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IN
THE HIGH COURT OF SWAZILAND
CIV.
CASE NO. 3036/96
In
the matter between
MIKE
NDZABANKULU HLONGWANE APPLICANT
And
SWAZILAND
DEVELOPMENT AND
SAVINGS
BANK RESPONDENT
Coram
S.B. MAPHALALA - J
For
Applicant MR. NXUMALO
For
Respondent MR. S.C. DLAMINI
JUDGEMENT
(18/04/2000)
Maphalala
J:
The
matter came before court by way of motion. The applicant applied for
an order in the following terms:
a) Directing
the respondent to return a Massey Ferguson 188 tractor with
registration no. SD 458 HS to the applicant forthwith or
alternatively.
b) An
amount of El8, 000 - 00 (eighteen thousand emalangeni) which is the
fair and reasonable value of the tractor mentioned in a) herein above
and alternatively,
c) Directing
the respondent to refund the applicant the sum of E6, 484 -00 (six
thousand four hundred and eighty four emalangeni) being in respect of
instalment paid to the respondent towards the payment of a loan
agreement which the respondent has cancelled.
d) Interest
thereon at the rate of 14.5%.
e) Costs
of suit on attorney and own client scale.
The
parties filed the pertinent affidavits. On the 2nd May 1997, the
matter appeared before Dunn J (as he then was) who noted that there
was a dispute of fact in this
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matter
and directed that the matter be referred to the Registrar for the
calling of viva voce evidence. The point of dispute observed by the
learned judge was whether or not applicant surrendered the tractor to
the respondent. Subsequent to that the matter was postponed a number
of times until finally the court heard the evidence of the applicant
who was in rum cross-examined by the attorney for the respondent. The
applicant then closed his case where respondent closed his case and
the court heard submissions.
The
history of the matter is as follows:
The
applicant is a cotton farmer of KaNdzangu area- Siteki in the Lubombo
region. He applied for a loan to purchase a tractor from the
respondent on or during November 1992. Some time in January 1994, he
was granted the said loan by the respondent for the sum of E18, 000
whereas he proceeded to Phongola in South Africa where he purchased a
Massey Ferguson 188, which was subsequently registered as SD 458 HS.
The loan agreement between the parties is embodied in a document
captioned annexure "A" which spells out the terms and
conditions of the loan. Of significance, applicant was to pay a sum
of E6, 484 - 00 over 36 months plus interest on or before 31st July
1995 to 31st July 1997. It appeared from the papers that sometime in
1995 the applicant fell into arrears although this was strenuously
denied by the applicant in his papers and also in the viva voce
evidence. The applicant's version is that he made timely payments of
the loan in compliance with the agreement and thus long before the
31st July 1997, he had paid the instalment of E6, 484 - 00 as
evidenced by receipts nos. 42752 and 41961 captioned "B1"
and "B2", respectively.
The
tractor was removed by the respondent from his homestead and
possession, notwithstanding that he had paid on time the initial
instalment as per the agreement. Applicant cries foul that the
actions of the respondent were malicious and wilful breach of the
agreement and as such he was entitled to the tractor. He went on to
complain that he was subjected to heavy losses and inconvenience
because of the action of the respondent in depriving him of the said
tractor without legitimate cause. He was not able to plough
sufficient crops during the season after the tractor was taken by the
respondent.
The
tractor was subsequently sold by the bank to a third party for E20,
000 - 00 (emalangeni twenty thousand) and applicant was advised by a
Manager of the respondent in a letter dated the 30th September 1996
annexed as "C" in applicant's papers.
When
the matter came for arguments as I have earlier on alluded to the
applicant told the court that in 1995 whilst he was using the tractor
his extension officer came to him. He told him that a certain
Langwenya had said he was in arrears in which he replied in the
negative. He was further told that if he did not want to return the
tractor he might even lose the other tractor he had placed as a
collateral. He told this officer of the bank that he had already paid
his first year payment. This officer came back and that is when
applicant took the tractor to the bank with documents. When he
explained to Langwenya the latter did not want to listen to him and
instructed other bank officials to drive the tractor and park it
somewhere because he did not want to be involved with the issue of a
certain Shabangu. Shabangu was the Bank Manager he
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made
the agreement with. He then went home and leamt later that the
tractor had been sold.
The
applicant applied to this court to direct the respondent to pay him
back the money he had already paid because it was the bank which
breached the agreement.
The
respondent's case as gleaned from its opposing affidavit is briefly
this; the applicant was informed that he was in arrears. The amount
of E6, 484 - 00 which applicant had to pay after every harvest.
Applicant
personally drove the tractor onto the respondent's Siteki premises
and surrendered it because he had failed to pay off the arrears.
Applicant failed to pay the 1996 instalment and in terms of the loan
agreement the respondent was entitled to call up the entire balance.
The
court heard submissions. Mr. Nxumalo took the view that the court has
to take the evidence presented before it. Respondent elected not to
give evidence in this matter. I was referred to Becks on Civil
Pleadings (5th ED) at page 40 together with Rule 6 of the High Court
Rules (as amended). It was argued that the evidence showed that
applicant did not surrender the tractor to the bank and thus it
cannot be said that he repudiated the contract.
On
the other hand Mr. Dlamini for the respondent submitted that
applicant does not disclose a cause of action. In his papers the
applicant makes out a case that he has fully complied with the
agreement.
However,
Mr. Nxumalo is arguing the issue of interest which was not canvassed
in their founding affidavit. The bank could not have responded to it
as it only emerged for the first time here in court.
These
are the issues before me. I am inclined to agree with Mr. Nxumalo
that in view of the only evidence presented before me it cannot be
said that the applicant repudiated the contract he had with the
respondent. The applicant told the court in-chief that in 1995 a
certain extension officer came to him and told him that Langwenya had
said he was in arrears. He told the bank officials that he was not in
arrears. He told him that he had already made his first year payment.
The officer came back some days later and that is when he took the
tractor to the bank with documents. When he explained to Langwenya he
did not listen to him but instructed another bank official to drive
the tractor and park it somewhere because he did not want to be
involved with the issue of Shabangu. Shabangu was the Manager whom
the applicant entered into the agreement with on behalf of the
respondent. He later heard that the tractor had been sold to a third
party. It appears to me from the aforegoing that the applicant did
not repudiate the agreement.
Annexures
"B1" and "B2" in his founding papers support his
contention that he had paid the instalment for the year. These
annexures are dated the 16th December 1994, for the sum of E1, 484 -
00 and 17th March 1995 for the sum of E5, 000 - 00 being receipts
reflecting his payments to the bank. This appears to me was in
conformity with annexure "A" being the agreement itself.
The agreement stipulates as one of its terms and conditions that:
"Repayment
E6, 484 - 00 plus interest on or before 31ST July 1995 to 31st July
1997".
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By
the 31St March 1995, the applicant had already paid the sum of E6,
484 - 00. Clearly, the respondent breached the agreement and the
applicant is entitled in law to the remedy he seeks.
I
thus grant an order in terms of prayer C of the notice of motion and
costs.
S.B.
MAPHALALA
JUDGE
