IN THE HIGH COURT OF SWAZILAND
Held at Mbabane Case No.: 3194/2001
In the matter between
GIDEON MHLONGO Plaintiff
VUSIE GININDZA 1ST Defendant
AFRICAN ECHO (PTY) LTD 2ND Defendant
ARNOT PUBLISHING COMPANY (PTY) LTD 3RD Defendant
Neutral Citation: Gideon Mhlongo v Vusie Ginindza& 2Others (3194/2001)  SZHC 72 (13 April 2018)
Coram: Hlophe J.
For the Plaintiff: Mr S. Masuku
For the Defendants: Mr P. Flyn
Date Heard: 3rd April 2018
Date Judgement Delivered: 13 April 2018
Action Proceedings –Civil Procedure –Dismissal of Proceedings sought on the grounds that the Plaintiff had failed and or delayed to prosecute his claim in circumstances that amount to an abuse of the Court Process –Whether a case made for the relief sought both procedurally and substantively from the facts of the matter –Court of the view case not made for the relief sought – Application dismissed with costs following the event.
 The Plaintiff, who at the time held the position of Chief Executive Officer with the Municipal Councill of Mbabane, instituted action proceedings against the Defendants claiming payment of a sum of E200,000.00 arising from the publication of an article he contended was defamatory of him.
 The action proceedings in question were instituted in 2001. With the proceedings having been defended by the Defendants, it is not in dispute that the pleadings in the matter were closed sometime in 2004. As soon as this had happened, it is not in dispute that the Plaintiff called for a Pretrial Conference which was apparently attended by the parties without any qualms.
 It is further not in dispute that in the same year, 2004, the Plaintif applied to this court for an order that the proceedings be dealt with and finalized in accordance with Rule 33 Bis of the Rules of this Court. The effect of this rule is that matterS of commercial importance may be expedited such that they are to be given preference in the allocation of trial dates. In a way they are allowed to jump the que. Ofcourse other than that this application was not successful, there was no notable activity on the file until sometime in 2008, when the matter was allocated a trial date before Judge Mamba, who however recused himself from hearing it.
 In 2009, the file was allocated a trial date by Judge Agyemang, who was one of the Judges of this court seconded by the Common Wealth to inter alia relieve the backlog of cases pending before the High Court, an acknowledgement on its own that this Court was suffering from a practice of not having sufficient judge’s at the time. The dates allocated the matter by the said Justice Agyemang, were not utilized because, according to the Plaintiff, they were not notified about them which resulted in their being overtaken by events.
 Although the Plaintiff claims to have always desired to have the matter heard in Court, same could not succeed because they were thereafter informed that the file, being one of those that had been registered before 2006, had been removed with all other such files to the archives at Lobamba. When he learnt of this, Plaintiff contends that the Registrar of the High Court advised him to go to the National Archives himself and obtain the file. Having heeded the aforesaid advice from the Registrar, he said he was unable to pick up the file because he had found files there lying all over on the floor in a manner,that made it difficult if not impossible for him to identify his file. Upon reporting this state of affairs to the Registrar, he says he was told that the Registrar would have to employ some people to identify the files although funds for the exercise were a hindrance at the time. Further liaisons between him and the Registrar did not yield fruits, he says.
 It was not until 2015 that Plaintiff says he learnt from the Registrar upon enquiry that he should reconstruct the file. After that exercise he claims to have liaised with the Registrar from time to time about the matter being allocated a trial date. This he says culminated in the matter being allocated the 3rd to 5th April 2018 as Trial dates, which was itself done openly before this Court on the 29th January 2018.
 It is important for me to acknowledge that although the foregoing facts are as they are contained in the file, they were restated in Court by the Plaintiff in an affidavit to oppose the current application. This Court found itself having to deal with these contentions during the hearing of the matter on the 3rd April 2018. The application in question was, moved by the Defendants who sought, inter alia, a dismissal of the action proceeding on the grounds that the Plaintiff had unduly delayed in prosecuting same to the extent that his conduct amounted to an abuse of the Court processes. The institution of the said proceedings was however in keeping with the usual procedure as the application was not supported by an affidavit setting out the case, the Plaintiff had to meet. I shall revert to this aspect of the matter later on in this Judgement.
 The reality is that the current matter is one of those that were allocated to this Court to hear this session. As the practice holds, I called for the matters allocated to me for the 29th January 2018, where I was required to allocate them trial dates. It is a fact that on the said date I allocated the matter the dates of the 3rd, 4th and 5th April 2018.
