HIGH COURT OF SWAZILAND
COUNCIL OF MBABANE
& B CIVILS ROADS (PTY) LTD
Case No. 3383/2004
S.B. MAPHALALA – J
the Applicant MR. J. MAGAGULA
the Respondents MR. W. MAGAGULA
Serving before Court is an application brought under a Certificate of
Urgency for an order in the following terms:
that the forms of service and time limits prescribed by the rules of
Court be dispensed with and this matter dealt with as a matter of
any none compliance with the Rules of Court already committed by the
and restraining the Respondents from removing or in any manner
interfering with any movable property of the Applicant situated on
Plot No. 188, Mahwalala Zone 4, Mbabane in the Hhohho district
pending the finalisation of these proceedings.
and restraining the Respondents from demolishing Applicant's house
situated on Plot 188 Mahwalala Zone 4, Mbabane in the Hhohho
district or any portion of such house until the 1st Respondent
allocates Applicant an alternative piece of land and pays him
reasonable compensation for his house plus all relocation expenses.
and restraining the Respondents from constructing a road through
Plot No. 188 Mahwalala Zone 4, Mbabane in the Hhohho district or
unreasonably close proximity to such plot without first compensating
Applicant for his house thereon and allocating him an alternative
piece of land as well as pay him all relocation expenses.
costs of this application to the Applicant on the attorney and own
further and/or alternative relief.
The Applicant has filed a Founding affidavit in support of the
above-mentioned relief. A number of annexures pertinent to his case
are filed thereto.
The 1st Respondent has raised points of law in limine by a Notice
dated the 28th October 2004. There are fours points raised in the
said Notice, viz
requirementi of an interdict have not been complied with;
has not disclosed his nationality, and
The fifth point that Applicant has not annexed certain annexures was
abandoned by the 1st Respondent.
I shall proceed to consider these issues ad seriatim, thus:
1st Respondent contends in this regard that a proper case has not
been made for urgency in that the Applicant does not set out
explicitly the circumstances which render the matter urgent as
required by Rule 6 (25) (b). The Applicant has only made an attempt
to address the second leg of the requirements, that is attempting to
state reasons why he claims he cannot be afforded a substantial
redress at a hearing in due course. Further on this point it was
argued for the 1st Respondent that Applicant, in
this matter has stipulated extremely short times for the Respondent
to file their opposing affidavits.
Paragraph 13 of the Applicant founding affidavit seeks to establish
urgency. The following averments are made:
application is urgent and I cannot be afforded any meaning remedy
through a hearing in due cause because the 1st Respondent has stated
to my attorneys in no uncertain terms that it shall be removing all
my movable property on the plot in question any time from the 25th
October 2004, and it shall take it to a place of its choice. The 1st
Respondent has also stated that the road construction shall proceed
which means my house may be demolished at any time now."
There is a plethora of decided cases in South Africa and in this
Court concerning the requirements of Rule 6 (25) (a) and (b) and it
is trite that the provisions of the rule are peremptory and that they
must be alleged and satisfied (see Humphrey H. Henwood vs Maloma
Colliery and another Civil Case No. 1623/93 and H.P. Enterprises
(Pty) Limited vs Nedbank (Swaziland) Limited, Civil Case No. 788/99
at page 2 - 3). In the latter judgment Sapire CJ (as he then was)
made the following trenchant remarks at page 2-3 of the unreported
judgment: and I quote;
litigant seeking to invoke the urgency procedures must make specific
allegations of fact which demonstrate that the observance of the
normal procedures and time limits prescribed by the rules will result
in irreparable loss or irreversible deterioration to his prejudice in
the situation giving rise to the litigation. The facts alleged must
not be contrived or fanciful but must give rise to a reasonable fear
that if immediate relief is not afforded irreparable harm will
On the facts of the present case, the Applicant has dismally failed
to allege and satisfy the requirements of the first leg of the rule,
viz that of urgency. Mr. Magagula for the Applicant tried very hard
to read into paragraph 13 of the Founding affidavit that allegations
on urgency have been made. In my view, he failed in his quest as
there are clearly no averments contained in that paragraph as
required by the Rule.
Further on this point of urgency, the Applicant has stipulated time
limits which were almost impossible for the Respondents to adhere to.
The papers were
during the afternoon of Tuesday the 26th October 2004 and stipulated
that the matter was to be brought before Court the following day on
Wednesday the 27 October 2004, at 2.30pm; and that the Respondent
should deliver its answering affidavit before 4.30pm the same day.
The Applicant gave the Respondents barely two hours to drafting and
settling of its affidavits. The Applicant therefore approaches the
Court on an extremely urgent basis and it is incumbent on him to make
out a case justifying the urgency with which it was brought, (see
Luna Mauber Vervaarmigers (EDMS) BPK vs Makin and another t/a Makins
Furniture Manufactures 1972 (4) S.A. at 1366 -1376 and Patcor
Quarries CC vs Issroffl998 (4) S.A. 1069 (SE) at 1075). In the
present case the Applicant failed to make out a case as required by
Therefore, the point of law in limine on urgency is upheld.
Requirements of an interdict.
point taken in this regard is that in as much as the orders sought by
the Applicant is one of an interdict, the Applicant has failed to
specify whether the interdict sought is one of an interim or final
interdict. I again, agree with the submissions made by Mr. Magagula
for the 1st Respondent that the Applicant has dismally failed either
to prove an interim interdict or a final interdict. No attempts at
all has been made on the Founding affidavit to allege and prove the
requirements of either type of interdict. According to Herbstein et
at, The Civil Practice of the Supreme Court of South Africa, 4th ED
at page 1064 to 1065 the requirements of a final interdict are
outlined therein as follows:
injury actually committed or reasonably apprehended; and
absence of similar protection by any other ordinary remedy,
In the present case requirements (a) and (c) mentioned above have not
been alleged at all.
In respect of an interim interdict the learned authors Herbstein et
A1 at page 1064 list the requirements as follows:
prima facie right;
well-grounded apprehension of irreparable harm;
balance of convenience
other satisfactory remedy
From the facts of the present case, the Applicant has failed in
respect of requirements (a), (c) and (d) set out above.
Therefore the point of law in limine in respect of the requirements
of an interdict succeeds.
is contended for the 1st Respondent that no facts or allegations have
been made by the Applicant to show that the Court has jurisdiction.
In this regard the Court was referred to the textbook by Herbstein et
A1 cited above at page 364 and the case of Ben Zwane vs The Deputy
Prime Minister- Civil Case No. 624/2000 (unreported). In the latter
authority of Ben Zwane (supra) Masuku J cited the authorities
Erasmus, Superior Court Practice at B - 37 to 38 and Harms, Civil
Procedure in the Supreme Court at Page 79 to the general proposition
that the allegations must appear in the affidavit and the Court must
not be left to deduce that it has jurisdiction.
Mr. Magagula for the Applicant argued with all the force in his
command that the Court in the present case ought to deduce from the
facts that it has jurisdiction. However, I am unable to do so, in
view of the clear legal authority on this subject as outlined above.
The necessary factual allegations relating to jurisdiction must be
made. It is not sufficient to state the legal conclusion of
Therefore, the point of law in limine on jurisdiction is accordingly
In the final analysis, therefore for the afore-going reasons the
application is dismissed and costs to follow the event.