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IN
THE HIGH COURT OF SWAZILAND
CIV.
CASE NO. 63/2000
In
the matter between
GUY
TIMOTHY BERTRAM BERTRAM N.O. APPLICANT
And
JOHN
TEMBE DEFENDANT
Coram
S.B. MAPHALALA - J
For
Applicant MR.
P.
FLYNN
(Instructed
by
Robison Bertram)
For
Defendant MR. MAGAGULA
JUDGEMENT
(23/10/2000)
Maphalala
J:
This
is an application for summary judgement. The plaintiff issued summons
against the defendant on the 19th January 2000, claiming eviction of
the defendant from Portion 91 of Farm No. 2 situated in Mbabane,
District of Hhohho, Swaziland on Crown Land area No. 1 under Crown
Grant No. 54/1957.
The
plaintiff is acting in his capacity as executor in the estate of the
late Lawrence Lanco duly appointed by the Master of the High Court in
terms of the law, which governs such matters. The plaintiff further
applies for costs of suit and further or alternative relief.
The
defendant opposes this application raising points in limine as well
as advancing his defence to the application. The first point raised
by the defendant is that this matter is improperly before court as it
has been brought contrary to Rule 6 (9) of the
High
Court
Rules
which
are mandatory in that the Master of the High Court has not been
served
with
both the
summons
and the present application before court yet the application involves
property belonging to a deceased person. I must point out
however,
that the defendant in his Head of Arguments referred to Rule 6 (23)
instead of Rule 6 (9) as reflected in the opposing affidavit.
Defendant also introduced other preliminary point that the replying
affidavit filed by the plaintiff be set aside as an
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irregular
step in terms of Rule 30 read with Rule 32 (5) (a) because leave of
court was not sought before the replying affidavit was filed.
On
the merit it was submitted for the defendant that he has a defence to
the claim filed by the plaintiff.
Firstly,
the summons issued at the instance of the plaintiff is defective or
open to exception in the sense that paragraph 4 of the summons the
plaintiff alleges that the defendant fails, neglects and/or refuses
to pay to the plaintiff. This is in despite the fact that the nature
of the relief sought is not for payment but ejectment. To this
proposition the court was referred to a number of South African
decisions and The Civil Practice of the Supreme Court of South Africa
4th ED by Van Winsen at al at 449.
Secondly,
it was submitted that the defendant is in lawful occupation of the
property having been given the land by Mrs. Daniels who is a sister
of the late Lawrence Lanco. On this point it was argued that where
the defendant relies upon a right of occupation given by the
plaintiff seeking ejectment, the plaintiff must prove termination of
that right (see Chetty vs Naidoo 1974 (3) S.A. 13 at 21).
It
was further argued on the merits that in the alternative or in the
event that the court rules that the said Mrs. Daniels did not have
the right to give permission to the defendant to develop and occupy
the property as she was not the registered owner, it would be argued
that the counterclaim filed of record be granted. i.e. that the
plaintiff must compensate the defendant for the value of the property
erected and the expenses used for clearing the land. Failure to do so
would be tantamount to unjust enrichment of the plaintiff.
Furthermore,
it was
submitted
on behalf
of the defendant
that
the nature
of the
defendant's defence is that it would require oral evidence to be led,
then it would be submitted that the matter be referred to trial. To
grant the summary judgement would automatically close the door to the
defendant.
Mr.
Flynn on instructions argued on the contrary. He challenged the
contention by the defendant that the application ought to have been
served on the Master of the High Court and relies on Rule 6 (9) for
this point in limine.
He
submitted that the relevant rules are Rule 6 (2) and Rule 6 (23) and
not Rule 6 (9). In terms of Rule 6 (23) a copy of an application in
connection with the estate of a deceased shall be submitted to the
Master of the High Court for consideration and report. Rule 6 (2)
requires that where it is necessary to give notice of an application
to any person the notice of motion should be addressed to both the
Registrar and such person. Mr. Flynn submitted that the judgement of
a party who is in unlawful occupation of an estate property is not an
application in connection with the estate. It is not a matter in
respect of which the Master would or could submit a report. It was
submitted that the application for summary judgement is made in terms
of Rule 32 and Rule 6 is inapplicable to this application.
