Court name
High Court of eSwatini
Case number
3210 of 2010

Dlamini v Thwala NO and Others (3210 of 2010) [2011] SZHC 98 (05 April 2011);

Law report citations
Media neutral citation
[2011] SZHC 98













IN
THE HIGH COURT OF SWAZILAND



HELD
AT MBABANE







Civil
Case No. 3210/10











In
the matter between:







Meshack
Dlamini
…............................................................................APPLICANT



AND



Sandile
Thwala N.O.
…...............................................................First
Respondent



Cowigan
(PTY) Ltd
…..............................................................Second
Respondent



Manzini
City Council
….............................................................Third
Respondent



The
Registrar of Deeds
…........................................................Fourth
Respondent



The
Master of the High Court
….................................................
Fifth
Respondent



The
Attorney General
…............................................................Sixth
Respondent











CORAM:
MCB MAPHALALA, J



For
Applicants: S. Dlamini



For
Second Respondent: B. Sigwane



For
Third Respondent: M. Ndlovu















Summary







Civil
Procedure - Application to strike out in terms of High Court Rules 6
(28) and 23 (2) - offending matter should be scandalous, vexatious
and irrelevant - in addition aggrieved party to prove that offending
matter is prejudicial to his case - Furthermore Application to be
made when matter before court on merits.











RULING
ON APPLICATION TO STRIKE OUT 5
th
APRIL 2011







[1]
This is the second interlocutory application in this matter; the main
application is still pending where an order is sought interdicting
and restraining the Second Respondent from encumbering or
transferring lot ERF 260 in Manzini, interdicting and restraining the
First Respondent from utilizing or distributing the proceeds of the
sale of the property, reviewing and setting aside the order of the
Manzini Magistrate's Court granted on the 12
th
April 2010, setting aside the
transfer of the property to the Second Respondent and directing the
Fourth Respondent to expunge the Deed of Transfer No. 491/2010 from
the Registrar of Deeds, directing the First Respondent to give full
effect to the written agreement between the applicant and the First
Respondent as well as directing the Fifth Respondent to issue a
written authorization of the sale of the property to the applicant at
a purchase price of E940 000.00 (Nine hundred and forty thousand
Emalangeni).











[2]
The above application is opposed by the Second and Third Respondents.
The Second Respondent has filed an application to strike out
paragraphs 8, 15, 19, 22, 24, 24.1, 24.4, 24.5, 24.7, 24.8 24.9,
24.10, 24.11, 25, 26, 30 and 31 on the grounds that same are
inadmissible and irrelevant, embarrassing, vexatious, scandalous,
contradictory, defamatory and argumentative.







[3]
Rule 23 deals with Notices of Exception as well as Applications to
Strike out. An exception is taken to a pleading which is vague and
embarrassing or lacks averments which are necessary to sustain an
action or defence. An application to strike out is permissible in a
pleading which contains averments which are scandalous, vexatious or
irrelevant; the decisive factor in determining whether to grant the
application to strike-out is the "existence" of prejudice
to the applicant in the conduct of his claim or defence if it is not
granted. It is worth mentioning that the application by the Second
Respondent does not appreciate the distinction between exceptions and
applications to strike out. Rule 23 (1) provides the following:







"Where
any pleading is vague and 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 provided for filing any
subsequent pleading, deliver an exception thereto and may set it down
for hearing in terms of Rule 6 (14).







Provided
that where a party intends to take an exception that a pleading is
vague and embarrassing he shall within the period allowed under this
sub-rule, by notice afford his opponent an opportunity of removing
the cause of complaint within fourteen days. Provided further that
the party excepting shall within seven days from the date which a
reply to such notice is received or from the date of which such reply
is due deliver his exception."







[4]
Rule 23 (2) provides the
following:







"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 6 (14), but the court shall not grant the same unless it is
satisfied that the applicant will be prejudiced in the conduct of his
claim or defence if it be not granted.











