High Court Rules

 

 

LEGAL NOTICE NO……OF 2010

 

THE CONSTITUTION OF SWAZILAND ACT, 2005

(Act No. 001 of 2005)

_________

 

HIGH COURT RULES NOTICE, 2010

(undersection 142)

_________

 

In exercise of the powers conferred on me by section 142 of the Constitution, I, Chief Justice of Swaziland, make the following Rules –

 

ARRANGEMENT OF RULES

1.    Citation and commencement

1. Interpretation
2. Sessions of the court and vacations
3. Registrar’s office hours
4. Duties of Registrar
5. Service of process
6. Edictal citation
7. Applications
8. Power of Attorney

10. Provisional sentence

11. Arrest of defendant

12.   Joinder of parties and causes of action

13.   Consolidation of actions

14.   Intervention of parties as plaintiffs or defendants

15.   Third Party procedure

16.   Proceedings by or against partnerships, firms and associations

17.   Change of parties

18.   Representation of parties

19.   Summons

20.   Rules relating to pleadings generally

21.   Notice of intention to defend

22.   Declaration

23.   Further particulars

24.   Plea

25.   Claim in reconvention

26.   Replication and plea in reconvention

27.   Exception and application to strike out

28.   Barring, extension of time, removal of bar and condonation

29.   Amendment of pleadings

30.   Close of pleadings

31.   Dismissal for want of prosecution

32.   Irregular proceedings

33.   Judgment by consent

34.   Judgment in default of appearance

35.   Summary judgment

36.   Special procedures for commercial cases

37.   Tender and payment into court

38.   Discovery, inspection and production of documents and tape recordings

39.   Inspections, examinations and expert testimony

40.   Case management: allocation of cases and management conferences

41.   Set down of defended actions, motions and petitions

42.   Procuring evidence for trial

43.   Trial

44.   Poor litigants (in forma pauperis)

45.   Withdrawal, settlement, discontinuance, postponement and abandonment

46.   Variation and rescission of orders

47.   Matrimonial matters

48.   Restitution of conjugal rights

49.   Execution – general and movables

50.   Execution – immovables

51.   Security for costs

52.   Review of taxation

53.   Certificate of leave to appeal (civil)

54.   Civil appeals from subordinate courts

55.   Criminal appeals from subordinate courts

56.   Certificate for leave to appeal (criminal)

57.   Reviews

58.   Criminal proceedings

59.   The court roll

60.   Garnishee proceedings

61.   Contempt of court

62.   De lunatico inquirendo, appointment of curators in respect of persons under disability and release from curatorship

63.   Interpleader

64.   Sworn translator

65.   Translation of documents

66.   Interpretation of evidence

67.   Superannuation

68.   Tariff of court fees

69.   Tariff of fees of the Sheriff or Deputy Sheriffs

70.   Taxation and tariff of fees of attorneys and advocates

71.   Repeal

      Schedules

 

Citation and Commencement

 

1.      (1) These Rules may be cited as the High Court Rules, 2010.

 

(2) These Rules shall come into operation on the date of publication in the Gazette.

 

Interpretation

 

 

2. In these Rules, unless the context otherwise requires –

 

  “action” means a civil proceeding commenced by summons or by writ issued in terms of Rule 11;

 

  “advocate” means a person duly admitted and enrolled in terms of the Legal Practitioners Act;

 

 “attorney” means a person duly admitted and enrolled in terms of the Legal Practitioners Act;

 

 “cause” includes any action, suit or other original proceeding and any criminal proceeding;

 

 “counsel” means an advocate or an attorney;

 

 “court” means the High Court or a judge sitting in open court or in chambers;

 

 “court day” means any day other than a Saturday, Sunday or public holiday;

 

 “defendant” includes a defendant to a counter-claim;

 

 “deliver” means file the original with the Registrar and serve copies bearing the date stamp of the Registrar on all parties;

 

 “Form” means a form set out in the First Schedule to these Rules;

 

“judge” means the judge sitting in open court or in chambers and to whom a cause has been allocated under Rules 40 and 59;

 

 “magistrate” means a person appointed as such in terms of the Constitution;

 

 “Master” means the Master of the High Court appointed in terms of the Constitution;

 

 “party” or any reference to a plaintiff, defendant or other litigant includes the counsel of that party;

 

“plaintiff” includes a plaintiff in a counter-claim;

 

“Registrar” means the Registrar of the High Court, including a Deputy Registrar, and an Assistant Registrar;

 

 “Sheriff” means the person duly appointed as a Sheriff and shall include any Deputy Sheriff and any person acting under the general or special directions of the Sheriff.

 

 Sessions of the Court and vacations

 

         3.  (1) Notice of the dates and times of the sessions of the High Court as determined by the Chief Justice shall be published by notice affixed to a board in a conspicuous place within the court  premises. 

 

(2) The Registrar shall send by mail, a copy of the notice referred to in sub-rule (1) to every attorney or firm of attorneys who has notified the Registrar that the attorney or firm of attorneys has opened and maintains an office in Swaziland.

 

            (3) The periods between sessions shall be vacations during which, subject to sub-rule (4), the ordinary business of the High Court is suspended provided that at least one judge is available on such days to perform such duties as the Chief Justice shall direct.

           

      (4) Where it appears convenient to the Chief Justice or to the presiding judge after consultation with the Chief Justice, the court may sit at any place or at any time including during vacation.

 

Registrar’s office hours

 

4   (1) The office of the Registrar shall be open to the public on all court days from 8.30 a.m. to 1.00 p.m. and from 2 p.m. to 4.30 p.m..

 

    (2)  Registrar may in exceptional circumstances issue, process and accept documents at any time, and shall do so when directed by the Chief Justice or a judge duly seized of the matter.

  

Duties of Registrar

 

5.  (1) In addition to the duties referred to in any other law or enactment, the Registrar shall carry out the duties specified in these Rules.

 

  (2) The Registrar shall keep a register in which the following particulars shall be recorded –

 

    (a) the serial number of the cause;

    (b) the names of the parties and their attorneys (if any);

    (c) the complaint or cause of action;

    (d) the date on which each document was filed and the name of the party filing it;

    (e) the date and place of hearing the cause;

    (f)  the name of the judge hearing the case;

    (g) the date when judgment was reserved;

    (h) the date when judgment was delivered;

    (i)  the order given in the judgment; and

    (j)  any subsequent proceedings and remarks.                                                                                               

    (3) The Registrar shall not accept and file any document or issue any writ of summons, subpoena or other process or order of court unless the prescribed fee has been paid or unless the court has granted an order dispensing with the payment of fees. 

 

         Service of Process

 

         6.    (1) Service of any process of the court upon a person, directed to the Sheriff, shall be effected by the Sheriff or Deputy Sheriff. 

 

    (2) A document instituting application proceedings service shall be effected by an attorney or any person in the employ of that attorney.

 

                (3) Service of any civil summons, petitions, notices, orders, pleadings and other documents other than an exception shall be validly effected on a Sunday or between 7 p.m. and 7 a.m., unless the court or a judge duly seized of the matter otherwise directs.

(4) Service of any process of the court shall be effected in any of the following ways -             

                                           

(a)  by delivering a copy of the process personally to the person to be served -

       

(i) where that person is a minor or a person under legal disability, service shall be effected upon the guardian, tutor, curator or the like of that minor person or person under disability; and

 

(ii) where that person refuses to accept delivery, service shall be effected by leaving the copy in full view of that person.

 

(b)         (i)  by leaving a copy at the place of residence or business of the person to be served, guardian, tutor, curator of that person or the like with the person in charge of the premises at the time of delivery, being a person not less than sixteen years of age.

 

(ii) for the purposes of paragraph (i), when a building other than a hotel, boarding house, hostel or similar residential building, is occupied by more than one person or family, “residence” or “place of business” means that portion of the building occupied by the persons upon whom service is to be effected;

 

(c)   by delivering a copy at the place of employment of the person to be served, guardian of that person, tutor, curator or the like to a person not less than sixteen years of age and in authority over that person;

 

(d)  Where the person to be served has chosen domicilium citandi, by delivering or leaving a copy at the domicilium so chosen;

        

(e)     in the case of a corporation or company, by delivering a copy to a responsible person at its registered office or a responsible employee at its principal place of business within Swaziland, or if there is no person willing to accept service, by affixing a copy to the main door of that office or place of business, or in any manner provided by law;

           

(f)     by delivering a copy to an agent who is duly authorised in writing to accept service on behalf of the person upon whom service is to be effected;

 

(g)   (i) where any partnership, firm or voluntary association is to be served, service shall be effected in the manner referred to in paragraph (b) at the place of business of such partnership, firm, or voluntary association.

 

(ii) where that partnership, firm or voluntary association has no place of business, service shall be effected on a partner, the proprietor or the chairman or secretary of the committee, or other managing body of that association, as the case may be, in one of the manners set forth in this rule; 

 

(h)     where a local authority or statutory body is to be served, service shall be effected by delivering a copy to the town clerk or assistant town clerk of that local authority or to the secretary or similar officer or member of the board or committee of that body, or in any manner provided by law;       

        

(i)      if two or more persons are sued in their joint capacity as trustees, liquidators, executors, administrators, curators or guardians, or in any other joint representative capacity, service shall be effected upon at least one of them in any manner set forth in this rule;

        

(j)      where the process or application to the court is for an order affecting the liberty of the respondent, or is for an order for dissolution of a marriage, restitution of conjugal rights, judicial separation or nullity of marriage, the process or application shall be served by delivery of a copy to the respondent personally, unless the court for good cause shown gives leave for the process or application to be served in some other specified manner;

        

(k)     Where a person to be served keeps the residence or place of business of that person closed, and thus prevents the Deputy Sheriff or any other person effecting service from serving the process, it shall be sufficient to affix a copy of the process to the out or principal door of that residence or place of business;

 

(l)      Where the Government of Swaziland or any Minister of the Government is to be served it shall be sufficient to deliver a copy of the process to the Attorney General;

 

(m)    In every proceedings in which the Swazi National Administration, the Chairman of the King’s Advisory Council, Royal Libandla LaseLudzidzini or Border Restoration Committee are sued in their official capacities the summons or notice instituting such proceedings shall be served on the Chief Officer in the King’s Office and the Attorney General respectively.

 

(5) It shall be the duty of the Sheriff or other person serving the process or documents to explain the nature and contents the process to the person upon whom service is being effected, and to state on the return of the Sheriff that the Sheriff has done so.

 

(6)  If it is not possible to effect service in any manner prescribed in sub-rule (3) the court may, upon the application of the person wishing to cause service to be effected, give such directions as it may deem fit.   

 

(7)  Service of any process of the court or of any document in a foreign country shall be effected –

 

(a)  by any person authorised under the law of that country;

   

(b) by any person who is certified by the head of the Swaziland diplomatic or consular mission in the country concerned as being a person serving in the administrative or professional division of that mission.    

      

(8)   Service shall be proved in one of the following manners-  

           

(a)        Where service has been effected by the Sheriff or Deputy Sheriff, by the return of service of such Sheriff or Deputy Sheriff; 

 

(b)        Where service has not been effected by the Sheriff or Deputy Sheriff, by an affidavit of the person who effected service, or in the case of service on an attorney or a member of staff of that attorney, the Government of Swaziland, on any Minister, or any other officer of the Government in the capacity of that person as such, by the production of a signed receipt of service of process.     

                         

(9) Service of any process or document in a foreign country shall be proved by a certificate of the person effecting service in which that person identifies that person, and states that, that person is authorised under the law of the country to serve process or document therein, and that the process or document in question has been served as required by the law of that country, and sets forth the manner and date of such service. 

 

Edictal Citation

 

7.  (1)   Except by leave of the court, no process or document whereby proceedings are instituted shall be served outside Swaziland.

 

(2)   Any person wishing to obtain that leave shall make application to the court setting out concisely the nature and extent of the claim of that person, the grounds upon which it is based and upon which the court has jurisdiction to adjudicate on the claim, and also the manner of service which the court is asked to authorise.

 

(3)      If personal service cannot be effected, the application shall further set out details of the last known whereabouts of the person to be served as well as the enquiries made to ascertain the whereabouts of that person.

                                  

             (4)       Upon such application the court may make an order as to the manner of service as to it seems appropriate and shall further order the time within which notice of intention to defend is to be given or any other steps to be taken by the person to be served.

                                  

             (5)       Where service by publication is ordered, it may be in a form as near as may be in accordance with Form 1 in the First Schedule, approved and signed by the Registrar.  

 

             (6)       Any person desiring to obtain leave to effect service outside Swaziland of any document other than one whereby proceedings are instituted may either make application for such leave in terms of sub-rule (2) or request such leave at any hearing at which the court is dealing with the matter, in which latter event no papers need be filed in support of the request and the court may act upon such information as may be given from the Bar, or given in any other manner as it may require, and may make an order as to it seems appropriate.                      

 

Applications

 

8.  (1)   Except where proceedings by way of petition are prescribed by law, every application shall be brought on notice of motion supported by an affidavit setting out the facts upon which the applicant relies for relief.

 

(2)        When relief is claimed against any person, or where it is necessary or proper to give any person notice of such application, the notice of motion shall be addressed to both the Registrar and that person, otherwise it shall be addressed to the Registrar only.

 

(3)        Every petition shall conclude with the form of the order prayed for and shall be verified upon oath by or on behalf of the petitioner. 

 

(4)        With every application the applicant shall file with the Registrar a draft of the order which is sought.

 

   (5)        Every application brought ex parte by way of petition or notice of motion shall, save in matters of urgency, be filed with the Registrar and set down not less than two court days before the day fixed for hearing.

              

(6)        Where the application is brought upon notice to the Registrar, that notice shall set out the form of the order sought, specify the affidavit(s) filed in support of that application, requesting the Registrar to place the matter on the roll for hearing, and be as near as may be in accordance with Form 2 in the First Schedule.  

  

(7)        Any person having an interest which may be affected by a decision on an application being brought ex parte, may deliver notice of an application for leave to oppose, supported by an affidavit setting forth the nature of such interest and the ground upon which that person desires to be heard, whereupon the Registrar shall set that application down for hearing at the same time as the application brought ex parte.

                                                                                      

(8)        At the hearing the court may grant or dismiss either or both applications or may adjourn the same upon terms as to the filing of further affidavits or otherwise as to it seems fit.

     

  (9)       Every application other than one brought ex parte shall be brought on notice of motion as near as may be in accordance with Form 3 in the First Schedule and true copies of the notice, the supporting affidavit or affidavits and all annexures to the application , shall be served upon every party to whom notice of the application is to be given.

 

 (10)      In that notice the applicant shall –

 

      (a)  appoint an address within five kilometres of the office of the Registrar at which the applicant will accept notice and service of all documents in the proceedings;

 

               (b) set forth a day, not less than five court days after service thereof on the respondent, on or before which the respondent is required to notify the applicant in writing whether the applicant intends to oppose that application;

  

(c) state that if no notification is given the application will be set down for hearing on a stated day, not being less than seven court days after service of the notice on the respondent.

 

 (11)      If the respondent does not, on or before the day specified for that purpose in such notice, notify the applicant of the intention of the respondent to oppose, the applicant may place the matter on the Roll for hearing by giving the Registrar notice of set down not later than two court days preceding the day assigned by the Registrar or directed by the Chief Justice upon which the same is to be heard.

 

(12)       Any person opposing the grant of an order sought in the notice of motion shall –

 

(a) within the time stated in the notice, give the applicant notice in writing that the applicant intends to oppose the application, and in that notice appoint an address within five kilometres of the office of the Registrar at which the applicant will accept notice and service of all documents;     

 

(b) within fourteen days of the service on the respondent of the notice of motion, deliver an answering affidavit, if any, together with any relevant documents; and      

 

(c)  if the respondent intends to raise a question of law only, the respondent shall deliver notice of intention to do so, within the time stated in the preceding paragraph setting forth such question.

 

     (13)      Within seven court days of the service upon applicant of the affidavit and documents referred to in sub-rule (12) (b) the applicant may deliver a replying affidavit but the court may in its discretion permit the filing of further affidavits.  

       

(14)      Where no answering affidavit or notice in terms of sub-rule 12 (b) is delivered within the stipulated period referred to, the applicant may set the application down for hearing.

 

(15)      Where an answering affidavit or notice is delivered, the applicant may apply for a date of hearing within four court days of the delivery of the replying affidavit.

 

(16)      No further affidavit shall be filed by any party unless the court in its discretion permits further affidavits to be filed. 

       

(17)      If the applicant fails to apply for allocation of a date of hearing within the period stated in this Rule, the respondent may do so immediately upon the expiry of that period .   

      

(18)      Notice in writing of the date allocated by the Registrar shall forthwith be given by applicant or respondent, as the case may be, to the opposite party.

 

(19)      Within five court days of the delivery of the answering affidavit, or the replying affidavit as the case may be, the applicant shall file heads of argument.

 

(20)      Within five court days after the expiry of the time laid down for the delivery of applicant’s heads of argument, the respondent shall file heads of argument.

 

(21)      A party or legal practitioner who fails to file heads of argument or does so out of time may be subject to an adverse order of costs, including punitive costs at the discretion of the court.

 

(22)      If in the opinion of the court the application cannot properly be decided on affidavit, the court may-

  

(a)           dismiss the application or make an order as to it seems appropriate with a view to ensuring a just and expeditious decision; 

 

(b)           in particular, but without limiting its discretion, direct that oral evidence be heard on specified issues with a view to resolving any dispute of fact;

 

(c)           to that end order any deponent to appear personally or grant leave for that deponent or any other person to be subpoenaed to appear and be examined and cross-examined as a witness;

 

(d)          or refer the matter to trial with appropriate directions as to pleadings or definition of issues, or otherwise.                 

       

Power of attorney

 

9.  (1) Save as provided in these rules, no Summons, petitions, notice of motion or other originating document in a cause shall be issued by the Registrar at the instance of an attorney on behalf of a plaintiff, petitioner or applicant, nor shall the Registrar cause appearance to be entered at the instance of an attorney on behalf of a defendant or respondent unless there has been filed with the Registrar a power of attorney to sue or defend, as the case may be. 

 

       (2) A power of attorney need not be filed by the Attorney General, Director of Public Prosecutions or any Counsel to the Attorney General or Director of Public Prosecutions in any matter in which the Attorney General or Director of Public Prosecutions is acting in that capacity for or on behalf of the Government of Swaziland or for a Government Department.

 

  (3)  A power of attorney shall be duly signed by the client and dated and shall be in  Form 4 in the First Schedule with such variations as circumstances may require.

 

  (4)  An attorney may at any time before set down renounce the agency of that Attorney by giving not less than five days written notice to the client of that Attorney, any other parties and to the Registrar.

 

   (5)  Until the client furnishes the Registrar with, and notifies the opposite party of a new address for service any process served on the retiring attorney at the address for service shall be considered good service and the retiring attorney shall notify that former client of the service of any such process by letter addressed to the client’s last known address.

 

  (6)   Once a cause is set down for hearing no attorney shall be permitted to renounce that Attorney’s agency except with the leave of the court upon good cause shown.  Failure to pay fees only shall not be considered good cause.

 

  (7)  The Registrar shall not set down any appeal at the instance of an attorney on behalf of an appellant unless -  

 

(a)  the attorney has filed with the Registrar a power of attorney authorising that Attorney to appeal;     

                                     

(b)  it is shown to the Registrar’s satisfaction that the power of attorney filed in the court a quo confers such authority.

 

     Provisional Sentence

 

    10. (1) Where by law, any person may be summoned to answer a claim made for provisional sentence, proceedings shall be instituted by way of a summons as near as may be in accordance with Form 5 in the First Schedule, calling upon such person to pay the amount claimed or failing to appear or by counsel upon a day named in the summons not being less than seven court days after the service upon that person of the summons, to admit or deny that person’s liability.

 

     (2) Such summons shall be issued by the Registrar and the provisions of Rule 17 (3) and (4) shall mutatis mutandis apply.

 

           (3) Copies of all documents upon which the claim is founded shall be annexed to the summons and served with it.

 

           (4) The plaintiff shall set down the case for hearing not later than two court days preceding the day assigned by the Registrar upon which is to be heard.

 

(5) Upon the day named in the summons the defendant may appear personally or by counsel to admit or deny liability and may, not later than noon of the court day but one preceding the day upon which the defendant is called upon to appear in court, deliver an affidavit setting forth the grounds upon which the defendant disputes liability.  In that event the plaintiff shall be afforded a reasonable opportunity of replying to that summons. 

          

(6) If at the hearing the defendant admits liability or if the defendant has previously filed with the Registrar an admission of liability signed by the defendant and witnessed by an attorney acting the defendant and not acting for the opposite party, or, if not so witnessed, verified by affidavit, the court may give final judgment against defendant.

 

(7) The court may hear oral evidence as to the authenticity of the defendant’s signature, or that of the defendant’s agent, to the document upon which the claim for provisional sentence is founded, or as to the authority of the defendant’s agent.

 

(8) Where the court refuse provisional sentence it may order the defendant to file a plea within a stated time and may make such order as to the costs of the proceedings as to it may seem just. Thereafter the provisions of these Rules as to pleading and the further conduct of trial actions shall mutatis mutandis apply.

 

(9) Where the court grant provisional sentence the plaintiff shall on demand furnish the defendant with security de restituendo to the satisfaction of the Registrar, against payment of the amount due under the judgment. 

 

(10) Any person against whom provisional sentence has been granted may enter into the principal case only if that person has satisfied the amount of the judgment for provisional sentence and taxed costs, or if the plaintiff on demand fails to furnish due security in terms of sub-rule (9).

 

(11) A defendant entitled and wishing to enter into the principal case shall, within fourteen days of the grant of provisional sentence, deliver notice of intention to do so, in which event the summons shall be deemed to be a combined summons and defendant shall deliver a plea within seven days thereafter.  Failing that notice or that plea the provisional sentence shall ipso facto become a final judgment and the security given by the plaintiff shall lapse.

 

Arrest of Defendant

 

11. (1) Where a plaintiff proves to the satisfaction of the Registrar that the plaintiff has a good cause of action against a defendant to the amount of E1 000 (one thousand Emalangeni) or more exclusive of costs and that there is good ground for believing that the defendant is about to leave Swaziland and that the absence of the defendant from Swaziland will materially prejudice the plaintiff in the prosecution of the plaintiff’s claim, the Registrar may issue a writ of arrest directing the defendant to be arrested and held to bail to answer the plaintiff’s claim.

 

(2)  In all cases where a person may be arrested or held to bail, the process shall be by writ of arrest addressed to the Sheriff or deputy Sheriff and to the officer commanding the gaol and signed as is required in the case of a summons and shall, as near as possible, be in accordance with Form 6 in the First Schedule.

             

     (3)  When delivered to the Registrar for signature, the writ of arrest shall be accompanied by an affidavit sworn to by the plaintiff or the plaintiff’s agent setting forth all facts which would justify the Registrar in issuing, or refusing to issue, the proposed writ, and in particular the following-

  

(a)    a true description of the person making the affidavit , setting forth   place of  residence of that person;

 

        (b) a statement of the sum alleged to be due to the plaintiff by the defendant, the cause of the claim and when it became due; 

                                          

        (c) in the case of the unlawful detention of any movable property, the affidavit shall contain the value and description of the property;

  

                         (d)  where the plaintiff sues as executor or administrator of a deceased person, or as a trustee of an insolvent estate, or in a similar representative capacity, it shall be sufficient to aver in the affidavit that the defendant is indebted as stated as appears from the books and documents in the possession of the deponent and that the deponent verily believes that the debt is due;

 

                (e)  the affidavit shall further contain an allegation that the plaintiff has no or has insufficient security for the demand, specifying the nature and extent of the security, if any, and that a sum of E1 000 (one thousand Emalangeni) or more remains wholly unsecured.  If the claim is one for damages the affidavit shall allege that the plaintiff has sustained damage to an amount of E1 000 (one thousand Emalangeni) or more.

 

           (4)  The writ of arrest and affidavit shall be filed by the Registrar, and the defendant or the defendant’s attorney shall be at liberty at all reasonable times and without charge to peruse and copy same.

 

           (5)  In all cases where a sum of money or a specific thing is claimed, that sum of money or a specific thing shall be set forth in the writ of arrest.

 

      (6)  The costs of issuing the writ shall be endorsed thereon by the Registrar, and the Sheriff or deputy Sheriff shall, upon arrest made by virtue thereof, give to the defendant a copy of the writ, together with copies of the affidavit and any documents upon which the claim is founded, which copies shall be furnished by the plaintiff.

 

      (7)  Where a warrant of arrest has been telegraphically transmitted the original warrant shall be sent by the first post to the place where the person has been arrested or detained and shall be accompanied by a copy the original warrant and a copy of the affidavit in terms of 12 (3).

 

 (8)  After the arrival of the warrant at the place where such person has been arrested or detained, a copy of the original warrant and affidavit shall forthwith be served upon the arrested person.

 

      (9)          If on arrest, the defendant or anyone on behalf the defendant gives to the Sheriff or deputy Sheriff adequate security by bond or obligation of the defendant and of another person residing and having sufficient means within Swaziland that the defendant will appear according to the exigency of the writ, and will abide the judgment of the court thereon, or if the defendant pays or delivers to the Sheriff or deputy Sheriff the sum of money or thing mentioned in the writ, together with the costs endorsed thereon and costs of the execution of the writ as prescribed, the Sheriff or deputy Sheriff shall permit the defendant to go free of the writ of arrest.

 

           (10) The bond or obligation to be given to the Sheriff or the Deputy Sheriff under this Rule shall be as seen as may be in accordance with Form 7 in the First Schedule provided that the personal bond of the defendant without a surety shall be sufficient for the purpose of this Rule if accompanied by a deposit of the amount or thing claimed as well as such costs as mentioned in sub-rule (8).  The deposit shall be referred to in the bond as one of the conditions of the bond.

 

    (11) If the defendant at any time after arrest satisfies the claim contained in the writ, including the costs and charges endorsed thereon, and the costs of the execution of the writ or if the defendant gives a bond or obligation in terms of sub-rule (8) or (9), the defendant shall be entitled to immediate release.

 

   (12) If a bond or obligation has been given by or on behalf of the defendant, in terms of sub-rule (8) or (9) the plaintiff shall proceed with an action as if there had been no arrest, and save in those cases where summons has already been issued, the writ of arrest and affidavit shall stand as a combined summons in the action.

 

   (13) Any person arrested shall be entitled to anticipate the day of appearance and to apply to the court for release, upon giving notice to the plaintiff and to the Registrar.

 

   (14) If the Sheriff or Deputy Sheriff takes from the party arrested any bond or obligation by virtue of any writ, the Sheriff or Deputy Sheriff shall, as soon as practicable, assign to the plaintiff such bond or obligation, by an endorsement thereon under the hand of the Sheriff or Deputy Sheriff, as near as may be in accordance with Form 8 in the First Schedule.

 

         (15) If on the return day or anticipated return day the defendant admits the whole or a part of the claim of the plaintiff, the court may hear the parties and in its discretion give final judgment against the defendant for the amount admitted, whereupon the defendant shall be released.

 

        (16) If the defendant has not satisfied or admitted the plaintiff’s claim and has not given security as required in terms of this rule, the plaintiff may, on the return or anticipated return day, apply for confirmation of the arrest, whereupon the court, unless sufficient cause to the contrary is shown, shall confirm such arrest and order the return of the defendant to prison, and shall make such further order as to it seems fit for the speedy termination of the proceedings.

 

         (17) If in any such proceedings judgment is given against the defendant, the defendant  shall be entitled to release.     

 

        Joinder of parties and causes of action

 

        12. (1)      Any number of persons, each of whom has a claim, whether jointly, jointly and severally, separately or in the alternative, may join as plaintiffs in one action against the same defendant or defendants against whom any one or more of such persons proposing to join as plaintiffs would, if that person brought a separate action, be entitled to bring such action.

 

              (2)       The right to relief of the persons proposing to join as plaintiffs depends upon the determination of substantially the same question of law or fact which, if separate actions were instituted, would arise in each action, and provided that there may be a joinder conditionally upon the claim of any other plaintiff failing.

