IN
THE HIGH COURT OF SWAZILAND
CIV.
CASE NO. 516/99
In
the matter between
ENOCK
SHIBA
APPLICANT
Vs
MAJAHENI
AARON TSABEDZE & 3 OTHERS RESPONDENTS
Coram
S.B. MAPHALALA - J
For
Applicant MR. MASINA
For
Respondents MR. MDLULI
JUDGMENT
(05/04/2000)
Maphalala
J:
A
rule nisi was issued by this court on the 3rd March 1999,
interdicting and restraining the respondents in any way from
unlawfully disposing by way of sale or otherwise eleven (11) herd of
cattle together with their progeny and household goods listed in
schedule "A". The respondents were further directed to
restore possession to applicants of the said eleven (11) herd cattle
and the said household goods. The Sheriff of Swaziland or his lawful
Deputy or Acting Deputy with the help of the members of the Swaziland
Royal Police, as far as it may be necessary be authorised to remove
the said cattle and goods from the respondents or their agents and
return them to the applicant.
The
application was supported by pertinent affidavit and annexures. The
respondents filed a notice of intention to oppose. Subsequently, they
filed their answering affidavit and annexures. The applicant filed
his replying affidavit.
On
the 7th May 1999, the matter appeared before Matsebula J, where the
matter was postponed by consent to a date to be set by the Registrar
for oral evidence.
The
matter appeared before me for that purpose on the 8th March 2000,
where the parties submitted that the matter was capable of being
decided on the papers as they stand without going into viva voce
evidence. I heard submissions on the merit of the
2
matter.
It is common cause that the only issue to be decided by the court is
the question of ownership of the eleven (11) herd of cattle.
I
have read the papers before me carefully. I have also considered the
submissions made by counsel.
It
appears to me that this matter cannot be decided on the papers as
they stand. The dispute of fact as to ownership is so glaring that it
screams for the calling of oral evidence to enable one to do justice
to this case. The court is called upon to draw conclusions on wide
probabilities. In the spirit of the dicta in the celebrated case of
Room Hire (Pty) Ltd vs. Jeppe Street Mansions (Pty) Ltd 1949 (3) S.A.
1155 (T) I rule that viva voce evidence be adduced on this
contentious point.
Cost
to be costs in the cause.
S.B.
MAPHALALA
JUDGE
