IN THE HIGH COURT OF SWAZILAND
CIVIL CASE NO. 3007/03
In the matter between:
NATIONAL AGRICULTURAL MARKET BOARD PLAINTIFF
and
MAGALELA NGWENYA DEFENDANT
CORAM: Q.M. MABUZA-AJ
FOR PLAINTIFF: MR. MAGAGULA
FOR DEFENDANT: P.M. SHILUBANE
RULING 12/5/06
This matter came before me on the 8th March 2006.
The Plaintiff through its attorneys issued and served on the defendant a combined summons during November 2003. The defendant filed his notice of intention to defend during December 2003.
During January 2004 a notice for application for summary judgment was served and filed by the plaintiffs attorneys. Thereafter the defendant filed his affidavit resisting summary judgment through his attorney.
Subsequently the plaintiff filed a replying affidavit during February 2004.
It is this replying affidavit which is the subject of contention. Mr. Shilubane for the defendant filed a notice of application in terms of rule 30 to the effect that:
[1] The plaintiffs replying affidavit dated 10th February 2004
should be set aside it being an irregular step because the plaintiff had not obtained the leave of the court to file same.
[2] Costs
Rule 32 (5) (a) states that:
"a defendant may show cause against an application under sub-rule (1) by affidavit or otherwise to the satisfaction of the court and with the leave of the court, the plaintiff may deliver an affidavit in reply"[my emphasis).
My understanding of the above sub-section is that the plaintiff should have filed a formal application to this court for an order allowing him to file a replying affidavit to the affidavit filed by the defendant resisting summary judgement. The plaintiffs replying affidavit is an irregular step in terms of rule 30.
I order as follows:
[a] The plaintiffs replying affidavit dated 10th February 2004 is hereby set aside.
[b] The plaintiff is ordered to pay the defendant's costs.
Q.M. MABUZA -AJ