 

             (3)       Where upon the application of any defendant, it appears that, that joinder may embarrass or delay the trial of the action, the court may order separate trials, or make any other order as may be expedient, and judgment may be given for one or more of the plaintiffs as may be found to be entitled to relief without any amendment, but the defendant, though unsuccessful, shall be entitled to costs occasioned by so joining any person who shall not be entitled to relief, unless the court in disposing of the costs otherwise directs.

 

             (4)       Unless the court otherwise directs, a plaintiff may join several causes of action in the same action even where each cause is different from the other(s).

 

              (5)       All persons may be joined as defendants against whom the right to relief is alleged to exist, whether jointly, severally or in the alternative, and judgment may be given against all, or such one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment-

 

             (6)       Without limiting the court’s discretion in any way –  

 

                                     (a)        the court may order that any plaintiff who is unsuccessful shall be liable to any other party, whether plaintiff or defendant, for any costs occasioned by the Plaintiff’s joining in the action as plaintiff; 

 

                                     (b)        Where judgment is given in favour of any defendant or if any defendant is absolved from the instance, the court may order -  

 

(i)         the plaintiff to pay the costs of that defendant, or

 

                  (ii)     the unsuccessful defendants to pay the costs of successful defendant jointly and severally, the one paying the other to be absolved, and that if one of the unsuccessful defendants pays more than the defendants’ pro rata share of the costs of the successful defendant, the defendants shall be entitled to recover from the other unsuccessful defendants their pro rata share of such excess; and

 

                 (iii)   the court may further order that, if the successful defendant is unable to recover the whole or any part of the costs of that defendant from the unsuccessful defendants, the defendant shall be entitled to recover from the plaintiff such part of the defendant’s costs as cannot be recovered from the unsuccessful defendants.         

 

        (7)     Where there has been any joinder of causes of action or of parties, the court may on the application of any party at any time order that separate trials be held either in respect of some or all of the causes of action or some or all of the parties; and the court may on such application make such order as to it seems meet.

 

        (8)     No person shall be added as a plaintiff without the consent of that person in writing thereto.

 

Consolidation of actions

 

13. Where separate actions have been instituted and it appears to the court convenient to do so, it may upon the application of any party to the actions and after notice to all interested parties, make an order consolidating the actions, whereupon –

 

(1)         the actions shall proceed as one action;

 

(2)               the provisions of these rules shall mutatis mutandis apply with regard to the action so consolidated; and

 

(3)               the court may make any order which to it seems meet with regard to the further procedure, and may give one judgment disposing of all matters in dispute in the actions.             

 

Intervention of parties as plaintiffs or defendants

 

14.  Any person entitled to join as a plaintiff or liable to be joined as a defendant in any action may, on notice to all parties, at any stage of the proceedings apply for leave to intervene as a plaintiff or a defendant.  The court may upon that application make an order including any order as to costs, and give directions as to the further pleadings or other procedure in the action as it deems fit.         

 

Third Party procedure

 

15.   (1) Where a party in any action claims –

       

                 (a)  as against any other person not a party to the action (in this Rule called a “third party”) that, that party is entitled, in respect of any relief claimed against, that party to a contribution or indemnity from that third party; or

 

                 (b)  that any question or issue in the action is substantially the same as a question or issue which has arisen or will arise between that party and the third party, and should properly be determined not only as between any parties to the action but also as between the parties and the third party or between any of them, that party may issue a notice, hereinafter referred to as a third party notice, as near as may be in accordance with Form 9 in the First Schedule, which notice shall be served by the sheriff.

 

        (2)     The third party notice shall state the nature and grounds of the claim of the party issuing that notice, the question or issue to be determined, and any relief or remedy claimed.  Insofar as the statement of the claim and the question or issue are concerned, the rules with regard to pleadings and to summonses shall mutatis mutandis apply.

       

        (3)     The third party notice shall be served before the close of pleadings or thereafter only by leave of the court and shall be accompanied by a copy of all pleadings filed in the action up to the date of service.

 

        (4)     If the third party intends to contest the claim set out in the third party notice that third party shall deliver notice of intention to defend, as if to a summons.  Immediately upon receipt of that notice, the party who issued the third party notice shall inform all other parties accordingly.

 

        (5)     The third party shall, after service upon that third party of a third party notice, be a party to the action and, if that third party delivers notice of intention to defend, shall be served with all documents and given notice of all matters as a party.

       

        (6)     The third party may plead or except to the third party notice as if the third party were a defendant to the action.  The third party may also, by filing a plea or other proper pleading contest the liability of the party issuing the notice on any ground notwithstanding that such ground has not been raised in the action by such latter party.

 

        (7)   The third party shall not be entitled to claim in reconvention against any person other than the party issuing the notice save to the extent that the third party would be entitled to do so in terms of Rule 25 on claim in reconvention.

 

        (8)     The Rules with regard to the filing of further pleadings shall apply to third parties as follows-

 

                         (a)        insofar as the third party’s plea relates to the claim of the party issuing the notice, that party shall be regarded as the plaintiff and the third party as the defendant.

                

                         (b)        insofar as the third party’s plea relates to the claim of the plaintiff, the third party shall be regarded as a defendant and the plaintiff shall file pleadings as provided by the rules with regard to the filing of further pleadings.

 

        Proceedings by or against Partnerships, Firms and Associations

 

        16.    (1)  In this Rule –

 

                        “action” includes an application;

 

“association” means any unincorporated body of persons other than a partnership;

 

“firm” means a business, including a business carried on by a body corporate or carried on by the sole proprietor of the business under a name other than its own;

 

“partnership” includes a business carried on by more than one proprietor under a name other than the names of the proprietors;

 

        “plaintiff” and “defendant” include applicant and respondent;

 

        “relevant date” means the date of accrual of the cause of action; and

 

        “sue” and “sued” are used in relation to actions and applications.

 

                 (2)   A partnership, a firm or an association may sue or be sued in its name.

 

         (3)   A plaintiff suing a partnership need not allege the names of the partners but if the plaintiff does, any error of omission or inclusion shall not afford a defence to the partnership.

        

                 (4)   Sub-rule (3) shall apply mutatis mutandis to a plaintiff suing a firm.

 

(5)            (a)        A plaintiff suing a firm or a partnership may at any time before or after judgment deliver to the defendant a notice calling for particulars as to the full name and residential address of the proprietor or of each partner, as the case may be, as at the relevant date.     

          

                          (b)        The defendant shall within ten days deliver a notice containing such information. 

 

        Change of parties

 

        17.            (1)       Proceedings shall not terminate merely by reason of the death, marriage or other change of status of any party thereto unless the cause of such proceedings is thereby extinguished.

 

                          (2)       Whenever by reason of an event referred to in sub-rule (1) it becomes necessary or proper to introduce a further person as a party in such proceedings (whether in addition to or in substitution for the party to whom such proceedings relate) any party in the proceedings may forthwith by notice to such further person, to every other party and to the Registrar, add or substitute such further person as a party in the proceedings, and subject to any order made under sub-rule (4), such proceedings shall thereupon continue in respect of the person thus added or substituted as if that person  had been a party from the commencement the proceedings  and all steps validly taken before such addition or substitution shall continue of full force and effect:  

 

                 (3) A notice shall not be given after the commencement of the hearing of any opposed matter, except with the leave of the court granted on such terms (as to adjournment or otherwise) as to it may seem fit.

 

                 (4) The copy of the notice served on any person joined thereby as a party to the proceedings shall (unless such party is represented by an attorney who is already in possession thereof), be accompanied in application proceedings by copies of all notices, affidavits and material documents previously delivered, and in trial matters by copies of all pleadings and like documents already filed of record.

 

                         (5)        Whenever a party to any proceedings dies or ceases to be capable of acting as such, the executor of that person, curator, trustee or similar legal representative, may by notice to all other parties and to the Registrar intimate that, that executor, curator, trustee or similar representative  desires  that   to be substituted in that capacity for that  party, and unless the court otherwise orders, that executor, curator, trustee or similar representative shall thereafter for all purposes be deemed to have been so substituted.

                                                           

                         (6)        The court may upon notice of application delivered by any party within twenty-one days of service of notice in terms of sub-rule (2) or (3), set aside or vary any addition or substitution of a party thus affected or may dismiss such application or confirm such addition or substitution, on such terms, if any, as to the delivery of any affidavits or pleadings, or as to postponement or adjournment, or as to costs or otherwise, as to it may seem meet.

 

        Representation of parties

 

        18. (1)      Any party bringing or defending any proceedings may at any time appoint an attorney to act on behalf of that party, who shall notify all other parties of the name and address of that party.

 

       (2)      Any party represented by an attorney in any proceedings may at any time, subject to the provisions of Rule 44, terminate the authority of the attorney to act for that party, and thereafter -

 

(a)    act in person or appoint another attorney to act on behalf of that party , whereupon that party shall forthwith

 

(b)   give notice to the Registrar and to all other parties of the termination of the    authority of the former attorney of that party and if that party has appointed a further attorney so to act for that party, of the name and address of the latter.  

       

         (3)   Where that party does not appoint a further attorney, that party shall in the notice of termination of the authority of the former attorney of that party also notify all other parties of an address within five kilometres of the court for the service on that party of all documents in such proceedings.

 

          (4)   Upon receipt of a notice in terms of sub-rules (1) and (2) the address of the attorney or of the party as the case may be, shall become the address of that party for the service upon that party of all documents in such proceedings, but any service duly effected elsewhere before receipt of that notice shall, notwithstanding that change, for all purposes be valid, unless the court otherwise orders.

 

        (5)    (a)        Where an attorney acting in any proceedings for a party ceases so to act, that party shall forthwith deliver notice thereof to that party, the Registrar and all other parties: provided that notice to the party for whom that attorney acted may be given by registered post.

 

                 (b)        After that notice, unless the party formerly represented within ten days after the notice, that party  notifies all other parties of a new address for service as required under sub-rule (2), it shall not be necessary to serve any documents upon that party unless the court otherwise orders.

 

                 (c)        Any of the other parties may before receipt of the notice of the new address of that party for service of documents, serve any documents upon the party who was formerly represented.

 

                 (c)        The notice to the Registrar shall state the names and addresses of the parties notified and the date on which and the manner in which the notice was sent to them.

 

  Summons

 

        19.            (1)        Every person making a claim against any other person may, through the office of the Registrar, sue out a summons or a combined summons as near as may be in accordance with Form 10 or Form 11 in the First Schedule addressed to the Sheriff directing the Sheriff to inform the defendant, inter alia, that, if the defendant disputes theclaim, and wishes to defend the defendant shall–   

          

                                    (a)        within the time stated therein, give notice of the intention of the defendant to defend;           

        

                                    (b)        thereafter, if the summons is a combined summons, within twenty-one days after giving such notice, deliver, with or without a claim in reconvention, a plea, exception, or application to strike out.

 

                        (2)        In every case where the claim is not for a debt or liquidated demand there shall be annexed to the summons a statement of the material facts relied on by the plaintiff in support of the claim of Plaintiff which statement shall, inter alia, comply with Rules 20 and 22.

 

                        (3)        Every summons shall be signed by the attorney acting for the plaintiff and shall bear an attorney’s address within five kilometres of the seat of the court, or if no attorney is acting, it shall be signed by the plaintiff, who shall in addition append an address within five kilometres of the seat of the court at which the Plaintiff  shall accept service of all subsequent documents in the suit, and shall thereafter be signed and issued by the Registrar and made returnable by the Sheriff, or such other person who serves the same, to the court through the Registrar.

 

                        (4)        Every summons shall set forth –

                       

                                    (a)        the name (including where possible the first name or initial) by which the defendant is known to the plaintiff, the residence of the defendant or place of business and, where known, the occupation of the defendant and, if the defendant the plaintiff is sued in any representative capacity, such capacity, and it shall also state the defendant’s sex and, if female, her marital status;

 

                                    (b)        the full names, sex, occupation and the residence or place of business of the plaintiff shall be set out.  Where the plaintiff sues in a representative capacity, such capacity shall be stated.

 

        Rules relating to pleadings generally

 

        20.   (1)    A combined summons, and every other pleadings, shall be signed by the advocate or attorney acting for the party, or if a party sues or defends personally, by such party.

 

               (2)     The title of the action describing the parties thereto and the number assigned thereto by the Registrar, shall appear at the head of each pleading: provided that where the parties are numerous or the title lengthy and abbreviation is reasonably possible, it shall be so abbreviated.  

 

               (3)     Every pleading shall be divided into paragraphs (including sub-paragraphs) which shall be consecutively numbered and shall, as nearly as possible, each contain a distinct averment.

 

               (4)     Every pleading shall contain a clear and concise statement of the material facts upon which the pleader relies for the claim of the pleader, defence or answer to any pleading, as the case may be, with sufficient particularity to enable the opposite party to reply thereto.

       

               (5)     When in any pleading a party denies an allegation of fact in the previous pleading of the opposite party, that party shall not do so evasively, but shall answer the point of substance.

 

               (6)     A party who in the pleading of that party relies upon a contract shall state whether the contract is written or oral and when, where and by whom it was concluded, and if the contract is written a true copy thereof or of the part relied on in the pleading shall be annexed to the pleading.

 

               (7)     It shall not be necessary in any pleading to state the circumstances from which an alleged implied term can be inferred.

           

                        (8)     Where a party suing for restitution of conjugal rights, divorce or judicial separation has been guilty of adultery, that party shall state the time and place of that adultery in the summons of that party and pray for condonation of that adultery.

 

                        (9)     A party to matrimonial proceedings relying on constructive desertion shall in the pleading of that party set out the particulars of that constructive desertion.

 

                        (10)   A plaintiff suing for damages shall set them out in such a manner as will enable the defendant reasonably to assess the quantum thereof.

 

               (11)   A plaintiff suing for damages for personal injury shall specify the  date of birth of that plaintiff, the nature and extent of the injuries, and the nature, effects and duration of the disability alleged to give rise to such damages, and shall as far as practicable state separately what amount, if any, is claimed for –

                

                         (a)        medical costs, and hospital and other similar expenses, and how these     costs and expenses are made up;

                

                         (b)        pain and suffering, stating whether temporary or permanent and which injuries caused it;

 

                         (c)        disability in respect of –

 

                        (i)  the earning of income, stating the earnings lost todate and how the amount is made up and the estimated future loss and the nature of the work the plaintiff will in future be able to do;

 

(ii)  the enjoyment of amenities of life, giving particulars and stating whether the disability concerned is temporary or permanent; and

                

                         (d)   disfigurement, with a full description thereof and stating whether it is temporary or permanent.

 

            (12) A plaintiff suing for damages resulting from the death of another shall state the date of birth of the deceased as well as that of any person claiming damages as a result of the death.

 

                 (13) If a party fails to comply with any of the provisions of this rule, such pleading shall be deemed to be an irregular step and the opposite party shall be entitled to act in accordance with Rule 32.

 

Notice of Intention to Defend

 

21.            (1) Subject to any direction given by the court, the defendant in every civil action shall be allowed at least seven court days after service of summons on the defendant (and where the defendant resides more than eighty kilometres from the seat of the court at least seven days) within which to deliver a notice of intention to defend, either personally or through that attorney of the defendant.

 

                 (2) In actions against the Government, or against any officer or servant thereof in that capacity, the time to be allowed for delivery of notice of intention to defend shall be not less than twenty days after service of summons, unless in any case the court has specially authorised a shorter period.

 

                 (3) When a defendant delivers notice of intention to defend, that defendant shall therein appoint an address, not being a post office box or poste restante, within five kilometres of the court for the service on that defendant at that address of all documents in such action, and service thereof at the address so given shall be valid and effectual, except where by any order or practice of the court personal service is required.

 

                 (4)  A party shall not by reason of delivery of notice of intention to defend of that party be deemed to have waived any right to object to the jurisdiction of the court or to any irregularity in the proceedings.

 

        Declaration

 

        22.     (1) In all actions in which the plaintiff’s claim is for a debt or liquidated demand and the defendant has delivered notice of intention to defend, the plaintiff shall except in the case of a combined summons, within fourteen days of receipt thereof that notice of intention to defend, deliver a declaration.

 

                  (2) The declaration shall set forth the nature of the claim, the conclusions of law which the plaintiff shall be entitled to deduce from the facts stated therein, and a prayer for the relief claimed.

 

                  (3) Where the plaintiff seeks relief in respect of several distinct claims founded upon separate and distinct facts, such claims and facts shall be separately and distinctively stated.

 

        Further Particulars

 

        23.  (1) The court may order a party to deliver to any other party further particulars of any claim, defence, or other matter stated in the pleading of that party, or in any affidavit ordered to stand as a pleading, or a statement of the nature of the case on which that party  relies. Such order may be on such terms as the court thinks just.

 

                (2)  Where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, then, without prejudice to the generality of sub-rule (1) the court may, on such terms as it thinks just, order that party to serve on any other party - 

                      

                       (a)     where that party alleges knowledge, particulars of the facts on which that party relies, and

 

                      (b)      where that party alleges notice, particulars of the notice.

 

                            (3) An order under this Rule shall not be made before delivery of the plea unless, in the opinion of the court, the order is necessary or desirable to enable the defendant to plead or for some other special reason.

 

                   (4) Where the applicant for an order under this Rule did not apply by letter for the further particulars the applicant requires, the court may refuse to make the order unless it is of opinion that there were sufficient reasons for an application by letter not having been made.

 

                 (5)  Where further particulars are given pursuant to a request, or order of the court, the request or order shall be incorporated with the particulars, each item of the particulars following immediately after the corresponding item of the request or order.

 

           (6)  Where a party fails to comply with any order for further particulars, the court may, on application, order that the action be dismissed, or the defence be struck out or that the allegation of which particulars were ordered be struck out from the pleading.

 

        Plea

 

        24.     (1) Where the defendant has delivered notice of intention to defend, the defendant shall within fourteen days after the service upon the defendant of a declaration or within fourteen days after the due delivery of further particulars, deliver a plea with or without a claim in reconvention, or an exception with or without application to strike out. 

 

                  (2) The defendant shall in  the plea of the defendant either admit or deny or confess and avoid all the material facts alleged in the combined summons or declaration or state which of those facts are not admitted and to what extent, and shall clearly and concisely state all material facts upon which defendant relies.

 

                           (3) Every allegation of fact in the combined summons or declaration which is not stated in the plea to be denied or to be not admitted, shall be deemed to be admitted, and if any explanation or qualification of any denial is necessary, it shall be stated in the plea.

 

                           (4)  Where by reason of any claim in reconvention the defendant claims that on the giving of judgment on that claim, the claim of the plaintiff will be extinguished either in whole or in part, the defendant may in the plea of the defendant refer to the fact of such claim in reconvention and request that judgment in respect of the claim or any portion thereof which would be extinguished by such claim in reconvention, be postponed until judgment on the claim in reconvention.

 

                  (5) Judgment on such claim shall, either in whole or in part, thereupon be so postponed unless the court, upon the application of any person interested, otherwise orders, but if no other defence has been raised, the court may give judgment for such part of the claim as would not be extinguished, as if the defendant were in default of filing a plea in respect thereof, or may, on the application of either party, make such order as to it seems fit.

 

                  (6) If the defendant fails to comply with any of the provisions of sub-rules (2) and (3), such plea shall be deemed to be an irregular step and the other party shall be entitled to act in accordance with Rule 32.

 

        Claim in Reconvention

 

        25.      (1)        A defendant who counterclaims shall, with the plea of the defendant, deliver a claim in reconvention setting forth the material facts thereof, the nature, the extent and grounds of the cause of action as required for a declaration under Rule 22.

 

                   (2)        The claim in reconvention shall be set out either in a separate document or in a portion of the document containing the plea but shall be headed “Claim in Reconvention.”

 

                            (3)        In any action in which the defendant sets up a claim in reconvention and the action of the plaintiff is stayed, discontinued or dismissed, the claim in reconvention may nevertheless be proceeded with unless the court directs otherwise.

 

                            (4)        Where in any action the claim in reconvention is established as a defence against the plaintiff’s claim, the court may, if the balance is in favour of the defendant, enter judgment for the defendant in such balance, or may otherwise grant the defendant such relief as the defendant may be entitled to upon the merits of the case.

 

                   (5)        The court may for good cause shown order the plaintiff’s claim and defendant’s claim in reconvention to be tried separately.  In such event court may make any ruling or order as it deems fit.

 

      Replication and Plea in Reconvention

 

                 26. (1) Within fourteen days of the service upon the plaintiff of a plea and subject to sub-rule 2 hereof, the plaintiff shall where necessary deliver a replication to the plea and a plea to any claim in reconvention.  A plea for the purpose of this Rule shall strictly comply with Rule 24.

 

               (2) No replication or subsequent pleading which would be a mere joinder of issue or further denial of allegations in the previous pleading shall be necessary, and issue shall be deemed to be joined and pleadings closed in terms of sub-rule 30(b).

 

   (3) Where a replication or subsequent pleading is necessary, a party may therein join issue on the allegation in the previous pleading to such extent as that party has not dealt specifically with the allegations in the plea or such other pleading, such joinder of issue shall operate as a denial of every material allegation of fact in the pleading upon which issue is joined.

 

               (4) A plaintiff in reconvention shall, subject to the provisions of sub-rule 2, within fourteen days from the delivery of the plea in reconvention deliver a replication in reconvention.

      

       (5)   (a)   Further pleadings may, subject to the provisions of sub-rule 2, be filed and  delivered by the respective parties within 7 court days of the previous pleading delivered by the opposite party.

 

(b)   Such pleadings shall be designated by the names by which they are ordinarily known.

 

        Exception and Application to Strike Out

 

        27. (1)      Where any pleading is vague or embarrassing or lacks averments which are necessary to sustain an action or defence, as the case may be, the opposing party may, within the period allowed for filing any subsequent pleading, deliver an exception thereto and may set it down for hearing in terms of sub-rule 8(14).

 

              (2)      Where a party intends to take an exception that a pleading is vague and embarrassing that party shall, within the period allowed under this sub-rule, by notice afford the opponent of that party an opportunity of removing the cause of complaint within fourteen days.

             

               (3)     The party excepting shall within seven days from the date on which a reply to such notice is received or from the date on which such reply is due deliver the exception of that party.

 

               (4)     Where any pleading contains averments which are scandalous, vexatious, or irrelevant, the opposite party may, within the period allowed for filing any subsequent pleading, apply for the striking out of such matter, and may set such application down for hearing in terms of Rule 8 (14), but the court shall not grant the same unless it is satisfied that the applicant will be prejudiced in the conduct of the claim of the applicant or defence if it is not granted.

 

              (5)      Where an exception is taken to any pleading, the grounds upon which the exception is founded shall be clearly and concisely stated.

 

              (6)      Where any exception is taken to any pleading or an application to strike out is made, no plea, replication or other pleading shall be necessary.

 

        Barring, Extension of time, Removal of Bar and Condonation

 

        28.      (1) Any party who fails to deliver a replication or subsequent pleading within the time stated in Rule 28 shall be automatically barred.

 

                            (2) If any party fails to deliver any other pleading within the time laid down in these Rules or within any extended time allowed in terms thereof, any other party may, by notice served upon that party, require that party to deliver such pleading within three court days after the day upon which the notice is delivered.

 

       (3) Any party failing to deliver the pleading referred to in the notice within the time therein stipulated or within such further period as may be agreed between the parties, shall be in default of filing such pleading and automatically barred.

 

                    (4) In the absence of agreement between the parties, the court may, upon application on notice and on good cause shown, make an order extending or abridging any time prescribed by these Rules or by an order of court.

       

                    (5) The court may, on good cause shown, condone any non-compliance with these Rules.

 

          (6) After a rule nisi has been discharged by default of appearance by the applicant, the court or a judge may revive the rule and direct that the rule so revived need not be served again.

 

        Amendment of Pleadings

 

        29.    (1)   Any party desiring to amend the  pleading of that party or document other than an affidavit filed in connection with any proceedings, may give notice to all other parties to the proceedings of  the intention of that party so to amend.

       

                 (2)   Such notice shall state that unless objection in writing to the proposed amendment is made within seven court days the party giving the notice will amend the pleading or document in question accordingly.

 

                 (3)   If no objection in writing be so made, the party receiving such notice shall be deemed to have agreed to the amendment.

 

                 (4)   If objection is made within the period prescribed in sub-rule (2) which objection shall clearly and concisely state the grounds upon which it is founded, the party wishing to amend shall within seven court days after the receipt of such objection, apply to court on notice for leave to amend and set the matter down for hearing.

 

                 (5)    The court may make such amendments as may be necessary for the purpose of determining the real question in dispute between the parties.

 

                 (6)   Whenever the court has ordered an amendment or no objection has been made within the time prescribed in sub-rule (2), the party amending shall deliver the amendment within the time specified in the court’s order or within five court days after the expiry of the time prescribed in sub-rule (2), as the case may be.

 

                 (7)   When an amendment to a pleading has been delivered in terms of this Rule, the opposing party shall be entitled to plead thereto or amend consequentially any pleading already filed by that party within ten court days of the receipt of the amended pleading.

 

                 (8)   If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited, then within fourteen court days from the date of the order, such order to amend shall on the expiration of such limited time as aforesaid, or of such fourteen court days, as the case may be, lapse unless the time is extended by the court.

 

                (9)    the costs of and occasioned by any amendment made pursuant to this rule shall, in the absence of a written consent by the other party to the contrary, be borne by the party making such amendment, unless the court otherwise orders.

 

                (10) The court may during the hearing at any stage before judgment grant leave to amend any necessary pleading or document within the meaning of sub-rule 31 (5) terms as to costs or otherwise as it deems fit.

 

        Close of Pleadings

 

        30.    (1)  Pleadings shall be considered closed –

                

                        (a)   If either party has joined issue without alleging any new matter, and without adding any further pleading;                    

 

(b)      If the last day allowed for filing a replication or subsequent pleading has elapsed and such pleading has not been filed;

 

(c)       If the parties agree in writing that the pleadings are closed, and such agreement is filed with the Registrar; or

 

(d)      If the parties are unable to agree as to whether or not the pleadings are closed, and the court upon the application of a party declares them closed.

           

(2)      An application to court in terms of sub-rule 1 (d) may be made by either party on giving five court days notice to the other party.  The court on such application may make any order, including an order as to costs or as to further proceedings that it deems just.

 

      Dismissal for want of prosecution

 

      31.   (1)      Where in any action no step has been taken by either party for six months or more, a party may apply for the dismissal of the action or application or, failing such application by a party, the Registrar shall list it before the court on a specified date for dismissal for want of prosecution.  The Registrar shall serve the notice of set down on all parties thereto.

 

              (2)   On the action or application being called the court shall dismiss it with costs unless sufficient reason is shown to the contrary.

 

                       (3) If the court decides not to dismiss the case, it shall impose conditions for the future conduct of the proceedings and give directions for the expeditious disposal of the case.

 

        Irregular Proceedings

 

                 32. (1)     A party to a cause in which an irregular step or   proceeding has been taken by any other party shall, within five court days after becoming aware of the irregularity, by notice afford the opponent of that party an opportunity of removing the cause of complaint within five court days from the date of the notice.

 

               (2)     If the party who has been given notice in terms of such-rule (1) does not remove the cause of complaint within the stipulated time the party giving notice shall, within five court days after the expiry of the time allowed for removing the cause of such complaint, apply to court to set aside the step or proceeding.

 

              (3)  A party who has taken any further step in the cause with knowledge of the irregularity shall not be entitled to make such application.

 

               (4)     An application in terms of sub-rule (2) shall be on notice to all parties specifying the particulars of the alleged irregularity.

 

               (5)     If at the hearing of such application the court is of opinion that the proceeding or step is irregular, it may set it aside in whole or in part, either as against all the parties or as against some of them, and grant leave to amend or make any such order as it deems fit.

 

   (6)Until a party has complied with any order of court made against that party in terms of this Rule, that party shall not take any further step in the cause, save to apply for an extension of time within which to comply with such order.

 

        Judgment by consent

 

        33. (1)      At any time after service of the writ of summons, a defendant may consent to judgment without appearing in court.

