KUKHANYA CONTRACTORS’ COURT APPLICATION UPHELD

MBABANE -The High Court of Eswatini has upheld Kukhanya Civil Engineering Contractors’ application to declare the summary judgment application made by SMS Instrumentation to be an irregular step in their matter.

The ruling was ordered by High Court Judge Nkosinathi Maseko. The plaintiffs in the matter are SMS Instrumentation and the defendant is Kukhanya Civil Engineering Contractors.
The matter is based on Rule 30 of the rules of the High Court of Eswatini where the defendant alleged that the plaintiff instituted summary judgment whereas the pleadings have been closed in the matter and that the matter is awaiting the allocation of a trial date by the Registrar of the High Court. Rule 30 of the rules of the High Court of Eswatini states that when a party to a cause takes an irregular step, other party or parties may apply to court to set it aside.

Application

Such application must be brought on notice to all parties specifying particulars of the irregularity or impropriety alleged. In his ruling, Maseko said the defendant’s notice in terms of Rule 30 is hereby upheld and consequently the summary judgment application is declared to be an irregular step and is hereby set aside. He further ordered the plaintiffs to pay the cost of Rule 30 proceedings. Maseko said the counsel for the defendant submitted that all processes filed in the matter clearly indicate that the ‘pleadings’ had been closed and that the parties were now awaiting the Registrar to allocate a date of hearing. “Counsel for defendant further submitted that it is irregular for the plaintiff to file an application for summary judgment at this stage of the matter where the pleadings had been closed, and that such a step is therefore irregular in terms of Rule 30 of the rules of the High Court”, said Maseko.

Conduct

The judge also mentioned that the counsel of the defendant submitted that the conduct of the plaintiff constitutes an egregious disregard of the rules of court as it relates to the orderly and proper progress of litigation. He said it is also tantamount to an abuse of court processes which ought to be set aside with costs against the plaintiff. Maseko also mentioned that the counsel of the plaintiff submitted that Rule 32 of the rules of court does not fix any time period within which an application for summary judgment should be moved. The counsel for the plaintiff also stated that the rules do not close the door to a plaintiff moving a summary judgment application after a defendant’s plea have been filled.

Maseko further said the counsel of the plaintiff summited that the application for summary judgment is for a liquidated amount in money. “It is common cause that the pleadings in this matter are closed and naturally the matter is awaiting the allocation of a trial or dates by the registrar of this court,” he said. Maseko also mentioned that he is not in agreement with the counsel of the plaintiff that the Rule 30 notice filed by the defendant is a mere technical objection.

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