THE HIGH COURT OF SWAZILAND
the matter between:
M. DLAMINI 1st APPLICANT
INN (PTY) LTD 2nd APPLICANT
SUGAR CORPORATION (PTY) LTD 3rd APPLICANT
NEW GEORGE HOTEL (PTY) LTD 4th APPLICANT
INVESTMENTS (PTY) LTD 5th APPLICANT
CHARLIE (PTY) LTD 6th APPLICANT
PROPERTY COMPANY (PTY) LTD 7th APPLICANT
WATERHOUSE COOPERS Respondent
applicants: MR J.S. MAGAGULA
Respondent: ADV. P.E. FLYNN
is an application brought under a Certificate of Urgency and in which
the Applicants seek the following relief :-
the time limits and forms prescribed by the Rules of Court be
dispensed with and this matter dealt with as an urgent application.
the Respondent to deliver to the Applicants all financial statements
and balance sheets, paid cheques, bank statements, supporting
vouchers as well as all documentation in the possession of the
Respondents in respect of the Applicants' herein and particularly
bank statements, cheques and vouchers in respect of accounts (which
are fully set out in the Notice of Motion and I find unnecessary to
enumerate for purposes of this judgement).
the said documentation be delivered within 24 hours of the order
hereby sought at the officers of J.S. Magagula and Company, Second
Floor, Mbabane House, Mbabane.
the Respondent pays the costs of this application.
view of the drastic nature of the relief sought I postponed the
matter and granted the Respondent time to file its Answering
Affidavits, which it did.
facts of the matter briefly stated are as follows: - The 1st
Applicant who deposed to the Founding Affidavit on his behalf and for
and on behalf of all the other Applicants alleged that the Applicants
appointed Price Waterhouse as accountants in 1991. In performance of
its accounting duties, Price Waterhouse was charged with preparation
of all the Applicants financial statements which entailed in part,
liasing with the Applicants' bankers, collection of all bank
statements, paid cheques and other necessary documents.
is further alleged that Price Waterhouse later changed its name to
Price Waterhouse Coopers and that this change of name was merely
cosmetic without affecting its relationship with the Applicants in
any way. By letter dated 11th February, 1999, the Applicants
requested the Respondent to avail to them all bank statements and
paid cheques. The request was met with a refusal by the Respondent,
which claimed that it exercised a jus retentionis in respect of the
Applicants' documents then in its possession by virtue of outstanding
professional fees due to it by the Applicants. The Applicants then
paid the outstanding amount and as a result, the lien fell away. This
notwithstanding, the Applicants allege that the Respondent only
handed a handful of cheques and virtually no bank statements,
financial statements or vouchers.
the 2nd February, 2000, the 1st Applicant complained to the
Respondent that very few of the documents required were availed,
whereupon Mr P.R. Cooper of the Respondent undertook hand the
outstanding documents to the 1st Applicant once the same were
retrieved from the Respondent's archives. This was never done. This
prompted the Applicants to instruct Messrs. De Wet and Fourie, their
attorneys to make demand for the aforesaid documents by letter dated
21st February, 2000, which the Applicants stated were
for purposes of amplifying a rescission application pending between
the Applicants and the Swaziland Development and Savings Bank.
Respondent replied on the 23rd February, 2000, indicating that the
matter had been referred to its attorneys for an appropriate
response. Indeed the Respondent's attorneys of record responded by
letter dated 8th March, 2000. In this letter, the Respondent denied
being appointed to act as auditors in respect of the 5th, 6th and 7th
Applicants. The Respondent referred to a letter dated 15th February,
1999, in which it evinced its willingness, whilst the lien existed to
allow the Applicant's attorneys or the 1st Applicant to inspect the
documents in the Respondent's possession. This was done. The
Respondents further pointed out that all the statements, supporting
cheques and other documentation in its possession was transmitted to
the 1st Applicant or the Applicants' auditors. They also mentioned
that there were other documents deliberately left by the 1st
Applicant on the 1st and 2nd February, 2000. The Respondent further
reiterated that it did not have, apart from the documents left by the
1st Applicant, any further documentation belonging to the Applicants.
Applicants then launched this application, contending that there were
more documents in the Respondent's possession, which the Respondent
denied in its letters and further denied in its Answering Affidavit.
However, the Respondent in its Answering Affidavit embodied a tender
of other documents which the Court was informed were in the
Respondent's possession. These were brought in to Court.
view of the aforegoing, I am of the view that granting prayer 2, in
view of the fact that the information required by the Applicants has
been delivered, any order compelling the Respondent to deliver the
documents would be brutum fulmen. I therefor make no order on prayer
Respondent as cited contends that it did not have any of the
documents in view of the merger between Price Waterhouse and Coopers
and Lybrand. In my view, nothing much turns on this argument since
the Respondent, as now constituted tendered and delivered the
documents required by the relevant Applicants in Court.
only outstanding question which only has a bearing on costs and which
the Court is now called upon to answer is whether in the
circumstances, the Applicants were justified in moving this
application in the light of the Respondent's earlier willingness to
co-operate as recorded in the letters referred to above. As earlier
mentioned, Respondent's position was that it had handed over all the
necessary documents to the Applicants and could not therefor be
required to hand over what it did not have in its possession.
early February, 2000, the 1st Applicant complained to the Respondent
about the few documents handed over, Mr Cooper undertook to retrieve
documents from the Respondent's archives and to advise the 1st
Applicant about that. He never did. This prompted the Applicants to
instruct Messrs. De Wet and Fourie, as aforesaid to demand the
documents. This demand was met with the Respondent's response
contained in the letter dated 8th March, 2000. Paragraphs 7 and 8
thereof record the following: -
the circumstances, we point out that all the statements, supporting
cheques and other documentation which is in our client's possession
relating to your client has been transmitted to either your client or
their present auditors save the documents which were left by Mr
Dlamini (1st Applicant) on the 1 and 2 February, 2000. These
documents are available and can be collected at your convenience.
Finally, we place on record that your client's repeated demands for
documentation which our client does not have is not only unnecessary
and unreasonable and as such we once again point out that our client
does not have any further documentation belonging to your client.
the light of the foregoing your client is at liberty to institute
whatever proceedings he cares to institute however client will
vigorously defend same and seek a special order for costs as it is
clear our client has given yours all the documentation in its
possession. In the interim, all our client's rights are specifically
the light of the fact that notwithstanding the Respondent's
protestations that it did not have any further documents as recorded
hereinabove, the same Respondent tendered the documents into Court,
which shows that the Applicant was justified in launching the
Application. Had it not done so, the further documentation would not
have been delivered.
Respondent's willingness to co-operate must be considered in proper
perspective. It was during the time that the lien obtained and was
also in respect of the documents left by the 1st and 2nd Applicant.
Its major and final contention was that it had no more documents in
its possession. This application proved otherwise as more documents
were delivered after it was instituted and these are likely to be the
documents that Mr Cooper had mentioned were in the Respondent's
view of the foregoing, the Applicants' application was necessary and
in Mr Magagula's words, it bore fruit. The Respondent in the
circumstances be and is hereby ordered to pay the costs of this
application in terms of prayer 4 of the Notice of Motion.