IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
CIVIL
CASE NO. 2667/03
In
the matter between
THE
SWAZILAND GOVERNMENT 1st PLAINTIFF
THE
ATTORNEY GENERAL 2ND PLAINTIFF
VERSUS
NHLANHLA
N. SIBANDZE DEFENDANT
CORAM
SHABANGU AJ
FOR
PLAINTIFF MR DLAMINI
FOR
DEFENDANT MR GWEBU
JUDGMENT
11th
March, 2004
The
plaintiff's the Swaziland Government cited as the 1st Plaintiff and
the Attorney-General cited as the second Plaintiff commenced
proceedings by way of action on 17th October, 2003. In their
particulars of claim the plaintiff's claim from the defendant an
amount of E7806-24 which amount the plaintiff's claim is as a result
of an overpayment by the said amount to the defendant, such payment
having been made by the first plaintiff. The first plaintiff
allegedly received an amount of E5, 685-34 from the Havelock Asbestos
(Swaziland) Limited which was previously the defendants' employer for
onward transmission to the defendant. The amount of E5685-34
allegedly accrued to
2
the
defendant in accordance with, the provisions of the Workmen's
Compensation Act -1983. It is further alleged that on 31st May, 2002
the Plaintiff mistakenly issue a cheque of E13, 491-58 in favour of
the defendant, thus overpaying him by the amount of E7806-24 claimed
by the plaintiff's. There may be doubt as to what cause of action, if
any, is made out in the plaintiff's particulars of claim. However I
need not say more on this aspect of the matter at this stage.
On
20th November, 2003 the defendant through its attorneys P.M.
Shilubane & Associates delivered its notice of intention to
defend the action. An affidavit of service filed by one Mduduzi
Hlophe, who was apparently appointed an adhoc Deputy-Sheriff for the
purpose of serving the summons, states that the defendant was served
with the combined summons on Monday 20th October, 2003 by leaving a
copy at the defendants' place of residence with one Bheki Fakudze a
person described as apparently not less than sixteen years of age
being apparently in charge of the premises at the time.
On
25th November, 2003 the defendant delivered a notice of application
in terms of rule 30 which application was set down for Friday 28th
November, 2003 at 0930 hours for an order in the following terms;
"1.
That the Plaintiff's combined summons dated 17th October; 2003
annexed hereto marked A be and is hereby set aside as irregular on
the following grounds:-
On
the 19th December 2002 a full bench of this Honourable Court in the
matter of Attorney-General V. Ray Gwebu & Another, High Court
case No. 3699/02 issued an order stating inter alia that, 'no
application in which the government as an applicant, Plaintiff or
Petitioner shall be heard and no papers to be filed by the
Government shall be accepted by the courts of Swaziland until a full
bench of this court holds that the Government has purged its
contempt. "
2.1.
The court order is still in force and has not been reversed or set
aside.
In
breach of the aforesaid court order the Swaziland Government has
sought to institute proceedings against the defendant wherein the
government is the plaintiff. "
What
I have before me therefore is an application in terms of rule 30 of
the rules of this court. The rule requires that such an application
be made within fourteen days after becoming aware of the irregular
step. Without expressing any opinion on whether the issuing and
service of summons (in other words, the institution of proceedings
against
3
the
defendant) amounts to an irregularity or not, it appears to me that
the application must fail because of two reasons. The fourteen days
from the date the defendant became aware of the alleged irregular
step expired on 7th November, 2003. The date upon which the defendant
is to be taken to have become aware of the alleged irregular step has
to be the date upon which the summons were served on the defendant,
namely, 20th October, 2003. The application filed on behalf of the
defendant purportedly in terms of rule 30 does not therefore comply
with the requirements of rule 30 (1) which provides as follows;
"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
proceedings." My emphasis.
It
is clear therefore that the application has been made way outside the
fourteen days prescribed by the rule, from the date of the alleged
irregularity.
Secondly,
it is also trite in relation to such applications that when the
irregularity is established the court has a discretion whether or not
to grant the application and the court will generally not be inclined
to grant the order if no substantial prejudice is shown to be
occasioned to the applicant.' In this regard I need simply to refer
to HERBSTEIN AND VAN WINSEN, THE CIVIL PRACTICE OF THE SUPREME COURT
OF SOUTH AFRICA, 4th edition at page 560 wherein the principle is
formulated as follows:
"It
is clear that the court has a discretion whether or not to grant the
application even if the irregularity is established. The attitude
generally by the court is that it is entitled to overlook, in proper
cases, any irregularity in procedure which does not work substantial
prejudice to the other side. In fact, it has been held that prejudice
is a prerequisite to success in an application in terms of rule
30. As was said by Schreiner J.A in TRANS-AFRICAN INSURANCE CO. LTD
V. MALULEKA, 'technical objections to less than perfect procedural
steps should not be permitted, in the absence of prejudice, to
interfere with the expeditions and, if possible, inexpensive decision
of cases on their merits.' The application may be dismissed with
costs if no prejudice was caused by the irregularity. "
No
prejudice has been shown at all which might be occasioned to the
defendant as a result of the alleged irregular step taken by the
Plaintiff's. Indeed it seems to me that it is not possible that any
prejudice would be occasioned at all to the present defendant because
of what the plaintiff's have done or failed to do in relation to a
completely
4
unrelated
matter. In fact it may well be that Plaintiffs' counsel is right in
his submission that the provisions of rule 30 have no application to
the situation which appears to bother the defendant. The rale 30
application is in my view misconceived and is dismissed with costs.
ALEX
S. SHABANGU
ACTING
JUDGE
