HIGH COURT OF SWAZILAND
BANK OF SWAZILAND
STEPHANUS VAN WYK & THREE OTHERS
Case No. 1654/99
MAPHALALA - J
the Applicant Advocate P. Flynn
by Robinson Bertram)
1st and 2nd Respondents Advocate D. Kuny S.C.
seeks an order against the 1st, 2nd and 3rd Respondents setting aside
the transfer of a certain property described as Lot No. 2835, situate
in Mbabane Extension No. 8 (Sidvwashini, Industrial Township),
district of Hhohho, Swaziland which was transferred from 1st
Respondent to 2nd Respondent on the 29th October 1997, directing
3rd Respondent to expunge and delete from its records the property
being held in its name, and authorising 3 rd Respondent to reflect in
its records that the said property is registered in the name of the
matter came by way of notice of motion in the long form filed of
record on the 6th July 1999, founded on the affidavit of the Governor
of the Central Bank of Swaziland himself Mr. Martin Gobizandla
Dlamini. Various annexures were also filed in support thereto.
1st and 2nd Respondent filed their notice of intention to oppose the
application on the 12th July 1999, and thereafter on the 29th July
1999 filed an answering affidavit of the 1st Respondent and thus
joining issue with the applicant.
said answering affidavit was supported by the affidavits of Thembela
Simelane and that of one R. Haw. Pertinent annexures to the
Respondent's defence were filed thereto.
applicant is the Central Bank of Swaziland a body corporate
incorporated in terms of the Central Bank of Swaziland Order 1974 and
carrying on business at Central Bank building, Warner Street,
Mbabane, district of Hhohho, Swaziland.
1st Respondent is Andries Stephanus Van Wyk, an adult male of care of
Lot 2835 Mbabane Extension No. 8 (Sidvwashini Industrial Township.
District of Hhohho, Swaziland).
2nd Respondent is Jacaranda Investments (Pty) Limited a company duly
registered and incorporated with limited liability according to the
company laws of the Kingdom of Swaziland which has its principal
place of business at Lot 2835 Mbabane Extension No. 8 (Sidvwashini
Industrial Township) district of Hhohho, Swaziland.
3rd Respondent is the Registrar of Deeds for the Kingdom of
4th Respondent is the Attorney-General of the Kingdom of Swaziland
cited in his nominal capacity as legal representative of the third
cause of action.
the 2nd October 1995, the Applicant instituted provisional sentence
proceedings against the 1st Respondent for the sum of E444, 793-39
plus interest thereon at the rate of 9% per annum from the 1st July
the 8th March 1996, this court granted provisional sentence in favour
of the plaintiff against the 1st Respondent. A writ of execution was
issued and the Deputy Sheriff effected an attachment of the following
tipper truck 29 Ton Bell.
to the Applicant although this fact is strongly denied by the 1st
Respondent, after the equipment had been attached, it transpired that
the said equipment was in fact hypothecated and could not be sold in
execution. The attachment was subsequently uplifted and the Deputy
Sheriff attempted to attach other movable goods belonging to the 1st
Respondent and on the 26th November 1996, he filled a nulla bona
return (see annexure "MGD 3"). However, the 1st Respondent
in his answering affidavit took issue to this search that he was
unaware that the Deputy Sheriff conducted a diligent search and that
this allegation as far as conducting a search is concerned this
constitute hearsay and must be struck out.
to the Applicant following the filing on the nulla bona return by the
Deputy Sheriff, the Applicant's then attorneys Millin and Currie,
conducted a search at the Deeds office in order to ascertain whether
the first Respondent owned any immovable property. It transpired that
the 1st Respondent was the registered owner of the following
Lot No. 950 situate in Mbabane Extension No. 8 (Sidvwashini
Township) district of Hhohho, Swaziland; Held: Under Deed of Transfer
Certain: Lot No. 951 situate in Mbabane Extension No. 8 (Sidvwashini
Township), district of Hhohho, Swaziland; Held: Under Deed of
Transfer No. 29/1983".
1st Respondent however, denies that he was the registered owner of
Lot 950 and Lot 951 during 1996 when the so-called diligent search
was conducted, in fact at the time when the purported search was
conducted there was no Lot No. 950 and Lot No. 951.
learning this, the applicant's then attorney issued a writ of
attachment and on the 6th December 1996, the Deputy Sheriff attached
the 1st Respondent's properties in pursuance of the judgement which
was granted by the court.
and Currie thereafter attempted to sell the properties in execution
in order to realise the amount of the judgment debt which the
Applicant had obtained against the 1st Respondent. (See notices of
sale marked "MGD 4".