It
was argued further on behalf of the applicant that the defendant's
purported defence is based on an allegation that he is in lawful
possession by virtue of having been donated a portion of the land by
"the late Mrs Daniels". There is no indication what
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her
legal rights are in respect of the land. There are also no facts
provided as to what "a portion of land" represents.
The
defendant gives no details whatsoever of his alleged counterclaim and
it is submitted that the court could not hold that this is a bona
fide counterclaim. To support this view I was referred to Traut vs Du
Toit 1966 (1) S.A. 69 and that of Crede vs Standard Bank of South
Africa 1988 (4) S.A. 786 (E).
I
now proceed to determine the issues thus:
1. Points
"in limine".
a) Admission
of Replying Affidavit.
It
appears to me that the practice is that the replying affidavit is
filed first with the court and the plaintiff can then make his
application for leave to file from the bar. Following this practice I
grant the plaintiff leave to file the replying affidavit as it is
thus made part of the papers in this case.
b) Rule
6 (9).
The
defendant contends that the application ought to have been served on
the Master of the High Court and relies on Rule 6 (9) for this point
in limine. Mr. Flynn is correct that the relevant rules are Rule 6
(2) and Rule 6 (23) and not Rule 6 (9). I must say though that
defendant's
counsel
in his
Head
of Arguments
referred to Rule 6 (23). It would appear to me that the application
for summary judgement is made in terms of Rule 32 and Rule 6 is
inapplicable to this application. I thus rule that the point in
limine is without merit and is thus dismissed.
2. On
the merits.
a) Whether
summons are defective or open to exception.
The
defendant alleges that the summons issued at the instance of the
plaintiff is defective or open to exception in the sense that
paragraph 4 of the summons, the plaintiff alleges that the defendant
fails, neglects and/or refuses to "pay" to the plaintiff.
This is despite the fact that the nature of the relief sought is not
for payment but ejectment. It appears to me that this objection is
only superficial in that if one were to read the whole of paragraph 4
it is clear that plaintiff seeks that defendant vacates his unlawful
occupation of
the premises. The word "pay"
is clearly a typing error. I hold,
therefore
that exception is without merit.
b) Whether
defendant occupation is lawful
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The
defendant's purported defence is based on an allegation that he is in
lawful possession by virtue of having been donated a portion or the
land by "the late Mrs. Daniels". From the papers before me
there is indication what her legal rights are in respect of the land.
There are also no facts provided as to what "a portion of land"
represents. Further, the case of Chetty vs Naidoo (supra) relied upon
by the defendant is not applicable in the present case. In that
plaintiff if he contends that occupation has become unlawful by
reason of termination of the agreement, he in certain circumstances,
assumes the onus of proving the terms of that agreement and proving
that it has been terminated. In the case in casu plaintiff had not
alleged any agreement between himself and the defendant.
3.
Defendant's counterclaim.
As
the court has ruled that Mrs. Daniels did not have the right to give
permission to the defendant to develop and occupy the property as she
was not the registered owner, the court is to consider the
counterclaim that the plaintiff must compensate the defendant for the
value of the property erected and the expenses used for clearing the
land. As failure to do so would be tantamount to unjust enrichment of
the plaintiff. It appears trite that where the total failure of the
defendant to set out his counterclaim fully makes it impossible for
the court to say that the counterclaim can disclose a bona fide
defence the court will grant summary judgement against the defendant
(see Traut vs Du Toit 1966 (1) S.A. 69). In the casu the defendant
failed to particularize his counterclaim in terms of the rules of
this court.
In
the result, summary judgement is granted with costs.
S.B.
MAPHALALA
JUDGE