 With trial set to proceed on the said dates, the Defendants attorneys wrote a letter to their counterparts on the 26th March 2018. They contended therein that the Plaintiff had failed to ensure a timeous trial of the matter which resulted in a delay in bringing it to court which on its own amounted to the proceedings having to be viewed as abusive and vexatious. They thus called for them to be dismissed with costs.
 The periods revealed in the papers filed of record as exchanged between the parties were stated in the letter. These periods related to the date of publication of the article complained of, the date of the issuance of the letter of demand, the date of issuance of the summons, the date of the filing of the plea, the date of the filing of a Notice of Amendment as well as the dates for the filing of the discovery affidavits; the date for holding a Pictual Conference; the date for the filing of a further notice of amendment; and the date for the filing of an application in terms of Rule 33 bis. These dates in a nutshell were used to indicate that the matter had been pending in Court ever since its institution for over 15 years. The article complained of had itself been published some 17 years ago.
 I must point out that during the hearing of the matter the time lines involved in the buildup to the hearing of the matter were further refined. It was submitted orally from the bar that since 2004, after the filing of the Notice asking for a Trial date, nothing had been done by the Plaintiff to prosecute the matter until 2008 when it was allocated a trial date before Judge Mamba who however recused himself from hearing it. This was allegedly followed by the matter being placed before Judge Agyemang, who however allegedly allocated dates that were not utilized by the parties sometime in 2009 because their attention had not been drawn thereto. Whatever action the Plaintiff took thereafter could only be summed up to 2011 when the file was allegedly sought from the archives in Lobamba. This was allegedly after the parties were advised that their files had been taken thereto owing to an exercise by the Common Wealth to address the backlog of matters at the High Court. From 2011 to 2015 it was allegedly not disclosed what the Plaintiff had been done to ensure the prosecution of its claim.
 Contending that there had been an undue delay in the prosecution of the matter throughout its journey by the Plaintiff amounting to abuse of the Court process, the Defendant alleged that the delay became glaring in the periods between 2004 and 2008 where it was said no explanation on what had been done for four years was given. It was contended as well that the period between 2009 to 2011 and 2011 to 2015 was also not explained and that there was no reason for those delays than that the Plaintiff was not bothered about whether or not there was such a delay which adversely affected the interests of the Defendant. The next period was said to be the one between 2015 and the the 3rd April 2018 when the trial was meant to commence. These periods, it was argued by Mr Flyn, showed that the period unaccounted for was over 15 years which it was argued necessitated that the matter be dismissed on this point alone and on the ground that the delay in the said proceedings amounted to an abuse of the court process.
 Further to the letter of the 26th March 2018, the Defendant’s Counsel filed and served a document titled “Notice of Application in Terms of Rule 69(24)” on the 28th March 2018. This Notice of Application reads as follows:-
“Be pleased to take Notice that the defendant in the action intends to apply at the commencement of the trial in this case for an order in the following terms:-
1. That the proceedings in this action be dismissed by reason of the passage of time since the institution of the proceedings in November 2001.
2. That Plaintiff be ordered to pay the costs of suit and the costs of this application both to include the costs of counsel in terms of Rule 68(2) of the High Court Rules.
3. Further and or alternative relief.
Dated at Mbabane on this 28th day of March 2018.
 This Notice was served on the Plaintiff’s Attorneys on the 28th March 2018. The matter itself was meant to be heard on the 3rd April 2018. It deserves mention as well that the 28th March 2018 was a Wednesday in a week where the 30th March 2018, a Friday, was a holiday to mark the beginning of the Easter Weekend. The 2ndApril 2018, was also a holiday, the Easter Monday.
 The Notice of application captured above was not accompanied by an affidavit setting out the facts relied upon for the reliefs sought. Although the Notice of application read on its face that it was issued in terms of Rule 69(24), it became apparent during the hearing of the matter that this entry was an error. It was actually meant to read Rule 6 (24). The parties’ counsel confirmed as much in Court. The Notice of application did not on its face or anywhere inform the other party what to do upon its receipt, which is also not in keeping with the provisions of the rules on applications.
 Rule 6 (24) is couched in the following terms:-
“Notwithstanding the afore going sub-rules, interlocutory and other applications incidental to pending proceedings may be brought on Notice supported by such affidavits as the case may require and set down at a time assigned by the Registrar or as directed by a Judge. “ (Underlining is mine)
 It would appear therefore that the application by the Defendants as notified through the Notice of Application, did not comply with the rule under which it purported to be brought. It may as well be that this failure to comply with the rule is not just one of failure to adhere to form which could be ignored, but one of lacking in substance when considering that it seeks to have considered facts and drawn conclusions from facts that are not before Court. Although most of the facts are apparent from the papers filed of record, it is a fact that not all the conclusions drawn from the files are that apparent. For example the segmentalization of the matter on the basis of certain periods and the meaning attached thereto are not so apparent and therefore require an affidavit to enable the other side appreciate the case he has to face. This becomes all the moreso when the party against whom the application is brought, is not informed what facts are relied upon in the application, including who supports it evidentially. This becomes more telling where such a party is not informed as what to do upon receipt thereof including whether he needs to file any opposing papers.