 

              (2)      Sub-rule (1) does not apply to actions for divorce, judicial separation or nullity of marriage.

 

              (3)      Such consent shall be in writing and signed either by the defendant personally or by an attorney acting for that defendant and not for the opposite party.

 

              (4)      Upon filing such consent at the Registry, the plaintiff may without notice to the defendant set down the cause for judgment and thereupon judgment may be given or order made in accordance with such consent.

 

        Judgment in default of appearance

 

        34. (1) Whenever the defendant is in default of delivery of notice of intention to defend or of a plea, or is barred from pleading, the plaintiff may set down the action for default judgment. 

 

                       (2)      The Registrar or the court may, where the claim is for a debt or liquidated demand, without hearing evidence, oral or documentary, grant judgment against the defendant or make such order as is appropriate in the circumstances.  A judgment or order so granted shall be deemed to be a judgment or order of the court as the case may be.

 

                      (3) In the case of any other claim the court shall hear evidence, whether oral or documentary, as it deems fit.

 

             (4) A defendant may, within fourteen days after that defendant has knowledge of such judgment apply to court upon notice to the plaintiff to set aside such judgment.   

 

                      (5) The court may, upon good cause shown and upon the defendant furnishing to the plaintiff security for the payment of the costs of the default judgment and of such application to a maximum of E1 000.00 (one thousand Emalangeni), set aside the default judgment on such terms as it deems fit.

 

             (6) Where a plaintiff has been barred from delivering a declaration, the defendant may set down the action as provided for in sub-rule (7) and apply for absolution from the instance or, after adducing evidence, for dismissal of plaintiff’s claim.  The court may make such order thereon as it deems fit.

 

             (7) The proceedings referred to in this Rule shall be set down for hearing not less than two court days preceding the day assigned by the Registrar or as directed by the court as the day on which the matter is to be heard.

 

             (8) A party who is in default of delivery of notice of intention to defend need not be served with a notice of set down for default judgment.

 

        Summary Judgment

 

        35. (1)      The plaintiff may apply to court for summary judgment on each of such claims in the summons as is only –

 

(a)       based on a liquid document;

 

(b)      for a liquidated amount in money;

 

(c)       for delivery of specified movable property; or

 

(d)      for ejectment, together with any claim for interest and costs.

 

    (2) (a) The plaintiff shall simultaneously with the writ of summons of that plaintiff, deliver notice of that application, accompanied by an affidavit made by that plaintiff, or by any other person who can swear positively to the facts verifying the cause of action and the facts on which it is founded and the amount, if any, claimed, and stating that in the opinion of the plaintiff there is no bona fide defence to the claim or part thereof and that notice of intention to defend, if delivered, will have been delivered solely for the purpose of delay.

 

(b)      If the claim is founded on a liquid document, a copy of the document thereof shall be annexed to such affidavit.

 

(c)       Such notice of application shall state that the application will be set down for hearing on a stated day not being less than seven court days from the date of delivery thereof.

 

 

             (3)       Upon the hearing an application for summary judgment, the defendant may -

 

      (a)  give security to the plaintiff to the satisfaction of the Registrar for any judgment including costs which may be given; or

 

      (b)  satisfy the court by affidavit, which shall be delivered simultaneously with the notice of intention to defend of the defendant   or of any other person who can swear positively to the fact that the defendant has a bona fide defence to the claim, such affidavit or evidence shall disclose fully the nature and grounds of the defence and the material facts relied upon therefore; or

 

      (c)  with the leave of the court on the hearing of the application, satisfy the court by oral evidence that the defendant has a bona fide defenceto the claim.

 

            (4)        Evidence may not be adduced by the plaintiff otherwise than by the affidavit referred to in sub-rule (2), nor may either party cross-examine any person who gives evidence on affidavit or viva voce evidence but the court may put to any person who gives oral evidence such questions as it deems fit for the purpose of elucidating the matter.

 

 (5)    Where the defendant does not find security or satisfy the court as provided in sub-rule   (3) (b), the court may enter summary judgment for the plaintiff.

 

    (6)    Where, on the hearing of an application made under this Rule, it appears –

 

(a) that any defendant is entitled to defend, and any other defendant is not so entitled; or

 

     (b) that the defendant is entitled to defend as to part of the claim, the court shall –

 

 

(i)                 give leave to defend to a defendant to entitled thereto and give judgment against the defendant not so entitled;

 

(ii)               give leave to defend to the defendant as to part of the claim and enter judgment against that defendant as to the balance of the claim, unless the defendant  has paid such balance to the plaintiff or into court; or

 

(iii)             make both orders mentioned in sub-rules 6 (b) (i) and 6 (b) (ii).

 

            (7)        If the defendant finds security or satisfies the court as provided in sub-rule (3), the court shall give leave to defend and the action shall proceed as if no application for summary judgment had been made.

 

            (8)        Leave to defend may be given unconditionally or subject to such terms as to security for costs, time for delivery of pleadings, or time or mode of trial or otherwise, as the court deems fit.

 

       (9)           (a) The court may at the hearing of such application make an order as to    costs as to it may seem just.

    

(b) Where the plaintiff makes an application under this Rule where the case is not within the terms of sub-rule (1), or where the plaintiff, in the opinion of the court, knew that the defendant relied on a contention which entitle the defendant to leave to defend, the court may order that the action be stayed until the plaintiff has paid the defendant’s costs; and may further order that such costs be taxed as between attorney and client; and

 

            (c) In any case in which summary judgment was refused and in which the court, after trial, gives judgment for the plaintiff substantially as prayed, and the court finds that summary judgment should have been granted had the defendant not raised a defence which in its opinion was unreasonable, the court may order the plaintiff’s costs of the action to be taxed as between attorney and client.

 

        Special procedures for commercial cases

 

      36.       (1) At any time after notice of intention to defend shall have been given in any action, a party thereto may, through the Registrar, apply to the Chief Justice, or any other judge designated by the Chief Justice to deal with the application to have the case declared to be one which, on account of its commercial importance, should be dealt with in accordance with special procedures.

 

(2)   The Chief Justice or the judge designated by the Chief Justice shall, on receipt of the application, summon the parties to the action or their attorneys, to a conference to be held in the judge’s chambers at a time appointed by the judge at which the application can be considered.  

     

(3)   Where the judge accedes to the application, the judge may in consultation with the parties, then prescribe –

 

(a)    the procedures and steps to be taken to prepare for trial, including, but not confined to –

 

(i)     the filing of pleadings;

 

   (ii) the making of discovery and the production of

           documents;

 

   (iii) the exchange of summaries of expert evidence;

 

   (iv) any other matters whether provided for in the

                                    rules or not;

       

Provided that if no specific prescription is made in respect of any matter the provisions of these Rules shall apply;

 

                  (b)     the time limits for all the steps to be taken in the                                                                        litigation, provided for in these rules; and

 

   (c)     the date for trial on which the matter is to be heard.

  

(4)   In the absence of agreement, only in exceptional circumstances and for good reason shall failure to comply with the times prescribed in terms of this Rule be condoned, and only in exceptional circumstances shall applications, made at the hearing of the trial for postponement of the hearing, otherwise than by agreement of the parties, be entertained.

 

(5)   The trial may be heard by the judge to whom the matter is allocated in terms of above, but should circumstances so require, a judge other than such judge may hear the trial.

 

        Tender and Payment into Court

 

        37.   (1)    In any action for payment of a sum of money, the defendant may at any time pay unconditionally into court the sum so claimed or any part thereof, and the Registrar shall, upon the application of the plaintiff, cause to be paid such sum to the plaintiff’s attorney (or to the plaintiff where the plaintiff sues in person).

 

               (2)     In making such payment, the defendant shall state whether the defendant acknowledges or disavows liability for the payment of the plaintiff’s costs in whole or in part.

 

               (3)     If the defendant, in making such payment into court in terms of sub-rule (1), acknowledges liability, in terms of sub-rule (2), for payment of the costs in whole or in part, and fails to pay in full such costs, as taxed, within seven court days after demand, the plaintiff may apply in writing through the Registrar to a judge for judgment for the same.

 

               (4)  If the defendant in making payment into court in terms of sub-rule (1) disavows liability, in terms of sub-rule (2), for any portion of the plaintiff’s costs, the defendant shall state in the notice accompanying the payment into court the grounds upon which the defendant so disavows, and the action may be set down for hearing on the question of costs only.

 

      (5)      In any action in which a sum of money is claimed, either alone or with any other relief, the defendant may, at any time without prejudice, pay an amount into court by way of an offer of settlement of the plaintiff’s claim.

 

              (6)      Where the plaintiff claims the performance of some act by the defendant, the defendant may at any time tender either unconditionally or without prejudice to perform such act; unless such act must be performed by the defendant personally, pari passu with such a tender there shall be filed with the Registrar an irrevocable power of attorney to perform such act on behalf of the person making the tender.

 

      (7) Any party to an action who stands to be held liable to any other party to contribute towards or to be held liable with such party for the payment of any amount which may be recovered by any other party, may either unconditionally or without prejudice by way of an offer of settlement –

 

                  (a)       make a written offer to that other party to contribute either a specific sum or in a specific proportion towards the amount to which the plaintiff may be held entitled in the action; or

 

              (b)      pay into court a sum in respect of the share of the amount to which the plaintiff may be held to be entitled and for which share the plaintiff may be adjudged liable.

 

         (8)   One of several defendants, whether sued jointly, jointly and severally, separately or in the alternative, may either unconditionally or without prejudice by way of an offer of settlement pay into court a sum of money in respect of the plaintiff’s claim, or tender in terms of these Rules, to do any act or acts, the performance of which is claimed by the plaintiff.

                       

           (9)   Notice of any payment, tender or offer in terms of this Rule shall be given to all parties to the action and shall state –

 

(a)      whether the same is unconditional or without prejudice as an offer of settlement;

 

(b)      whether it is accompanied by a tender to pay the plaintiff’s costs in whole or in part; and

 

(c)      whether the amount paid is offered in settlement of both claim and costs or of the claim only.

 

            (10)  A plaintiff may within 10 court days of the receipt of  the notice referred to in sub-rule 10, or thereafter with the consent of the defendant or a judge, accept any payment, tender to perform an act, or written offer in settlement of the claim of that plaintiff and shall notify all other parties to the action accordingly, and the Registrar, upon being satisfied that the requirements of this Rule have been complied with, shall cause to be paid out to the plaintiff’s attorney (or to the plaintiff where the plaintiff sues in person) the money paid into court or give effect to, or deliver to the plaintiff’s attorney (or to the plaintiff where the plaintiff sues in person) the power of attorney referred to in sub-rule 6.

 

           (11) If a tender or payment in terms of sub-rule 5, 6, 7 or 8 is not stated to be in satisfaction of a plaintiff’s claim and costs, the plaintiff may, on notice to the defendant, apply for judgment for costs.

 

           (12)  Payment into court, tender or offer, made without prejudice in terms of this Rule, by way of an offer of settlement, shall not be disclosed at any time to the judge before judgment has been given.

 

           (13)  Reference to the fact of such payment, tender or offer shall not appear on any file in the office of the Registrar containing the papers in that case. 

 

           (14)  The fact of a payment, tender or offer referred to in sub-rule 1 may be brought to the notice of the judge after judgment has been given as being relevant to the question of costs.

       

           (15)  (a) Where the judge has given judgment on the question of costs in ignorance of any payment, tender or offer, and that is brought to the notice of the judge within forty-eight hours, the question of costs shall be considered afresh in the light the judgment that is given in ignorance of that payment:

 

           (b) Nothing contained in this Rule shall affect the judge’s discretion as to an award of costs.

 

          (16) Any party to an action who, contrary to this rule, by that party or the counsel of that party, mentions or discloses to the judge such payment, tender or offer shall, even if successful in the action, be liable to have costs given against that party.

 

          (17) Money paid into court in terms of this Rule shall be paid into a deposit account with the Government in such manner as the Accountant General may from time to time direct.

 

Discovery, Inspection and Production of Documents and Tape Recordings          

 

38.   (1) Any party to any action may require any other party thereto, by notice in writing, to make discovery on oath within fourteen days of all documents and tape recordings relating to any matter in question in such action (whether such matter is one arising between the party requiring discovery and the party required to make discovery or not) which are or have at any time been in the possession or control of that other party, and such notice shall not, save with the leave of a judge, be given before the close of pleadings.

 

(2)      The party required to make discovery shall within fourteen days or within the time stated in any order of a judge make discovery of such documents and tape recordings on affidavit as near as may be in accordance with Form 12 in the First Schedule, specifying separately –

 

(a)      such documents and tape recordings in the possession of that party or that of the agent of that party other than the documents and tape recordings mentioned in paragraph (b); 

  

                  (b)      such documents and tape recordings in respect of which that party has a valid objection to produce;

 

                  (c)      such documents and tape recordings which that party or the agent of that party had but no longer has in the possession of that party at the date of the affidavit.

 

        (3)   A document shall be deemed to be sufficiently specified if it is described as being one of a bundle of documents of a specified nature, which have been initialled and consecutively numbered by the deponent but statements of witnesses taken for purposes of the proceedings, communications between attorney and client and between attorney and advocate, pleadings, affidavits and notices in the action shall be omitted from the Schedules.

 

        (4)  If any party believes that there are, in addition to documents or tape recordings disclosed as required under sub–rule (2) other documents (including copies thereof) or tape recordings which may be relevant to any matter in question in the possession of any party thereto, the former may give notice to the latter requiring that party to make the same available for inspection in accordance with sub-rule (6), or to state on oath within fourteen days of the notice that such documents or tape recordings are not in the possession of that party, in which event that party shall state their whereabouts, if known to that party.

 

        (5) A document or tape recording not disclosed as required under sub-rule (2) may not, save with the leave of the court granted on such terms as to it may seem fit, be used for any purpose at the trial by the party who was obliged but failed to disclose it, provided that any other party may use such document or tape recording.

 

      (6)      (a)      Where an authorised insurer as defined in the Compulsory Motor Vehicle Insurance Order, 1973 is a party to any action by virtue of the provisions of that Order, any party thereto may obtain discovery in the manner provided in paragraph (d) of this sub-rule against the driver or owner (as defined in that Order) of the vehicle insured by the insurer.

                  

                  (b)      The provisions of paragraph (a) shall apply mutatis mutandis to the driver of a vehicle owned by a person, state, government, authority or body of persons referred to in sub-section (1) of section 4 of that Order.

 

                  (c)      Where the plaintiff sues as a cessionary the defendant shall mutatis mutandis have the same rights under this Rule against the cedent.

 

                  (d)      The party requiring discovery in terms of paragraph (a), (b) or (c) shall do so by notice as near as may be in accordance with Form 13 in the First Schedule.

 

(7)      Any party may at any time by notice as near as may be in accordance with Form 14 in the First Schedule require any party who has made discovery to make available for inspection any documents or tape recordings disclosed in terms of sub-rules (2) and (3).

 

         (8)   Such notice shall require the party to whom the notice is given to deliver to that other party within five court days a notice as near as may be in accordance with Form 15 in the First Schedule, stating a time within five court days from the delivery of such latter notice when such documents or tape recordings may be inspected at the office of the attorney of that party or, if that party is not represented by an attorney, at some convenient place mentioned in the notice, or in the case of bankers’ books or other books of account or books in constant use for the purposes of any trade, business or undertaking, at their usual place of custody.

 

        (9)       The party receiving such latter notice referred to in sub-rule (8) shall be entitled at the time therein stated, and for a period of seven court days thereafter, during normal business hours and on any one or more of such days, to inspect such documents or tape recordings and to take copies or transcriptions thereof.

 

(10)    A party’s failure to produce any such document or tape recording for inspection shall preclude that party from using it at the trial, save where the court on good cause shown otherwise allows

 

(11)    If any party fails to give discovery as required under sub-rule (2), or, having been served with a notice under sub-rule (7), omits to give notice of a time for inspection as required under sub-rule (8) or fails to give inspection as required by sub-rule (10), the party desiring discovery or inspection may apply to a court which may order compliance with this rule and failing such compliance, may dismiss the claim or strike out the defence.

 

(12)    Any party to an action may after the close of pleadings give notice to any other party to specify in writing particulars of dates of and parties to, any document or tape recording intended to be used at the trial of the action on behalf of the party to whom notice is given.

 

(13)   The party receiving such notice shall not less than twenty-one days before the date of trial deliver a notice-

 

 

(a)       specifying the dates of, and parties to, and the general nature of, any such document or tape recording which is in the possession of that party; or

 

(b)      specifying such particular as that party may have to identify any such document or tape recording not in the possession of that party, at the same time furnishing the name and address of the person in whose possession such document or tape recording is.

 

 

        (14)    Any party proposing to prove documents or tape recordings at a trial may give notice to any other party requiring that other party within ten days after the receipt of such notice to admit that those documents or tape recordings were properly executed and are what they purported to be.

 

        (15)    If the party receiving the notice referred to in sub-rule (14) –

 

                   (a)     does not within the period specified in that notice so admit the documents or tape recordings in accordance with that sub-rule, then as against such party, the party giving the notice shall be entitled to produce the documents or tape recordings specified at the trial without proof other than proof (if it is disputed) that the documents or tape recordings are the documents or tape recordings referred to in the notice and that the notice was duly given;

                 

                  (b)     states that the documents or tape recordings are not admitted as required under that sub-rule they shall be proved by the party giving the notice before that party is entitled to use them at the trial, but the party not admitting them may be ordered to pay the costs of their proof.            

 

              (16)    Any party may give to any other party who has made discovery of a document or tape recording notice to produce at the hearing the original of such document or tape recording, not being a privileged document or tape recording, in such party’s possession.

 

              (17)    The notice referred to in sub-rule (16) shall be given not less than four days before the hearing but may, if the court so allows, be given during the course of the hearing.

 

              (18)    If any such notice is so given, the party giving the notice may require the party to whom notice is given to produce such document or tape recording in court and shall be entitled, without calling any witness, to hand in such document or tape recording which shall be receivable in evidence to the same extent as if it had been produced in evidence by the party to whom notice is given.

 

              (19)    The court may, during the course of any proceedings, order the production by any party thereto under oath of such documents or tape recordings in the power of that other party or control relating to any matter in question in such proceeding as the court may think fit, and the court may deal with such documents or tape recordings, when produced, as it thinks fit.

 

              (20)    Any party to any proceeding may at any time before the hearing thereof deliver a notice as near as may be in accordance with Form 16 in the First Schedule to any other party in whose pleadings or affidavits reference is made to any document or tape recording to produce such document or tape recording for the inspection of that party and to permit that party to make a copy or transcription thereof.

 

              (21)    Any party failing to comply with such notice shall not, save with the leave of the court, use such document or tape recording in such proceeding but any other party may use such document or tape recording.

 

              (22)    The provisions of this Rule relating to discovery shall mutatis mutandis apply, in so far as the court may direct, to applications.

 

     Inspections, Examinations and Expert Testimony

 

39.   (1)            Subject to the provisions of this Rule, any party to proceedings in which damages or compensation in respect of alleged bodily injury is claimed shall have the right to require any party claiming such damages or compensation, whose state of health is relevant for the determination thereof to submit to medical examination.

 

        (2)            Any party requiring another party to submit to medical examination under sub-rule (1) shall deliver a notice:

       

                 (a)     specifying the nature of the examination required, the person or persons by whom, the place where and the date (being not less than fourteen days from the date of such notice) and time when it is desired that such examination shall take place; and

 

(c)          requiring such other party to submit for examination then and there.

 

        (3)            The notice referred to in sub-rule (2) shall state that that other party may have the medical adviser of that other party present at such examination, and shall be accompanied by a remittance in respect of the reasonable expense to be incurred by such other party in attending such examination, and such expense shall be tendered on the scale as if that person were a witness in a civil suit before the court:

 

                  Provided that –

 

(a)          if that other party is immobile, the amount to be paid to that other party  shall include the cost of that other party of travelling by motor vehicle and, where required, the reasonable cost of a person attending upon that other party;

 

(b)         where such other party will actually lose the salary, wage or other remuneration of that other party during the period of the absence from work of that other party, that other party shall in addition to the expenses mentioned in sub-rule (3) be entitled to receive an amount not exceeding E100 (one hundred  Emalangeni) per day in respect of the salary, wage or other remuneration which he will actually lose;

 

(c)          any amounts paid by a party under paragraphs (a) and (b) shall be costs in the cause unless the court otherwise directs.

 

 

        (4)            The person receiving the notice referred to in sub-rule (2) shall within seven court days after the service thereof notify the person delivering it in writing of the nature and grounds of any objection which that person may have in relation to -

 

(a)          the nature of the proposed examination;

 

(b)         the person or persons by whom the examination is to be conducted;

 

(c)          the place, date or time of the examination;

 

(d)   the amount of the expenses tendered to that parson;

 

                  and shall further –

       

           (i)       in the case of the objection of that person being to the place, date or time of the examination, furnish an alternative date, time or place, as the case may be; and

 

                             (ii)      in the case of the objection being to the amount of the expenses tendered, furnish particulars of such increased amount as may be required.

 

        (5)      If the person –

 

                  (a)        receiving the notice does not deliver such objection within the period of seven days, that person shall be deemed to have agreed to the examination upon the terms set forth by the person giving the notice;

 

(b)        giving the notice regards the objection raised by the person receiving it as unfounded in whole or in part that person may on notice make application to a judge to determine the conditions upon which the examination, if any, is to be conducted.

 

        (6)            Any party to such an action may at any time by notice in writing require any person claiming such damages to make available in so far as that party is able to do so to such party within ten days any medical reports, hospital records, X-ray photographs, or other documentary information of a like nature relevant to the assessment of such damages, and to provide copies thereof upon request.

 

                         (7)             If it appears from any medical examination carried out either by agreement between the parties or pursuant to any notice given in terms of this rule, or by order of a judge, that any further medical examination by any other person is necessary or desirable for the purpose of giving full information on matters relevant to the assessment of such damages, any party may require a second and final medical examination in accordance with the provisions of this Rule.

 

        (8)            If it appears that the state or condition of any property of any nature whatsoever whether movable or immovable, may be relevant with regard to the decision of any matter at issue in any action, any party may at any stage give notice requiring the party relying upon the existence of such state or condition of that  property or having that property in the possession or under that control of that person to make it available for inspection or examination in terms of this sub-rule, and may in such notice require that such property or a fair sample thereof remain available for inspection or examination for a period of not more than ten days from the date of receipt of the notice.

 

         (9)           The party called upon to submit such property for examination may require the party requesting it to specify the nature of the examination to which it is to be submitted and shall not be bound to submit such property to such examination if this will materially prejudice such party by reason of the effect thereof upon such property. 

 

        (10)          In the event of any dispute as to whether the property should be submitted for examination as required under sub-rule (9), such dispute shall be referred to a judge on notice delivered by either party stating that the examination is required and that objection is taken in terms of this sub-rule, and in considering any such dispute the judge may make an order as to that judge seems fit.

 

        (11)          Any party causing an examination to be made in terms of sub-rules (1) and (9) shall -

                  (a)     cause the person making the examination to give a full report in writing of the results of the examination and the opinion that the person making the examination formed as a result of that examination on any relevant matter;

 

                  (b)     after receipt of such report and upon request, furnish any other party with a complete copy thereof; and

 

                  (c)     bear the expense of the carrying out of any such examination; provided that such expense shall form part of such party’s costs.

 

              (12)          No person shall, save with the leave of the court or the consent of all parties to the action, be entitled to call as a witness any person to give evidence as an expert upon  any matter upon which the evidence of expert witnesses may be received unless that person has –

 

                           (a)     not less than fourteen days before the hearing, delivered notice of intention so to do; and

        

                     (b)     not less than ten days before the trial, delivered a summary of the opinion and reasons of the evidence of the expert witness.

 

        (13)    (a)    A person shall not, save with the leave of the court or the consent of all the parties, be entitled to tender in evidence any plan, diagram, model or photograph unless that person has, not less than fourteen days before the hearing, delivered a notice stating intention of that person to do so, offering inspection thereof and requiring the party receiving the notice to admit the same within seven court days after receipt of the notice.

 

                  (b)   If the party receiving the notice fails within the period of seven court days so to admit, such plan, diagram, model or photograph shall be received in evidence upon its mere production and without further proof thereof, but if such party states that, that party does not admit such plan, diagram, model or photograph it may be proved at the hearing and the party receiving the notice may be ordered to pay the cost of such proof.

 

Case management: allocation of cases and Case management conferences

 

40.  (1)       The Registrar shall, after consultation with the Chief Justice –  

       

                        (a)     on the commencement of these Rules, allocate each existing causes; and                                     

                        (b)     allocate any cause registered after the commencement of these Rules to a judge who, from the time of such allocation, shall manage the cause as provided in this Rule.

     

        (2)      (a)     In the event of any judge becoming unable for any reason to manage or continue to manage a cause under this Rule, the Registrar shall, after consultation with the Chief Justice, immediately upon that inability being known allocate the cause to another judge and advise all parties in writing of such allocation; the judge then allocated shall be bound by all decisions and rulings given by the previous judge.

       

                  (b)     As soon as practicable after the entry of appearance to defend in action or the giving of notice of opposition in an application the judge shall, after consulting with counsel through the clerk of that judge, schedule a roll-call on a motion or other day to be attended by both counsel, or by a party or parties in person if unrepresented, at which:          

 

                           (i)      Any agreed extensions or curtailments of the

                                    time limits for pleadings may be ordered;

 

                           (ii)     the time, date and venue of the conference of 

                                    parties required by sub-rule (3) shall be set;

 

                           (iii)    The time and date of the judge’s initial case

                                    management conference to be held under sub-

                                    rule (4) shall be set; and

 

                           (iv)    the judge may give any directions that judge deems fit for the future conduct of the case, including excusing the parties or any of them from attending the initial case management conference for good cause, or dispensing where appropriate with a final pre-trial conference.

        

                  (c)     Where this is practicable the judge may deal with the matters covered by (a), (b), (c) and (d) of sub-rule (3) by means of a conference call with counsel or with a party or parties as aforesaid, in which case the initial roll-call may be dispensed with, and the Judge may issue the agreed order for service on counsel or on the parties as the case may be.

       

(d)    On the date set by the judge at roll-call or by conference call, the parties and counsel shall meet to confer on the nature and basis of their claims and defences, the possibilities for a prompt settlement or resolution of the action, and each of the issues listed in sub-rule (6). 

 

(e)    The parties shall jointly prepare a case management report covering their discussions, of which the plaintiff (or applicant) shall prepare the first draft, which report shall be submitted to the judge at least three court days before the initial case management conference.  The report shall set forth the parties’ proposals with respect to the issues listed in sub-rule (5), being either joint proposals where they agree or individual proposals where they differ.

 

(f)    The following issues shall be addressed at the initial case management conference-

 

(i)       the need for joining other parties and the dates for such joinder;

 

                          (ii)   the filing of any pleadings, the need for amendments to pleadings or filing of better statements or further particulars, and the dates for such amendments, statements or particulars;

 

                          (iii)     the need for interlocutory motions and the

                                    dates for such motions;

 

                          (iv)     a deadline for the close of pleadings under

                                    Rule 30;

 

                          (v)      the admission of facts and other evidence by 

                                    consent of the parties;

 

                          (vi)     the control and scheduling of discovery,

                                    including but not limited to inspection

                                    and production of documents under Rule 38,

                                    inspection, examination, and expert testimony

                                    under Rule 39;

 

                         (vii)     narrowing the field of dispute between expert

                                    witnesses, by their participation at pre-trial

                                    conferences or in any other manner;

 

                         (viii)    hearing and determination of objections on

                                    point of law;

       

                          (ix)     giving orders or directions for the separate

                                    hearing of a trial or plea in bar, a claim, counterclaim, set-off, or third party claim or of any particular issue in the action, including the assessment of damages;

 

(x)             settlement of issues, inquiries and accounts;

 

                         (xi)      securing statement of special case of law or

                                    facts;

 

(xii)           the date for additional case management conferences, if necessary, and for the final pre-trial conference;

 

(xiii)         the possibilities of settlement talks or possible mediation of the dispute;

 

 (xiv)     such other issues as may facilitate the just and speedy disposal of the   action.      

