THE HIGH COURT OF SWAZILAND
CASE NO. 873/99
THE MATTER BETWEEN:
HOUSE LIMITED Applicant
MARILDA ANTONIO 1st Respondent
FAMILY TRUST 2nd Respondent
APPLICANT: MS. N.E. GWIJI
RESPONDENT: MR. L.R. MAMBA
Notice of Application dated 19th May, 1999, the above named Applicant
applied for inter alia:-
Order granting Applicant leave to file an amended resolution to read
it is not mention in the Notice of Application, as required by the
Rules of Court, Affidavits in support of the Application were filed
by one Richard Alexander and the Applicant's Attorney.
raison' d'etre for filing this application is that in its Founding
Affidavit the Applicant annexed a resolution which empowered the
Applicant to institute an action before this Court for ejectment of
the 1st Respondent and further authorised the said Richard Alexander
to sign all documents necessary to give effect to the resolution and
the strength of that resolution, the Applicant proceeded to move an
application for the following relief:
the usual requirement of the rules of Court regarding notice and
service of applications in view of the urgency of the matter.
the Deputy Sheriff for the District of Manzini to attach the 1st
Respondent's movable assets on Lot No. 316, Swallow Road, District of
Manzini to perfect Applicant's hypothec, pending finalisation of two
actions by Applicant against 1st Respondent namely:
action for payment of unpaid rentals and;
action for the ejectment of 1st Respondent from Applicant's Plot No.
316, Swallow Road, District of Manzini.
to be costs in the cause.
or alternative relief.
is common cause that the Resolution did not empower the Applicant to
perfect its common law hypothec which it moved. Upon realising the
inevitable difficulty that it will face regarding the challenge to
its authority to apply for prayer 1 in particular, the Applicant has
moved the application granting it leave to file the amended
resolution which will encompass the prayer perfecting its common law
to the Affidavits filed by the Applicant's representatives, the
reasons for filing the inadequate resolution lay on the Applicant's
attorney, whom it is alleged was given instructions to draft the
resolution and in the process omitted to cover the
relating to the landlord's hypothec. This inadvertence is
acknowledged by the Applicant's Attorney and she has personally
tendered costs consequent upon this application.
Mamba, on the other hand opposed this application for leave to file a
proper resolution on the grounds that it is doubtful whether a
meeting was ever held by the Applicant where a resolution was passed
to institute the proceedings. Mr. Mamba challenged the Applicant to
produce the minutes of that meeting in which the resolution was taken
to institute the present proceedings.
the case of MALL (CAPE) (PTY) LTD v MERINO KO-OPERASIE BPK 1957 (2)
SA 347, it was stated that artificial persons, like the Applicant
herein, can function only through the instrumentality of agents and
can take decisions by passing of resolutions in the manner prescribed
by its constitution.
less reason exists to assume that from the mere fact that proceedings
have been brought in its name, that these proceedings have in fact
been authorised by the artificial person concerned.
this instant case, that hurdle is overcome because the resolution has
been annexed. The only difficulty is that the resolution did not
entitle the Applicant to enforce its common law hypothec.
my view, cogent reasons have been advanced for the non-inclusion of
the aspect relating to the hypothec and it is abundantly clear that
it had been the Applicant's intention to have the hypothec enforced
but for the inadvertence on the part of the Applicant's attorney.
This inadvertence must not however affect the Applicant in being
granted the relief that it has with a fixed and settled intention set
out to obtain. It is worth noting that the Applicant's attorney, has
properly tendered the costs occasioned by this application
is no prejudice that will be suffered by the Respondent if an amended
resolution is filed and which prejudice cannot be balmed by an order
for costs. I also point out that the resolution presently filed was
not attacked by the Respondents in the Answering Affidavit.
thus grant the order as prayed. Costs for this application for
amendment must be borne by the Applicant's attorney.