HIGH COURT OF SWAZILAND
CASE NO. 40/2003
the matter between:
COMPUTERS (PTY) LTD PLAINTIFF
PLAINTIFF MR. SIMELANE
DEFENDANT MR. SHILUBANE
ON THE APPLICATION FOR SUMMARY JUDGMENT
this year, plaintiff issued summons out of the High court wherein it
alleged that it had an oral agreement with defendant that :-
was to hire the equipment for 40 days then return it in a good and
was to pay E8 580.00
the cost schedule annexed hereto marked 'HC 1' upon notice of demand.
was to protect the equipment from lightning and power surges by
installing lightning and electrical power surges protector.
was pleaded that delivery was taken on the 10th November 2002 and
that the computer and ancillary equipment was "blown out"
or damaged due to a failure by defendant to comply with paragraph (c)
of the above quoted alleged oral agreement. It was not pleaded when
or where this would have happened, also not whether the computer was
returned to plaintiff and if so when, nor that rental was either due
or demanded or that it remains unpaid.
aspect of the claim relates to prayer (a) of the summons, claiming
"payment of the sum of E8 580.00 for rental fee."
second prayer (b), claims "payment of the sum of E6 566.00 for
costs of repairs." This amount, made up of various listed
electrical parts of a computer, all indicated to have the fault of
being "blown" (or "jammed" in the case of a USB
cable), also refers on an annexure to the above rental fee, and is
said to bring defendant in the position that "despite demand he
refuses, neglects to settle same".
a generous interpretation it may possibly be said that demand has
reaction to the summons, defendant entered an appearance to defend
but was confronted with an application for summary judgment,
containing the usual allegations of delay and the absence of a
defence. The operative prayer reads as follows:-
summary judgment be entered against defendant as set out in the
summons in this matter. "
noted above, the summons has double barrel prayers and causes of
action, firstly a contractual breach with non-payment of rentals,
secondly damages arising from negligence or failure of a duty of
care, as said to have been orally agreed on.
application for summary judgment does not differentiate between these
two but is for a blanket judgment in respect of both.
hereafter filed his affidavit wherein summary judgment is resisted.
Therein, he firstly opposes the application on the basis that it
arises from a claim for damages. He also denies that he agreed to
hire the computer for E8 580, adding that it is not alleged (in the
summons) that he would have kept it for forty days.
month later notice was served wherein defendant was now required to
furnish some E12 000 security for costs on the basis that he is a
peregrinus, a Zambian national who allegedly is in the process of
cutting his ties within Swaziland in anticipation of leaving this
jurisdiction. In response to this, defendant filed a notice to say
that it would be applied "at the hearing of this matter" to
set aside the security notice on the ground that defendant is not a
but an incola of this court.
practice note under which this matter was argued refers to the
summary judgment issue, "alternatively" to the question of
security in the amount of E12 000. I shall first deal with the latter
was demanded by plaintiff in the amount of El2 000. It has not been
set out in his notice how this amount has been made up. It is neither
the full quantum of both parts of the claim, nor is it said to
include or exclude any amount that may relate to costs.
interesting part of the prayer relating to how such security is
sought to be ordered is contained in the notice. Instead of requiring
it to be paid into court or merely into an attorney's trust account,
perhaps abundanti cautela, perhaps as a motion of no confidence in
the legal practitioner concerned, it is further sought to be
that ".....(the attorneys) shall not use the security deposited
for fees nor should they give it back to defendant until the main
action has been finalised even if they withdraw as attorneys of
is notably absent is a further prayer that in the event the defendant
does not furnish security (for costs as either ordered by the court,
determined by the
or agreed to between the parties) within a stipulated time, some
consequence is to follow, e.g. a striking out of its defence.
the Registrar determines the amount and manner in which security is
to be furnished, with appeals being referred to the court. Also, as
is the case here, where the other party only contest its liability to
furnish security, the matter is referred to court on notice for an
order that such security be given. The present notice also does not
pray for a stay of proceedings until such order is complied with,
essentially because it is the plaintiff who seeks security.
its notice to furnish security, which does not state that plaintiff
relies on Rule 47, it is alleged that the defendant is a peregrinus
from Zambia, who owns no immovable property in Swaziland. More to the
point, he is said to have sold his household goods and effects
because he is returning to Zambia, in the process of selling his
motor vehicle for the same reason, and to top it all, that he has
resigned from his employment yet again for the same reason.
most serious allegations are nonchalantly dismissed by defendant, who
merely states that he is an incola, not a peregrinus of this court.
It is a bare denial, void of any flesh whatsoever.
of these two diametrically opposed versions are supported by either
an affidavit or by oral evidence. In argument, defendant's attorneys
referred to the domicilium citandi used in the summons, which is
situated in Manzini. However, the defendant has all along been
described as a Zambian national while his address is averred to be
one and the same as that of the place of employment he is said to
have resigned from.
the absence of any other persuasive information or evidence, it
cannot reasonably be expected of any court to find on the available
allegations and denial, that the defendant is indeed anyone else than
a foreign national, a peregrinus, who has done what he is alleged to
have done. This is that he has gone through the usual motions of
someone who is in the process of leaving a foreign country in order
He is said to be disposing of all local ties he has, including his
job, which is met with a most threadbare denial.
can be no reason not to grant relief in this respect, of furnishing
security for costs in the matter. As to the quantum of a security,
this aspect is referred to the Registrar for determination, as well
as the manner in which it is to be furnished.
the interim, I am loath to make a final determination of the
application for summary judgment. In any event, that application is
questionable in that Rule 32(2) "applies to such claims in the
summons as is only -
a liquid document;
a liquidated amount in money;
delivery of specified movable property; or
together with any other claims for interest and costs. "
pleadings has already been referred to above. It seems to seek
summary judgment in respect of both an alleged liquidated sum of
money, which is contested, as well as a claim for damages. The latter
cause of action already removes the matter from the cadre of summary
judgments. Also, the alleged liquidated sum of money is said to be
based on an oral agreement of rental, the terms of which and the
usage of the equipment, also the duration thereof, is disputed.
even though the plaintiff's attorney belatedly tried to rectify this
aspect in court by saying that the application only applies to the
permissible category, the application for summary judgment cannot be
this effectively puts the matter on hold pending determination of
quantum and manner by the Registrar, the plaintiff should not be
deprived of a remedy, and the defendant is also not to be subjected
to unfair pressure. Under these circumstances, the proper safeguard
would have to be that it be ordered that if an allocatur not be made
by the Registrar within fourteen days of this ruling, the matter be
brought back to court for determination of the amount for security,
by default of quantification as envisaged under Rule 47(2), not as a
review of the Registrar's
Further, whichever manner the amount is determined, if it not be
furnished as ordered within five court days thereafter, the
defendant's defence is to be struck out.
hereof are ordered to be costs in the cause.
of the High Court