THE HIGH COURT OF SWAZILAND
the matter between:
SECURITY HOLDING (PTY) LTD
TWO OTHERS Applicants
PATRICK HAYES & ANOTHER Respondents
O R A M : DUNN J.
THE APPLICANTS : ADV. FLYNN
THE RESPONDENTS : ADV. SMITH
is an application by the respondents for leave to file supplementary
affidavits. The main application was filed under a certificate of
urgency on the 27th November 1992. A rule nisi was issued on the 3oth
November in terms of that application in the following terms -
a rule nisi be and is hereby issued calling upon the 1st Respondent
to show cause on the 11th December 1992 why an Order in the following
terms should not be made:
the Respondent be interdicted for a period of five years commencing
in respect of the 1st Respondent on the 9th November 1992 and in
respect of 2nd Respondent on 31 October 1992 from, either as
agent, representative, shareholder consultant, advisor, financier,
investor or in any-other like capacity directly or indirectly being
associated or concerned with interested or engaged in or interest
themselves in any business company or other association of persons
which carries on the business of providing security or escort
services which, without limiting the generality hereof, includes the
provision of static and mobile guards, reaction services, security
communication and devices, security advisory services and other
protection services, anywhere in the kingdom of Swaziland.
the Respondents be interdicted for a period of five years commencing
on the 9th November 1992 in respect of the 1st Respondent and the
31st October 1992 in respect of 2nd Respondent from directly or
indirectly soliciting the custom of or attempting to solicit the
custom of any person, firm, body corporate or incorporate which the
client of either the 1st 2nd or 3rd Applicant in respect of business
referred to in paragraph 1.
the Respondents be ordered to pay the costs of this Application.
the Rule nisi operate as an interim interdict restraining the
Respondents in the terms set out in the Rule nisi pending
determination of this Application.
respondents filed answering affidavits on the 10th December 1992 and
the rule was, on the return date, extended to the 29th January 1993
to enable the applicants to file
affidavits. Replying affidavits were filed on the 28th January 1993.
The affidavits and annexures filed up to that stage are fairly
lengthy and deal with a restraint clause, a matter of some
complexity, contained in an agreement between the parties.
present application was filed by the respondents on the 9th February
1993. The respondents set out that the facts sought to be added to
their answering affidavits are relevant to the issue to be decided in
the main application. They explain that these facts were brought to
the attention of their attorney but "as a result of an oversight
on his part", the facts were not included in the answering
affidavits. The "oversight". referred to is in relation to
paragraphs 16; 16.2; 16.3 and 17 of the founding affidavit. The
respondents did not deal with these paragraphs in their answering
affidavits and wish to deal with them in the supplementary
affidavits. The respondents further set out that if the relief sought
is not granted they will be irreparably prejudiced in their
opposition to the main application.
application is opposed by the applicants on the grounds -
the respondents have not given a proper or satisfactory explanation
which negatives culpable remissness on their part and
the facts and information contained in the supplementary affidavits
are not in the nature of additional material which could have been
ommitted by an oversight but that the supplementary affidavits
constitute a complete re-draft of the original answering affidavit.
ordinary rule is that three sets of affidavits are allowed. These are
supporting afidavits, answering affidavits and replying affidavits.
The court has a discretion to permit the filing of further
affidavits. See Rule 6(13) and Herbstein and Van Winsen, THE CIVIL
PRACTICE OF THE SUPERIOR COURTS IN SOUTH AFRICA 3rd Ed. 74 and the
authorities there cited. The question of the court's discretion in
this regard has been the subject of numerous decisions of the South
African courts. These decisions are highly persuasive in our courts,
as they deal with a South African Rule of court identical to our Rule
6. These decisions have shown a reluctance to lay down hard and fast
rules defining the extent of the court's discretion in such matters.
The following is stated by Holmes J. in the case of MILNE N.O. v.
