreements concerning various vehicles;
documents if any relating to the allegations of the Applicants that
assets were transferred to the 1st Applicant. This is in relation to
assets involving both the Respondent and 3rd parties to this
documents relating to allegations that the property of the 2nd
Applicants was leased to the 1ST Applicant in terms of a disputed
third prong of the Respondent's case is that in view of the admission
by the Applicant's attorney that the matter cannot be resolved on the
papers the Applicants should have approached the court for direction
as to how the matter should proceed in terms of Rules 6(17) and (18).
The Applicants should not have set it down for hearing in the manner
that they did and therefore it ought to be set aside as an irregular
step in terms of Rule 30.
made an application before this court by way of urgency for an
interdict in terms of the notice of motion. Respondent proceeded to
oppose the application by filing an opposing affidavit. The court
granted an order for an interim interdict against the Respondent. The
Applicant was put on terms to file a replying affidavit but did not
file the same timeously and on filing the same proceeded with an
application for condonation for late filing. The said application for
late filing was not moved and as stated in the affidavit will be made
at the hearing of the matter.
leave from the court the Respondent filed a further affidavit (see
page 202 to 257 of the Book of Pleadings). It appears that at this
stage in terms of the rules the pleadings were closed and a notice of
set down was served by the Applicant on the Respondent for a date for
the hearing of the matter.
date had been allocated by the Registrar of the High Court for
hearing of the matter before Annandale J and for certain reasons the
Judge was unable to proceed with the matter.
proceeded to serve a notice headed Notice of Application in terms of
and Rule 6 (17), etc together with an affidavit, thus the present
Crabtree the Respondent represented himself whereupon he filed
comprehensive Heads of Argument and advanced formidable arguments
before me. Mr. Howe for the other side also filed Heads of Argument
and also advanced equally forceful arguments per contra. I have
considered the issues presented before me in toto. I am inclined to
embrace the view taken by Mr. Howe in this matter. For convenience I
would structure my judgment along his Heads of Argument which places
the issues succinctly and in an
fashion. I shall proceed to examine the issues under four heads, viz
i) whether Rule 30 is applicable; ii) whether Rule 6 is applicable,
iii) Rule 6 (17); and iv) the nature of the Respondent's application.
I shall proceed to determine these matters ad seriatum: thus;
Rule 30 is applicable in casu. Rule 30 (1) provides as follows:
party to a cause in which an irregular step or proceeding has been
taken by any other party, may, within fourteen days after becoming
aware of the irregularity, apply to court t set aside the step or
proceeding: provided that no party who has taken any further step is
the cause with knowledge of the irregularity shall be entitled to
make such application" (my emphasis).
sub-rule is intended to deal with the situation where a party has
taken a further step in the cause and thereafter seeks to make
application to set aside an irregular or improper step (see
Zountendijk vs Zountendijk 1975 (3) S.A. 490 (T)). A further step in
the cause is some act which advances the proceedings one stage nearer
completion (see Erasmus, Superior Court Practice (Juta) at Bl - 192
and the cases cited thereat). According to the same author a party
can proceed in terms of Rule 30 to set aside an irregular step inter
alia where there has been a premature set down. In the case of Santam
Versekerings Maatskappy BPK vs Leibrandt 1969 (1) S.A. 604 (c) that
principle was enunciated. In casu the pleadings have closed and a
request for hearing of the matter with the Registrar was made and a
notice of set down was issued and served on the Respondent. The
notice of set down was not a step or act which advances the
proceedings one stage nearer completion in the sense that the
pleadings have been closed.
Respondent, cannot therefore, in law proceed in terms of Rule 30 in
view of the fact that the pleadings have been closed and the notice
of set down on the contested matter before the Judge was pursuant to
a date being given by the Registrar of the court.
the above reasons, therefore the application in terms of Rule 30
ought to be dismissed.
Rule 6 is applicable in casu.
this regard I agree in toto with the submissions made by Mr. Howe for
the Applicants. It is common cause between the parties that the
matter before the court is by way of notice of motion (which means
its an application) and the proceedings in terms of the rules for the
filing of the affidavits was completed and complied with. Rule 6 (14)
(b) states that when an answering affidavit has been filed the
Applicant may apply for such allocation within four (4) days of
delivery of the replying affidavit and if no replying affidavit
within fourteen days of expiry of the period of Rule 6 (13). In casu,
the application in terms of Rule 6 cannot stand in view of the fact
that the pleadings have been closed, and in terms of Rule 6 (14) (b)
a date had been allocated by the Registrar and the matter set down
approximately three (3) weeks before the date that the matter was to
the application in terms of Rule 6 has no merit. iii) Rule 6 (17).
terms of Rule 6 (17) an application may be dismissed if it cannot be
properly decided on an affidavit or the court may make any such order
as it may seem fit with the view of ensuring a just and expeditious
decision. My view, on this matter, is that an application for an
interdict was made and the said application is pending before the
court. The issues raised by the Respondent in this connection ought
to be raised when the application is heard and thus Rule 6(17) has no
application in casu.
nature of the Respondent's application.
notice of application by the Respondent does not comply with the
rules of court. No provisions has been made and or compliance with
the provisions of Rule 6 where certain steps and requirements must be
complied with in the notice of application of the notice of motion. I
agree entirely with the submissions by Mr. Howe in his Heads of
Argument in paragraphs 6.2, 6.3 and 6.4.
the result, the application in terms of Rule 30, Rule 6 and Rule 6
(17) is dismissed. The costs to follow the event.