THE HIGH COURT OF SWAZILAND
Case No. 1035/95
the matter between:
THOMAS FORBES Applicant
SWAZILAND GOVERNMENT Respondent
THE APPLICANT Mr. H. Fine
THE CROWN Mr. Wise/Masuku
applicant seeks an order condoning his failure to comply with Section
2(1) of the LIMITATION OF LEGAL PROCEEDINGS AGAINST THE GOVERNMENT
ACT, No. 21 of 1972, and the grant to him of special leave to
institute proceedings against The Swaziland Government in which the
applicant proposes to claim an amount of E59,318,000.00.
applicant has described in his founding affidavit how as a Swazi
citizen, he was wrongfully arrested in 1977 and thereafter detained
for successive periods of 60 days totalling some nine months in all.
Attached to the papers however is a judgment of this court in which
the validity of the arrest and detention was confirmed.
was during this period deprived of his citizenship and apparently
declared a prohibited immigrant. In short he was exiled from this
country in which he and had his forbears had been domiciled and
resident, as citizens for about one hundred years. His exile did not
end until, in applicant's words he was assisted to re-enter the
by HUMERUS a local Hunan Rights Society. How this assistance was
given and the form it took are not described by the applicant.
apparently returned to Swaziland on foot and was promptly arrested at
the border. The criminal charges brought against him arising from an
alleged illegal entry to Swaziland were not proceeded with. Although
he appeared in court the day following his re-entry, the case was
postponed for a month to enable the authorities to investigate the
basis of the charges, more especially the question of his
applicant took advantage of this period to approach this court. On
applicant's application which appears to have been unopposed an order
was made declaring the order depriving the applicant of his
citizenship to be invalid and setting the same aside.
order does not touch on the validity of the orders for his arrest and
detention in 1977, which would seem to have been confirmed by order
of this court in 1978.
applicant was on his uncontradicted evidence undoubtedly treated
harshly as result of the malice of influential individuals who he had
crossed or had reason to fear his public accusations of corruption.
It is not necessary however for me to deal with these allegations or
to make any finding thereon.
applicant then proceeds to state that "as a result of my
unlawful and illegal detention and deprivation of, my Swaziland
Citizenship I have suffered damages in the following amount..."
then proceeds to list claims in sub paragraphs 37(a)-(f) of the
founding affidavit totalling some E59,318,000.00 which are the
subject matter of the action he intends bringing against the
against the Government are subject to THE LIMITATION OF LEGAL
PROCEEDINGS AGAINST THE GOVERNMENT ACT NO. 21 of 1972 which in
Section 2 provides as follows:
to section 3 no legal proceedings shall be instituted against the
Government in respect of any debt -
unless a written demand, claiming payment of the alleged debt and
setting out the particulars of such debt and cause of action from
which it arose, has been served on the Attorney General by delivery
or by registered post:
that in the case of a debt arising from a delict such demand shall be
served within ninety days from the day on which the debt became due;
the expiry of ninety days from the day on which such demand was
served on the Attorney General unless the Government has in writing
denied liability for such debt before the expiry of such period;
the lapse of a period of twenty-four months as from the day on which
the debt became due.
the purpose of subsection (1) -
proceedings shall be deemed to be instituted by service on the
Attorney General of any process of a court (including a notice of an
application to court, a claim in reconvention, a third party notice
referred to in any rules of court and any other document by which
legal proceedings are commenced) in which the claimant of the debt
claims payment thereof;
debt shall, if the Government prevents the claimant thereof from
coming to know of its existence, not be regarded as due before the
day on which such claimant becomes aware of its existence;
debt not arising from contract shall not be regarded as due before
the first day on which the claimant thereof has knowledge that the
debt is due by the Government or the
day on which he could have acquired such knowledge by the exercise of
reasonable care, whichever is the earlier day;
period prescribed in such sub-section shall, in the case of a debt of
which the due date is postponed by agreement between the Government
and the claimant, be calculated afresh as from the day on which the
debt again becomes due.
(1) The High Court may, on application by a person debarred under
section 2(1)(a) from instituting proceedings against the Government,
grant special leave to him to institute such proceedings if it is is
satisfied that -
has a reasonable prospect of succeeding in such proceedings;
Government will in no way be prejudiced by reason of the failure to
receive the demand within the stipulated period; and
regard to any special circumstances he could not reasonably have
expected to have served the demand within such period:
that the Court in granting such leave may impose such conditions as
it deems fit (including the payment of any costs) and notwithstanding
section 2(1)(c) stipulate the date by which such proceedings shall be
High Court may, on application by the Government, and if it is
satisfied that Government has a reasonable prospect of succeeding in
such proceedings, on good cause shown, grant special leave to extend
the period of ninety days referred to in section 2(1)(b):
that the Court in granting such application, may impose such
conditions as it deems fit (including the payment of any costs), and
at the same time shall extend the period of twenty-four months
referred to in section 2(1)(c) to such extent as it may deem fit.
