HIGH COURT OF SWAZILAND
(SA) (PTY) LTD T/A
PHARM WHOLESALE (PTY) LTD
Case No. 1878/2003
S. B. MAPHALALA -
Plaintiff : Mr P. Dunseith
Defendant : Miss L. S. Masango
Court is a notice in terms of Rule 30 (1) where it is alleged by the
Defendant that the Summary Judgement Application filed by the
Plaintiff is inappropriate in that there is a pending issue in
respect of security for costs which has not been determined and
resolved By the Registrar of this Court.
Plaintiff on the other hand opposes the Rule 30 notice on the basis
that a demand for security for costs does not automatically stay the
proceedings. It is contended in this regard that a party must apply
to Court on notice for an order that proceedings be stayed, and this
can only be done if the other party has failed to furnish security in
the amount fixed by the
per Rule 47 (3). In casu, the Defendant is not yet entitled to a stay
of proceedings. Moreover, the Defendant has not applied for a stay.
is contended further that in the absence of an Order that proceedings
be stayed; there is no reason in law why an application for summary
judgement cannot be made. Such Application is not in the
circumstances an irregular proceeding, and the Defendant's notice is
terms of Rule 30 (1) should be dismissed.
it is contended on behalf of the Plaintiff that since the Defendant
has not filed an Affidavit opposing summary Judgement, the Plaintiff
is therefore entitled to judgement as prayed.
the case of First National Bank of South Africa Ltd Vs Paul
Zondikhaya Shabangu Civil Case No.l956/98 Sapire CJ. (as he then was)
dealt with a similar question and in my
the learned Chief Justice correctly concluded as follows: And I
is nothing in the Rule, which stays proceedings pending the decision
of the Registrar on the amount of security to be furnished."
agree with the views expressed by the learned Chief Justice in the
above cited case and I must say that I had occasion to apply the
dictum propounded in that case in the case of E.
Marketing (Pty) Ltd Vs Millennum Oil Mills (Pty) Ltd and Another
Civil Case No.1069/2003 (unreported).
found that in terms of Rule 47 there is no automatic stay of
proceedings it behoves me to therefore decide the application for
summary judgement. The Defendant has not filed an affidavit opposing
summary judgment, therefore Plaintiff is entitled to judgment as
the premise, the application in terms of Rule 30 is dismissed.
Further the summary judgment is granted with costs.
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