IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE Civil Case No. 2361/2008
NONHLE LANGWANE Applicant
And
MDUDUZI MAGAGULA RESPONDENT
Coram S.B. MAPHALALA – J
For the Applicant MR. DLAMINI
For the Respondent MR. MABUZA
________________________________________________________________________
JUDGMENT
30th January 2009
_____________________________________________________________
[1] On the 27th January 2009, I heard arguments on points in limine where Applicant had filed an urgent application the previous day. The Applicant seeks for an order directing and compelling the Respondents to forthwith return Applicant’s property, attached by the 2nd Respondent on the 21st January 2009. In prayer 3 thereof that a rule nisi do hereby issue calling upon the Respondents to show cause why prayer 1 and 2 should not be made final on a day to be appointed by the court and that prayer 2 operate with immediate effect. In prayer 4 thereof praying for costs of suit.
[2] The Respondent has raised a number of points in limine which are the subject-matter of this short ruling. Firstly, that Rule 6 (25) of the High Court Rules as to urgency has not been complied with. Secondly, that Rule 45 (a) of the High Court Rules have not been observed by the Applicant in that 21 days has not elapsed. The third point is that this matter is clouded with disputes of fact, for which an action is the appropriate procedure.
[3] Having considered the arguments of the parties it appears to me that the points in limine raised by the Respondent ought to fail. I find that urgency has been proved in accordance with Rule 6 (25) (a) and (b) of the High Court Rules. I find that paragraph 6.1 and 6.2 of the Founding Affidavit satisfy Rule 6 (25) (a) and (b) in the circumstances of the case.
[4] On the second point that Rule 45 (8) (a) has not been complied. I have come to the considered view that the Applicant as a third party is not bound by this Rule. If an innocent third party is injured by the actions of a Deputy Sheriff he can approach the court as a matter of urgency outside the provision of Rule 45 (8) (a) of the High Court Rules.
It appears to me that this Rule only binds the creditor and debtor in that relationship.
[5] On the last point that of disputes of fact I have come to the view that this is not so there is no disputes of fact which is material to the determination of this matter.
[6] In the result, for the afore-going reasons the points in limine are dismissed and costs to be costs on the merits of the matter.
S.B. MAPHALALA
PRINCIPAL JUDGE