           

(g)   In matrimonial cases, proposals shall be made in the initial case management report (where applicable) for the custody, access to and maintenance of minor children, maintenance of either spouse, and for the division of matrimonial property, including if necessary the commissioning of a social welfare officer’s report.

 

(h)    In the event of dispute each party shall file with the report an affidavit, with documentary annexures setting out the party’s proposals on custody, access, maintenance and division of property, including full disclosure of

 

                                    (i)         the party’s income from every source, with

                                                documentary confirmation where available;

 

                                    (ii)        the party’s full list of the matrimonial assets

                                                Liabilities with formal or estimated valuations

                                                of each; and

 

                                    (iii)       a list of the financial needs of minor children

                                                for their education and welfare.

       

               (3)     The initial case management conference shall, except in exceptional circumstances, be completed in a single conference and shall not be adjourned.

 

               (4)     Immediately after completion of the initial case management conference, but in no event more than fourteen days after completion of the conference, the judge shall issue a case management order in Form 1 in the Fourth Schedule or in such other or abbreviated form as fits the case. 

 

               (5)     The case management order shall - -

                        (a)        address the issues set forth in Rule 2(4), which are relevant to the                                  action;

 

(b)        establish a schedule for all relevant events.

 

(c)        govern the subsequent course of the proceedings; and

 

(d)       be modified by the judge only for good cause.

        

               (6)     Where deadlines are not met or the matter stalls for any other reason, the judge may schedule a status hearing in like manner to a roll-call under sub-rule 2(b) and may, after hearing the parties, make such order as to the disposal of the case as the judge deems fit, including imposition of any of the sanctions listed in sub-rule 12.

 

      (7)The judge may from time to time schedule, or the parties may from time to time request, additional case management conferences. 

        (8) The additional conferences shall be held to facilitate the continuing judicial control of the action and may address any of the issues set forth in sub-rule 2 (d) or any other issues relevant to management or resolution of the action.

 

               (9)     Prior to the trial of any matter, the judge shall, subject to sub-rule (2) (n) of Rule 2 hold a final pre-trial conference. 

 

               (10) The pre –trial conference shall -

 

(a)    occur at an agreed time set by the judge;

 

(b)      be attended by the parties and legal practitioners who will participate in the trial;

 

(c)     address the issues set forth in sub-rule 2 (d), the proposed final pre-trial order of the parties, and any other issues related to a fair and efficient trial.

 

               (11)   At least four court days before the final pre-trial conference, the parties jointly shall submit to the judge a proposed final pre-trial order. 

 

               (12) The plaintiff shall initiate communications with the defendant and shall prepare a first draft of the proposed final pre-trial order.  The proposed final pre-trial order shall identify the following –

 

                        (a)        all issues of fact to be resolved during the trial;

 

                        (b)        all issues of law to be resolved during the trial;

 

                        (c)        all relevant facts not in dispute;

 

                        (d)       all witnesses who may be called to testify during the trial, identified by the party that intends to call the witness, with a brief summary of the substance of each witness’ anticipated testimony;

 

            (e)        all exhibits to be introduced into evidence during the trial, identified by the party that intends to introduce the exhibit, with copies where practical of all documentary exhibits;

           

                        (f)        all objections to identified witnesses and exhibits;

 

                        (g)        the anticipated length of the trial;

 

            (h)        the date for filing by the plaintiff of indexed and paginated bundles of pleadings and documentary exhibits for use at trial;

 

                        (i)         the date for the trial;

 

                        (j)         any proposals for expediting the trial;

 

                        (k)        prospects for settlement of the action and whether the parties have participated in mediation or other settlement efforts.

 

(9)  Immediately after completion of the final pre-trial conference, the judge shall issue a final pre-trial order in Form 17 in the First Schedule or in such other or abbreviated form as fits the case which the Registrar shall timeously deliver to the parties. 

 

(10) The final pre-trial order shall be based on the parties’ proposed final pre-trial order, as modified by the judge, and shall specify the issues set forth in sub-rule 8 and shall set a firm date for the trial.

                 

      (11) Issues, evidence, and objections not set forth in the final pre-trial order shall not be available to the parties at trial.  Once issued by the judge, the final pre-trial order shall be modified only to prevent manifest injustice.

 

                  (12) The final pre-trial conference shall, except in exceptional circumstances, be completed in a single conference and shall not be adjourned.

 

      (13) Where a party or the counsel of that party fails without lawful excuse to attend a roll-call, an initial case management conference, a status hearing, an additional case management conference, or a final pre-trial conference, fails to participate in the creation of a case management report or proposed final pre-trial order, fails to obey a case management order or final pre-trial order, fails to participate in the case management or final pre-trial processes in good faith or fails to comply with court deadlines or obligations under the Rules, the judge may enter such orders as are just, including but not limited to the following -

     

                     (a)   an order refusing to allow the non-compliant party to support or oppose designated claims  or defences, or prohibiting that party from introducing designated issues in evidence;

 

                             (b)   an order striking out pleadings or parts thereof, including any defence, exception or special plea;

 

                     (c)   an order dismissing a claim or entering final judgment; or

 

                     (d)   an order requiring the non-compliant party or the counsel of the non-compliant party to pay the opposing party’s costs caused by the non-compliance.

 

      (13)            In the case of opposed applications, where the issues are straightforward, and no evidence is to be led, the judge may dispense with any case management conference, and assign a date for hearing in terms of Rule 41, giving such other directions for the conduct of the hearing as the judge deems fit.

 

      (14)             In order to expedite the determination of the real issues between the parties, the judge may for good cause at a roll-call, a status hearing, a case management conference, or at trial -

 

                  (a)   relax or vary time limits set by the Rules;

 

(b)   condone technical irregularities where this does not prejudice the other party; or

       

                  (c)   allow or order amendments to filed pleadings so that it is the real issues between the parties and not technicalities which are determined at trial.

 

Set down of defended actions, Motions and Petitions

 

41.  (1)                 The judge shall by order issued at a pre-trial conference, roll-call or status  hearing, or by agreement with the parties, assign the date or dates of  hearing of a trial or (subject to the provisions of Rule 8) an opposed motion or petition.

 

        (2)                 Save where a party is absent and unrepresented when the date is assigned, no further notice of set down need be served, but where a party is so absent and unrepresented, the Registrar shall give no less than fourteen court days notice to all parties of the date or dates so assigned.

       

        (3)                 When a matter has been set down for hearing any party may apply to the judge no less than five court days before the date of hearing to have the set down changed or set aside for good cause.

 

        (4)                 Notwithstanding the provisions of this Rule any party to contested proceedings may for good cause apply on notice to all the parties to the judge for a special date or dates for hearing and the judge may on such application fix a special date or dates of hearing during any term of court or during any vacation with the consent of all the parties and having regard to the convenience of the judge.

 

Procuring evidence for trial

 

42. (1)                  Any party, desiring the attendance of any person to give evidence at a trial, may as of right, without any prior proceeding whatsoever, sue out from the office of the Registrar one or more subpoenas for that purpose, each of which subpoenas shall contain the names of not more than four persons, and service thereof upon any person therein named shall be effected by the Sheriff or Deputy Sheriff, in the manner prescribed by Rule 4, and the process for subpoenaing such witnesses shall be as near as may be in accordance with Form 18 in the First Schedule.

 

        (2)                 If any witness has in the possession of that witness or control any deed, document, instrument, writing, tape recording or thing which the party requiring the  attendance of that witness desires to be produced in evidence, the subpoena shall specify such deed, document, instrument, writing, tape recording or thing and require that witness to produce it to the court at the trial.

 

        (3)                 Unless a witness who has been required to produce any deed, document, instrument, writing, tape recording or thing at the trial claims that the deed, document, instrument, writing, tape recording or thing is privileged, such witness shall hand it over to the Registrar as soon as possible and thereafter the parties may inspect such deed, document, instrument, writing, or tape recording or thing and make copies or transcriptions thereof, after which the witness shall be entitled to its return.

 

        (4)                 The witness at the trial of any action shall be examined viva voce, but a court may at any time, for sufficient reasons, order that all or any of the evidence to be adduced at any trial be given on affidavit or that the affidavit of any witness be read at the hearing on such terms and conditions as to it may seem fit,

 

        (5)                 Where it appears to the court that any other party reasonably requires the attendance of a witness for cross-examination, and such witness can be produced, the evidence of such witness shall not be given on affidavit.

 

        (6)                 A court may, on application on notice in any matter where it appears convenient or necessary for the purposes of justice, make an order for taking the evidence of a witness before or during the trial before a commissioner of the court, and permit any party to any such matter to use such deposition in evidence on such terms, if any, as to  it seems fit, and in particular may order that such evidence shall be taken only after the close of pleadings or only after the giving of discovery or the furnishing of any particulars in the action.

 

        (7)                 Where the evidence of any person is to be taken on commission before any commissioner within Swaziland, such person may be subpoenaed to appear before such commissioner to give evidence as if at the trial.

 

        (8)                 Unless the court ordering the commission directs such examination to be by interrogatories and cross-interrogatories, the evidence of any witness to be examined before the commissioner in terms of an order granted under sub-rule (5), shall be adduced upon oral examination in the presence of the parties, their counsel, and the witness concerned shall be subject to cross-examination and re-examination.

 

        (9)                 A commissioner shall not decide upon the admissibility of evidence tendered, but shall note any objections made and such objections shall be decided by the court hearing the matter.

 

        (10)              (a) Evidence taken on commission shall be recorded in such manner as evidence is recorded when taken before a court and the transcript of any shorthand record or record taken by mechanical means duly certified by the person transcribing the same and by the commissioner shall constitute the record of the examination.

 

         (b) Evidence before the commissioner may be taken down in narrative form.

 

      (11)    The record of the evidence shall be returned by the commissioner to the Registrar with the certificate of the commissioner to the effect that it is the record of the evidence given before the  commissioner , and shall thereupon become part of the record in the case.

       

      (12)    The preceding provisions of this Rule shall be subject to any ruling or order as the judge may deem fit.

 

 

Trial

 

43.  (1)     If when a trial is called, the plaintiff appears and the defendant does not appear, the plaintiff may prove the claim of that plaintiff so far as the burden of proof lies upon that plaintiff and judgment shall be given accordingly, insofar as that Plaintiff has discharged such burden, but where the claim is for a debt or liquidated demand no evidence shall be necessary unless the court otherwise orders.

 

        (2)     When a defendant has by the default of that defendant been barred from pleading, and the case has been set down for hearing, and the default duly proved, the defendant shall not, save where the court in the interests of justice may otherwise order, be permitted, either personally or by counsel, to appear at the hearing.

 

        (3)     If, when a trial is called, the defendant appears and the plaintiff does not appear, the defendant shall be entitled to an order granting absolution from the instance with costs, but may lead evidence with a view to satisfying the court that final judgment should be granted in favour of the defendant and the court, if so satisfied, may grant such judgment.

 

        (4)     The provisions of sub-rule (1) and (2) shall apply to any person making any claim (whether by way of claim in reconvention or third party notice or by any other means) as if that person were a plaintiff, and the provisions of sub-rule (3) shall apply to a person against whom such a claim is made as if that person were a defendant.

 

        (5)     Where the burden of proof is on the plaintiff, that plaintiff or one counsel for the plaintiff may briefly outline the facts intended to be proved and the plaintiff may then proceed to the proof thereof.

 

        (6)     At the close of the case for the plaintiff, the defendant may apply for absolution from the instance, in which event the defendant or one counsel on behalf of that defendant may address the court and the plaintiff or one counsel on behalf of that plaintiff may reply.  The defendant or one counsel on behalf of that defendant may thereupon reply on any matter arising out of the address of the plaintiff or the  counsel of the plaintiff.

 

        (7)     If absolution from the instance is not applied for or has been refused and the defendant has not closed the case of that defendant, the defendant or one counsel on behalf of the defendant may briefly outline the facts intended to be proved and the defendant may then proceed to the proof thereof.

 

        (8)     Each witness shall, where a party is represented, be examined, cross-examined or re-examined as the case may be by only one (though not necessarily the same) counsel for such party.

 

        (9)     If the burden of proof is on the defendant, that defendant or the counsel of that defendant shall have the same rights as those accorded to the plaintiff or the counsel of that plaintiff by sub-rule (5).

 

      (10)    Upon the cases on both sides being closed, the plaintiff or one or more of the counsel on behalf of the plaintiff may address the court and the defendant or one or more counsel on behalf of the defendant may do so, after which the plaintiff or one counsel only on behalf of the plaintiff may reply on any matter arising out of the address of the defendant or  the counsel of the defendant.

 

    (11)      (a) Either party may apply at the opening of the trial for a ruling by the court upon the onus of adducing evidence, and the court after hearing argument may give a ruling as to the party upon whom such onus lies.

 

                 (b) That ruling may thereafter be altered to prevent injustice.

 

    (12)      If there be one or more third parties or if there be defendants to a claim in reconvention who are not plaintiffs in the action, any such party shall be entitled to address the court in opening the case of that party and shall lead the evidence of that party after the evidence of the plaintiff and of the defendant has been concluded and before any address at the conclusion of such evidence.

 

    (13)      Save insofar as the court shall otherwise direct, the defendants to any counterclaim who are not plaintiffs shall first lead their evidence and thereafter any third parties shall lead their evidence in the order in which they became third parties. 

 

   (14)    If the onus of adducing evidence is on the claimant against the third party or on the defendant to any claim in reconvention, the court shall make such order as may seem convenient with regard to the order in which the parties shall conduct their cases and address the court, and in regard to their respective rights of reply.  The provisions of sub-rule (11) shall mutatis mutandis apply with regard to any dispute as to the onus of adducing evidence.

 

     (15)     Where the onus of adducing evidence on one or more of the issues is on the plaintiff and that of adducing evidence on any other issue is on the defendant, the plaintiff shall first call the evidence of the plaintiff on any issues in respect of which the onus is upon that plaintiff, and may then close case of that plaintiff.

 

     (16)       The defendant, if absolution from the instance is not granted, shall, if that plaintiff does not close the case of that plaintiff, thereupon call the evidence of that plaintiff on all issues in respect of which such onus is upon that plaintiff.

 

    (17)      (a) After the defendant has called the evidence of that plaintiff, the plaintiff shall have the right to call rebutting evidence on any issues in respect of which the onus was on the defendant.

 

                 (b) Where the plaintiff shall have called evidence on any such issues before closing the case of the plaintiff, that plaintiff shall not have the right to call any further evidence thereon.

 

    (18)      The provisions of sub-rule (15) or (17) shall not prevent the defendant from cross-examining any witness called at any stage by the plaintiff on any issue in dispute, and the plaintiff shall be entitled to re-examine such witness consequent upon such cross-examination without affecting the right given to that plaintiff by sub-rule (17) to call evidence at a later stage on the issue on which such witness has been cross-examined.  The plaintiff may further call the witness so re-examined to give evidence on any such issue at a later stage.

 

(19)            A record shall be made of –

 

(a)                a judgment or ruling given by the court;

 

(b)               the evidence given in court;

 

(c)                any objection made to the evidence received or tendered;

 

(d)               the proceedings of the court generally (including any inspection in loco and any matter demonstrated by any witness in court); and

 

(e)                any other portion of the proceedings which the court may specifically order to be recorded.

 

 

    (20)      Such record shall be kept by such means as to the -court seems appropriate and may in particular be taken down in shorthand or be recorded by mechanical and/or electrical means.

 

(21)    The shorthand notes so taken or any mechanical and/or electrical record shall be certified by the person taking the same to be correct and shall be filed with the Registrar. 

 

(22)    It shall not be necessary to transcribe shorthand notes unless the court or a judge so directs or a party appealing so requires. 

 

(23)    Where  and when transcribed, the transcript of such notes or record shall be certified as correct by the person transcribing them and the transcript, the shorthand notes and the mechanical and/or electrical record shall be filed with the Registrar.

 

(24)    The transcript of the shorthand notes or mechanical and/or electrical record certified as correct shall be deemed to be correct unless the court otherwise orders.

 

    (25)      A party to any matter in which a record has been made in shorthand or by mechanical and/or electrical means may apply in writing through the Registrar to a judge to have the record transcribed if an order to that effect has not already been made.  That party shall be entitled to a copy of any transcript ordered to be made upon payment of the prescribed fees.

 

    (26)      If it appears convenient to do so, the court may at any time make any order with regard to the conduct of a trial as to it seems meet, and thereby vary any procedure laid down by this rule.

 

    (27)      Every stenographer employed to take down a record and every person employed to make a mechanical and/or electrical record of any proceedings shall be deemed to be an officer of the court and shall, before entering on the duties of that stenographer, take the following oath/affirmation -

 

                 “I, A.B. do swear/affirm that I shall faithfully, and to the best of my ability, record in shorthand, or cause to be recorded by mechanical means, as directed by the judge, the proceedings in any case in which I may be employed as an officer of the court, and that I shall similarly, when required to do so, transcribe the same or, as far as I am able, any shorthand notes, or mechanical and/or electrical record, made by any other stenographer or person employed to make a mechanical and/or electrical record.”

 

    (28)      By consent the parties to a trial shall be entitled, at any time before trial, on written application to a judge through the Registrar, to have the cause transferred to the subordinate court, buy the matter is one within the jurisdiction of the latter court whether by way of consent or otherwise.

 

    (29)      The judge may, at the conclusion of the evidence in trial actions, confer with counsel in chambers as to the form and duration of the addresses to be submitted in court.

 

    (30)      Where the court considers that the proceedings have been unduly prolonged by the successful party by the calling of unnecessary witnesses or by excessive examination or cross-examination, or by over-elaboration in argument, it may penalize such party in the matter of costs.

 

    (31)      Notwithstanding the preceding provisions of this Rule, the judge may give any ruling or order as the judge deems fit.

 

Poor litigants (In forma pauperis)

 

44.   (1)                Where any poor person applies in writing to the Registrar for leave to sue or defend as a pauper and alleges that, that person is unable to pay the fees of the action, the Registrar shall enquire into the means of the applicant and for that purpose may require the applicant to give evidence on oath, either in person or by affidavit.

 

        (2)                 The decision of the Registrar shall be final as to whether the applicant has sufficient means to finance the action of that applicant or not.

 

        (3)                 Where the Registrar is satisfied as to the applicant’s lack of means, the Registrar shall refer the case to an attorney for consideration.

 

(4)               Where the attorney certifies that, that attorney has considered the case and that, that attorney believes the applicant has a reasonable probability of success –

 

(a)             the Registrar shall grant the applicant leave to sue or defend without payment of court fees;

 

(b)            the Registrar shall thereupon assign the certifying attorney or an advocate duly instructed by the Registrar to the applicant;

 

(c)             should such attorney or advocate thereafter become unable so to act, the Registrar or the said attorney or advocate, as the case may be, may, upon request, nominate another legal practitioner to act for the applicant.

 

(d)            that attorney or advocate shall not take a fee from the applicant for anything done in the conduct of the action.

 

(e)             Where the applicant succeeds in the prosecution or defence of the action and that success results in an order for payment to the applicant of any sum of money or delivery to that applicant of any property from any other party, whether by way of damages, costs or otherwise, the attorney of the applicant may include in  the bill of costs of that attorney  fees and disbursements to which that attorney would ordinarily have been entitled, and upon receipt thereof, in whole or in part, that attorney shall pay out in the following order of preference-

 

(i)  to the Registrar, such amount in revenue stamps as would have been due in respect of  the fees of office of the Registrar;

 

(ii) to the Deputy Sheriff, the charges of the Deputy Registrar for the service and execution of process; and

 

(iii) to that attorney and the advocate, their fees as allowed on taxation, pro rata if necessary.

 

 

Withdrawal, Settlement, Discontinuance, Postponement and Abandonment

 

45. (1)        (a)      A person instituting any proceedings may at any time before the matter has been set down and thereafter by consent of the parties or leave of the court withdraw such proceedings, in any of which events that person shall deliver a notice of withdrawal and may embody in such notice a consent to pay costs; and the Taxing Master shall tax such costs on the request of the other party.       

       

                  (b)      A consent to pay costs referred to in paragraph (a), shall have the effect of an order of court for such costs.

 

                  (c)      If no such consent to pay costs is embodied in the notice of withdrawal, the other party may apply to court on notice for an order for costs.

 

      (2)              Any party in whose favour any decision or judgment has been given, may abandon such decision or judgment either in whole or in part by delivering notice thereof and such judgment or decision abandoned in part shall have effect subject to such abandonment. 

 

      (3)              The provisions of sub-rule (1) relating to costs shall mutatis mutandis apply in the case of a notice delivered in terms of sub-rule (2).

 

      (4)              If in any proceedings a settlement or agreement to postpone or withdraw is reached, it shall be the duty of the attorney for the plaintiff or applicant immediately to inform the Registrar accordingly.

 

      (5)             Unless such proceedings have been withdrawn, any party to a settlement which has been reduced to writing and signed by the parties or their counsel but which has not been carried out, may apply for judgment in terms thereof on giving a notice of at least five  to all interested parties.

 

Variation and Rescission of Orders

 

46. (1)             The court may, in addition to any other powers it may have, mero motu or upon the application of any party affected, rescind or vary:

 

(a)          An order or judgment erroneously granted in the absence of any party affected thereby;

 

(b)         An order or judgment in which there is an ambiguity, or a patent error or omission, but only to the extent of such ambiguity, error or omission;

 

(c)          An order or judgment granted as the result of a mistake common to the parties.

 

        (2)            Any party desiring any relief under this Rule shall make application for that relief upon notice to all parties whose interests may be affected by any variation sought.

 

        (3)            The court shall not make any order rescinding or varying any order or judgment unless satisfied that all parties whose interests may be affected have notice of the order proposed.

 

Matrimonial Matters

 

47.   (1)           In any matrimonial action, the judge may, if the parties agree, interview them privately in  the chambers of that judge in the presence of their legal representatives for the purpose of discussing with them a settlement of the matter or any other matter affecting the future conduct of the proceedings.

 

         (2)           In any case affecting the custody of children, the judge may, if the judge thinks fit, interview such children privately in chambers.            

 

Restitution of conjugal rights

 

48.       (1)        In an action for the restitution of conjugal rights the plaintiff may in the alternative claim a decree of divorce.

 

            (2)        Upon the hearing of the action for restitution of conjugal rights the court may upon proof of the malicious desertion of plaintiff by defendant order restitution of such rights (which order shall, unless the court otherwise directs, be served on the defendant personally) and may further direct the defendant to show cause on a day to be named in such order why a decree of divorce should not be granted.

           

            (3)        If upon the return day it is proved by affidavit or otherwise that the defendant has failed to comply with the order for restitution of conjugal rights the court may grant a decree of divorce or make such order as to it may seem just.

 

            (4)        If the court grants leave to the plaintiff to publish a restitution order such publication shall be as near as may be in accordance with Form 19 in the First Schedule.

 

Execution – General and Movables

 

49. (1)  The party in whose favour any judgment of the court has been pronounced may at  the  risk of that party, sue out of office of the Registrar one or more writs for execution thereof as near as may be in accordance with Form 20 in the First Schedule.

 

      (2) Where, by judgment of the court immovable property has been specially declared executable, no process shall issue against the immovable property of any person until a return has been made of any process which may have been issued against the movable property of that person, and the Registrar is satisfied from the return that, that person has not sufficient movable property to satisfy the writ.

 

     (3)   Process of execution shall not issue for the levying and raising of any costs awarded by the court to any party, until the costs have been taxed by the Taxing Master or agreed to in writing by the party concerned or by the attorney of record of that party in a fixed sum.

 

     (4) It shall be competent to include in a writ of execution a claim for specified costs already awarded to the judgment creditor but not then taxed, subject to due taxation thereafter.

 

      (5) Where such costs have not been taxed and the original bill of costs, duly allocated, has not been lodged with the Deputy Sheriff before the day of the sale, such costs shall be excluded from the account and plan of distribution of the Deputy Sheriff.

 

      (6)      Whenever by any process of the court the Deputy Sheriff is commanded to levy and raise any sum of money upon the goods of a person, the Deputy Sheriff or by the assistant of the Deputy Sheriff shall immediately proceed to the dwelling house or place of employment or business of that person, unless the judgment creditor gives different instructions regarding the situation of the assets to be attached, and there –

                

               (a)     demand satisfaction of the writ and, failing satisfaction;

 

               (b)     demand that so much movable and disposable property be pointed out as the Deputy Sheriff may deem sufficient to satisfy the writ, and failing such pointing out;

 

               (c)    search for such property.

 

(7)   Any such property shall be immediately inventoried and shall, unless the execution creditor otherwise directs, and subject to the provisions of sub-rule (6), be taken into the custody of the Deputy Sheriff           

                       

 

       (8)   Where there is any claim made by any other person to any such property seized or about to be seized by the Deputy Sheriff and if the plaintiff gives an indemnity to the  satisfaction of the Deputy Sheriff against any loss or damage by reason of the seizure thereof, the Deputy Sheriff shall retain or seize, as the case may be, and shall make an inventory of and keep such property.    

 

            (9)        Where satisfaction of the writ was not demanded from the judgment debtor, written notice of the attachment and a copy of the inventory shall be made by the Deputy Sheriff, unless the whereabouts of the judgement debtor are unknown.

 

            (10)      The Deputy Sheriff shall file with the Registrar any process with a return of what the Deputy Sheriff has done in respect of that process, and shall furnish a copy of such return and inventory to the party who caused that process to be issued.

 

            (11)      Where any movable property has been attached by the Deputy Sheriff, the person whose property has been attached may, together with some person of sufficient means as surety to the satisfaction of the Deputy Sheriff, undertake in writing that such property shall be produced on the appointed date for the sale of that property, unless the attachment shall sooner have been legally removed, whereupon the Deputy Sheriff shall leave such property attached and inventoried on the premises where it was found.  The deed of suretyship shall be as near as may be in accordance with Form 21 in the First Schedule.

 

            (12)      If the judgment debtor does not, together with a surety, give an undertaking as required in terms of sub-rule (6), then, unless the execution creditor otherwise directs, the Deputy Sheriff shall remove such property to some convenient place of security or keep possession thereof on the premises where they were seized, the expense of the removal of the property shall be recoverable from the judgment debtor and defrayed out of the levy.

 

     (13)      Where under sub-rules (4) and (6) –

 

                 (a)        any movable property is attached, the Deputy Sheriff shall where applicable (unless there is an interpleader action pending) sell it by public auction to the highest bidder after due advertisement by the Deputy Sheriff in one or more newspapers and after the expiration of not less than fourteen days from the time of seizure thereof and not less than 7 court days after the first publication or such advertisement; or  

    

                        (b)        perishables are attached, they may with the consent of the execution debtor or upon the execution creditor indemnifying the Deputy Sheriff against any claim for damages which may arise against from such sales, be sold immediately by the Deputy Sheriff concerned in such manner as to the Deputy Sheriff seems expedient.

 

            (14)      In incorporeal property, whether movable or immovable, is available for attachment, it may be attached without the necessity of a prior application to court in the following manner –

 

(a)     where the property or right to be attached is a lease or a bill of exchange, promissory note, bond or other security for the payment of money, the attachment shall be completed only when -

 

(i)                 notice has been given by the Deputy Sheriff to the lessor and lessee, mortgagor and mortgage or person liable on the bill of exchange or promissory note or security as the case may be, and

 

(ii)               the Deputy Sheriff shall have taken possession of the writing (if any) evidencing the lease, or of the bill of exchange or promissory note, bond or other security as the case may be, and

 

(iii)             in the case of a registered lease or any registered right, notice has been given to the Registrar of Deeds;

 

(b)  where movable property sought to be attached is the interest of the execution debtor in property pledged, leased or sold under a suspensive condition to or by a third person, the attachment shall be complete only when the Deputy Sheriff has served on the execution debtor and on the third person notice of the attachment with a copy of the warrant of execution. 