[5]
Rule 6 (28) provides as follows:











"The
court may on application, order to be struck out from an affidavit
any matter which is scandalous, vexatious or irrelevant, with an
appropriate order as to costs as between attorney and client, but the
court shall not grant the application unless it is satisfied that the
applicant will be prejudiced in his case if it is not granted"







[6]
In the case of
Vaatz
v. Law Society of Namibia
1991
(3) SA 563 (NH) at 566,
Levy
J
stated the
following;











"The
grounds for striking out as set out in the said Rule are...
scandalous or vexatious or irrelevant. Needless to say allegations
may be irrelevant but not scandalous or vexatious. Even if the matter
complained of is scandalous or vexations or irrelevant, this court
may not strike out such matter unless the respondent would be
prejudiced in its case if such matter were allowed to remain."











[7]
At page 566 C-D, His Lordship stated the following:











"In
Rule 6 (15) the meaning of these terms can be briefly stated as
follows: Scandalous matter - allegations which may or may not be
relevant but which are so worded as to be abusive or defamatory.







Vexatious
matter- allegations which may or may not be relevant but are so
worded as to convey an intention to harass or annoy.







Irrelevant
matter- allegations which do not apply to the matter in hand and do
not contribute one way or the other to a decision of such matter."











[8]
At page 566J-567A-B, His Lordship said the following:











"The
phrase "prejudice" to the applicant's case clearly does not
mean that, if the offending allegations remain, the innocent party's
chances of success will be reduced. It is substantially less than
that. How much less depends on all the circumstances; for instance,
in motion proceedings it is necessary to answer the other party's
allegations and a party does not do so at his own risk. If a party is
required to deal with scandalous or irrelevant matter the main issue
could be side-tracked but if such matter is left unanswered the
innocent party may well be defamed. The retention of such matter
would therefore be prejudicial to the innocent party."







[9]
In the case of
Steyn
v. Schabort and Another
1979
(1) SA 694 at 697 (O)
Justice
Erasmus
emphasized
that the procedure for striking out was never intended to be utilized
to make technical objections of no advantage to anyone and just
increasing costs. He stated that the court should not grant the
application unless it is satisfied that the applicant will be
prejudiced in his case if it is not granted.











See
also the cases of John Graig (PTY) Ltd v. Dupa Clothing Industries
1977 (3) SA 144 at 148; Titty's Bar and Bottle Store (PTY) Ltd v. ABC
Garage (PTY) Ltd and Others 1974 (4) SA 362 (T).







[10]
In an application to strike out the aggrieved Party should not only
state the nature of his objection but he must also state the basis
why the offending matter is irrelevant, scandalous, or vexatious.
Furthermore, he must show that the offending matter is prejudicial to
his case if it were allowed to remain.



[11]
The first objection in paragraph 3.1 of the last four lines is
alleged to be irrelevant. There is nothing irrelevant about this
portion of the paragraph since it only seeks to establish the
physical address of the Second Respondent.











[12]
Paragraph 8 which is objected on the basis of irrelevance is
necessary to show that this court has jurisdiction to entertain this
matter. Paragraph 15 is directed at the conduct of the First
Respondent, and, it is not directed against the Second Respondent;
hence, it is not open to the Second Respondent to challenge it. This
goes for paragraph 19 which is similarly directed at the conduct of
the First Respondent.











[13]
Paragraph 22 which is objected oh the basis of irrelevance deals with
the investigations conducted by Applicant's Counsel at the Manzini
Magistrates Court which established irregularities in the manner the
proceedings were conducted. These are the proceedings which led to
the issue of a judgment by default against the First Respondent, the
attachment and subsequent sale by Execution of the property of the
First Respondent by the Third Respondent. The irregularities
highlighted in paragraph 22 are necessary in proceedings of this
nature where the judgment which culminated in the sale of the
property is in issue. Furthermore, the allegations in paragraph 22
challenge the auction sale on the basis that it was not conducted in
accordance with the law; hence, such allegations cannot be said to be
irrelevant in the matter before court.