Applicant alleges that after the Deputy Sheriff had effected the
attachment of the 1st Respondent's property, unbeknown to the
Applicant, the 1st Respondent began making arrangements for the
consolidation of the properties which were under attachment. On the
29th October 1997, the 1st Respondent succeeded in consolidating the
properties and they were then held by the 1st Respondent under
certificate of consolidated title No. 446/1997 (see annexure "MGD
5"). The property were consolidated into a new portion of land
which became known as:
Lot No. 2835, situate in Mbabane Extension No. 8 (Sidvwashini
Industrial Township), district of Hhohho, Swaziland".
with the consolidation of the properties, the 1st Respondent then
transferred the property to the 2nd Respondent. On investigating the
matter further, the Applicant found that the 1st Respondent is a
Director and the major shareholder of the 2nd Respondent. According
to the Applicant, the consolidation and transfer of the properties
was designed specifically by the 1st Respondent to evade the
execution of the judgment of the court (see annexure "MGD 5A"
being extracts of records filed at the office of the Registrar of
1st Respondent answered per contra to the above assertion by the
applicant this is denied and that same constitute defamation of
character. Lot 950 and 951 Extension 8 were consolidated on the 11th
January 1991. The consolidation having been approved by the
Surveyor-General on the 11th January 1991. To this effect the 1st
Respondent attached a copy of a consolidation diagraph and a letter
from R. Haw a Chartered Land Surveyor (see annexure ASVM I and II).
The 1st Respondent denies that he was a shareholder of the 2nd
above therefore is the causa which has led to the lis between the
matter came before me for arguments on the 7th November 2002, where I
heard lengthy submissions from counsel and I then reserved judgement.
Mr. Kuny filed Heads of Argument and I am grateful to counsel in this
is contended on behalf of the Applicant that in casu there was a
valid attachment and the 1st Respondent either by design or
unintentionally consolidated the properties which were under
attachment. As a result the applicant was unable to enforce its
rights as per the court order.
Flynn for the Applicant attacked the defence advanced by the
Respondents in this case on a number of fronts. Firstly, that their
defence that the consolidation took place in 1991 when there was an
attachment there was no property as it had been consolidated in 1991.
The difficulty with that, according to Mr. Flynn, is that the title
deed that existed up to the point of transfer on the 29th October
1997 after the
was in respect of Lots 950 and 951 and the certificate of
consolidation which then became the title deed only existed at the
time of transfer.
existed at the Deeds Registrar was the property which exists up to
the point of transfer, which was Lots 950 and 951, and the existence
of the consolidation diagraph is immaterial. To support this
proposition Mr. Flynn directed the court's attention to the
provisions of the Deeds Registry Act No. 37 of 1968 more particularly
Section 39 (1), 39 (2) and 39 (6).
Flynn further cited the South African case of Barclays Bank D.
vs Ministry of Land 1964 (4) S.A. 284 on the duty of the Registrar of
Deeds to act with caution in transferring properties under his care.
was further argued on behalf of the Applicant that the transfer in
the present case was not an innocent transfer as the 1st Respondent
is also a director of the 2nd Respondent. There was therefore
knowledge on the part of the 2nd Respondent that the property was
under attachment. Mr Flynn cited the case of Mvusi vs Mvusi NO. and
others 1995 (4) S.A. 994 to be at all fours with the instant case.
at page 1002 [I - J] in that case stated the following, and I quote:
Jotham knew that he had no right to the farm but was under an
obligation to return it to the deceased's rightful heirs when he
transferred the farm to 2nd defendant, it follows that he acted in
fraud of the true heirs in transferring the farm to 2nd defendant.
Similarly, if the 2nd defendant was aware at the time of transfer
that there were other heirs of the deceased who had a rightful claim
to the farm (and, therefore, that Jotham had no right to dispose of
the farm) - he would also be acting in fraud of the heirs in taking
transfer. The question then is whether plaintiff has established on
the evidence, on a balance of probabilities, that 2nd defendant had
the necessary knowledge". (my emphasis).
the learned Judge at page 1006 [C - D] continues, and I quote:
all the circumstances I am satisfied that the plaintiff has proved on
a balance of probabilities that the 2nd defendant was not an
"innocent" transferee of the farm at the time the relevant
deed of transfer was registered but he knew that there were other
claimants to the
who had a better right than Jotham to the farm. It follows that the
plaintiff, acting on behalf of the heirs, is entitled to the transfer
relating to the transfer of the farm from Jotham to 2nd defendant set
above extracts from Mvusi case (supra) summarises the case for the
Applicant in casu.
and 2nd respondents' case
Kuny argued au contraire and advanced formidable arguments thereto.