 

(c) The Deputy Sheriff may upon exhibiting the original of such warrant of execution to the pledge, lessor, lessee, purchaser or seller enter upon the premises where such property is and make an inventory and valuation of such interest;

 

  (d)  in the case of the attachment of all other incorporeal property or incorporeal rights in property –

 

(i)                 the attachment shall only be complete when -

 

(a)                notice of the attachment has been given in writing by the Deputy Sheriff to all interested parties and where the asset consists of incorporeal immovable property or an incorporeal right in immovable property, such notice has also been given to the Registrar of Deeds in whose deeds registry the property or right is registered, and

 

(b)               the Deputy Sheriff has taken possession of the writing or document evidencing the ownership of such property or right, or has certified that the Deputy Sheriff has been unable, despite diligent search, to obtain possession of the writing or document;

 

(ii)               the Deputy Sheriff may upon exhibiting the original of the warrant of execution to the person having possession of property in which incorporeal rights exist, enter upon the premises where such property is and make an inventory and valuation of the right attached.

 

            (15)      Attachment of property subject to a lien shall be effected mutatis mutandis in accordance with the provisions of sub-rule (9) (b).

 

            (16)      Where property subject to a real right of any third person is sold in execution such sale shall be subject to the rights of that third person unless that third person  otherwise agrees.

 

            (17)      (a)        Subject to any hypothec prior to the attachment, all writs of execution lodged with the Deputy Sheriff before the day of the sale in execution shall rank pro rata in the distribution of proceeds of the goods sold, in the order of preference referred to in the rule 46(15)(c).

 

        (b)        If there should remain any surplus, the Deputy Sheriff shall pay it over to the judgment debtor; and the Deputy Sheriff shall make out and deliver to the judgment debtor an exact amount in writing of the costs of the Deputy Sheriff and charges of the execution and sale, which shall be liable to taxation upon application by the judgment debtor, and if upon taxation any sum shall be disallowed, the Deputy Sheriff shall refund such sum to the judgment debtor.

 

(18)      (a)        Whenever it is brought to the knowledge of the Sheriff that there is any debt which is subject to attachment, and is owing or accruing from a third person to the judgment debtor the Sheriff may, if requested by the judgment creditor, attach such debt, and shall thereupon serve a notice on that third person (hereinafter called “the garnishee”), requiring payment by that third person  to the Deputy Sheriff of so much of the debts as may be sufficient to satisfy the writ.

 

            (b)        The Deputy Sheriff may, upon any such payment, give a receipt to the garnishee which shall be a discharge, pro rata, of the debt attached.

 

        (c)        In the event of the garnishee refusing or neglecting to comply with any such notice, the Sheriff shall forthwith notify the judgment creditor, and the judgment creditor may call upon the garnishee to appear before the court to show cause why he should not pay to the Sheriff the debt due, or so much thereof as may be sufficient to satisfy the writ.

 

        (d)       Where the garnishee does not dispute the debt due or claimed to be due by the garnishee to the party against whom execution is issued, or the garnishee does not appear to answer to such notice, then the court may order execution to issue, and it may issue accordingly, without any previous writ or process, for the amount due from such garnishee, or so much thereof as may be sufficient to satisfy the writ.

 

                        (e)        If the garnishee disputes the liability of the garnishee in part, the court may order execution to issue in respect of so much as may be admitted, but if none be admitted then the court may order that any issue or question necessary for determining the garnishee’s liability be tried or determined in any manner mutatis mutandis in which any issue or question in any action may be tried or determined; or the court may make any such other order in the premises as may be just.

 

      (f)        Nothing in these rules as to the attachment of debts in the hands of a garnishee shall affect any cession, preference, or retention claimed by any third person in respect of such debts.

 

      (g)        The costs connected with any application for the attachment of debts, and the proceedings arising from or incidental thereto, shall be in the discretion of the court.

 

      (h)        Where the Sheriff is of the opinion that applications to the court or orders with respect to a garnishee will probably cost more than the amount to be recovered the application, the Sheriff may sell that debt, after attachment, by auction, in the same way as any other movable property, or may cede it at the nominal amount thereof to the judgment creditor with the consent of the judgment creditor;

 

      (i)         Payment of the amount due under and in respect of any writ, and all costs and the like, incidental thereto;      

     

(j)         Whenever a court gives judgment for payment of a sum of money against a party (hereinafter called “the debtor”) the court may forthwith investigate whether the debtor is able to satisfy the judgment and for that purpose may require the debtor’s attendance to give evidence on oath, and to produce such documents as the court may direct, and allow the judgment creditor to adduce such evidence as the court may think fit;

 

                        (k)        Any such person who, having been served with such notice under paragraph (k) fails without good cause to appear, may be personally attached for contempt of court; and whenever such person appears pursuant to such notice the court may proceed as set forth in paragraph (h);

           

                        (l)         Whenever the court is of opinion that the debtor is able to satisfy a debt by instalments out of the earnings of that debtor, it may make an order for payment of that debt by instalments;

 

                        (m)       Whenever an order has been made for payment by instalments and the debtor makes default in that payment, any salary, earnings, or emoluments due to accruing to such debtor to the extent of the arrears may, without further notice to the debtor, but subject to the rights of the garnishee, be attached under the provisions of paragraph (a); and

 

                        (n)        Any writ issued for the attachment of salary, earning, or emoluments shall remain in force and may be executed periodically as such salary, earnings, or emoluments accrue to the debtor, until it is satisfied.

 

Execution – immovables

 

50.       (1)        A writ of execution against immovable property shall contain a full description of the nature and situation (including the address) of the immovable property to enable it to be traced and identified by the Deputy Sheriff, and shall be accompanied by sufficient information to enable the Deputy Sheriff to give effect to sub-rule (3).

 

(2)               An attachment shall be made by the Deputy Sheriff of the district in which the property is situate upon a writ as near as may be in accordance with Form 22 in the First Schedule.

 

(3)               The mode of attachment of immovable property shall be by notice in writing prepared by the Deputy Sheriff and served upon the owner thereof, and upon the registrar of deeds or other officer charged with the registration of such immovable property, and if the property is in the occupation of some person other than the owner, also upon such occupier.  Any such notice shall be served as provided in rule 4 of these Rules upon the owner and person intended to be served.  The Deputy Sheriff shall notify the sheriff and the execution creditor of the attachment as soon as it has been effected.

 

(4)               (a) After attachment, any sale in execution shall take place in the district in                         which the attached property is situate and be made conducted by the Deputy             Sheriff of that district.

 

(b) The Deputy Sheriff in the first instance and subject to the provisions of sub-rule 9(b) may on good cause shown authorize that sale to be conducted elsewhere and by another Deputy Sheriff.

 

(5)               Upon receipt of written instructions from the execution creditor to proceed with such sale, the sheriff shall ascertain and record what bonds or other encumbrances are registered against the property together with the names and addresses of the persons in whose favour such bonds and encumbrances are so registered and shall thereupon notify the execution creditor accordingly.

 

(6)               No immovable property which is subject to any claim preferent to that of the execution creditor shall be sold in execution unless –

 

(a)                the execution creditor has caused notice, in writing, of the intended sale to be served by registered post upon the preferent creditor, if the  address of the preferent creditor is known and, if the property is rateable, upon the local authority concerned calling upon them to stipulate within ten days of a date to be stated a reasonable reserve price or to agree in writing to a sale without reserve; and has provided proof to the sheriff that the preferent creditor has so stipulated or agreed, or

 

(b)               the sheriff is satisfied that it is impossible to notify any preferent creditor, in terms of this rule, of the proposed sale, or such creditor, having been notified, has failed or neglected to stipulate a reserve price or to agree in writing to a sale without reserve as provided for in paragraph (a) within the time stated in such notice.

 

(7)               The Deputy Sheriff may by notice served upon any person require that person  to deliver up to the Deputy Sheriff, but without prejudice to any claim of that person, immediately  all documents in the possession or control of that person relating to the title of the debtor to the said property.

 

(8)        (a)       The Deputy Sheriff shall appoint a day and place for the sale of such property;

 

(b)        The execution creditor shall, after consultation with the Sheriff, prepare a notice of sale containing a short description of the property, its situation and street number, if any, the time and place for the holding of the sale and the fact that the conditions may be inspected at the office of the Deputy Sheriff, and the execution creditor shall furnish the Deputy Sheriff with as many copies of the notice as the latter may require;

 

(c)                The Deputy Sheriff shall indicate a suitable newspaper circulating in the district in which the property is situated and require the execution creditor to publish the said notice once in the said newspaper and in the Gazette not later than fourteen days before the date appointed for the sale and to furnish the Deputy Sheriff, not later than the day prior to the date of the sale, with one copy of the said newspaper and with the number of the Gazette in which the notice appeared.

 

(d)       The Deputy Sheriff may, if the Deputy Sheriff deems fit, order       such     further publication or advertisement, as the Deputy         Sheriff             may deem necessary in the circumstances, and require the judgment   creditor to provide such proof of such publication or            advertisement as the Deputy Sheriff may deem necessary;

 

(e)        Not less than ten days prior to the date of the sale, the Deputy Sheriff shall forward by registered post a copy of the notice of sale referred to in paragraph (b) to every judgment creditor who had caused the immovable property to be attached and to every mortgage thereof whose address is known;

 

                        (f)        Not less than ten days prior to the date of the sale, the Deputy Sheriff shall affix one copy of the notice on the notice-board of the court and of the subordinate Court of the district in which the property is situate, and one copy at or as near as may be to the place where the said sale is actually to take place.

 

            (9)        (a)        The conditions of sale shall, not less than fourteen days prior to the date of the sale, be prepared by the execution creditor as near as may be in accordance with Form 23 in the First Schedule and the said conditions shall be submitted to the Deputy Sheriff to settle them. The execution creditor shall thereafter supply the Deputy Sheriff with two copies of the conditions of sale, one of which shall lie for inspection by interested parties at the office of the Deputy Sheriff.

 

(b)    An interested party may, not less than seven court days prior to the date of the sale, upon twenty-four hours notice to the execution creditor and any mortgage apply to a judge for any modification of the conditions of sale and the judge may make such order thereon including an order as to costs, as may seem meet to the judge.

 

            (10)      The execution creditor may appoint an attorney to attend to the transfer of the property when sold in execution.

 

            (11)      Immovable property attached in execution shall be sold by the Deputy Sheriff by public auction.

 

            (12)      (a) Where the purchaser fails to carry out any of the obligations of the purchaser under the conditions of sale, the sale may be cancelled by a judge summarily on the report of the Deputy Sheriff after due notice to the purchaser, and the property may again be put up for sale.

 

                        (b) The purchaser shall be responsible for any loss sustained by reason of the default of that purchaser, which loss may, on the application of any aggrieved creditor whose name appears on the distribution account of the Deputy Sheriff, after the defaulting purchaser has received notice in writing that such report will be laid before the judge for that purpose.

 

            (c) Where the purchaser is already in possession of the property, the Deputy Sheriff may on seven days notice, apply to a judge for an order ejecting the purchaser from the property or any person claiming to hold under the purchaser.

 

(13)      Subject to the provisions of sub-rule (6), the sale shall be without reserve and upon the conditions stipulated under sub-rule (7), and the property shall be sold to the highest bidder.

 

(14)      The Deputy Sheriff shall give transfer to the purchaser against payment of the purchase money and upon performance of the conditions of sale and may for that purpose do anything necessary to effect registration of transfer, and anything so done by the Deputy Sheriff shall be as valid and effectual as if the Deputy Sheriff were the owner of the property.

 

(15)     (a)        The Deputy Sheriff shall not pay out the purchase money to the creditor until transfer has been given to the purchaser, but upon receipt the money the purchaser shall forthwith pay into the deposit account of the Deputy Sheriff all moneys received in respect of the purchase price;

 

(b)        The Deputy Sheriff shall as soon as possible after the sale prepare in            order of preference, as  provided in sub-rule 15 (d), a plan of             distribution of the proceeds and shall forward a copy of such plan to           the Registrar of the court. 

 

(d)               Immediately thereafter the Deputy Sheriff shall give notice by registered post to all parties who have lodged writs and to the execution debtor that the plan will lie for inspection for fourteen days from a date mentioned at the  office of the Deputy Sheriff and at the office of the Registrar, and unless such parties shall signify, in writing, their agreement to the plan, such plan shall so lie for inspection;

 

(e)                After deduction from the proceeds of the costs and charges of execution, the following shall be the order of preference –

 

(i)                 the claims of preferent creditors ranking in priority in their legal order of preference; and thereafter.

 

(ii)               the claims of other creditors whose writs have been lodged with the Deputy Sheriff in the order of preference appearing from sections 97 and 100 to 103 (inclusive) of the Insolvency Act, No.81 of 1955.

 

                        (f)        An interested person objecting to such plan shall, within 4 court days of the expiry of the period referred to in paragraph (d) give notice in writing to the Deputy Sheriff and all other interested persons of the particulars of objection of that person and shall bring such objection before a judge for review on ten days notice to the Deputy Sheriff and the interested  persons;

 

                        (g)        The judge on review shall hear and determine the matter in dispute and may amend or confirm the plan of distribution or may make such order including an order as to costs as to the judge seems meet.

 

                        (h)        Where -

 

(i)                 no objection be lodged to such plan, or

 

(ii)               the interested parties signify their concurrence therein, or

 

(iii)             the plan is confirmed or amended on review,

 

the Deputy Sheriff, on production of a certificate from the conveyancer attending to the registration of transfer that transfer has been given to the purchaser, pay out in accordance with the plan of distribution. If the address of a payee is not known the amount due to the payee shall be paid into the Guardian’s Fund established under any law relating to the Administration of Estates.

 

(16)      In this Rule the Sheriff may perform any function of a Deputy Sheriff.

 

Security for costs

 

51.       (1)        A party entitled and desiring to demand security for costs from another shall, as soon as practicable after the commencement of proceedings, deliver a notice setting forth the grounds upon which such security is claimed, and the amount demanded.

 

(2)               Where the amount of security only is contested the Registrar shall determine the amount to be given.

 

(3)               Where the party from whom security is demanded contests the liability of that party to give security or if that party fails or refuses to furnish security in the amount demanded or the amount fixed by the Registrar within ten days of the demand or the Registrar’s decision, the other party may apply to court on notice for an order that such security be given and that the proceedings be stayed until such order is complied with.

 

(4)               The court may, if security be not given within a reasonable time, dismiss any proceedings instituted or strike out any pleadings filed by the party in default, or make such other order as to it may seem meet.

 

(5)               Security for costs shall, unless the court otherwise directs, or the parties otherwise agree, be given in the form, amount and manner directed by the Registrar.

 

(6)               The Registrar may, upon the application of the party in whose favour security is to be provided and on notice to interested parties, increase the amount thereof if the Registrar is satisfied that the amount originally furnished is no longer sufficient.

 

 

Review of taxation

 

52.     (1)          Any party dissatisfied with the ruling of the Taxing Master as to any item or part of an item which was objected to or disallowed mero motu by the Taxing Master, may within fourteen days of the allocatur require the Taxing Master to state a case for the decision of a judge, which case shall set out each item or part of an item together with the grounds of objection advanced at the taxation and shall embody any relevant findings of fact by the Taxing Master.

 

           (2) , A case shall not be stated, save with the consent of the Taxing Master, where the amount, or the total of the amounts, which the Taxing Master has disallowed or allowed, as the case may be, and which the party dissatisfied seeks to have allowed or disallowed respectively, is less than E500 (Five hundred Emalangeni).

 

            (3)        The Taxing Master shall supply a copy of the case to each of the parties, who may within ten days of the receipt of the copy submit contentions in writing thereon, including grounds of objection not advanced at the taxation in respect of any item or part of an item which was objected to before the Taxing Master or disallowed mero motu by the Taxing Master.

 

            (4)        The Taxing Master shall thereafter make a report and supply a copy of that report to each of the parties who may within seven court days of the receipt the report submit contentions in writing thereon to the Taxing Master who shall immediately lay the case together with the contentions of the parties thereon, the report and any contentions thereon before a judge, who may then decide the matter upon the case and contentions so submitted, together with any further information which the judge may require from the Taxing Master, or may decide it after hearing, if the judge deems fit, the parties or their advocates or attorneys in the chambers of the judge or the judge may refer the case for decision to the court.

 

                        (5)        Any further information to be supplied by the Taxing Master to the judge under sub-rule (3) shall be supplied by the Taxing Master to the parties who may within seven court days of the receipt thereof submit contentions in writing thereon on the Taxing Master who shall forthwith lay such further information together with any contentions of the parties thereon before the judge.

 

                        (6)        The judge or court so deciding may make such order as to the costs of the case as the judge or it may deem fit, including an order that the unsuccessful party shall pay to the opposing party a sum fixed by the judge or court as and for costs.

 

Certificate for leave to appeal (civil)

 

53.       (1)        Where the certificate of the judge who heard the appeal is sought for leave to appeal to the Supreme Court from a decision of the court in its civil appellate jurisdiction, application shall be made by the delivery within fourteen days after the date of the judgment sought to be appealed against of a notice stating that the applicant desires to leave to appeal and setting forth the grounds upon which such leave is sought. The application shall be set down on a date to be arranged with Registrar.

 

            (2)        Sub-rule (1) shall not apply to an application for such certificate made at the time of giving judgment.

 

Civil appeals from Surbodinate Courts

 

54.     (1)          An appeal to the court against the decision of a subordinate court in a civil matter shall be prosecuted within six weeks, or within such extended period as the court on due application by any of the parties may allow, after noting of such appeal, and unless so prosecuted it shall be deemed to have lapsed.

           

          (2)          The prosecution of an appeal shall ipso facto operate as the prosecution of any cross-appeal which has been duly noted.

 

          (3)          Where a cross-appeal has been noted, and the appeal lapses, the cross-appeal shall also lapse, unless application for a date of hearing for such cross-appeal is made to the Registrar within three weeks of the date of the lapse for such appeal.

 

          (4)          The appellant may, within four weeks after noting an appeal, apply in writing to the Registrar on notice to all other parties for a date of hearing, and shall at the same time make available to the Registrar in writing the full residential and postal addresses and the address of the attorney of that appellant, if that appellant is represented.  If the appellant fails to do so, the respondent may at any time before the expiry of the period of six weeks apply for a date of hearing in like manner.  Upon such application, an appeal or cross-appeal shall be deemed to have been duly prosecuted.

 

           (5)         Upon receipt of such an application for a date of hearing for an appeal or a cross-appeal, the Registrar shall allocate a date of hearing and thereafter it shall be set down as provided in Rule 41.

 

           (6)         A notice of set down of a pending appeal shall ipso facto operate as a set down of any cross-appeal and vice versa.

 

           (7)         (a)        The party who has applied for a date of hearing shall prepare and lodge with the Registrar two copies of the record as soon as is reasonably possible after applying for a date but in any event not less than 14 days prior to the date of the hearing, except with the leave of a judge.

 

            (b)        Such copies shall be clearly typed on foolscap paper in double spacing, and the pages thereof shall be consecutively numbered.  In addition every tenth line each page shall be numbered.

 

                        (c)        The record shall contain a correct and complete copy of the pleadings, evidence and all other documents necessary for the hearing of the appeal, together with an index thereof, and the copies lodged with the Registrar shall be certified as correct by the attorney or party lodging the same or by the clerk of the subordinate court appealed from.

 

                        (d)       The party lodging the copies of the record shall also furnish each of the other parties with two copies thereof, certified as required in terms of paragraph (c).         

 

(8)       (a)        Save in so far as these affect the merits of an appeal, subpoenas, notices of trial, consents to postponements, schedules of documents, notices to produce or inspect, and other documents of a formal nature shall be omitted from the copies of the record prepared in terms of sub-rule (7), and a list thereof shall be included in the record.

 

(b)  By consent of the parties, exhibits having no bearing on a point at issue in an appeal and immaterial portions of lengthy documents may likewise be omitted from such copies in which event a written consent, setting forth what documents, or portions thereof, as the case may be, have been omitted and signed by or on behalf of the parties shall be filed with the Registrar when such copies are lodged.

           

(c)    Provided that the court hearing the appeal may at all times refer to the original record and take cognisance of all matter appearing therein.

 

(9)        Not less that five court days before the appeal is heard the appellant, if represented, shall deliver one copy of a concise and succinct statement of the main points (without elaboration) which the appellant intends to argue on appeal, as well as a list of the authorities to be tendered in support of each point, and not less than two days before the appeal is heard the respondent, if represented, shall deliver a similar statement.

 

            (10)      Notwithstanding the provisions of this Rule the Chief Justice may, in consultation with the parties concerned, direct that a contemplated appeal be dealt with as an urgent matter and order that it be disposed of, and the appeal be prosecuted, at such time and in such manner as to Chief Justice seems fit.

 

Criminal appeals from subordinate courts

 

55.       (1)        Upon receipt by the Registrar of the record of the case and copies thereof furnished to the Registrar by the Clerk of the court in accordance with the provisions of Order XXXVI Rule 2 of the Magistrates’ Court Rules the Registrar, subject to such directions of a specific or general nature as the Registrar  may receive from the Chief Justice, shall appoint a day for the hearing the appeal and give not less than 10 days written notice to the Director of Public Prosecutions and to the other parties to the case advising them of the day so appointed.

 

            (2)        Upon receipt of a case stated a Magistrate in terms of section 86 of the Magistrates’ Court Act, 1938 the Registrar upon being requested in writing by the Director of Public Prosecutions,  representative of the Director of Public Prosecutions or other prosecutor, shall, subject to such direction of a specific or general nature as the Registrar may receive from the Chief Justice, appoint a day for the hearing of the appeal and the Registrar shall thereupon give not less than ten days written notice to the Director of Public Prosecutions and to other parties to the case which is the subject of the appeal advising them of the day so appointed.

 

            (3)        For the purposes of this Rule, written notice shall be deemed to have been properly given to any party if it is served upon the attorney of that party or, if that party is unrepresented, if it is served upon that party personally or sent by registered post accompanied by an advice-receipt card to that party at the address stated by that party in the notice of appeal to be the address of that party.

 

     (4)        The ultimate responsibility for ensuring that all copies of the record on appeal are in all respects properly before the court shall rest on the appellant, or the attorney of the appellant if the appellant is represented by an attorney.

 

            (5)     Not less than five court days before the appeal is heard the appellant, if represented, shall deliver a concise statement of the main points (without elaboration) which that appellant intends to argue on appeal, as well as a list of authorities to be tendered in support of each point, not less than three days before the appeal is heard the respondent shall deliver a similar statement.

 

Certificate for leave to appeal (criminal)

 

56.       The provisions of Rule 53 shall apply whenever the certificate of a judge is required for leave to appeal to the Supreme Court from the decision of the court in its original appellate jurisdiction in a criminal matter.

 

Reviews

 

57.       (1)        Save where any law otherwise provides, all proceedings to bring under review the decision or proceedings of any inferior court and of any tribunal, board or officer performing judicial, quasi-judicial or administrative functions shall be by way of notice of motion directed and delivered by the party seeking to review such decision or proceedings to the magistrate, presiding officer or chairman of the court, tribunal or board or to the officer, as the case may be, and to all other parties affected –

 

(a)        calling upon such persons to show cause why such decisions or proceedings should not be reviewed and corrected or set aside; and

 

(b)        calling upon the magistrate, presiding officer, chairman or officer as the case may be, to despatch, within fourteen days of the receipt of the notice of motion, to the Registrar the record of such proceedings sought to be corrected or set aside together with such reasons as the magistrate, presiding officer, or officer is by law required or desires to give or make, and to notify the applicant that the magistrate, presiding officer, chairman or officer has done so.

 

            (2)        The notice of motion shall set out the decision or proceedings sought to be reviewed and shall be supported by affidavit setting out the grounds and the facts and circumstances upon which applicant relies to have the decision or proceedings set aside or corrected.

 

            (3)        The Registrar shall make available to the applicant the record despatched to the Registrar as aforesaid upon such terms as the Registrar thinks appropriate to ensure its safety but in no case shall the Registrar permit the record to leave the  offices of the Registrar save as may be directed by the court.  The applicant shall thereupon cause copies of such portions of the record as may be necessary for the purposes of the review to be made and shall furnish the Registrar with two copies and each of the other parties with one copy thereof.  The costs of transcription, if any, shall be borne by the application and shall be costs in the cause.

 

            (4)        The applicant may within seven court days after the Registrar has made the record available to the applicant, by notice and accompanying affidavit amend, add to or vary the terms of the notice of motion of the applicant and supplement the supporting affidavit or affidavits, and shall deliver the said notice and affidavit or affidavits.

 

            (5)        Should the presiding officer, chairman, or officer, as the case may be, or any party affected desire to oppose the granting of the order prayed in the notice of motion, that presiding officer, chairman, or officer or any party affected shall -              

                        (a)        within seven days of the receipt by presiding officer, chairman, or officer of the notice of motion or any amendment thereof deliver notice to the applicant that he intends so to oppose and shall in such notice appoint an address within two miles of the office of the Registrar at which he will accept notice and service of all process in such proceedings, and

                                               

(b)        within seven court days of the expiry of the time referred to in sub-rule (4) hereof, deliver any affidavits which that presiding officer, chairman, or officer or any party affected may desire in answer to the allegations made by the applicant.

 

            (6)        The applicant shall have the rights and obligations in regard to replying affidavits set out in Rule 8.

 

            (7)        The provisions of Rule 8 as to set down of applications and sub-rule (11) thereof shall mutatis mutandis apply to the set down of review proceedings.

 

 

Criminal proceedings

 

58.       (1)        When an accused has been committed for trial or when the Chief Justice has directed that an accused shall be tried summarily, and an indictment has been lodged with the Registrar, the Registrar shall issue a notice of trial substantially in accordance with Form 24 in the First Schedule and shall cause such notice to be served upon the Director of Public Prosecutions or other prosecutor or attorney of the accused and the accused.

 

(2)               The Director of Public Prosecutions or other prosecutor or the attorney of the accused shall deliver to the Registrar the original and two copies of the indictment and, if there is more than once accused, as many additional copies as there are accused persons.

 

(3)               The Registrar shall cause a copy of the indictment to be served upon the accused.

 

(4)               When any person is committed for sentence to the court by a Magistrate’s court under the provisions of section 292(1) of the Criminal Procedure and Evidence Act, 1938 the Registrar shall set the matter down for hearing as soon as may be possible and shall cause the notice of hearing to be served upon the Director of Public Prosecutions and the person committed and attorney of the person committed, if known to the Registrar, at least ten days before the date for hearing.

 

(5)               The subpoena or process for procuring the attendance of any person before the court to give evidence in any criminal case or to produce any books documents or things, shall be sued out of the office of the Registrar by the Director of Public Prosecutions or other prosecutor or attorney of that person or, in the case of a defence witness, by the accused, or attorney of the accused.

 

(6)               The subpoena shall be served upon the witness personally unless the court otherwise directs, but if the person to be served with a subpoena though present in such building keeps residence or place of business of that person closed so as to prevent the service of the subpoena, it shall be sufficient service to affix a copy thereof to the outer or principal door of such residence or place of business.

 

(7)               The person serving the subpoena shall, if required by the person on whom it was served, exhibit to that person the original.

 

(8)               When a court imposes upon any person whatsoever a fine for contempt of court for default in appearance or otherwise, and such fine is not duly paid, the Registrar of the court shall furnish the Deputy Sheriff with particulars of such fine and deliver to the Deputy Sheriff a completed warrant.   The Deputy Sheriff, immediately on such warrant being delivered to the Deputy Sheriff, shall execute it.

(9)               Any process or document referred to in this Rule may be served by a police officer or such other person authorised by the Registrar.

 

(10)                                   (a)        It shall be lawful for the judge presiding at any sitting of the court to direct that the pleas or statements of accused persons, the evidence orally given, the rulings or judgment of the court, and any exception taken thereto by counsel, and such portion of the proceedings as the judge may specially indicate, be taken down in shorthand, either verbatim or in narrative form, at the discretion of the judge, or be recorded by mechanical or electrical means.

 

(b)   Any shorthand writer employed for the above purpose or any person entrusted with the recording of the proceedings by mechanical or electrical means, hereinafter called “the recorder”, shall be deemed to be an officer of the court, and shall before entering on the duties of recorder take before the judge an oath in the form prescribed in paragraph (l).

