Times Of Swaziland: KUKHANYA  CONTRACTORS’ COURT APPLICATION UPHELD

KUKHANYA  CONTRACTORS’ COURT APPLICATION UPHELD
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Mhlengi Magongo on 21/06/2022 08:29:00


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.