The submissions made on behalf of the 1st and 2nd Respondent can be
conveniently summarised as follows (see page 7 of the Heads of
has failed to discharge the onus it bears of showing that there was a
proper attachment of the immovable property in terms of the Rules of
Court such that the 3rd Respondent was interdicted or precluded from
transferring the property to 2nd Respondent;
if there had been an attachment, but 3rd Respondent acted in
ignorance of it or, if he had knowledge, in deliberate defiance of
it, this would not have rendered the transfer invalid so as to
entitle a court to set it aside and order its re-transfer to 1st
Applicant has abused the process of this court by acting in such a
dilatory fashion and then expecting this court to come to its
assistance on the basis of papers inadequately, inaccurately and
shoddily drawn, and which lack the necessary averments to establish a
cause of action.
the premises 1st and 2nd Respondents contended that this court should
dismiss the application with costs, including the costs of Senior
Counsel as taxed and allowed.
have considered the submissions by both counsel and would tend to
agree with the submissions made by Mr. Kuny on behalf of the 1st and
2nd Respondents. The chronological outline of the relevant facts and
events supports the submission made
behalf of the 1st and 2nd Respondents. The 1st Respondent acquired
Lots 950 and 951 Mbabane Extension 8 in 1983 and 1989. The two
properties were consolidated into Lot 2835 in a diagraph approved by
the Surveyor-General on the 11th January 1991. It appears that no
certificate of consolidated title was applied for or issued at that
the 8th March 1996, provisional sentence in an amount of E444, 793-39
was granted for applicant against the 1st Respondent in Case No.
2231/95 in this court. It is alleged in the founding affidavit that,
pursuant to this judgement, a writ of execution was issued against
movables. There is however, an anomaly about the date of this writ
because on the writ of attachment itself as well as in the telefax
message from the Deputy Sheriff the date is shown as 15th March 1995,
whereas the judgement was granted on the 8th March 1996. Presumably
this is an error on the part of Deputy Sheriff, but no attempt has
been made by the Applicant to explain or even point out this anomaly
and I would agree with Mr. Kuny that this only serves to further
complicate and add to the confusion which emerges from the
the 27th November 1996, the Deputy Sheriff issued a nulla bona return
in respect of "movables" in terms of Rule 45 (1) of the
High Court Rules. There is no explanation given by the Applicant as
to why, if the writ was issued on the 15th March 1996, the return was
only made 9 months later. What occurred during this period? Why was
there such a delay in executing on movable property?
Applicant issued a "writ of attachment" in respect of
immovable property in execution. The writ annexed as "MGD 4"
relates to Lot 950 but there was apparently a separate writ in
respect of Lot 951.
sale in execution was scheduled for the 28th February 1997, but the
Applicant's founding affidavit contains no details or explanation as
to what occurred at that sale. It is not explained why, by the time
the properties were consolidated and transferred in the Deeds
Registry they have not, apparently, been sold either at the auction
paragraph 16, the Applicant alleges that after the attachment (i.e
after 6th December 1996), 1st Respondent began making arrangements
for consolidation of the properties which were under attachment. This
cannot be correct if one looks at the Respondent's reply and the
documents annexed thereto. The consolidated diagraph was signed by
the Surveyor-General as far back as the 11th January 1991, and the
formal issue of the consolidated certificate on the 29th October
1991, 9 months after the "purported" sale in execution.
is considerate doubt, on the papers before court, whether the writ of
attachment was ever served on the 3rd Respondent although the Deputy
Sheriff says that it was served. It appears from the affidavit of the
1st Respondent's previous attorney Mr. Simelane, that he conducted a
search in the Deeds office in 1997 after he had received instructions
from the 1st Respondent to deal with the matter and he found no
"interdict raised on Lot 950 and 951 nor was there any
indication that the said properties were under attachment..."
report from the Registrar filed as an annexure to applicant's
affidavit tends to confirm this since he states "this anomaly
was a result of that the interdict being only noted manually in the
property register". What this means is not at all clear but the
fact is that despite the alleged notification of the interdict to the
Registrar, he went ahead and issued the consolidation certificate and
transferred the property to Jacaranda. He was either unaware of the
alleged interdict or he acted in wilful defiance of it.
the papers before court the Applicant has not established that it
complied with the Rules of this court in effecting an attachment of
the properties (Lots 950 and 951). It is not sufficient for the
Applicant to aver that an attachment was made. Evidence must be
placed before the court to prove this, particularly where the 1st
Respondent avers that he had no knowledge of the attachment at the
time that he caused his attorney in 1997 to obtain a consolidated
certificate and to transfer the property to Jacaranda. The Applicant
has not attempted, in reply to 1st Respondent's denial of knowledge
of the attachment, to reply to this denial or to demonstrate that 1st
Respondent indeed has such knowledge and how and when he acquired it.
in all, I agree in toto with the submissions made by Mr. Kuny for the
1st and 2nd Respondent and would in the result, dismiss the
application with costs, including the costs of Senior Counsel as
taxed and allowed.