 

(c)        Were shorthand notes are taken under paragraph (a), such notes shall be certified by the shorthand writer as correct, and shall be field with the Registrar. It shall not be necessary to transcribe them, unless the judge or the Registrar acting under the authority of the judge, so directs.   If and when transcribed, then the transcript of such notes shall be certified as correct by the transcribing shorthand writer, and the transcript shall be filed with the Registrar in lieu of the shorthand notes.

 

(d)       The shorthand notes so certified as correct, or the transcripts similarly certified, as the case may be, shall be deemed to be correct unless the court otherwise orders, and they shall constitute a part of the records of the court.

 

(e)        Any party to a matter in which the services of a shorthand writer have been utilised may apply through the Registrar to have the shorthand notes transcribed, if an order to that effect has not already been given and that party shall be entitled to a copy of any transcript ordered to be made, upon payment of such fees and upon compliance with such terms as the Registrar may, with the approval of the judge, require.

 

(f)        The oath to be taken by a shorthand writer shall be in the following form-

 

                        “I, ……………A. B., do swear that I will faithfully, accurately, and to the best of my ability, take down in shorthand, as directed by the judge, the proceedings in any case in which I may be employed as an officer of the court, ad that I will similarly, when required to do so, transcribe the same or any other notes taken by an officer of the court.”

 

(11)                                (a)         Where the proceedings of the court are recorded by mechanical or electrical means, the recorder shall file the records of each case with the Registrar in a package endorsed with the name and number of such case.   It shall not be necessary to transcribe such records, unless the judge or the Registrar acting under the authority of the judge, so directs.   If and when transcribed, the transcript of such records shall be certified as correct by the recorder who shall supervise the transcription thereof, and the transcript shall be filed with the Registrar in lieu of such records.

 

(b)      The records so recorded, or the transcript certified in terms of paragraph (a) shall be deemed to be correct, unless the court otherwise orders, and they shall constitute a part of the records of the court.

 

            (c)      Any party to a matter in which proceedings have been mechanically or electrically recorded may apply through the Registrar to have the records transcribed, if any order to that effect has not already been made, and that party shall be entitled to a copy of any transcript ordered to be made upon payment of such fees and upon compliance with such terms as the Registrar may, with the approval of the judge require.

 

              (d)      The oath to be taken by a recorder shall be in the following form-

 

“I, ………A.B., do swear that I will faithfully, accurately and to the best of my ability record the proceedings in any case in which I am required to do so by the judge, and that I will similarly, when required to do so, take steps to have the records made by me or by any other officer of the court, transcribed and will certify the same.”

           

The court roll

 

59.       (1)        Prior to each session of the court the Registrar shall, after consultation with the Chief Justice, prepare and publish a roll of cases for hearing during the next session.

 

(2)               The roll shall contain all criminal trials for which a notice of trial has been issued and all civil causes for which a date of hearing has been allocated and it shall make provision for the hearing of appeals, committals for sentence, applications and any other business of the court.

 

(3)               Cases may be added to the roll during each session as the Registrar, after consultation with the Chief Justice, may deem fit.

 

Garnishee proceedings

 

60. (1) (a)        The judge may, upon the ex parte application in accordance with Form 25 in the First Schedule of any person who has obtained an order for the recovery or payment of money either before or after any oral examination of the debtor liable under that judgment or order, and upon affidavit by that person or the attorney of that person stating that judgment has been recovered, or the order made, and that it is still unsatisfied, and to what amount, and that any other person is indebted to that debtor, and is within the jurisdiction order-

 

                        (a) that all debts owing or accruing from that third person (hereinafter called “the garnishee”) to that debtor shall be attached to answer the judgment or order, together with the costs of the garnishee proceedings;

 

                        (b) that the garnishee shall appear before the judge, by the same or subsequent order, to show cause why the garnishee should not pay to the person who has obtained that judgment or order the debt due from the garnishee to that debtor, or so much thereof as may be sufficient to satisfy the judgment or order, together with the costs of the garnishee proceedings.

 

            (b)        At least seven court days before the day of hearing, the rule nisi shall be served on the garnishee and, unless otherwise ordered, on the judgment debtor.

 

            (c)        The rule nisi must be served personally on the garnishee.

 

(2)        Service of an order that debts, due or accruing to a debtor liable under a judgment or order, shall be attached, or notice thereof to the garnishee, in such manner as the judge shall direct, shall bind such debts in the hands of the garnishee hands.

 

(3)        If the garnishee does not dispute the date due or claimed to be due from the garnishee to such debtor, or if the garnishee does not appear upon the motion, then the judge may order execution to issue, and it may issue accordingly, without any previous writ or process, to levy the amount due from that garnishee, or so much of the amount due as may be sufficient to satisfy the judgment or order, together with the costs of the garnishee proceedings.

 

(4)        Where the garnishee disputes the liability of the garnishee, the judge, instead of making an order that execution shall issue, may order that any issue or question necessary for determining the liability of the garnishee be tried or determined in any manner in which any issue or question in an action may be tried or determined.

 

(5)        Whenever in any proceedings to obtain an attachment of debts it is suggested by the garnishee that the debt sought to be attached belongs to some third person, or that any third person has a lien or charge upon it, the judge may order that third person to appear, and state the nature and particulars of claim of that third person upon such debt.

 

(6)        After hearing the allegation of any third person under the order, as mentioned in sub-rule 5, or any other person who by the same or any subsequent order the judge may order to appear, or in the case of that third person not appearing when ordered, the judge may order execution to issue to levy the proceedings or any issue or question to be tried or determined according to the preceding rules of this Order, and may bar the claim of that third person, or make an other order as that judge thinks fit, upon terms, in all cases, with respect to the lien or charge (if any) of that third person, and to costs, as the judge thinks just and reasonable.

 

(7)        Payment made by or execution levied upon the garnishee under any proceedings shall be a valid discharge to the garnishee as against the debtor, liable under a judgment or order, to the amount paid or levied, although the proceeding may be set aside, or the judgment or order reserved.

 

(8)        The costs of any application for an attachment of debts and of any proceedings arising from or incidental to an application of the judgment creditor shall, unless otherwise directed, be retained out of the money recovered by judgement creditor under the garnishee order, and in priority to the amount of the judgment debt.

 

Contempt of court

 

61.       (1)        The institution by a party of proceedings for contempt of court shall be made by notice of motion to the person against whom the contempt of court is alleged.

 

            (2)        (a)       Such notice of motion shall set forth distinctly the grounds of complaint and shall be supported by an affidavit of the facts.

 

(b)        Where the proceedings are instituted at the instance of judge mero motu, the notice shall be issued by the Registrar and no affidavit of the facts shall be necessary.

 

            (3)        Nothing in the preceding rules shall affect the power of the judge to deal summarily with a contempt of court committed in the presence of that judge without any written charge or notice to the offender.

 

(4)        (a)       Where a judge has imposed a fine for contempt of court the Registrar shall furnish the Deputy Sheriff with the particulars of that fine and deliver to the Deputy Sheriff a writ in Form 26 in the First Schedule with any variations as the circumstances of the case require.

 

                         (b)       Immediately on the delivery of that writ, the Deputy Sheriff shall execute the writ in terms of thereof.

 

(5)         (a)      Where a judge orders a person to be committed to prison or imposes a sentence of imprisonment for contempt of court, the Registrar shall furnish the Deputy Sheriff or a police officer with a writ of personal attachment and committal to prison in Form 27 in the First Schedule with any variations as the circumstances may require.

 

                         (b)       Immediately on delivery of such writ, the Deputy Sheriff, or the police officer to whom it is delivered, shall execute the same.

 

 

De Lunatico Inquirendo, appointment of Curators in respect of persons under disability and release from Curatorship

 

62.       (1)        Any person desirous of making application to the court for an order declaring another person (hereinafter referred to as “the patient”) to be of unsound mind and as such incapable of managing the affairs of that person, and appointing a curator to the person or property of that patient shall in the first instance apply to the court for the appointment of a curator ad litem to that patient.

 

            (2)        The application shall be brought ex parte and shall set forth fully –

 

                        (a)        the grounds upon which the applicant claims locus standi to make that application;

 

                        (b)        the grounds upon which the court is alleged to have jurisdiction;

 

                        (c)        the patient’s age and sex, full particulars of the means of that patient, and information as to the general state of physical health of that patient;

 

                        (d)       the relationship (if any) between the patient and the applicant, and the duration and intimacy of their association (if any);

 

                        (e)        the facts and circumstances relied on to show that the patient is of unsound mind and incapable of managing the affairs of that patient;

 

                        (f)        the name, occupation and address of the respective persons suggested for appointment by the court as curator ad litem, and subsequently as curator to the patient’s person or property, and a statement that these persons have been approached and have intimated that, if appointed, they would be able and willing to act in these respective capacities.

 

            (3)        The application shall, as far as possible, be supported by –

 

(a)                an affidavit of at least one person to whom the patient is well known and containing such facts and information as are within the deponent’s own knowledge concerning the patient’s mental condition.  If such person is related to the patient, or has any personal interest in the terms of any order sought, full details of such relationship or interest, as the case may be, shall be set forth in the affidavit of that person; and

 

(b)               affidavits by at least two medical practitioners, one of whom shall, where practicable, be an alienist, who have conducted recent examinations of the patient with a view to ascertaining and reporting upon the mental condition of that patient and stating all the facts as were observed by them at the examinations in regard to the medical  condition, the opinions found by them in regard to the nature, extent and probable duration of any mental disorder or defect observed and their reasons for the same and whether the patient is in their opinion incapable of managing the affairs of that patient.  The medical practitioners shall, as far as possible, be persons unrelated to the patient, and without personal interest in the terms of any order sought.

 

            (4)        Upon the hearing of the application referred to in sub-rule (1), the court may appoint the person suggested or any other person as curator ad litem, or may dismiss the application or make any further or other order thereon as to it may seem meet and in particular on cause shown, and by reason of urgency, special circumstances or otherwise, dispense with any of the requirements of this rule.

 

            (5)        Upon appointment the curator ad litem (who shall if practicable be an advocate, or alternatively, an attorney), shall -

 

            (a) without delay interview the patient, and shall also inform that patient of the purpose and nature of the application unless after consulting a medical practitioner referred to in sub-Rule (3)(b) the curator ad litem is satisfied that this would be detrimental to the patient’s health. 

 

            (b) further make inquiries as the case appears to require and thereafter prepare and file with the Registrar a report on the matter to the court, at the same time furnishing the applicant with a copy of that report. 

 

            (c) in that report set forth further facts (if any) as the Curator ad litem has ascertained in regard to the patient’s mental condition, means and circumstances

            (d) draw attention to any consideration which in the view of the curator ad litem might influence the court in regard to the terms of any order sought.

 

(6)        Upon receipt of the report the applicant shall submit that report, together with copies of the documents referred to in sub-rules (2) and (3) to the Master of the High Court having jurisdiction for consideration and report to the court.

 

(7)        In that report the Master shall, as far as the Master is able to comment upon the means and general circumstances of that patient, and the suitability or otherwise of the person suggested for appointment as curator to the person or property of the patient, and the Master shall further make recommendations as to the furnishing of security and rendering of accounts by, and the powers to be conferred on, the curator as the facts of the case appear to the Master to require.  The curator ad litem shall be furnished with a copy of the said report.

 

(8)        After the receipt of the report of the Master, the applicant may, on notice to the curator ad litem (who shall if the curator ad litem thinks fit inform the patient of the report), place the matter on the roll for hearing on the same papers for an order declaring the patient to be of unsound mind and as such incapable of managing the affairs of that patient and for the appointment of the person suggested as curator to the person or property of the patient or to both.

 

(9)        At the hearing the court may require the attendance of the applicant, the patient, and any other person as it may think fit, to give evidence viva voce or furnish information as the court may require.

 

            (10)      Upon consideration of the application, the reports of the curator ad litem and of the Master and any further information or evidence (if any) as has been adduced viva voce, or otherwise, the court may direct service of the application on the patient or may declare the patient to be of unsound mind and incapable of managing the affairs of that patient and appoint a suitable person as curator to the person of that patient or property or both on terms as to it may seem meet, or it may dismiss the application or generally make an order (including an order that the costs of the  proceedings be defrayed from the assets of the patient) so it may seem meet.

 

            (11)      Different persons may, subject to due compliance with the requirements of this Rule in regard to each, be suggested and separately appointed as curator to the person and curator to the property of any person found to be of unsound mind and incapable of managing the affairs of that person .

 

            (12)      The provisions of sub-rules (1), (2) and (4) to (10) inclusive in so far as the same are applicable thereto, also apply mutatis mutandis to any application for the appointment by the court of a curator under the provisions of section 22 of the Mental Disorders Act (No.48 of 1963), to the property of a patient detained as or declared mentally disordered in terms of that Act.

 

            (13)      Except to the extent as the court may on application otherwise direct, the provisions of sub-rules (1) to (11) shall, mutatis mutandis, apply to every application for the appointment of a curator bonis to any person on the ground that, that person is by reason of some disability, mental or physical, incapable of managing the affairs of that person.

 

            (14)      Every person who has been declared by a court to be of unsound mind and incapable of managing the affairs of that person, and to whose person or property a curator has been appointed, and who intends applying to court for a declaration that, that person is no longer of unsound mind and incapable of managing the affairs of that person or for release from such curatorship, as the case may be, shall give 14 days notice of such application of such curator and to the Master.

 

            (15)      Upon receipt of such notice and after due consideration of the application and such information as is available to the Master , the Master shall, without delay, report thereon to the court, at the same time commenting upon any aspect of the matter to which, in the view of the Master, its attention should be drawn.

 

            (16)      The provisions of sub-rules (14) and (15) hereof shall also apply to any application for release from curatorship by a person who has been discharged under section 26 of the Mental Disorders Act (No.48 of 1963), from detention in an institution, but in respect of whom a curator bonis has been appointed by the court under section 22 of the said Act.

 

(17)      Upon the hearing of any application referred to in sub-rules (14) and (16) the court may declare the applicant as being no longer of unsound mind and as being capable of managing the affairs of that applicant, order the release of that applicant from the curatorship, or dismiss the application, or mero motu appoint a curator ad litem to make enquiries as it considers desirable and to report to it, or call for evidence as it considers desirable and postpone the further hearing of the matter to permit of the production of that report, affidavit or evidence, as the case may be, or postpone the matter sine die and make an order as to costs or otherwise as to it may seem meet.

           

Interpleader

 

63.     (1)          Where any person, in this Rule called “the applicant”, alleges that that person is under any liability in respect of which that person is or expects to be sued by two or more parties making adverse claims, in this Rule referred to as “the claimants”, in respect thereto, the applicant may deliver a notice, in terms of this Rule called an “interpleader notice”, to the claimants.  In regard to conflicting claims with respect to property attached in execution, the Deputy Sheriff shall have the rights of an applicant and an execution creditor shall have the rights of a claimant.

 

           (2)        (a)        Where the claims relate to money the applicant shall be required, on delivering the notice mentioned in sub-rule (1) hereof, to pay the money to the Registrar who shall hold it until the conflicting claims have been decided.

                                   

(b)      Where the claims relate to a thing capable of delivery the applicant shall tender the subject matter to the Registrar when delivering the interpleader notice or take such steps to secure the availability of the thing in question as the Registrar may direct.

 

(c)                Where the conflicting claims relate to immovable property the applicant shall place the title deeds thereof, if available to that applicant, in the possession of the Registrar when delivering the interpleader notice and shall at the same time hand to the Registrar an undertaking to sign all documents necessary to effect transfer of the immovable property in accordance with any order which the court may make or any agreement of the claimants.

 

(3) The interpleader notice shall –

 

(a)                state the nature of the liability, property or claim which is the subject matter of the dispute;

 

(b)               call upon the claimants within the time stated in the notice, not being less than fourteen days from the date of service thereof, to deliver particulars of their claims; and

 

(c)                state that upon a further date, not being less than fourteen days from the date specified in the notice for the delivery of claims, the applicant will apply to court for its decision as to the liability or the validity of the respective claims of that applicant.

 

          (4) There shall be delivered together with the interpleader notice an affidavit by the applicant stating that –

 

(a)        the applicant claims no interest in the subject matter in dispute than for charges and costs;

                       

                        (b)        the applicant does not collude with any of the claimants;

 

(c)        the applicant is willing to deal with or act in regard to the subject matter of the dispute as the court may direct.

 

(5) Where a claimant to whom an interpleader notice and affidavit have been duly delivered fails to deliver particulars of the claim of that claimant within the time stated or, having delivered such particulars, fails to appear in court in support of the claim of that claimant, the court may make an order declaring that claimant and all persons claiming under that claimant barred as against the applicant from making any claim on the subject matter of the dispute.

 

(6) If a claimant delivers particulars of claim and appears before it, the court may –

(a)                then and there adjudicate upon such claim after hearing such evidence as it deems fit;

 

(b)               order that any claimant be made a defendant in any action already commenced in respect of the subject matter in dispute in lieu of or in addition to the applicant;

 

(c)                order that any issue between the claimants be stated by way of a special case or otherwise and tried, and for that purpose order which claimant shall be plaintiff and which shall be defendant;

 

(d)               if it considers that the matter is not a proper matter for relief by way of interpleader notice, dismiss the application;

 

(e)                make such as to costs, and the expenses (if any) incurred by the applicant under sub-rule (2)(b), as to it may seem meet.

 

(7)        If an interpleader notice is issued by a defendant in an action, proceedings in that action shall be stayed pending a decision upon the interpleader, unless the court upon an application made by any other party to the action otherwise orders.

 

Sworn Translators

 

64.       (1)        Any person of full age may be admitted and enrolled by a court as a sworn translator in English and in any foreign language, or in siSwati, upon satisfying the court as to the competency of that person.

 

(2)               No person shall be admitted and enrolled as a sworn translator unless the proficiency of that person in the language which that person intends to translate has been duly certified in writing, after examination, held not more than six months before the date of the application of that person by a competent sworn translator of not less than seven years’ standing:

 

            (3)        Where there is no sworn translator of sufficient standing within Swaziland, the Chief Justice may appoint as an examiner any person whom the Chief Justice considers to be duly qualified to hold such examination.

 

(4)       Any person admitted and enrolled under sub-rule (1) shall before commencing to exercise the functions of that office take an oath or make an affirmation which shall be subscribed by that person,  in the form set out below, namely –

 

“I, (full name) do hereby swear/solemnly and sincerely affirm and declare that I will in my capacity as a translator of the High Court of Swaziland faithfully and correctly translate, to the best of my knowledge and ability, any document into English from any other language in respect of which I have been admitted and enrolled as a translator.”

                       

            (5)      The such oath or affirmation shall be taken or made before the judge admitting and enrolling the translator and the judge concerned shall at the foot of that oath or affirmation endorse a statement of the fact that it was taken or made before that judge and of the date on which it was so taken or made and append the signature of that judge to that oath or affirmation.

 

Translation of Documents

 

65.       (1)        If any document in a language other than English is produced in any proceedings, it shall be accompanied by an English translation certified to be correct by a sworn translator, or in contested proceedings by a translation admitted by all the parties to the proceedings as being correct.

 

(2)               A translation so certified or admitted shall be deemed prima facie to be a correct translation and admissible as such upon its production.

 

(3)               If no sworn translator is available or if, in the opinion of the court, it would not be in the interest of justice to require a sworn translation, whether by reason of the expense, inconvenience or delay involved, the court may, notwithstanding the provisions of sub-rule (1), admit in evidence a translation certified to be correct by any person who it is satisfied is competent to make such translation.

 

Interpretation of evidence

 

66.       (1)        Where evidence in any proceedings is given in any language other than English such evidence shall be interpreted by a competent and impartial interpreter, sworn to interpret faithfully and to the best ability of that interpreter in the languages concerned.

 

(2)               When any person is employed as an interpreter, the court may, if in its opinion it is expedient to do so, or if any party on reasonable grounds so desires, satisfy itself as to the competence, integrity and impartiality of such person after hearing evidence or otherwise.

 

(3)               Where the services of an interpreter are employed in any proceedings, the costs (if any) of interpretation shall, unless the court otherwise orders, be costs in the cause.

 

Superannuation

 

67.       (1)        After the expiration of five years from the day whereon a judgment has been pronounced, no writ of execution may be issued unless the debtor consents to the issue of the writ or unless the judgment is revived by the court on notice to the debtor, but in such case no new proof of the debt shall be required, and in the case of judgment for periodic payments, the five years shall run, in respect of any payment, from the due date thereof.

 

            (2)        Writs of execution of a judgment once issued remain in force and may at any time be executed without being renewed until judgment has been satisfied in full.

 

Tariff of court fees

 

68.       (1)        Save as provided in this Rule, and subject to Rule 44, the court fees prescribed in the Second Schedule shall be paid and such fees shall be collected by means of adhesive stamps duly approved as revenue stamps for use under the Stamp Duty Act, 1970.

 

            (2)        Every such stamp shall be affixed to the document in respect of which the court fee is payable and shall be defaced by the public officer responsible for so affixing it.

 

            (3)        Every such stamp shall be defaced by writing or impressing in ink or across the stamp the name or initials of the public officer affixing it to the document together with the true date of defacement in such manner as effectually and permanently to render the stamp incapable of being used for stamping any other document.

 

(4)               In the circumstances and subject to the conditions mentioned in section 33 of he Stamp Duty Act, 1970 the Account General with the approval of the Registrar, may make a refund of any court fee payable under this Rule, as if that court fee was a duty payable under the Stamp Duty Act, 1970.

 

(5)               A fee shall not be payable in respect of any matter where that fee would be payable by the Government.

 

Tariff of fees of the Sheriff or Deputy Sheriff

 

69.       (1)        The fees and charges contained in the Third Schedule shall be chargeable by and allowed to the Sheriff or Deputy Sheriff provided that no fees may be charged for the service of process in forma pauperis proceedings (but the necessary disbursements for the purpose of such service may be recovered).

 

(2)               Where there are more ways than one of doing any particular act, the least expensive way shall be adopted unless there is some reasonable objection thereto, or unless the party at whose instance process is executed desires any particular way to be adopted at  the expense of that party.

 

(3)               Where any dispute shall arise as to the validity or amount of any fees or charges, or where necessary work is done and necessary expenditure incurred for which no provision is made, the matter shall be determined by the Taxing Master.

 

(4)               The Sheriff or Deputy Sheriff shall not seize in execution of any process –

 

(a)        the necessary beds, bedding and wearing apparel of the person against whom execution is levied or any member of the family of that person;

 

(b)        the necessary furniture, other than beds, and household utensils insofar as they do not exceed in value the sum of E1 500 (one thousand five hundred emalangeni);

 

(c)        livestock, tools and agricultural implements of a farmer insofar as they do not exceed in value the sum of E1 500 (one thousand five hundred emalangeni);

 

(d)       any food or drink sufficient to meet the needs of such person and the members of the family of that person for one month;

 

(e)        tools and implements of trade in so far as they do not exceed in value the sum of E1 500 (one thousand five hundred emalangeni);

 

(f)        professional books, documents or instruments necessarily used by the debtor in the profession of that debtor, insofar as they do not exceed in value the sum of E1 500 (one thousand five hundred emalangeni); or

 

(g)        such arms and ammunition as the debtor is in terms of any law, regulation or disciplinary order required to have in the possession of that debtor as part of the equipment of that debtor; Provided that the High Court may in exceptional circumstances and on such conditions as it may determine, increase the amount specified in sub-rules 71(4) (b), (c), (e) or (f) to not more than four times the amount therein mentioned.

 

Taxation and tariff of fees of Attorneys and Advocates

 

70.       (1)        Subject to sub-rule (2), the scale of fees payable to attorneys and advocates shall as far as possible be in accordance with the tariff contained in the Fourth Schedule to these Rules (hereinafter referred to as the “tariff”).

 

(2)               Where the court or the judge is satisfied, on application being made, that having regard to the nature of the case or any exceptional circumstance the costs allowable under the tariff may be inadequate, the court or judge may direct that the Taxing Master on taxation is not to be bound by the amounts set out in that tariff, and where such a direction is given the Taxing Master may, if the Taxing Master thinks fit, allow on taxation such larger sums as the Taxing Master thinks reasonable.

 

(3)               It shall be competent for any Taxing Master to tax all bills of costs for services actually rendered by an attorney in the capacity of the Taxing Master as such; whether in connection with litigation or not.  In the latter event the Taxing Master shall nevertheless be guided as far as possible by the scale of fees fixed by the tariff:

 

            (4)        Taxing Master shall not tax costs in instances where some other official is empowered so to do; for example the Taxing Master shall not tax such costs as are referred to in section 73(2) of the Insolvency Act of 1955, insofar as these do not relate to litigation to which a trustee is a party.

 

            (5)        At the taxation of any bill of costs the Taxing Master may call for books, documents, papers or accounts as in the opinion of the Taxing Master are necessary to enable the Taxing Master properly to determine any matter arising upon such taxation.

 

(6)        With a view to affording the party who has been awarded an order for costs a full indemnity for all costs reasonably incurred by that party in relation to the claim of that party or defence and to ensure that all such costs shall be borne by the party against whom such order has been awarded, the Taxing Master shall, on every taxation, allow all costs, charges and expenses as appear to the Taxing Master to have been necessary or proper for the attainment of justice or for defending the rights of any party.

 

(7)        Costs which appear to the Taxing Master to have been incurred or increased through over-caution, negligence or mistake, or by payment of a special fee to an advocate, or special charges and expenses to witnesses or to other persons or by other unusual expenses, shall not be allowed, save as against the party who incurred the costs in relation to the claim or defence of that party.

 

 

            (8)        (a) The Taxing Master shall not proceed to the taxation of any bill of costs unless the Taxing Master is satisfied that the party liable to pay the same has received due notice as to the time and place of such taxation and notice that, that party is entitled to be present thereat, but such notice shall not be necessary –

 

(i)  if the party against whom costs have been awarded has not appeared at the hearing either in person or by the counsel of that party;

 

(iii) if the person liable to pay costs has consented in writing to taxation in the absence of that person; and

 

(iii) for the taxation of writ and post writ bills.

 

                        (b) In all cases where a notice of taxation is necessary, such notice shall be delivered, together with a copy of the bill of costs to be taxed, not less than 4 clear days before the date of taxation.

 

(9)    The Taxing Master shall be entitled in the discretion of the Taxing Master, at any time, to depart from any of the provisions of the tariff in extraordinary or exceptional cases, where strict adherence to such provisions would be inequitable.

 

(10)        (a)     In order to diminish as much as possible the costs arising from the copying of documents to accompany the briefs of advocates, the Taxing Master shall not allow the cost of any unnecessary duplication in briefs.

 

   (b)     No fees shall be allowed by the Taxing Master as between party and party for the copying of any document not used at the hearing, unless the court otherwise directs.

 

(11)      Fees for copying shall be disallowed to the extent by which such fees could reasonably have been reduced by the use of printed forms in respect of bonds, hire-purchase agreements or other documents.

 

(12) Where in the opinion of the Taxing Master, more than one attorney has been necessarily engaged in the performance of any of the services covered by the tariff, each such attorney shall be entitled to be remunerated on the basis set out in the tariff for the work necessarily done by that attorney.

 

                                    (13)      Save where the court authorises fees consequent upon the employment of more than one advocate to be included in a party and party bill of costs, only such fees as are consequent upon the employment of one advocate shall be allowed as between party and party.

 

            (14)      Where fees in respect of more than one advocate are allowed in a party and party bill of costs, the fees to be permitted in respect of any additional advocate shall not exceed two-thirds of those allowed in respect of the first advocate.

 

            (15)      A folio shall contain one hundred words or part thereof; four figures shall count as a word.

 

Repeal

 

71.              The High Court Rules 1969 are repealed.

FIRST SCHEDULE

 

 

FORM 1

(Rule 7(5))

 

 

EDICTAL CITATION:

 

 

SHORT FORM OF PROCESS IN THE HIGH COURT OF SWAZILAND

 

 

                                                                        Case No: ………….……………..