Act has the object of preventing undue delay in the bringing of
actions against the Government. The motivation apparently is that the
lapse of time between a cause of action arising and the notification
and prosecution of a claim relative thereto makes the investigation
by the Government difficult or impossible. Evidence may be lost or
not gathered, and witnesses may no longer be available. On the other
hand there are cases where mere delay or lapse of time would not have
this effect and would be unfair on the injured party to loose his
right of action if the delay in bringing the claim does not effect
the ability of the Government to defend the same. These are the
considerations which gave rise to the legislation and the provisions
to which effect is to be give in this application.
Government as respondent opposes the granting of relief and seeks the
dismissal of the application. No replying affidavit has been filed.
The respondent relies on a point of law on the interpretations of the
sections above quoted, and on inadequacies in the founding affidavit.
point of law is formulated in a notice filed by the respondent in
terms of Rule 6(12)(c) and reads as follows-
4(1) of the Limitation of Legal Proceedings Against the Government
Act, l972 empowers the Court to condone, a failure to comply with the
provisions of section 2(1)(a) only of the said Act and not the whole
of Section 2(1). Applicant is accordingly not entitled to the relief
has also failed to comply with the provisions of section 2(1)(c) of
the said Act and there is no provision for condonation of a failure
to comply with that section.
the purpose of his argument Mr. Wise who appeared for the respondent
assumed that "the day on which the debt became due", was
the date of the judgment declaring the deprivation by the Government
of the applicant's citizenship null and void. This was a generous but
incorrect basis. In listing his various claims the applicant has
given no indication, let alone particularity, of the date on which
each loss occurred. It would be seen as if these losses must have
been sustained sometime during the past thirteen or more years while
the applicant was out of the country. It is impossible on the
information in the founding affidavit to establish a date on which
"any one or more debts became due."
thing is clear however in respect of each category of loss enumerated
by the applicant his claim in respect thereof arose more than ninety
days before the application. Ninety days is the period prescribed by
Section 2 as the period within which a written demand in respect of a
delict of claim has to be made. It is also common cause that more
than twenty four months have passed since the cause or causes of
follows in the words of Section 2(1)(a) of the Act that no legal
proceedings may be instituted against the respondent as no written
demand claiming payment of the alleged debt, setting out the
particulars of such debt and the cause of action from which it arose,
has within the specified period or at all been served on the Attorney
observe that the founding affidavit itself would not comply with the
requirements for the demand as the cause of action is not properly
4 however makes it possible for a person such as the applicant
debarred under Section 2(1)(a) from instituting proceedings against
the respondent, to obtain leave to institute such proceedings if
certain requirements are met. It is this special leave which the
applicant now seeks.
question of law raised by the respondent is whether leave may be
granted to an applicant who is debarred not only by the provisions of
Section 2(1)(a) but by the provisions of Section 2(1)(c) as well. In
other words is leave available only to a person who having failed to
sue his demand within the prescribed period makes his application for
special leave before the elapse of the period of twenty four months
referred to in 2(1)(c).
Fine who appeared for the applicant argued that the legislation must
be interpreted in case of doubt favourably to the applicant. He
referred to to the provisions of Section 4 which empowers a Court
granting special leave to stipulate the date by which the proceedings
are to be instituted "notwithstanding the provisions of Section
2(1)(c)". I do not see this proviso as giving the court power in
these circumstances to extend the period of two years after the same
Section 4(2) which deals with the situation where the Government
applies to extend the period of ninety days referred to in 2(1)(b),
the court is expressly given power in granting an application to
extend the period by twenty four months referred to in 2 (1)(c).
inference to be drawn from comparing Section 4(1) and Section 4(2) is
that if the legislature had intended to empower the court to extend
the period of twenty four months as one of the conditions imposed in
granting leave, such powers would have been expressly mentioned as
was done in Section 4(2). On a proper reading of Section 4(1) the
court may impose conditions attaching to the grant of special leave
requiring the proceedings to be instituted within a period shorter
than twenty four months from the accrual of the cause of action.
was referred to two judgments of this court namely WALTER SIPHO
SIBISI vs THE WATER AND SEWERAGE BOARD and another Civil Case No.
504/87 and ZWANE AND OTHERS vs ATTORNEY GENERAL Civil Case No.
1263/92 in which Hannah C.J. and Dunn J. respectively place the same
interpretations on the relevant sections of the Act as I have done.
This being so and there will be no reason for me not to follow the
the result must be the same. The point of law raised is answered in
favour of the respondent and the application is dismissed with costs.