 There is no dispute that pursuant to the receipt of the Notice of application in terms of Rule 6(24) referred to above, the Plaintiff’s attorneys, obviously acting abundenta cautella, decided to file an affidavit titled, “Plaintiff’s affidavit opposing Dismissal of action.” In this affidavit the Plaintiff sets out the chronology contained in the early paragraphs of this judgement, as can be seen from paragraphs 2-5 above.
 Due to the significance placed on the segments of the matter as reflected in certain periods of alleged non-action by the Plaintiff’, as submitted by Mr Flyn, during the hearing of the matter such as the period between 2004 and 2008; that between 2009 and 2011; that between 2011 and 2015, as well as that between 2015 and 2018; and that this Court should conclude that the Plaintiff failed to do anything to advance the hearing of the matter, and that an inference should be drawn against the Plaintiff because he in the affidavit filed failed to give a detailed analysis of what he did, it seems to me that it would be unfair to fault the Plaintiff in that manner.
 The Defendant who moved the application had not filed any affidavit in support of its application to enable Plaintiff appreciate the case against it. It therefore cannot be in a position to blame that party on an alleged lack of sufficiency in the case the Plaintiff has made where that case was not answering a specific case. If truth be told the Plaintiff is the only party who in my view tried to place some material before this Court in the orthodox way. These facts have not been controverted, given that a replying affidavit disputing or correcting what he said has not been placed before Court. Accordingly it will similarly be difficult for this Court to conclude in these circumstances that the Plaintiff did not do enough to prosecute the matte.
 It would seem to me to be very unfair for one to accuse the Plaintiff of any shortcoming in the affidavit they filed of their own accord without any suggestion from the party who instituted the application disclosing what he should have done upon receipt of the Notice of Application. Equally unfair is to then draw certain adverse inferences against the Plaintiff when he was not made aware what the case against him was. It seems to me that some insurmountable difficulties against the Defendant are revealed just on this point alone.
 I must say I cannot agree with Mr Flyn that the letter sent to the Plaintiff on the 26th March 2018 sufficed in supporting the case the Defendants were trying to make against the Plaintiff. It did not take the stead of an affidavit. Furthermore I cannot agree that the facts in the matter do not require an affidavit in support of the reliefs sought.
 With reference to cases like Schoeman En Andere V Van Tonder 1979 (1) SA 301 and Kuiper and Others V Benson 1984 (1) SA 474 (W), on the fate of abuse of the Court process through not prosecuting a ripe case by a party and the contention that those cases support the position that where a party unduly delays the hearing and or finalization of a matter such may be construed against him as abuse of process which may lead to a dismissal of the matter, there can be no doubt in my mind about the competence of such a principle in our law. I am however convinced that for the foregoing facts one be able to tell if in this matter this principle is applicable given the manner in which this point has been raised, which is completely unsatisfactory. Besides it is apparent from the facts that whatever the periods he took to do so, the Plaintiff is shown as one who was always eager to have his matter heard. He took such steps as invoking rule 33 Bis to expedite its hearing without success. He is shown liaising tirelessly with the Registrar which resulted in him having to go to the archives while pursuing his file and later being advised to prepare a reconstructed Court file. Even after that, there is nothing to dispute his continuous engagement with the Registrar culminating in the matter being eventually placed before Court in 2018.
 Owing to the fact that the context was not properly captured through the citing of proper evidence to ground the application, I cannot agree with the Defendants that a case has been made for the reliefs they seek.
 Commenting in passing, I would say I have no doubt that for such an application to be moved successfully in a jurisdiction like ours in the period before say 2015, the context must be considered closely. I say this because it was then a perennial song that there was a backlog of cases owning to the shortage of Judges. It therefore was naturally taking time to have the matters heard, such that it may be unfair to hold that against any of the parties. As I say this I am alive to the harm that may have been occasioned parties to a matter where witnesses may have died and some evidential material rendered of limited value due to the passage of time.
 For the foregoing reasons and considerations I am convinced that the Defendant’s application for the dismissal of the matter on the grounds that the Plaintiff failed to prosecute it cannot succeed and it is hereby dismissed with costs.
N. J. HLOPHE
JUDGE – HIGH COURT