In the matter between:

Plaintiff

and

Defendant

 

TO:

A………………………………………………B…………………………………………sex,

…………………………………………………………………(occupation) formerly residing

at ……………………………………………………………………………but whose present

whereabouts are known

 

                Take notice that by Summons sued out of this court, you have been called upon to give notice, within …………………... days after publication hereof, to the Registrar and to plaintiff’s attorney of your intention to defend (if any) in an action wherein C………………………………………..D…………….…………………….. claims:

(a)   …………………………………………………………………………………………

(b)   …………………………………………………………………………………………

(c)    …………………………………………………………………………………………

 

            Take notice further that if you fail to give such notice, judgment may be granted against you without further reference to you.

 

            Dated at ……………………..this…………….day of …………………………20…..

                                                                                                                                                                                                                        …………..………………………………….

                                                                                           Registrar of the High Court

Plaintiff’s Attorney

(Address for service)

…………………………………………………..

…………………………………………………..

 

 

FORM 2

(Rule 8(6))

 

 

NOTICE OF MOTION (ex parte)

(To Registrar)

 

 

IN THE HIGH COURT OF SWAZILAND

 

 

                                                                                                Case No: ……………………..…     

            In the matter of

 

            Take notice that application will be made on behalf of the above-named applicant on the…………………………………………. day of .………………………………………

at 9.30am or as soon thereafter as counsel may be heard for an order in the following terms:

(a)   ………………………………………………………………………………………………

(b)   …………………………………………………………………………………………………

(c)    …………………………………………………………………………………………………

and that the affidavit of………………………………………………………annexed hereto will be used in support thereof.

 

            Kindly place the matter on the roll for hearing accordingly.

 

            Dated at ……………………this……………day of………………………….20…….

 

 

                                                                                     ……….…………………………………….

                                                                                                Applicant’s Attorney

To the Registrar of the above named Court

 

 

 

FORM 3

(Rule 8(9))

 

 

NOTICE OF MOTION (other than ex parte)

(To Registrar and Respondent)

 

 

IN THE HIGH COURT OF SWAZILAND

 

 

Case No: ………………

In the matter between:

Plaintiff

and

Respondent

 

            Take notice that ……………………………………………………………………….

(hereinafter called the applicant) intends to make application to this Court for an order

(a)   ……….……… (b)……………… (c) …………………… (here set forth the

form of order prayed) and that the accompanying affidavit of .....……………………………….……… (or petition where required by law) will be used in support of the application.

 

            Take notice further that the applicant has appointed………………………………….

(here set forth an address which must be within five kilometres of the office of the Registrar) at which the applicant will accept notice and service of all process in these proceedings.

 

            Take notice further that if you intend opposing this application you are required:

(a)   to notify applicant’s attorney in writing on or before the …………………….

(b)   and within fourteen days of giving such notice, to file your answering affidavits, if any; and further that you are required to appoint in such notification an address within five kilometres of the office of the Registrar at which you will accept notice and service of all documents in these proceedings.

 

            If no such notice of intention to oppose be given, the application will be made on

the …………………………………………………………………………… at ……….a.m.

 

            Dated at …………………..… this ………………day of ………………… 20……

                                   

 

                                                                                                                                                                                                                         ………..…………………………………….

                                                                            Applicant or Attorney of the applicant

To:       (1)  C.D.

                   (Address)

                   RESPONDENT

(2)   The Registrar of the above Court

 

 

FORM 4

(Rule 9(2))

 

 

POWER OF ATTORNEY TO SUE OR DEFEND

 

 

IN THE HIGH COURT OF SWAZILAND

 

 

            I …………………………………… do hereby nominate and appoint Attorney (with power of substitution) to be …………………… lawful attorney and agent for ………………………and in ……………………… name to institute/defend proceedings of claim and demand against/instituted by ………………………………………… according to law and to proceed to the determination thereof hereby promising to ratify any legal steps ……………………….may take by virtue of these presents.

 

Given under…………………………hand at………..this day of …………………….20…….

 

Witnesses: ………………………………..

 

 

FORM 5

(Rule 10(1))

 

PROVISIONAL SENTENCE

 

IN THE HIGH COURT OF SWAZILAND

 

 

Case No: …………………

In the matter between:

Plaintiff

and

Defendant

 

To the Sheriff or Deputy Sheriff:

 

Inform(A)………………………………………….B………………………………… (sex),

……………………………………………(occupation), of ………………………………….... (residence or place of business) and hereinafter called the defendant:

 

(1)        that defendant is hereby called upon immediately to pay to   (C)……………………………………………(D)……………………………….. (sex) ……… (occupation), of ………………………………………… (residence or place of business) ……………………………………………………… (hereinafter called the plaintiff) an amount of ……………………… together with interest thereon at the rate of ………. per annum as from ………………………. Claimed by the plaintiff …………………….(here set out the cause of action) …………………………………………………………. and a copy of which document is annexed hereto;

 

(2)        that failing such payment, defendant  is hereby called upon to appear before this Court personally or by counsel at ………………….. on …..the……………………… day of …………………………………20 …….. at …………….. o’clock in the forenoon (or as soon thereafter as the matter can be heard) to admit or deny liability for the said claim, (and to state why the mortgaged property should not be declared executable.)

 

(3)        that if defendant denies liability for the same, defendant may not later than noon on the ………………………………………….. day of ………………………… 20 ………. file an affidavit with the Registrar of this court, and serve a copy thereof on plaintiff’s attorney, which affidavit shall set forth the grounds of the defence of the defendant to the said claim and in particular state whether defendant admits or denies the signature of the defendant to the said ………………………………………. or whether defendant admits or denies the signature or authority of the agent of the defendant .

 

            AND INFORM the said defendant further that in the event of defendant not paying the amount and interest above-mentioned to the plaintiff immediately and if the defendant) further fails to file an affidavit as aforesaid, and to appear before this Court at the time above-stated, provisional sentence may immediately be granted against defendant with costs, and the mortgaged property may be declared executable, but that against payment of the said amount, interest and costs, defendant will be entitled to demand security for the restitution thereof if the said sentence should thereafter be reversed.

 

            AND SERVE a copy of this Summons and of the said …………………………………. on the said defendant and then return this Summons to the Registrar with your return of what you have done thereon.

 

            Dated at ……………………….. this ……day of ………………………….. 20……..

                                                                                                                                                                                                                        …………..…………………………………

                                                                                           Registrar of the High Court

Plaintiff’s Attorney

(Address for service)

………………………………………………..

………………………………………………..

·         Delete if not applicable

 

 

FORM 6

(Rule 11(2))

 

 

ARREST OF DEFENDANT

 

 

IN THE HIGH COURT OF SWAZILAND

 

 

Case No: …………………..

In the matter between:

Plaintiff

and

Defendant

 

(1)   To: The Sheriff or Deputy Sheriff

 

            You are hereby commanded to apprehend (A) …………………………………. (B)………………………………………………(sex)…………………………(occupation), of……………………………................................................(residence or place of business) in the district of ………………………………….. (hereinafter called the defendant) and to detain the defendant and bring the defendant before this Court on the ………day of ………………………….. 20…….at ……....... o’clock in the forenoon to answer (c)…….……………………………… (D)……………..……………………………..(sex)………………………….(occupation), of ……………………………………………………………..(residence or place of business) in the district of ………………………………… (hereinafter called the plaintiff) in an action wherein the plaintiff claims:

(1)………………………….…(2)……………………………and (3)………………………………… from defendant, and to abide the judgment of this Court thereon:

(or if writ issued after institution or proceedings, to show cause why the defendant should not be ordered to abide the judgment of the Court or furnish security for further presence of the defendant within its jurisdiction until its judgment has been delivered in the action instituted therein, by (c) …………………………………… (D) ………………………………… (sex) ………… (residence or place of business), in the district of ………………………………….. (hereinafter called the plaintiff), and in which the said plaintiff claims

(1)………………………………………………(2)………………………………………..and (3)  …………………………………………    from defendant, or failing the due provisions of such security, why the defendant should not be committed to prison and detained pending the judgment of this Court in the said action.

(2)        To the Officer Commanding the Prison to whom the Deputy Sheriff presents this writ.

            You are hereby commanded and required to receive the said CD to keep the defendant safely until such time as the defendant shall be removed to have the defendant before the Court in accordance with the first part of this writ or until the defendant shall be otherwise lawfully discharged.

            Dated at ……………………..this ……….. day of ………………………. 20………

                                                                                   …...………………………………………..

                                                                                         Registrar of the High Court

Plaintiff’s Attorney

Address or service:

NOTE: The costs of this writ have been taxed and allowed at………………………………. Exclusive of the sheriff’s caption fee of ………………………………………………………………

                                                                                                                                                                                                                        ..……………………………………………

                                                                                         Registrar of the High Court

                                                                       

 

FORM 7

(Rule 11(10))

 

 

ARREST OF DEFENDANT

 

            We, undersigned, (c) ……………………………….… (D) ………………………………of ………………………………….. and (L)……………………………... (M) .………………………… of ………………………………………... hereby acknowledge ourselves to be firmly bound to the sheriff of Swaziland (or deputy sheriff) for the district of ……………………………in the amount of …………………………… to be paid to the said sheriff (or deputy sheriff) or the cessionaries or assigns of the sheriff or deputy sheriff, for which payment we bind ourselves jointly and severally, and our respective executors and administrators in like manner, the condition of this bond being that if the said (D) ……………………………….. (D) …………………………………duly appear before the High Court of Swaziland at ……………………………………on the ………. day of ……………………………… 20 ….. at ……………..o’clock in the forenoon to answer (A) ………………………………………. (B) …………………………………of ………………………in the district of ………………………………… (hereinafter called the plaintiff) in an action wherein the said plaintiff claims (1)………………………………… (2)…………………………. (3)…………………………… from the said (c)…………………………. (D)…………………………and thereafter remain within the jurisdiction of this court until its judgment has been delivered in the said action, and abides such judgment, this bond shall be void; otherwise it shall be of full force and effect.

            Signed by us in the presence of the subscribing witnesses at ……………………..on this the ………………………….. day of ……………………………..20…..

                                                                                                  C.D. Defendant

                                                                                                                                                                                                                        …………………………………………….

                                                                                                  L.M. (Surety)

As Witnesses:

1. …………………………………………

2. …………………………………………

 

FORM 8

(Rule 11(14))

 

ARREST OF DEFENDANT

 

            I, …………………………………………………………… in my capacity as sheriff of Swaziland (or deputy sheriff for the district of …………………………………….. hereby cede, assign and make over defendant all my right, title and interest in the aforegoing Bail Bond to (A) ………………………………………. (B) …………………………………………..the above-named plaintiff.

            Signed by me in the presence of the subscribing witnesses at ……………………on this the………….……………………...day of ………………………………………….. 20………….

                                          .…………….……………………………

             Sheriff/Deputy Sheriff

As Witnesses:

1. …………………………………………

2. …………………………………………

 

FORM 9

(Rule 15(1) (b))

 

THIRD PARTY PROCEDURE

 

            Case No: ………………….

In the matter between:

Plaintiff

and

Defendant

and

Third Party

TO THE ABOVE-NAMED THIRD PARTY:

            Take notice that the above-named plaintiff has commenced proceedings against the above-named defendant for the relief set forth in the summons, a copy of which is herewith served upon you.

            The above-named defendant claims a contribution or indemnity (or such other ground as may be sufficient to justify a third-party notice) on the grounds set forth in the annexure hereto.

            If your dispute those grounds or if you dispute the claim of the plaintiff against the defendant you must give notice of your intention to defend, within …………… days.  Such notice must be in writing and filed with the Registrar and a copy thereof served on the above-named defendant at the address set out at the foot of this notice.  It must give an address (not being a post office box or poste restante) within five kilometres of the Court for the service upon you of notices and documents in the action.  Within fourteen days of your giving such notice you must file a plea to the plaintiff’s claim against the defendant or a plea to the defendant’s claim against you, or both such pleas.

 

            Dated at ……………………….. this ………day of …………………………20 ……

                                                                                                                                                                                                                        …………………………………………….

                                                                                    Defendant’s Attorney (address)

To: …………………………………………………………………….

and to Plaintiffs Attorney

(address)

 

FORM 10

(Rule 19(1))

 

SUMMONS

(Claim in respect of debt or liquidation demand)

 

IN THE HIGH COURT OF SWAZILAND

 

Case No.: ……………………

In the matter between:

Plaintiff

And

Defendant

To the Sheriff, Deputy Sheriff or other authorised person:

            Inform A.B., of ..……………………………………………. (state, sex and occupation) ……………………………………………………….(hereinafter called the defendant),that C.D. , of ……………………………………………………………..(state, sex and occupation and, if female, marital status)……………………………….. (hereinafter called the plaintiff), hereby institutes action against defendant in which action the plaintiff claims: (here set out in concise terms plaintiffs cause of action).

            Inform the defendant further that if the defendant disputes the claim and wishes to defend the action the defendant shall within ……… days of the service upon defendant of this summons file with the Registrar of this court at the office of the Registrar at the High Court, Mbabane notice of intention to defend and serve a copy thereof on the plaintiff’s attorney which notice shall give an address (not being a post office box or poste restante) within five kilometres of the court for the service upon the defendant of all notices and documents in action.

            Inform the defendant further that if the defendant fails to file and serve notice as aforesaid, judgment as claimed may be given against the defendant without further notice to the defendant.

            And immediately thereafter serve on the defendant a copy of this summons and return the same to the Registrar with whatsoever you have done thereupon.

            Dated at………………this…………..day ……………………………2010….…

                                                                             …………………………..………………………

                                                                                    Registrar of the High Court

………………………………………………..

Plaintiff’s Attorney

(address)

 

FORM 11

(Rule 19(1))

 

SUMMONS

 

IN THE HIGH COURT OF SWAZILAND

 

Case No.: ………………………..

In the matter between:

Plaintiff

and

Defendant

To the Sheriff, Deputy Sheriff or other authorised person:

            Inform A. B. of …………………………………………………(state, sex and occupation) ……………………………………………………. (hereinafter called the defendant), that C.D., of …………………………………………………………………..(state, sex and occupation and, if female, marital status)…………………………………………………………………………………… (hereinafter called the plaintiff), hereby institutes action against the defendant in which action the plaintiff claims the relief and on the grounds set out in the particulars annexed hereto.

            Inform the defendant further that if the defendant disputes the claim and wishes to defend the action the defendant shall –

(i)                 within ……….. days of the service upon the defendant of this summons files with the Registrar of this court at the office of the Registrar at the High Court, Mbabane notice of intention to defend and serve a copy therof on the plaintiff’s attorney, which notice shall give an address (not being a post office box or poste restante) within five kilometres of the court for the service upon the defendant of all notice and documents in the action:

(ii)               thereafter, and within twenty-one days after filing and serving notice of intention to defend as aforesaid, file with the Registrar and serve upon the plaintiff a plea, exception, notice to strike out with or without a counterclaim.

Inform the defendant further that if the defendant fails to file and service notice as aforesaid judgment as claimed may be given against the defendant without further notice to the defendant, or if, having filed and served such notice, the defendant fails to plead, except, make application to strike out or counterclaim, judgment may be given against the defendant  And immediately thereafter serve on the defendant a copy of this summons and return the same to the Registrar with whatsoever you have done thereupon.

Dated at……………………………this…………..day of …………………..20……

                                                                                ……………………………………….

                                                                                    Registrar of the High Court

 

ANNEXURE

Particulars of Plaintiff’s Claim

………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………

                                                                            ………………………………………….

                                                                                        Plaintiffs Attorney

Address of Plaintiffs Attorney

                                                                            …………………………………………..

                                                                                        Plaintiffs Advocate

 

FORM 12

(Rule 38(2))

 

DISCOVERY – FORM OF AFFIDAVIT

 

 IN THE HIGH COURT OF SWAZILAND

 

Case No.: …………………………

In the matter between:

A.B.                Plaintiff

and

                                                                                        C.D.                        Defendant

I, C.D., the above-named defendant make oath and say:

(1)        I have in my possession or power the documents and tape recordings relating to the matters in question in this cause set forth in the first and second part of the First Schedule hereto.

(2)        I object to produce the said documents and tape recordings set forth in the second part of the Schedule hereto.

(3)        I do so for the reason that … (here state upon what grounds the objection is made, and verify the fact as far as may be).

(4)        I have had, but have not now in my possession or power, the documents and tape recordings relating to the matters in question in this action, set forth in the Second Schedule hereto.

(5)        The last-mentioned documents and tape recordings were last in my possession or power …………………………………………………… (state when).

(6)        The ………………………………. (here state what has become of the last-mentioned documents and tape recordings, and in whose possession they are now).

(7)        According to the best of my knowledge and belief, I have not now, and never had in my possession, custody or power of my attorney, or agent or any other person on my behalf, any document or copy of, or extract from any document and tape recordings, relating to any matters in question in this cause, other than the documents and tape recordings set forth in the First and Second Schedules hereto.

            Dated at……………………this……………day of…..……………………20……

                                                                                                                                                                                                …………………………………….

                                                                                                    Defendant

 

FORM 13

(RULE 38(6) (d))

 

DISCOVERY – FORM OF AFFIDAVIT

 

           IN THE HIGH COURT OF SWAZILAND

 

Case No.: ………………………….

In the matter between:

A.B.                Plaintiff

and

    C. D.                       Defendant

To: ………………………………………..

            PLEASE TAKE NOTICE that the above-named Plaintiff requires you within fourteen days to deliver to the under-mentioned address a written statement setting out what documents and tape recordings of the following nature you have presently or had previously in your possession:

(a)     ………………………………………………………………………………………..

(b)     ………………………………………………………………………......................

(c)      ………………………………………………………………………………………..

(d)     ………………………………………………………………………………………..

            In such statement you must specify in detail which documents and tape recordings are still in your possession.  In you no longer have any such documents and tape recordings which were previously in your possession you must state in whose possession they now are.

            If you fail to deliver the statement within the time aforesaid, application will be made to court for an order compelling you to do so and directing you to pay the costs of such application.

                                                                                                                                                                                                                        ………..…………………………………….

                                                                                                Plaintiffs Attorney

                                                                                                       (Address)

 

FORM 14

(Rule 38(7))

 

DISCOVERY – NOTICE TO PRODUCE

 

IN THE HIGH COURT OF SWAZILAND

Case No.: …………………………………..

In the matter between:

Plaintiff

and

Defendant

            TAKE NOTICE that the ……………………………(plaintiff or defendant) requires you to produce within seven days for inspection by the plaintiff or defendant of the following documents or tape recordings referred to in your affidavit, dated the ……………… day of ……………………………. 20…….. (Describe documents or tape recordings required).

            Dated at ………………… this ……… day of ………………………….. 20………..

                                                                                                                                                                                                                        ………………………………………………

                                                                                    Attorney for……………………………

                                                                                    (Address)

To:

……………………………………………………………..

Attorney for the ………………………………………..

                                    (Address)

 

FORM 15

(Rule 38(8))

 

DISCOVERY – NOTICE TO INSPECT DOCUMENTS AND TAPE RECORDINGS

 

IN THE HIGH COURT OF SWAZILAND

 

Case No.: ………………………..

In the matter between:

Plaintiff

And

Defendant

 

            TAKE NOTICE that you may inspect the documents and tape-recordings mentioned in your notice of the …………… day of ……………………………………..20……… at my office, or at …………………………… and between the hours of ………………………… and …………………………….on the following days.

(or)

            That the (plaintiff or defendant) objects to giving you inspection of the documents and tape-recordings mentioned in your notice of the ……….…………. day of ……………………………………………………………………..…. 20……….. on the grounds that ………………………………………………………………………… (state the grounds).

            Dated at ………………….this…………..day of …………………………………….20…….

 

                                                                                                                                                                                                            ……………………………………………..

                                                                                    Attorney for……………………………

                                                                                                            (Address)

To:

……………………………………………………

Attorney for the……………………………….

                                    (Address)

 

FORM 16

(Rule 38(20))

 

DISCOVERY – NOTICE TO PRODUCE DOCUMENTS AND TAPE RECORDINGS

IN PLEADINGS, ETC

 

IN THE HIGH COURT OF SWAZILAND

 

                                                Case No.: ….………………………

In the matter between:

Plaintiff

and

Defendant

 

            TAKE NOTICE that the plaintiff (or defendant) requires you to produce for the inspection of that plaintiff (or defendant) the following documents and tape recordings referred to in your ………………………………………(declaration or plea, or affidavit).

(Describe documents required)

                                                                                                                                                                                                            ………..…………………………………….

                                                                                    Attorney for…………..…………………

                                                                                    (Address)

To:

…………………………………………………………….

Attorney for the ……………………………………….

(Address)

 

FORM 17

(Rule 40(9))

 

FINAL PRE-TRIAL ORDER

 

Case No.: ………………………………….

In the matter between:

Plaintiff

and

Defendant

 

            Having considered the agreed proposed final pretrial order dated the ………………………………¹ submitted by the parties under Rule 40(9);

And

Following the final pretrial conference:

            Held on the …………………………………..………………..²

                Attended by …………………………………..……………….³

Under the provisions of Rule 40(9) now order that:

1.   Issues to be resolved during the trial Rule 41 read with Rule 40(1).

            1.1.      ⁴The proposed pretrial order is made final.

1.2.  ⁶The proposed pretrial order is made final, subject to the following      amendments and variations;

1.2.1    …………………………………………⁷

 

                                                                                                                                                                                    ………………………………………………

                                                                               Chief Justice of Swaziland

 

    FORM 18

                                                               (Rule 42(1)

 

SUBPOENA

 

Case No.: ………………………………….

In the matter between:

Plaintiff

and

Defendant

 

            Having considered the agreed proposed final pretrial order dated the ………………………………¹ submitted by the parties under Rule 40(9);

And

Following the final pretrial conference:

            Held on the …………………………………..………………..²

                Attended by …………………………………..……………….³

Under the provisions of Rule 40(9) now order that:

1.   Issues to be resolved during the trial Rule 41 read with Rule 40(1).

            1.1.      ⁴The proposed pretrial order is made final.

1.2.   ⁶The proposed pretrial order is made final, subject to the following      amendments and variations;

1.2.1    …………………………………………⁷

 

                                                                                                                                                                                    ………………………………………………

                                                                            Chief Justice of Swaziland

 

 

FORM 19

(Rule 48(4))

 

RESTITUTION OF CONJUGAL RIGHTS

 

IN THE HIGH COURT OF SWAZILAND

 

Case No.: ……………………………

To:

            AB., formerly of …………………………………………. but whose present address is unknown;

            TAKE NOTICE that by Order of court dated the ……………………….day of …………………………………..20……… you are required to return, and restore conjugal rights, to C.D., your ………………………(wife/husband) on or before the ………………… day of ……………………………………20…….

            Should you fail to do so, and not show cause to the contrary before the above-mentioned court at 9.30am on the ……… day of ………………………..20….., an order of divorce may be granted against you, with costs, and your (wife/husband) may be granted custody of the minor child(ren) of the marriage, and you maybe ordered to pay maintenance for …………………..at the rate of ………………………………………………………….

            Dated at………………this………..day of……………………………….20…..

                                                                                                                                                                                                            …………………………………….

                                                                              Registrar of the High Court

………………………………………….

Plaintiff’s/Defendant’s Attorney

                                                           

 

 

FORM 20

(Rule 49(1))

 

WRIT OF EXECUTION

 

IN THE HIGH COURT OF SWAZILAND

Case No.: ……………………………………

In the matter between:

Plaintiff

And

Defendant

 

To: the Deputy Sheriff for the district of ………………………………………………………….....

            You are hereby directed to attach and take into execution the movable goods of ………………………….., the above-mentioned defendant of ………………………… (address) ………………………………………and of the same to cause to be realized by public auction the sum of …………………….. together with interest thereon at the rate of ……………………………… per centum per annum from the ………………………….. day of ……………………………………………. 20 ……and the sum of ………………………………. for the taxed costs and charges of the said …………………………………………………. which the Deputy Sheriff recovered by judgment of this Court dated the …………day of …………………………….. 20…….. in the above-mentioned case, and also all other costs and charges of the plaintiff in the said case to be hereafter duly taxed according to law, besides all your costs thereby incurred.

            Further pay to the said ……………. or attorney the defendant the sum or sums due to the plaintiff with costs as above-mentioned, and for you so doing this shall be your warrant.

            And return you this writ with what you have done thereupon.

            Dated at…………………. day of ……………………………………… 20 …………

                                                                                                                                                                                                                        ………………………………………………

                                                                                            Registrar of the High Court

………………………………………………….

          Plaintiff’s Attorney

                (Address)

 

 

FORM 21

(Rule 49)(6))

 

FORM OF SECURITY UNDER RULE 45(6)

 

IN THE HIGH COURT OF SWAZILAND

 

            Case No.: …………………………..

In the matter between:

Plaintiff

and

Defendant

            WHEREAS by virtue of certain writ of the High Court of Swaziland, dated the …………………....... day of …………………………………20 ……., issued at the instance of A.B. against C.D. of ……………………………… the Deputy Sheriff has seized under attachment the under-mentioned articles, namely:

            10 oxen

            1 plough

            1 harrow, etc.

            Now, therefore, we, the said C.D. and G.H. of….…a …..…(occupation), surety for the defendant, bind ourselves severally and in solidium, hereby undertaking to the said Deputy Sheriff or the cessionaries, assigns and successors in office of the Deputy Sheriff, that the said goods shall not be made away with or disposed of, but shall remain in possession of the said C.D. under the said attachment, and be produced to the said Deputy Sheriff (or other person authorised by the defendant to receive the same) on the ….……….day of ……………………….20……(the day appointed for the sale), or any other day when the same may be required in order to be sold, unless the said attachment shall legally be removed, failing which I, the said G.H. hereby bind myself, my person, goods and effects to pay and satisfy the sum of ………………… (estimated value of the effects seized) to the said Deputy Sheriff, the cessionaries, assigns or successors in office of the Deputy Sheriff, for and on account of the said A.B.

            In witness whereof, we, the said C.D. and G.H. have hereunto set our hands on this …………….. day of ………………………………………..20…..

                                                                                                                                        C. D.

                                                                                                                                                                                                                        ………………………………………………

                                                                                                Judgment Debtor

…………………………………………..                                                                                                                                                      ………………………………………………

            Deputy Sheriff                                                                               Surety

 

 

DEPUTY SHERIFF

ASSIGNMENT OF SURETY BOND

            I, in my capacity as Deputy Sheriff for the district of ………………… hereby cede, assign and make over A.B. all my right, title and interest in the aforegoing surety bond.

            Signed by me in the presence of the subscribing witnesses at ………………………. this …………………day of ……………………………………20………

 

As Witnesses:

1.   …………………………………………..                       

2.   …………………………………………..                                        Deputy Sheriff

 

 

FORM 22

(Rule 50(2)

 

WRIT OF ATTACHMENT – IMMOVABLE PROPERTY

 

IN THE HIGH COURT OF SWAZILAND

Case No.: ……………………………

In the matter between:

Plaintiff

And

Defendant

To:  the Sheriff of Swaziland and to the

            Deputy Sheriff for the district of ……………………………………………………………..

            WHEREAS you were directed to cause to be realised the sum of …………………….in satisfaction of a judgment debt and costs obtained by A.B. against the said C.D. in this Court on the ……………….day of ……………………………….20 ………

            AND WHEREAS the return of the Deputy Sheriff stated ……………………………….(here quote the Deputy Sheriff’s return on the writ against movable).

            Now, therefore, you are directed to attach and take into execution the immovable property of the said C.D., being …………………………………………………… (here give the description of the property) to cause to be realised therefrom the sum of ……………………………………………… together with costs hereof and of the prior amounting to ……………………………………. And your charges in and about the same, and thereafter to dispose of the proceeds thereof in accordance with Rule 46.

            FOR WHICH this shall be your warrant.

            Dated at………………….this………….dayof ……………………………20………..

                                                                                ………….……………………………………..

                                                                                      Registrar of the High Court

………………………………………….

