THE HIGH COURT OF SWAZILAND
the matter between:
SCIOLLA (born Paiva) APPLICANT
THE APLICANT MR. GWEBU
the certificate of urgency the plaintiff moved a notice of motion in
terms of Rule 45(1) of the rules of this Honourable Court and also
under the common law for the following prayers:
with the rules, the Honourable Court as pertaining to time limits
form service and treatment the matter as one of urgency;
the stay of execution be granted pending the finalisation of this
the judgment issued against the applicant on the 10th January 2003 by
the above Honourable Court.
and/or alternative relief.
application was accompanied by an affidavit of the applicant and a
confirmatory affidavit of one Penuel Gwebu. The application for
rescission relates to a court order issued by this Court on the 10th
of January 2003 in which the present applicant was ordered to return
the minor child Andrew Sciolla to the present respondent within two
days. The applicant failed to obey the court order and instead lodged
an application for rescission of the order and; the counsel for the
parties appeared before me on the 14th January 2003 and by consent
the matter was adjourned to the 17th January 2003. The purpose for
the adjournment was to enable the respondent to file an answering
affidavit; this he was to do before 12:30 on the 16th January 2003.
Respondent complied with the undertaking and on the 17th January 2003
when the matter was called on, Mr. Gwebu applied for leave to file a
replying affidavit and for a postponement as well.
may point out as well that it was not necessary for Mr. Gwebu to
apply for leave because he was entitled to file a replying affidavit.
Mr. Gwebu informed the court that there were certain issues
respondent had raised in its answering affidavit which needed a
reply. According to Mr. Gwebu the issues which needed applicant's
reply are the following:
by the respondent that he conducts himself in a manner alleged by the
by respondent that he has approached the court with dirty hands;
intention to apply to court to have certain paragraphs struck out and
also his contention that applicant has no prospect of success in his
application for rescission of the court order.
dealing the Mr. Gwebu's consent, the following should be mentioned:
applicant has a right to replication as long as the provisions for
Rule 25 are observed. However, no replication which will be a mere
joinder or issues or a bare denial of allegations in plea is
are arising out of the declaration and these are in answer to a plea.
any event, failure to file replication does not constitute an
admission on the allegations in the defence of a plea. If the
application for a postponement is intended for the above it is
therefore not necessary. Mr. Ntiwane has also raised the point that
applicant approached the court on an urgent basis and he should be
seen to be conducting its matter as one of urgency.
the applicant to now seek for a postponement it should not be
allowed. In my considered view it follows that the application must
fail, that application for postponement and the applicant is ordered
to pay costs for the application for a postponement.