[14]
Annexure "MD1" is sought to be s truck-off on the basis
that "it is irrelevant, self-serving or proves consistency".
The annexure referred to is a correspondence by the Swazibank to the
Applicant advising him that they "still await receipt of the
consent to the sale by the Master of the High Court which was to be
submitted by the Seller's agents Sigwane and Partners." The
letter was in response to an application for a loan by the applicant
to purchase the property and the issuance of a bank guarantee. The
letter proceeds and states that "we have confirmation from the
agents by letter of the 18
th
November 2008 that
they would be attending to the registration of the transfer of
property and that the relevant consent to the sale by the Master
would be submitted upon liquidation and Distribution of the estate.
However, no further communication has been received and we advise you
to consult with them. As the matter stands the bank is unable to
finalize the application".







14.1.
It is common cause that the
applicant and the Estate of the late Daniel Reuben Thwala represented
by the Attorney for the Second
Respondent in his capacity as
Attorney to the Executor of the Estate by virtue of a Power of
Attorney concluded the contract for the sale of the
property being
Lot No. ERF260 situate in Manzini for a purchase price of E940 000.00
(Nine hundred and forty thousand Emalangeni) on the 8
th
October
2007. In terms of the contract, the applicant paid a deposit of E700
000.00 (Seven hundred thousand Emalangeni) to the
Seller's
Conveyancers Sigwane and Partners; and these are the same
Attorneys who drew the Deed of Sale, and, who now represents the
Second Respondent in this matter. The balance of E240 000.00 (Two
hundred
and forty thousand Emalangeni) was payable by means of a
bank guarantee secured by a bank and drawn in favour of the Seller's
Conveyancer to be furnished within thirty days from the date of
signature and payable upon registration of transfer.











14.2
It is common cause that the
thirty day period for the applicant to submit a bank guarantee has
expired; and according to the applicant and Swazibank, this has been
stalled by the failure to furnish the Master's consent to the sale.
The attack on annexure "MD1" is ill-conceived in the light
of the allegations by the applicant and Swazibank that the failure to
release the bank guarantee was caused by the failure of the Seller's
Agents to secure the Master's consent for the sale; the Attorneys for
the Second Respondent are the Seller's Agents.







14.3
In the circumstances, Annexure "MD1" is not irrelevant,
scandalous or vexatious as alleged by the Second Respondent.











[15]
The Second Respondent has also objected to paragraphs 24, 24.1, 24.4,
24.5, 24.7, 24.8, 24.9, 24.10 and 24.11, as being vexatious,
scandalous, hearsay, embarrassing, defamatory, annoying and
opinionated. These paragraphs relate to the conduct between the First
and Third Respondents as well as the offices of Attorney Sigwane and
Partners; the said conduct is alleged to amount to a collusion. The
allegations thereof are not directed at the Second Respondent as a
party to the proceedings. Similarly, paragraph 25 is alleged to be
defamatory, vexatious, scandalous and embarrassing; however, the said
paragraph only refers to the conduct of the First and Third
Respondents as well as Attorney Bob Sigwane.







[16]
Paragraph 26 is alleged to be embarrassing, vexatious and defamatory
and that it has to be struck-out. This paragraph constitutes a
conclusion of law based on the irregularities alleged in the
preceding paragraphs against Attorneys Sigwane and Partners, as well
as the First and Third Respondents; it is not directed at the Second
Respondent. The said paragraph cannot be said to be embarrassing,
vexatious and defamatory against the Second Respondent.







[17]
Paragraph 30 is said to be embarrassing against the Second
Respondent. As I have stated in the preceding paragraphs, if a matter
is alleged to be embarrassing, it is the subject of Rule 23 (1)
relating to Exceptions and not applications to strike-out. In any
event, the contents of paragraph 30 are common cause that the
property is registered in the name of the Second Respondent; and,
that as registered owner he could evict the applicant or even
encumber or transfer the property. There is no legal basis for the
Second Respondent to object to the contents of this paragraph.







[18]
Paragraph 31 is directed at the conduct of the First Respondent and
his erstwhile Attorney; it has nothing to do with the conduct of the
Second Respondent; hence, there is no legal basis for the Second
Respondent to challenge the contents of the said paragraph.











