THE HIGH COURT OF SWAZILAND
CASE NO. 1456/92
the matter between:
O R A M : DUNN J.
THE PLAINTIFF : MR P.M. ZWANE
THE DEFENDANT : MR B. SIMELANE
this application for summary judgment the defendant has raised the
point, in limine, that the application is defective in that there is
no averment that in the plaintiff's opinion the defendant has no
defence to the action.
relevant paragraph of the plaintiff's affidavit in support of the
application reads -
verily believe that the defendant does not have a good bona fide
defence to the plaintiff's claim and that the notice of intention to
defend has been delivered solely for the purpose of delay.
32(1) provides -
in an action to which this rule applies a combined summons has been
served on a defendant or a declaration has been delivered to him and
has delivered notice of intention to defend, the plaintiff may, on
the ground that the defendant has no defence to a claim included in
the summons, or to a particular part of such a claim, apply to the
court for summary judgment against the defendant -
32(3)(a) provides -
application under sub-rule (1) shall be made on notice to the
defendant accompanied by an affidavit verifying the facts on which
the claim or the part of the claim to which the application...
relates is based and stating that in the deponent's belief there is
no defence to that claim or part, as the case may be, and such
affidavit may in addition set out any evidence material to the claim.
two sub-rules I have referred to differ materially from the
provisions of Rules 32(1) and 32(2)of the South African Rules of
Court. The decided cases to which I was referred deal with the
requirement of the South African Rule that an applicant must set out
that in his opinion the respondent has no bona fide defence. All that
an applicant is required to do under our Rule 32 is to -
the facts on which the claim, or part of the claim, to which the
application relates is based, and
that in his belief there is no defence to that claim or part, as the
case may be.
plaintiff in this case has verified the cause of action. The averment
by the plaintiff that he verily believes that the defendant has no
defence, meets the requirement of the sub-rule. The point raised in
limine is dismissed with costs.
plaintiff conceded that the defendant had succeeded in setting out a
prima facie defence in his reply to the application and that leave to
defend ought to be granted.
order, on the merits of the application, that the defendant be
granted leave to defend and that costs be costs in the cause.