HIGH COURT OF SWAZILAND
DLAMINI & THREE OTHERS Respondents
Case No, 511/2004
S.B. MAPHALALA – J
the Applicant MR. MDLULI
the Respondents MR. MNGOMETULU
the 23rd February 2004, the Applicant moved an urgent application
before this court and obtained a rule nisi for spoliation ante omnia.
The order granted was for, inter alia directing the Respondents to
forthwith remove the fence and restore possession of the premises so
enclosed and situate at Ensuka area homestead no, 035 in the Hhohho
region to the Applicant and failing compliance therewith directing
and authorising the Sheriff or his duly authorised Deputy with the
assistance of the Royal Swaziland Police to remove the aforesaid
fence and restore the status quo ante.
prayer (d) the Applicant prayed that the Respondents be restrained
and interdicted from intimidating, harassing and/or threatening
violence to the Applicant and his family residing at the
1st Respondent is the Chief of the area where this dispute arose. The
2nd Respondent is a member of Chief's kraal under the 1st Respondent.
So are the 3rd and 4th Respondents. The Applicant is a subject under
the 1st Respondent.
Applicant has filed a founding affidavit in support of his
application. The Respondents oppose the application and to this end
have filed various affidavits by each Respondent.
issue for determination presently is an application made by the
Applicant seeking to set aside the answering affidavits of the 1st,
2nd, and 4th Respondents as an irregular step within the meaning of
Rule 18 (12) and further on the basis that they are fatally defective
in that they lack sufficient particularity to enable the Applicant to
reply thereto and as such do not comply with the requirements of Rule
18 (3), (4) and (5) of the High Court Rules.
Mdluli who appeared for the Applicant relied on the legal authorities
of Herbstein et al, The Civil Practice of the Supreme Court of South
Africa, 4th ED at page 450, Trope vs South African Reserve Bank 1993
(3) S.A. 264, Sasol Industries vs Electrical Repair Engineering 1992
(4) S.A. 466 and Harms, Civil Procedure in the Supreme Court at page
263 to the general proposition that pleadings must have sufficient
particularity and not to be vague and embarrassing.
appears to me that the attack by the Applicant is that the answering
affidavit of the 3 rd Respondent has been used by the Respondents as
the main affidavit instead of that of the 1st Respondent. It would
appear to me further that the arguments by the Applicant are neither
here nor there. The offending affidavits, in my view contain clear
and concise statements of the material facts upon which each
Respondent relies for his answer to the founding affidavit of the
Applicant. Each of these affidavits is divided into paragraphs, which
are consecutively numbered and they contain distinct averments as
prescribed by Rule 18 (3). That the 3rd Respondent's affidavit is
main affidavit does not detract from the fact that in law each
Respondent in any application is entitled to advance his or her
defence and this depends on what allegations are levelled against him
in the founding affidavit. These affidavits do not contain hearsay
evidence neither do they contain any other objectionable matter
prohibited by Rule 6(15).
find therefore that the application moved in terms of Rule 18 has no
merit and order that the matter proceeds on the points in limine.
also rule that the costs to be costs in the course.