[19]
It is trite law that a party intending to object to a matter on the
basis that it is scandalous, vexatious or irrelevant, he may apply to
court to have the matter struck off from the affidavit. However, the
court will not grant the application unless satisfied that the
applicant will be prejudiced in his case if it be not granted.
Applications to strike out are taken by way of motion upon proper
notice to the other party indicating the passages that are being
objected together with a brief statement of the grounds of the
objection. Such an application is interlocutory and incidental to
pending proceedings; hence, the time limits stated in Rule 6 need not
be strictly followed as in the main application:




  • Herbstein
    & Van Winsen, the Civil Practice of the Supreme Court of South
    Africa, 4
    th
    edition Juta & Co. Ltd
    1997, pages 370-372.



  • Vaatz
    v. Law Society of Nambia (Supra) at pages 566-567



  • Angilly
    v. Hersman; In re: Prisman 1936 (2) PHF94 (C).








[20]
The application to strike out should be made when the matter is
before court on the merits; if made prior as in the present case, the
application to strike out will be premature.
Price
J
in Elher
(PTY) Ltd v. Silver
1947
(4) SA 173 (W) at 176 stated that an application to strike out matter
from an affidavit is not an objection to a pleading, but an objection
to evidence proposed to be tendered to the court hearing the
application. His Lordship continued and said the following:











"How
can a court which is not hearing the application disallow evidence
which it is proposed to tender later on as irrelevant to the merits
of the dispute? The court which ultimately decides the application
may have quite a different view as regards the relevance of some of
the passages when all the evidence is presented to it and the matter
has been fully argued."







[21]
At page 177 His Lordship stated that until the actual hearing of the
application, the affidavits are not before court as evidence, they
are merely documents filed with the Registrar to be used later as
evidence when the application is heard, and they cannot be objected
to until then. It is for this reason that in the case of
Molebatsi
v. Mogasela
1953 (4)
SA 484 (W), the court refused an application to strike out prior to
the filing of an Answering Affidavit. In the case of
Elher
(PTY) Ltd v. Silver
(supra),
the court refused the application when a Replying Affidavit had not
been filed. In the case of
Dennis
v. Garment Workers' Union, Cape Peninsula
1955
(3) SA 232 (C) at 239 G, the court emphasized that the time for an
application to strike out is when the matter is before court on the
merits and that in the meantime the allegations to which objection is
intended to be taken must be dealt with in the Answering or Replying
Affidavits as the case may be. In the case of
Shephard
v. Tuckers Land and Development Corporation (PTY) Ltd
1978
(1) SA 173 at 177 D-E,
Nestadt
J
said the following:











"Applications
to strike out must be made when the matter is before the court on its
merits, and if made prior thereto the application will be
premature....







There
being no opportunity to object until the matter is before the court
on its merits the allegations to which objection is intended to be
taken must meanwhile be dealt with in the answering or replying
affidavits, as the case may be, but this does not constitute a waiver
of the right to object."



[22]
I have analyzed the matters to which the Second Respondent has
objected even though it was not necessary because the application to
strike out had been lodged prematurely; and, the matter was not
before court for hearing on the merits. However, in order to avoid a
multiplicity of interlocutory applications to strike out, I felt
obliged to deal with the application to strike out once and for all.
This application is dismissed on two grounds: First, the application
was brought prematurely when the matter was not before court on its
merits. Secondly, the Second Respondent has failed to show that the
matters complained of were irrelevant, vexatious or scandalous.
Furthermore, he has failed to show that the matters are prejudicial
to it because the allegations complained of relate to the conduct of
the First and Third Respondents as well as Attorneys Sigwane and
Partners.







[23]
The warning given by
Justice
Erasmus
in the case
of
Steyn v. Schabort
and Another
(supra)
with regard to technical objections in applications to strike out is
relevant in this application; this procedure was never intended to be
utilized to make technical objections of no advantage to anyone save
to delay the merits of the case and an increase in costs
unnecessarily. Furthermore, before a party lodges such an application
he must satisfy himself that the offending matter is not only
irrelevant,
vexatious or scandalous but that it is prejudicial
to the conduct of his case.











[24] The Second
Respondent is ordered to pay costs of suit to the Applicant at a
scale between Attorney and Client.







M.C.B.
MAPHALALA



JUDGE
OF THE HIGH COURT