Court name
High Court of eSwatini
Case number
Civil Case 436 of 2003

Swaziland Lumber Security v Government of Swaziland and Others (Civil Case 436 of 2003) [2003] SZHC 101 (29 October 2003);

Law report citations
Media neutral citation
[2003] SZHC 101
Coram
Matsebula, J









HIGH
COURT OF SWAZILAND


CIVIL
CASE NO.436/03


In
the matter between:


SWAZILAND
LUMBER SECURITY APPLICANT


AND


GOVERNMENT
OF SWAZILAND 1ST RESPONDENT


MINISTER
OF FINANCE 2nd RESPONDENT


ACCOUNTANT
GENERAL 3rd RESPONDENT


ATTORNEY
GENERAL 4th RESPONDENT


CORAM MATSEBULA
J


FOR
APPLICANT MR. MOTSA


FOR
RESPONDENT MR. DLAMINI


JUDGMENT


29th
OCTOBER 2003


Under
a certificate of urgency the applicant prays for the following
relief:-

(a)
that second and third respondents be committed to prison

for
30 days for failing to comply with the court order


"Annexure
TV see page 13.


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(b) Interest
on the sum of El394250-00 at the rate of 9% from the 30th May 2002 to
final date of payment;


(c) Costs
of this application at and own client scale;


(d) Further
and/or alternative relief.


The
applicant is accompanied by the affidavit of one Ted Robbery who it
is common cause and he states that he is the director of the
applicant.


Deponent
states in paragraph 3 of his affidavit that on 10th March 2003 the
respondents were ordered in an interim court order to pay the sum of
El394 250-00 as per contents of annexure T1 above.


This
court order was served on respondents on 10th March 2003 and on 11th
March 2003 4th respondent required of applicant to furnish it with an
original order in order to effect payment. This request was duly
complied with by applicant, see letter annexed hereto and marked
"T3". "T3" is self-explanatory at page 16 of the
book of pleadings.


Notwithstanding
the undertaking in annexure "TS" respondent failed to
comply with payment. Applicant had again through its attorneys this
time around reminded the respondents in view of its dire financial
positions (see letter annexure 'TS" at page 19.


I
may just pause here and say this delay having reached this time of
Government's financial year has been occasioned by the respondent
themselves. They had been advised by applicant's attorneys on the
18th March 2003 to pay by close of business payment which was in
terms of a court order issued on 10th March 2003 and served on
respondents on the same date. They never bothered to adhere to this
matter - until the financial year arrived. I have been informed by
Mr. Motsa that his client was finally paid by the respondents only on
27th


3


March
2003 and that all that urgent application is about payment of
interest based on the day when respondents were placed in mora in so
far as they delay to pay after the court order was served on them
and; also that they should be committed to prison in terms of a
contempt of court for paying only on 27th March 2003 instead of
paying forthwith.


It
was Mr. Motsa's argument that respondents should have tendered
interests from the 27th March 2003 when they paid in terms of the
court order.


According
to Mr. Motsa applicant was to be paid on May 2002 to February 2002
when applicant had rendered the services.


The
payment made on 27th March 2003 applicant is not clear whether in
terms of the order was fully complied with when this urgent
application had already been moved i.e. the application for committal
to prison for 30 days for failing to comply with court order annexure
"T1".


Mr.
Motsa has already indicated that he no longer insists on the
respondents being committed to prison because they have since paid
the principal amount owed. According to him he has moved the urgent
application for an order as to prayer 3 and prayer 4.


Prayer
3 being interest on the sum of El394 250-00 at the rate of 9% from
the 30th May 2002 to date of final payment.


Prayer
4 costs of this application at attorney and client scale. Mr. Dlamini
on the other hand contents that the court order was complied with on
28th March 2003. This order was a sequel to a notice of motion dated
27th March 2003.


4


Prayer
3 and 4 asked the court to order interest on the sum of El394 250-00
at 9% from the 30th May 2002 todate of final payment.


Prayer
4 costs of this application at attorney and client scale.


The
court granted the order as prayed for in above named. The present
application by applicant has arisen because the respondents have
partially complied with the order. Therefore even though the
principal debt owed has been paid the interest and costs which were
also granted in terms of the court order has not. All that the
applicant is asking this court to order the respondents is to pay the
remaining unpaid order and also paid costs on a punitive scale i.e.
attorney and client scale.


In
my judgment I can see nothing wrong with that request unless the
principal debt was paid the interest and the costs on the said
punitive scale was also paid late. In that case the applicant can
only ask for costs of this present application. Applicant cannot be
allowed to have a second bite at the cherry. The payment on the 28th
March 2003 was paid by respondents after numerous letters and
telephone calls had been made to them. When finally they paid they
ought to have done so completely in terms of the court order which
they never challenged in any event.


I
have read Mr. Dlamini's last line of his heads of argument i.e. that
the applicant ought to have been granted the principal debt judgment
and this ought to have been backdated to May 2002 because the court
order was granted on 10th March 2003 and not in May 2002.


I
do not understand how Mr. Dlamini can say in his heads that applicant
had not asked for the prayers granted leading up to the date of
granting the prayers. I have read the papers relating thereto and


5


found
that applicant had infact so requested and inconsequently the court
granted the prayers.

In
the result I order the respondents to pay in terms of the present
notice of motion. I do not with to repeat what was said by this court
leading to the grant of that order.


The
defendants were in mora as of within a month from presentation of an
invoice at the end of each month in respect of which services had
been rendered (see Section 1.3 23rd January 2003).


However
already on 25th January 2002 extension of services by applicant was
rendered and on 23rd July 2002 respondent were said to be processing
payments due to applicant Section 3 written by respondents.


Attorney
General on 12th February 2003 advised that applicant be paid the
principal debt and on 22nd October 2002 the Honourable Attorney
General addressed a letter to the Minister of Finance (see Section
6). All the above advice by the office of the Attorney General was
totally ignored by the respondents.


In
the result I hereby grant prayers (3) and (4) of the notice of
motion.


J.M.
MATSEBULA


Judge