FABRIC HOUSE (PTY) LTD 1957(3)SA 63(N) at 65-
my view it is neither necessary nor desirable to say more than that
the court has a discretion, to be exercised judicially upon a
consideration of the facts of each case, and that basically it is a
question of fairness to both sides."
the case of JAMES BROWN & HAMER (PTY) LTD v.SIMMONS N.O.
1963(4)SA 656 (AD) OGILVIE THOMPSON JA stated -
is in the interests of the administration of justice that the
well-known and well established general rules regarding the number of
sets and the proper sequence of affidavits in motion proceedings
should ordinarily be observed. That is not to say that these general
rules must always be rigidly applied: some flexibility, controlled by
the presiding judge exercising his discretion in relation to the
facts of the case before him must necessarily also be permitted.
is in my view, incumbent upon an applicant in such applications to
show good cause for the relief sought. He must give a satisfactory
explanation for his failure to set out his case at the appropriate
time and in the appropriate set of affidavits.
have read the supplementary affidavits which are the subject of this
application. I must confess that I have great difficulty in
appreciating what additional facts the respondents seek to place
before the court. Apart from the averment of an oversight in so far
as responding to paragraphs 16; 16.2; 16.3 and 17 of the founding
affidavit and the replies thereto which the respondents have set out
in the present application there is nothing which is in the form of a
reply to the founding affidavit. The answering affidavits filed by
the respondents replied paragraph by paragraph to the applicants'
affidavit. The respondents do not in the present application indicate
which paragraphs in their answering affidavits, they wish to
supplement. I take as an example the affidavit of the 1st respondent
in the present application. He sets out at paragraph 2 that "the
facts hereinafter set out are highly relevant to the issue at hand
and that the dispute cannot properly be determined without the facts
being brought to the attention of the above Honourable Court".
The 1st respondent then proceeds from paragraph 3 to give his life
history and how he ended up in Swaziland from the United Kingdom.
sets out how he set up business in Swaziland and how that business
merged with that of the applicants'. He states that if the restraint
clause in the agreement with the applicants is enforced he will be
unemployable and denied the right to earn a livelihood in Swaziland
for a period of five years.
is no indication as to what averment in the founding affidavit all
this information seeks to answer. The question of the restraint
clause and its effect was
replied to by the 1st respondent at paragraph 4 of his answering
affidavit. The same applies with the affidavit of the 2nd respondent.
The 2nd respondent does not indicate what averment/s in the founding
affidavit the contents of paragraphs 3 and 4 of his affidavits seek
was necessary for the respondents to deal separately with each
paragraph of their answering affidavits an indicate in what manner
and to what extent they wished to supplement such paragraphs.
allow the application as framed would be to throw the original
application as it stood on the 8th February 1993 into total
confusion. I cannot allow the application in the wide terms in which
it is requested.
only issue in the present application which requires consideration is
that relating to the alleged oversight on the part of the
respondents' attorney to reply to paragraphs 16 and 17 of the
founding affidavit. The respondents have set out the reply they
intend making to these paragraphs. The averment of the oversight is
not confirmed by the relevant attorney. One would have expected that
an affidavit would have been filed by the attorney confirming this
averment by the respondents. The question is then as to whether or
not the door should be shut to the respondents as a result of such
failure. One must, I think, adopt a robust approach in this regard.
The respondents indicate that there was an oversight on the part of
their attorney. They are still represented by the same attorney who
has now briefed counsel. It is most unlikely that such an oversight
would in fact be imputed to the attorney if that were in fact not the
position. The paragraphs in question dealt with serious issues
relative to the restraint clause and the grant of the interim relief
obtained. There is force in the submission that the failure to reply
to these paragraphs, containing such serious averments, can only be
explained on the basis of a genuine oversight.
allow the application to supplement the respondents' answering
affidavits by including the replies to paragraphs 16 and 17 as set
out at paragraphs 6; 7 and 8 of the affidavit filed by the 2nd
respondent in the present application. Leave is granted to the
applicants to reply, if necessary, to the answering affidavit as
respondents are to pay the costs occasioned by this application
including the costs of such reply as the applicants may have to file
as a result of this application.