IN THE HIGH COURT OF SWAZILAND

Civil case no. 1368/98
IN THE MATTER BETWEEN:	

CLIFFORD HOLDINGS (PTY) LTD			 PLAINTIFF
Vs
SWAZILAND GEARBOX DIFF CENTRE (PTY) LTD	    DEFENDANT

CORAM				:	MATSEBULA J
FOR THE PLAINTIFF			:	M/S ZWANE	
FOR THE DEFENDANT			:	MR. NXUMALO		
											
JUDGEMENT DATE
23/04/99
											
By summons issued on 11th June 1998, Plaintiff in its particulars of claim prayed for the following reliefs:
(i)	Payment of the sum of E21, 450.00.
(ii)	Interest thereon calculated from date of issue of summons.
(iii)	Costs of suit.
(iv)	Further and/or alternative relief.

On 2nd December 1998 Defendant filed its notice of intention to defend and on 4th February 1999 Plaintiff filed a notice of application for summary judgement accompanied by an affidavit in support of the summary judgement application deposed to by one Kobla Quashie.

Quashie verifies Plaintiff’s/Applicant’s cause of action against Defendant in its paragraph 4 of its affidavit, and states in paragraph 5 that Defendant/Respondent has entered a notice of intention to defend solely for purposes of delay and that it has no bona fide defence to the claim by Plaintiff/Applicant.

On 18th February 1999 Defendant/Respondent filed an affidavit resisting the summary judgement application one Thobile Patricia Dlamini deposed to the affidavit.  Defendant/Respondent has set out its defence in paragraph 4 up to 4(d). 

I do not propose to repeat the defence in this judgement but can only point out that Plaintiff/Applicant in dealing with paragraph 4 – 4(a) admits averments in 4(c) and denies others and puts Defendant/Respondent to prove those averments it denies.  Now clearly Plaintiff’s/Applicant’s attitude already indicates that the matter ought to have been allowed to proceed to a pleading stage.

M/s Zwane requested the court to allow Plaintiff/Applicant to replicate even though 
M/s Zwane referred to replying affidavit, it is infact a replication because Plaintiff/Applicant had already replied.

It has been held on numerous occasions in matters involving summary judgement applications that a court can only grant this application if the Plaintiff’s/Applicant’s case viewed against the Defendant’s/Respondent’s case amounts to an abuse of the court’s process and that Plaintiff’s/Applicant’s case is an unanswerable one.  (See AREND VS ASTRA FURNITURES (PTY) LTD 1974 SA298 © and MAHARA J VS BARCLAYS NATIONAL 1976(1) SA418(A).

I accordingly agree with Mr. Nxumalo for the Defendant/Respondent that has a bona fide defence and has not entered intention to defend solely for the purposes of delay.  The application is dismissed with costs

J.M. MATSEBULA
JUDGE