THE
HIGH COURT OF SWAZILAND
ARROW
FEEDS (PTY) LTD
Plaintiff
And
TRANCOR
INVESTMENT (PTY) LTD
Defendant
Civil
Case No.3196/2002
Coram S.B.
MAPHALALA - J
For
the Plaintiff MR.
DLAMINI
For
the Defendant MR. MDLADLA
RULING
(15/08/2003)
This
matter was allocated the 7th instant for hearing by the Registrar
pursuant to Rule 56 (3) and 4 (a) of the High Court Rules, Legal
Notice No. 3 of 1969. The attorneys for the Plaintiff set the matter
for hearing on that date.
When
the matter was called for hearing Mr. Mdladla raised a number of
points to the effect that the matter was not ready for trial and
therefore should be removed from the court's roll. Mr Mdladla
submitted that rules of court have not been followed in this matter
viz, Rules 55 (1); 55 (3) (c); and 56 (1) (3). Essentially that the
Plaintiff has
2
failed
to prepare a proper Book of Pleadings in terms of the rules. Further,
no discovery took place in this matter as there was no pre-trial
conference in terms of the rules. The Defendant therefore was not in
a position to proceed with the matter.
Mr.
Dlamini in an unusual address to the court conceded all the points
raised by Mr. Mdladla that the record has not been prepared in terms
of the rules but shifted the blame to the Defendant. His defence is
that the Defendant if they had any cause for complaint should have
moved an application in terms of Rule 30. The argument here, which I
found very hard to follow, is that because Defendant has not made a
complaint all is well and the court should proceed with the trial
irregardless of the fact that the papers are in disarray. I do not
agree with this proposition and I said so when the matter was argued
and I am repeating it here in this ruling. The relevant rule is Rule
56 (1) which reads in extenso as follows:
"56(1)
(a) When the Registrar has allocated a date of hearing of a civil
cause
in terms of Rule 55 A he shall notify the party who made the request
in writing of the date and time of the hearing and that party shall
deliver a notice to set down accompanied by one set of copy pleading
s and all other documents to be used by the court, the pages of
which
shall be numbered seriatim, bound book wise and have attached thereto
an index showing the title of every pleading included in the set and
the page numbered thereof.
Provided
that, where the circumstances so require, the notification by the
Registrar may be verbal, or by telephone or telegram or telex and
subsequently confirmed in writing.
Provided
further that such notification shall be given at such time as will
enable the patty notified to give the period of notice of set down
between the parties or in the absence of such agreement not less than
ten days notice.
(b)
If such notice of set down or book of pleadings is not received by
the Registrar not less than ten days before the date allocated for
hearing of the matter, the allocation shall no longer be of force or
effect and the matter shall be deleted from the roll".
In
the instant case Mr. Dlamini conceded that the Plaintiff has not
delivered a notice of set down accompanied by one set of copy of
pleading and all other documents to be
3
used
by the court. The rule is peremptory that the pages of which shall be
numbered seriatim, bound bookwise and have attached thereto an index
showing the title of every pleading included in the set and the page
numbered thereof. In the present case there is no Book of Pleadings
as required by the rule. The only Book of Pleadings in this matter is
for when the matter appeared for summary judgment before Sapire CJ
(as he then was) where on the 20th March 2003, Plaintiff was granted
judgment in so far as a sum of E3, 164-60. The Defendant was granted
leave to defend for the balance. It was also ordered that costs to be
costs in the cause.
I
find on the above-mentioned reasons that Plaintiff has failed to
prepare the record as required by the rules. I also find that Rule 30
is not applicable in this case as there was no irregular step taken
by Plaintiff as envisaged by the said rule. Rule 30 (1) provides that
a 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 to set aside the step or
proceeding; provided that no party who has taken any further step in
the cause with knowledge of the irregularity shall be entitled to
make such application. Clearly in
casu
the filing of a notice of set down by the Plaintiff in terms of the
rules after the Registrar has allocated a date for trial in terms of
Rule 56 (3) and 4 (a) can hardly be described as an irregular step in
terms of Rule 30.
In
the result, the matter is deleted from the roll and the Plaintiff is
ordered to pay wasted costs occasioned by the matter being removed.
S.B.
MAPHALALA
JUDGE
