5
in the high court of swaziland
wan li chang
Applicant
.And
martin akker n.o.
1st Respondent
ricky huang
2nd Respondent
yui fang ting
3 rd Respondent
In Re:
ricky huang
Applicant
diamond garments (pty) looted
Respondent
Civil Case 2050/2005
Coram: S.B. MAPHALALA -J
For the Applicant : MR. G. MASUKU
For the Respondent: MR. M. SIMELANE
JUDGMENT
16th February 2007
[1] The application before court is in terms of Rule 30 of the High Coim Rules for an order in the following terms:
Granting Applicant an extension of time or condonation in terms of the common Isw for belatedly instituting Rule 30 application;
That the Notice of withdrawal of 2nd Respondent's affidavits be set aside as m irregular step for not tendering wasted costs incidental to such withdrawal;
That the Notice of Abandonment of Court order dated 18* September 2006 by 5~ Respondent; attorneys be set aside as an irregular step at common law for net tendering wasted costs to Applicant and for failure to seek same on Nonce with aa affidavit explaining why such is sought especially because such order is central to i~e main application and further for not having served Applicant with same as aa interested party;
That 3rd Respondent's Notice of Oppose dated 23rd August 2006 be sesr aside as aa irregular step at common law as the Deputy Registrar had issued a Rule 47 (3) nrug setting security for costs at E20 000-00 which should have been complied: with 5s: before a review of same is sought should 2nd Respondent be aggrieved by -re quantum thereto: No valid work or residence permit had been produced by 2™1 respondent exempting him from compliance, with legal requirement for sscunry fir costs attaching to a peregrines;
Thai 2ad Respondent's affidavit dated 31st August 2006 be set aside as m irregular step ai common iaw as the Deputy Registrar had already issued a Ru3e 4~ (3) ruing setting security for costs at E20 000-00 which should have been cowghd with Sue before a review of same is sought by an aggrieved party; No valid itsaaencers/irx permit had been produced by 1st Respondent
That 2nd Respondent's Notice of Withdrawal of affidavits filed dated 3rd Octoser 2006 be set aside as an irregular step as the Deputy Registrar had issued an Order m terms of Rule 47 (3) which Order's compliance is peremptory before a peregrines-xan file any court process having an effect of addressing the merits and demerits ofrthe matter;
That 1st and 2nd Respondents pay costs of suit on attorney-client scale;
Further and/or alternative relief.
[2] The background of this matter is that on the 7th June 2005, Applicant paid El73, 235-00 to 1st Respondent in keeping with a "mareva mjuncdoii" obtained by 2nd Respondent with the court directing 2nd Respondent to institute proceedings within 14 days of the grant of such injuncrum. However, such Rule was discharged on the 21st April 2006 by the r"1 Respondent's attorneys.
[3] As a result of such discharge of the Rule, Applicant applied for ine release of its El73, 235-00 which application was opposed by both 2nc and 3rd Respondents. Whilst opposing the release of such funds, Applicant moved a Rule 47 application for security for costs against 2nd and Respondents.
[4] The office of the Registrar of the High Court ordered and directed teat such security be raised by 2ad and 3rd Respondents and set it at E20, 00C-II0, however, the 2^ and 3rd Respondents did not comply with such order henre ±e present Rule 30 application.
[5] In argument before me it was contended for the Applicant that the 2nd Respondent's Notice of Withdrawal be set aside as irregular for failure to tender wasted costs to Applicant contrary to rules of court and procedure 3rd Respondent's Notice of Abandonment be set aside as an irregular step for the following reasons:
1. Not tendering wasted costs to Applicant;
2. Failure to seek same on Notice with an affidavit in keeping wifii principles of natural justice centred around fairness;
3. Failure to serve Applicant with same though 3s Respondent knew that Applicant was an interested ad affected pany.
[6] Further that the pleadings and affidavits filed by 2nd and 3n Respondents after Registrar's Rule 47 (2) Order demanding E20, 000-O) security for costs had been issued as an irregular step as such order is peremptory to filing any pleadings. In this regard the court was referred io Herbstein and Van Winsen, The Civil practice of the Supreme Court of South Africa, 1997.
[7] The Respondent on the other hand argued au comraire and attacked paragraph 1 of the relief sought that there are no allegations in the Founding affidavit to support this prayer on condonation. The argument in this regard is mat no facts for the relief set out in paragraph 1 have been adduced. I: was contended that it is unforgivable to omit such allegations which are central and material to the application. For that reason the Respondem contends that the application be dismissed with punitive costs as ce Applicant seeks costs on that scale also. The responded has cited the Sou± African case of L'itenhage Municipality \s Vys 1974 /3) S.A. 800 to the proposition that the period of fourteen (14) days referred to in Rule 30 (i) s to be strictly adhered to. In casu, especially prayers 3, 4 and 5 are clearly outside the 14 days period as they date from 18th September 2006 (prayer 3); 23rd August 2006 (prayer 4); 31st August 2006 (prayer 5) for a Rule 30 application instituted on the 19th October 2006.
[8] Lastly, on this point it was contended for the Respondent that assuming that the court awards the Applicant, the prayers sought, that will not dispose off the issues in the case, but will just increase costs. In this regard the court was referred to the South African case of Garner vs Survey Engineering (Pty) Ltd 1993 (3) S.A. 549.
[9] The second argument advanced by the Respondent is that the Applicant has prematurely brought the application as he needed to comply with rule 47 (3). There is not court order issued by the Judge of this court The Registrar is not in a similar position to that of a Judge. Therefore, the application for irregular proceedings is ill-conceived.
[10] The argument on the issue of the Notice of Abandonment is that a Notice of Abandonment was filed in terms of Rule 41 (2) of the High Coim Rules. The argument in this regard is that the said Rule does not require that an abandonment of a court order be sought on motion supported by an affidavit. In the present case a Notice was filed and served upon the parties to whom the order concerned and Applicant duly got notice, though not served.
[11] I shall proceed to determine the issues raised ad seriatim starting with the first issue that there are no allegations in the Founding affidavit :id support the prayer on condonation.
[12] According to Rule 6 (1) the High Court Rules, which provides as follows:
"Save where proceedings by way of petition are prescribed by law, every application shall be brought on Notice of Motion supported by an affidavit as to the facts upon which the Applicant relies for relieP.
[13] According to the learned authors, Herbstein and Van Winsen, Toe Chil Practice of the Supreme Court of South Africa, 4th Edition at page i3 while the particular facts deposed to will naturally depend on tie circumstances of each case, the affidavits must contain essential avennens in support of the relief claimed.
[14] In the present case the affidavit being the Founding affidavit contains no such facts for the relief set out in paragraph 1 and in this regard I air. m agreement with Mr. Simelane for the Respondent that it is unforgivable o omit such allegations which are central and material to the application. Tik arguments advanced by Mr. Masuku for the Applicant could not answer tns obvious absence of vital averments. It is on this basis that I have come td the considered view that the application stand to be dismissed.
[15] In view of the above reasons in paragraph [14] supra I find that it would not be proper for the court to examine the other questions referred in paragraph [11] supra.
[16] In the result, for the afore-going reasons the application is dismissed with costs on the ordinary scale.
S.B. MAPHALALA
JUDGE