KUKHANYA (PTY) LTD APPLICATION DISMISSED

MBABANE - The Supreme Court of Eswatini has dismissed Kukhanya (Pty) ltd application to appeal the ruling made by the High Court of Eswatini in their case against Abacus Construction Costs Consultants (Pty) ltd.

The matter was before Supreme Court Acting Judge Sabelo Masuku, who, in his judgment dismissed the appeal. The applicant were appealing the High Court ruling where they were ordered to pay the latter monies amounting to E1 507 652.69. The acting judge said they (applicant) contested the High Court ruling by filing an affidavit resisting the judgment by raising a point that their quantity surveying services agreement with the respondents provided an arbitration clause which referred unresolved dispute to arbitration.

He said the applicant alleged that the High Court’s ruling over the matter negated section 49 of the Registration of Architects, Engineers, Surveyors and Allied Professionals Act 2013 (RAESAP Act) and that the respondents were not registered as quantity surveyors with a valid certificate issued by the RAESAP Council of Eswatini.

“Abacus version of the sequence of the process contradicted Kukhanya, it contended that Kukhanya filed a plea in which it raised the jurisdictional points of law and that Kukhanya acknowledged its indebtedness in terms of an acknowledgment of the debts,” said the acting judge. Masuku added that following the notice of intention to defend, the respondents filed a comprehensive declaration; thereafter Kukhanya filed its Plea and matter in limine. In limine is a pre-trial motion asking that certain evidence be found inadmissible, and that it not be referred to or offered at trial.

Declaration

Masuku said the two points that were raised by the applicant relied on an arbitration clause asserting that there was a disagreement which had to be resolved by arbitration and the second point sought were invoke Section 49 of the RAESP Act 2013. “I hasten to add that this is not an issue to be decided in this application but it raised curiosity that led to more questions being asked by the Court as the hearing of the matter,” said the judge.

He added that the court was curious to know which of the two procedures were followed at the court and could it be the process that was contended by the respondents that a plea was filed to raise the jurisdictional points in limine. The acting judge also mentioned it could have also been Kukhanya’s version that the declaration filed coupled with a summary judgement application prompted it to file an affidavit resisting the summary judgement.

“The applicants suggest that no affidavits were filed but rather that points were raised in limine from the plea. Which rule of the High Court were relied upon that raised the summary judgement in that scenario, was the question,” said the acting judge. Masuku said Kukhanya is to pay costs of the application at ordinary scale and costs of the counsel in the manner contemplated by the High Court rule 68.

Judgment

He further referred the matter back to the High Court in terms of the judgment of this court on appeal. Kukhanya (Pty) ltd are the applicants of the appeal while Abacus Construction Costs Consultants (Pty) ltd are the respondents.  The respondents were represented by Advocate Jasper Daniels instructed by Robison Bertram. The applicants were represented by advocate Dirk Vetten instructed by Sdumo Mdladla and Associates.

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