Summary judgment – notice to oppose Rule 32 application not required

Alleged directive by Parliament not to pay claim does not ward off judgment

THE HIGH COURT OF SWAZILAND

Atlas Investments (Pty) Ltd

Plaintiff

Vs

The Government of the Kingdom of Swaziland

1st Defendant

The Attorney General

2nd Defendant

Coram Sapire, CJ

For Plaintiff Mr. P. Flynn

For Defendant Mr. P. Simelane

JUDGMENT

(08/10/99)

This is an application for summary judgment. Summons in this matter was issued and served at the Attorney General’s chambers in accordance with practice on the 18th August, 1999. On the 8th September, some two weeks later, a notice of intention to defend was filed and served on that date on the plaintiff’s attorneys. The plaintiff’s attorneys responded on the 22nd September with an application for summary judgment. This application was served on the Attorney General on the 22nd September 1999. On the 29th September all that is filed by the Attorney General is that the respondent hereby enter an appearance to oppose the above application. One would expect that in the Attorney General’s Office it is known that according to the rules there is no need for such a notice and it actually has no place in practice at all. What is required from the defendant is that the defendant act in terms of the rule; in terms of the rule it may give security; in terms of the rule it may file an affidavit saying what its defence is to the action or the defendant may state its defence on oath. All these things are possible but the Attorney General has decided not to do any of these things but to content itself with this notice filed, as I say, on the 29th September.

This matter, as I say the notice of application for summary judgment, specifically states that this matter will be heard on the 8th October and when the matter was called today apparently before another judge who could not hear it, the matter was placed before me on the opposed role. Normally, matters on the opposed role are not heard during vacation. But as in previous matters where there is no real opposition say for an appearance the matter can be treated as unopposed. For in this case the defendant, as you have seen, has done nothing upon which to base any opposition. Mr. Simelane who appears for the Attorney General has informed me that there is no affidavit and that he has been told by the Principal Secretary in the Department involved that in fact this claim is indefensible and that the only reason that the money has not been paid because there is some directive from Parliament. None of this has been placed in an affidavit and it is difficult to see how Parliament, without passing an act, can direct that some payment should not be made. Mr. Simelane has asked for a postponement in order to explain this and he says that the Minister has been overseas on state duties but that is no excuse for the matter because it is known and has not been denied by Mr. Simelane that in fact there has been an acting Minister and this is in fact required by regulations and that there are other people in the Department, namely the Principal Secretary, who should be in a position to give instructions. There is no reason why Government should be treated with preferential treatment in these matters and this matter has not been hurriedly brought before the court, it has been pending for sometime and to come this morning and ask for a postpone, for what purpose, it is not clear because if the matter is indefensible there is no reason for a postponement.

In such a case I have no alternative but to enter summary judgment which I now do and the 1st defendant is ordered to pay the sum of E1 425 689.00 together with interest at the rate of 9% per annum a tempore morae to date of payment and the defendant to pay the costs of this action including the costs of this application.

S.W. SAPIRE, CJ

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