Plaintiff’s Attorney

            (Address)

 

 

FORM 23

(Rule 50(9)(a))

 

CONDITIONS OF SALE IN EXECUTION OF IMMOVABLE PROPERTY

Plaintiff

and

Defendant

            The property which will be put up to auction on the…………………………… day ………………………………………..20 …., consists of:

            The sale shall be subject to the following conditions:

1.         The property shall be sold by the Deputy Sheriff of…………………………………..at …………………………….to the highest bidder without reserve/with a reserve price of ………………………………………………..

2.      The sale shall be for Emalangeni, and no bid for less than one Lilangeni shall accepted.

3.         If any dispute arises about any bid the property may be again put up to auction.

4.         If the auctioneer makes any mistake in selling, such mistake shall not be binding on any of the parties, but may be rectified.  If the auctioneer suspects that a bidder is unable to pay either the deposit referred to in condition 6 or in the balance of the purchase price the auctioneer may refuse to accept the bid of such bidder, or accept it provisionally until the bidder shall have been satisfied that the bidder is in a position to pay both such amounts.  On the refusal of a bid under such circumstances, the property may immediately be again put up to auction.

5.         The purchaser shall, as soon as possible after the sale, and immediately on being requested by the …………………….., sign these conditions, and if the purchaser has bought qua qualitate, state the name of the principal of the purchaser.

6.         (a)        The purchaser shall pay a deposit of ten per cent of the purchase price in cash on the day of sale, the balance against transfer to be secured by a bank building society guarantee, to be approved by plaintiff’s attorney, to be furnished to the Deputy Sheriff within ………………………..days after the date of sale.

            (b)        If transfer of the property is not registered within one month after the sale, the purchaser shall be liable for payment of interest to the plaintiff at the rate of ………………………..per cent per annum and to the ……………………..bondbuilder at the rate of ……………………..per cent per annum on the respective amounts of the award to the plaintiff and the …………………………..bondbuilder in the plan of distribution as from the expiration of one month after the sale to date of transfer.

7.         If the purchaser fails to carry out any of the obligations of the purchaser under the conditions of sale, the sale may be cancelled by a judge summarily on the report of the Sheriff or Deputy Sheriff after due notice to the purchaser, and the property may again be put up for sale, and the purchaser shall be responsible for any loss sustained by reason of default of purchaser.

8.         The loss may, on the application of any aggrieved creditor whose name appears on the distribution account of the Sheriff or Deputy Sheriff, be recovered from purchaser under judgment of the judge pronounced summarily on a written report by the Deputy Sheriff after the purchaser shall have received notice in writing that the report will be laid before the judge for that  purpose.

9.         Where the purchaser is already in possession of the property, the Sheriff or Deputy Sheriff may, on seven days notice, apply to a judge for an order ejecting the purchaser or any person claiming to hold under purchaser from the property.

10.       The purchaser shall pay auctioneer’s charges on the day of sale and in addition, transfer dues, costs of transfer, and arrear rates, taxes and other charges necessary to effect transfer upon request by the attorney for the execution creditor.

11.       The property may be taken possession of immediately after payment of the initial deposit, and shall after such deposit be at the risk and profit of the purchaser.

12.       The purchaser may obtain transfer forthwith if purchaser pays the whole price and complies with condition 8, in which case any claim for interest shall lapse, otherwise transfer shall be passed only after the purchaser has complied with the provisions of conditions 6 and 8 hereof;

13.       The Deputy Sheriff may demand that any building standing on the property sold shall be immediately insured by the purchaser for the full value of the same, and the insurance policy handed to the Deputy Sheriff and kept in force as long as the whole price has not been paid: and if purchaser does not do so, the Deputy Sheriff may effect the insurance at the purchaser’s expense.

14.       The property is sold as represented by the title deeds and diagram, the Deputy Sheriff being liable for any deficiency that may be found to exist and renouncing all excess.  The property is also sold subject to all servitudes and conditions specified in the deed of transfer.

15.       The execution creditor shall be entitled to appoint an attorney to attend to transfer.   At………………….this……......day of ……………………………….20…….

                                                                                                                                                                                                                        ……………………………………………..

                                                                                        Sheriff/Deputy Sheriff

            I certify hereby that today the …………………………………………….in my presence the hereinbefore-mentioned property was sold for……………………………………………to …………………………………………………………………………………I, the undersigned ……………………………………………….residing at………………………………………………….of the hereinbefore-mentioned property to pay the purchase price and to perform all and singular the conditions mentioned above..

 

 

FORM 24

(Rule 58(1))

                                                Case No.:…………………………………

IN THE HIGH COURT OF SWAZILAND

THE KING

against

(the accused)

 

NOTICE OF TRIAL

            TAKE NOTICE that you will be tried before the High Court at………………..on the ………………….day of …………………………….20………..or so soon thereafter as your case can conveniently be heard.

            TAKE FURTHER NOTICE to make immediate arrangements for legal representation on the above appointed date of trial if you intend to be represented.

            Dated at……………………..this……….day of……………………………20………

                                                                                                                                                                                                                        ………..…………………………………….

                                                                                           Registrar of the High Court

 

                                                                                    High Court of Swaziland

                                                                                    P.O. Box 19

                                                                                    MBABANE

 

To:   The Commissioner of Police

            Please cause a copy of this notice to be served on the above-named accused and return it to me with your return of service.

            Return of Service                                            ………..…………………………………….

                                                                                          Registrar of the High Court

 

 

FORM 25

(Rule 60(1)(a)

 

APPLICATION FOR GARNISHEE ORDER NISI

 

IN THE HIGH COURT OF SWAZILAND

 

In the matter between:

Judgment Creditor

and

Judgment Debtor

Garnishee

            TAKE NOTICE that application will be made on …………….the ….………day of …………………………………………20……. at …………….o’clock in the ……………………..noon or so soon thereafter as Counsel may be heard on the hearing of an application of the above-named judgment creditor for an order that all debts owing or accruing due from the above-named Garnishee to the above-named judgment debtor (in the sum of E…………………………….) be attached to answer a judgment recovered against the said judgment debtor by the above-named judgment creditor in the High Court on the ……… day of……………………....20……for the sum of E……………..debt and interest at the rate of ………… per cent per annum to date of payment and E………………..costs on which judgment the said sum of E………………….. remains due and unpaid.

            AND for a further order that the said Garnishee attend the Court before a Judge on a date and time to be appointed to show cause why the Garnishee should not pay to the above-named judgment creditor the debt due from the garnishee and/or future debts becoming due from the garnishee to the above-named judgment debtor, so much thereof as may be sufficient to satisfy the judgment or order together with the costs of the Garnishee proceedings.

            AND that the judgment debtor pay the costs of this application.  On the hearing of this application, the applicant intends to use the affidavit of ………………………………sworn on the …………..day of …………………………20…….and filed herein.

                                                                                                                                                                                                                        ………………………………………………

                                                                                               Applicant’s Attorney

TO:      The Registrar of the High Court

           

 

FORM 26

(Rule 61(4))

 

WRIT OF EXECUTION FOR CONTEMPT OF COURT

BY DEFAULTING WITNESS

 

IN THE HIGH COURT OF SWAZILAND

 

            To:  The Sheriff or Deputy Sheriff

                        WHEREAS at a Court holden at …………………………………..on the ……….day of …………………………………20……., before the Honourable Mr. Justice………………………………of …………………………. one of the witnesses summoned to attend before the said Court for the purpose of giving evidence at the trial of ……………………or in the action between…………………….and ……………………. did not accordingly attend at the said Court in obedience to the said summons, but made default therein.

            It was therefore ordered and adjudged by the Honourable Mr. Justice …………………………..that the said …………………………..be fined, and the witness  was fined accordingly the sum of E……………………..to be by the witness forfeited and paid to the use of the State for the default of the witness aforesaid.

            You are therefore commanded that you cause the said fine to be levied out of the goods or chattels of the said…………………………………….. and that you do forthwith pay over the amount so levied to the State, for which this shall be your warrant.

            DATED at………………………this…………..day of……………………………20

                                                                                                                                                                                                                        ……………………………………………..

                                                                                          Registrar of the High Court

 

FORM 27

(Rule 61(5))

 

WRIT OF PERSONAL ATTACHMENT AND COMMITTAL TO PRISON

IN THE HIGH COURT OF SWAZILAND

            To the Sheriff or Deputy Sheriff, and to all police officers and other peace officers whom it may concern:

            WHEREAS an order was made by the Honourable Mr. Justice……………………….committing …………………………of ………………………..to prison until that person has complied with an order of the High Court of Swaziland at…………………..dated the…………day of…………………………..20……… that the said ……………………………..is still in contempt in failing to comply therewith, or sentencing……………………………………………of………..……………………..to………….days’ imprisonment for contempt of Court.

            Now therefore you are commanded to take ……………………...of ………..………….if that person is found in Swaziland and deliver that person to the Officer-in-Charge of the prison at ………………………………., together with a copy of this writ, there to be safely kept until the further order of the High Court or for the period of ……………….days from the date of the delivery of that person to the Officer-in-Charge of the said prison.

            And return you this writ to the High Court at Mbabane with whatsoever you have done thereupon.                                                                                                                                             

                                                                    ………...……………………………………..

                                                                                        Registrar of the High Court

 

SECOND SCHEDULE

 

COURT FEES

 

1.         For every power of attorney to sue or defend…………………………….   E20.00

2.         For every summons, notice of motion, petition or application………..  …    E50.00

3.         For every plea or other pleading (excluding request for the

            Provisions of further particulars)…………………………………………    E20.00

4.         For every notice……………………………………………………………  E15.00

5.         For every subpoena – each witness……………………………………..       E20.00

6.         For every original affidavit………………………………………………...  E20.00

7.         For every liquid document upon which provisional sentence is prayed……E20.00

8.         For every writ……………………………………………………………… E50.00

9.         For every recognisance or bond of security for restitution (other than a

            Recognisance in a criminal manner)……………………………………….   E50.00

10.       Request for a copy of any record, or part thereof, prepared by the

            Registry, for each folio of 100 words or part thereof…………………….    E15.00

11.       For certifying any document as a true copy – for the first four folios

            of 100 words each, minimum fee of ………………………………………. E15.00

            For each folio of 100 words or part thereof, thereafter……………………  E  5.00

12.       For every decree, order or other rule of court……………………………… E30.00

13.       For every certificate made under the hand of the Registrar, not being a

            certified copy ……………………………………………………………… E20.00

14.       For every civil appeal from the Swazi Higher Court of Appeal or the

            Judicial Commissioner…………………………………………………….   E50.00

15.       For every application to search, for any entry or document or a record,

            Except a judgment –

            (a)    if the number of the record is given…………………………………   E  5.00

            (b)   if the number of the record is not given for every month required

                   to be searched…………………………………………………………  E  5.00

16.       For all bills of costs – one per cent of the amount allowed…………………E20.00

17.       Filing a certificate of service………………………………………………  E25.00

18.       On entering or sealing an order made in chambers……………………         E25.00

19.       On settling, or approving, an advertisement, or other document, or

            deed, except a judgment or order………………………………………….  E20.00

20.       On entering, or setting down a cause or matter for hearing in Court……….            E20.00

21.       On entering, or sealing, a judgment, decree, or order, given, directed

            or made in the trial, or hearing of a cause or matter in court……………      E20.00

            and if the trial, or hearing, occupies more than one day, for each

            additional day, or part of a day……………………………………………. E20.00

22.       On filing a case stated……………………………………………………..  E30.00

23.       On hearing any appeal other than a criminal appeal………………………   E40.00

 

 

THIRD SCHEDULE

 

TARRIFF OF FEES OF THE SHERIFF OR DEPUTY SHERIFFS

 

1.     For registration of any document for service or execution upon receipt thereof …………………………………………………………………………………..    E   6.00

 

2.     (a)   For service (including attempted service) of summons, writs, petitions, together with notice of motion or notice of set down, and any other annexures thereto: a composite fee of ………………………………………………………….     E 10.00

        (b)   For any subsequent service in the same case: a composite fee   of……………………………………………………………………..….         E  8.00

 

3.     Travelling allowance:

        (a)   For the distance actually and necessarily travelled by the Sheriff or Deputy Sheriff, reckoned from the office of the Magistrate of the district of the Sheriff or Deputy Sheriff, both on the forward and return journey, per kilometre or part thereof…………………………………………………………………….      E   3.00

        (b)   Subsistence allowance where over 30 kilometres travelled, per day….          E 20.00

        (c)   Where more than one matter is dealt with by the same Sheriff or the Deputy Sheriff at the same place and time, the travelling allowance in paragraphs 3(a) and (b) shall be apportioned equally between the different matters.

 

4.     The Sheriff or Deputy Sheriff shall be entitled to payment of the following:

        (a)   for necessary postage stamps, as per postal tariff;

        (b)   for each necessary letter………………………………………………….. E10.00

        (c)   for each necessary telephone call………………………………………..   E  6.00

        (d)   for making a return of service including copies thereof…………………. E30.00

 

5.     Execution of writs:

        The fees shall be as follows –

(1)      For personal arrest, including conveying the person arrested to court, to the applicant’s attorney’s office or to a person, per person……………………………………………………………………   E100.00

(2)      For conveying the person arrested from place of custody on any day subsequent to the date of arrest and attending court, E60.00 per hour or part thereof but not exceeding……………………………………………….………………..   E100.00

(3)      For ejectment – E90.00 per hour or part thereof exclusive of travelling time subject to a maximum fee of………………………………………………..……...E100.00

(4)      Against immovable property -

(a)     For ascertaining and recording what bonds or other encumbrances are registered against immovable property attached……………………………………………………………    E  30.00

               (b)     For notifying execution creditor or other encumbrances…………    E  10.00

                (c)    For consideration of proof that the preferent creditor has complied with the requirements of Rule 50………………………………….……….     E  10.00

                (d)    For consideration of notice of sale of immovable property prepared by the execution creditor………………………………………………….    E  30.00

                (e)    For forwarding a copy of the notice of sale of immovable property prepared by execution creditor………………………………………………    E  10.00

                (f)     For considering the condition of a sale of immovable property to every judgment creditor who had caused the property to be attached and to every mortgage where address is known for each copy…………………………………………………………………..   E 10.00

               (g)     For any report referred to in Rule 50 if submitted by the Sheriff                                                  ……………………………………………………………………...      E 10.00

               (h)     For preparing any plan of distribution referred to in Rule 49….            E 60.00

               (i)      Affixing Notice of Sale on notice board at the High Court……….        E 20.00

               (j)      For service of notice to attachment upon the owner and/or the tenant and the Registrar of Deeds of the immovable property concerned…………………………………………………………….    E 15.00

               (k)     All necessary copies thereof    ………………………………………    E 15.00

               (l)      If the amount of the writ is paid to the Sheriff or Deputy Sheriff attachment but before sale 3.1% of the amount so paid minimum 30% and maximum E300.50.

(m)      If the writ is stayed or withdrawn by the judgment creditor or the judgment debtor’s estate is sequestrated, or put into liquidation before attachment 1% of the amount of the writ.

(n)        Where the writ is stayed or withdrawn or the proposed sale in execution is deferred indefinitely or the judgment debtor’s estate is sequestrated, after attachment but before sale 1.5% of the amount of the writ or the value of the property, whichever the lesser be up to but not exceeding E500.00 on each occasion of the deferment of sale.

(o)        Where an attachment has been withdrawn for each necessary notice of withdrawal …………………………………………………………    E 12.00

(p)        For the sale of each immovable property attached by the Sheriff or Deputy Sheriff 2.5% of the proceeds of the sale which shall be paid by the purchasers with a minimum of E50.00.

(q)        Giving of transfer to buyer…………………………………………..    E 12.00

(r)          Considering condition of sale………………………………………..    E 10.00

(s)         Bank charges: Actual cost incurred regarding bank charges.

(t)          For drawing up posters advertising a sale in execution, per necessary copy thereof………………………………………………………………..    E   5.00

(u)        For drawing up advertisement (plus reasonable cost of actual advertisement) for sale property attached………………………….                             E  20.00

 

5.     Against movable property -

        (a)    If a writ is paid on presentation, 1% of the amount so paid subject to a maximum fee of………..………………………………………………….. ……        E300.00

        (b)    For an abortive attempt at attachment, not due in any way to the fault of the Sheriff or Deputy Sheriff, including search and inquiry…………….…                 E  30.00

        (c)    (i)    If a writ is withdrawn or the debtor’s estate is placed under                                              sequestration or liquidation before any attachment is made…...                     E  30.00

        (ii)  If the Sheriff or Deputy Sheriff is instructed to withdraw that attachment,   or the debtor’s estate is sequestrated or put into liquidation after attachment, but before sale, 3% of the amount of the writ, or the value of the goods attached, whichever is the lesser subject to a maximum fee of……………………………………………………………….……   E500.00

        (d)   For making an attachment, including search and inquiry……………..       E  90.00

        (e)   Necessary notice of attachment to one person ……………………………  E 20.00

               For each necessary copy thereof………………………………………..…   E 40.00

(f)  If the amount of the writ is paid to the Sheriff or Deputy Sheriff after attachment, but before sale, 3% on the amount so paid………………

(g)  For drawing up advertisements of goods attached (plus reasonable costs of   actual advertisement)…………………………………………………………     E  25.00

     (h)  For drawing up posters advertising a sale in execution, per necessary copy   thereof…………………………………………………………..……….…E   5.00

        (i)    For making an inventory of the goods attached, per 100 words ….…..      E   5.00

(j)  For selling in execution including distribution of the proceeds, 5% of the amount for which the property is sold subject to a maximum fee of…………………………………………………………………………   5000.00

(k)  The Sheriff or Deputy Sheriff shall sell movable property in execution, but shall engage the services of an auctioneer if directed thereto in writing by the judgment creditor in which case the judgment creditor shall bear the additional Commission.

(l)    Commission shall not be chargeable as against judgment debtor on the value of movable attached and subsequently claimed by a person other than the judgment debtor, and released in consequence of such claim unless such property has been attached at the express direction of the judgment creditor in writing in which event the judgment creditor shall be liable to the Sheriff or Deputy Sheriff for the commission.

(m)  For insuring movable property attached when it is considered necessary, and when the Sheriff or Deputy Sheriff is directed thereto in writing by the judgment creditor, in addition to the premium paid, an inclusive fee of……………………………………………………………………….      E  30.00.

 

6.     For keeping possession of property, (money excluded) -

            (a)   For an officer necessarily left in possession, a reasonable inclusive fee per day not exceeding …………………………………………………..……      E100.00

            (b)   For removal and storage, the reasonable and necessary expense of such removal storage.  If an animal or animals are to be stabled and fed the reasonable charges, for such stabling and feeding (including grazing).

            (c)   For herding and preserving livestock, including dipping, the reasonable and necessary expenses for so herding and preserving.

(e)      When no officer is left in possession, and no security bond is taken, but movable property attached remains under the supervision of the Sheriff or Deputy Sheriff, fee per day………………………………………….                                  E  30.00

 

7.         Every return filed by the Sheriff or Deputy Sheriff shall be endorsed in bolded type with words “ANY INTERESTED PARTY MAY REQUIRE THAT THIS ACCOUNT BE TAXED BY THE REGISTRAR OR TAXING MASTER AND VOUCHED BEFORE PAYMENT.”

 

FOURTH SCHEDULE

 

TARIFF OF FEES OF ATTORNEYS AND ADVOCATES

ATTORNEYS

A.        TAKING INSTRUCTIONS

1.         To institute or defend any proceedings…………………………………….E700.00

2.         For advice on evidence or on commission………………………………….E300.00

3.         For case on opinion, or for advocate’s guidance in preparing pleadings, including exceptions   …………………………………………………………………E300.00

                                                                                                                per hour or part thereof

4.         For statement of witness …………………………………………………….E400.00

5.         To set down cause, issue subpoena or writ or any other simple instruction……………………………………………………………………E100.00

6.         To draft a petition of affidavit………………………………………………  E300.00

7.         To note an appeal……………………………………………………………..E100.00

8.         To prosecute of defend an appeal (exclusive of the perusal of the record……E300.00

 

 

B.        ATTENDANCE AND PERUSAL

1.         Attending the receipt of and perusal and considering –

(a)        Any summons, petition, affidavit, pleading, advocate’s advice and drafts, report and important notice or document……………………E20.00 per folio

(b)        Any letter, record stock sheet in voluntary surrenders, judgments or any other material document not elsewhere specified……………………..           E20.00

 

2.         Attending the receipt of and considering any plan or exhibit or other material document in respect of which the basis of remuneration set out in item 1 of this section cannot be applied…………………………………………………………………………..E50.00

 

3.         Making searches in offices of record ……………………….E100.00 per hour or part thereof.

 

4.                  Sorting out, arranging and paginating papers for pleadings, advice on evidence or brief or trial or appeal…………………………..…E50.00 per hour or part thereof.

5.                  Attending to give or take disclosure……………….E50.00 per hour or part thereof.

6.                  Attendances not provided for in this schedule………………………………..E300.00 per hour or part thereof.

NOTE:

The fees allowed under this section, shall be in addition to such fees as may be allowed for instructions under section A.  In computing the fees chargeable for perusal of documents in connection with instructions under items A1 and A6, the number of words in all documents to be perused, shall be added together and the total divided by 100.

 

C.        ATTENDANCE (FORMAL)

1.         To serve or deliver (other than by post) any necessary document or letter, or dispatch any telegram………………………………………………………………      E  30.50

2.         To sue out any process or file any document………………………………..  E100.00

3.         To search for any return or appearance…………………………………   …  E  20.50

4.         On receipt of notice of appearance………………………………………….   E  25.00

5.         On making appointment with advocate……………………………………...  E100.00

6.         On signature of powers of attorney to sue or defend………………………...  E  25.00

7.         On  jurat……………………………………………………………………     E100.00

8.         Other formal attendances, including telephone calls………………………...  E  25.00

9.         Attending receipt of formal acknowledgement…………………………….    E  20.00

 

D.        DRAFTING AND DRAWING

1.         Drafting instructions for advocate including case on opinion, brief trial or o commission, advocate’s guidance in preparing pleadings (including further particulars and request for same) including exceptions (per folio)………………………..E100.00

2.         Drafting instructions to advocate for argument in respect of all classes of pleadings, provided that a fee for drafting instructions on motion, petition, exception or appeal shall only be allowed in the discretion of Taxing Master (per folio)…………………………………………………………………………..E  50.00

3.         Drafting statement of witness (per folio)……………………………………..E  50.00

4.         Drawing subpoenas, powers of attorney to sue or defend, formal notices (per folio) ……………………………………………………………………………….E  50.00

5.         Drafting a petition, affidavit, any notice, except formal notice, summons, further particulars and request for same, waits of execution, arrest or attachment and any other important document not otherwise provided for (per folio)…………../E  50.00

6.         Letter or telegram (per folio)…………………………………………………E  25.00

            Copy to keep (per folio)   …………………………………………………….E   1.00

7.         Drawing index to brief (per folio)……………………………………………E100.00

8.         Drawing short brief…………………………………………………………   E100.00

 

E.        APPEARANCE, CONFERENCE AND INSPECTION

1.         Attendance by attorney in court or before a judge in chambers or arbitrator, commissioner, referee or at any inspection directed by the court:

            If advocate employed………………………………. E400.00 per hour or part thereof.

            If advocate-not employed……………………………E600.00 per hour or part thereof

            Time spent travelling and waiting…………………..E100.00 per hour or part thereof.  In addition the Taxing Master shall also allow a reasonable amount to cover the cost of necessary conveyance, and where applicable, subsistence and accommodation.

 

2.         Attendance of attorney’s articled clerk to assist at contested proceedings……………………………………..E300.00 per hour or part thereof.

 

3.         Any conference or consultation with or without witness and on pleadings including exceptions and particulars to pleadings, applications, affidavits, testimony and on any other matter which the taxing officer may consider necessary…………………………………..E100.00 per half hour or part thereof.

 

4.         (a)        Any conference or consultation with client, witnesses, opposite party, and other conference or consultation which the taxing officer may consider necessary………………………… E100.00 per hour or part thereof.

            (b)        Attending conference in terms of Rule 40……………E200 per hour or part thereof.

 

5.         Any inspection in situ, or otherwise, including travelling time…………………………E200.00 per half hour or part thereof.

            The Taxing Master shall also allow a reasonable amount to cover the costs of necessary conveyance.

 

6.         Evidence:  just and reasonable charges and expenses as may, in the opinion of the Taxing Master, have been properly incurred in procuring the evidence and attendance of witness whose fees have been allowed on taxation provided that the qualifying expenses of a witness shall not be without an order of court or the consent of all interest parties.

 

F.         MISCELLANEOUS

1.         Briefing and copying:

            For making copies for the court, for advocate or for service or for any other necessary purpose, the charge shall be, for each copy at the rate of E1.00 per folio (including the first copy of any document drafted in respect of which a charge is recoverable under items 1, 2, 4, 5, 7 and 9 of section D of this tariff.

 

2.                  Drawing insolvency schedules, including petition, affidavits and relative attendance per folio…………E1.00 and all other copies per folio…...…….…E 5.00.

 

3.                  For giving a verbal or written opinion (as between attorney and client) ………………………………………………………E300.00 per half hour or part thereof.

 

4.                  For making copies of the record in a civil appeal from the subordinate court the charge shall be for each copy per folio…………………………………………E  2.00.

 

5.                  Necessary consultation with advocate……………………..………………..E200.00 per hour or part thereof.

 

6.                  Preparing for trial or hearing when advocate not employed…………………………………………….….E200.00 per hour or part thereof.

 

7.                  Legal research for purposes argument on contested motion or uncontested motion where proof of damages required including any other matter where research is demonstrably required.

 

G.        BILL OF COSTS

           

1.   For drawing bill of costs, making necessary copies and attending taxation thereof. Provided that if more than 25 per cent of bill is taxed off the 5 per cent shall not be allowed.	5 per cent on total fees and disbursements allowed
2.      Taxing Master’s fee	1 per cent on total fees and disbursements allowed

 

 

 

 

H.    ADVOCATES

 

 

           

MOTIONS	SENIOR	JUNIOR
1.Postponements agreed beforehand	E500.00 per hour/part thereof	E300.00 per hour/part thereof
2. Appearance in unopposed motion	E650.00	E450.00
3. Appearance in opposed motion	E500.00	E200.00
Pleadings 4. Drawing summons, combined summons, declaration or plea	E650.00 per hour/part thereof	E450.00 per hour/part thereof
5. Drawing exception	E400.00	E250.00
6.Drawing replication, joinder or further pleadings	E400.00	E2500.00
7. Drawing request for further pleadings	E400.00	E250.00
8.Drawing further or settling discovery affidavit	E300.00	E200.00
9. Advice on evidence	E500.00	E300.00
Trials 10. Defended trials	E1000.00 per hour/part thereof	E800.00 per hour/part thereof
11. Refreshers	two thirds of fee on brief	two thirds of fee on briefs
12. Undefended trials	E700.00	E500.00
13. Appeals	E1000.00 per hour/part thereof	E1000.00 per hour/part thereof
14. Refresher for each day term refresher	two thirds of fee on brief	two thirds of fee on brief
15. Drawing or settling grounds of appeal or cross-appeal	E500.00	E300.00
Miscellaneous 16. Commissions	as in High Court trial matters	as in High Court trial matters
17. Noting judgment	E200.00	E100.00
18. Where argument of any question arising out of judgment, including leave to appeal	E300.00	E200.00
19. Inspection in loco	same as attorneys	Same as attorneys

 

 

I.          TRAVELLING AND SUBSISTENCE ALLOWANCES

1.      A travelling allowance for advocates and attorneys where their office is not within five kilometres of the High Court shall be allowed at the rate of E5.00 per kilometre, where the advocate or attorney travels to court by car or the actual cost of travel where another mode of conveyance is used whichever is less.

2.      A subsistence allowance for advocates and attorneys shall be allowed at rate of E200.00 for every night it is reasonably necessary for the advocate or attorney employed to remain at place where the courthouse is situated for hearing of any appeal, cause or matter.

 

 

 

__________________________

M. M. RAMODIBEDI

CHIEF JUSTICE OF SWAZILAND