1
THE
HIGH COURT OF SWAZILAND
AYANDZA
EMADVODZA FARMERS ASSOCIATION LIMITED
Applicant
And
MAJALIMANE
MVILA 1st
Respondent
MTSAKATSI
MAZIYA 2nd
Respondent
HUDUKANE
MASANGO 3rd Respondent
MANIKINA
MASANGO 4th Respondent
NGOLOTANE
MVILA 5th Respondent
REUBEN
MATSABA 6th Respondent
Civil
Case No. 67/2003
Coram S.B.
MAPHALALA - J
For
the Applicant MR. MAGAGULA
For
the Respondent MR. C. NTIWANE
2
RULING
(On
point in limine)
(14/02/2003)
This
matter came under a certificate of urgency for an order in the
following terms:
1. Dispensing
with the normal and usual requirements of the rules of the above
Honourable Court and permitting this application to be heard as one
of urgency in terms of Rule 6 (25) (a) of the Rules of the above
Honourable Court.
2. That
a rule nisi returnable on a date to be fixed by the above Honourable
Court do hereby issue calling upon the Respondent to show cause why:
2.1. The
Respondents should not be interdicted and restrained from blocking
and/or preventing easy access for members of the Applicant's
Cooperative in and out of Applicant's field at Sidvwashini in the
District of Hhohho.
3. The
Respondents should not be ordered to remove barbed with that has been
erected on the Applicant's fields as reflected in the diagram
enclosed in the supporting affidavit hereto marked "AE1".
4. Show
cause why the Respondents should not be ordered to restore the
Applicant's fence that they illegally removed and/or destroyed at the
Applicant's premises situated at Sidvwashini in the district of
Hhohho and that an order should be issued interdicting them from
interfering and/or further removing the aforesaid fence.
5. The
Respondent should not be ordered to pay the costs of this
application.
6. That
orders 2.1 to 5 operate forthwith as an interim relief pending the
return date.
7. Further
and/or alternative relief.
The
founding affidavit of the Chairman of the Applicant one Musa Sifundza
with annexures is filed in support thereto.
The
Respondents opposes the application and the answering affidavits of
the Respondents are filed in opposition thereto. In the answering
affidavit of the 1st Respondent Majalimane Mvila a point of law in
limine is raised. The point is raised as follows:
3
"3.
In limine, I am advised and I verily believe the application is
defective and ought to be dismissed with costs for the reasons set
out below.
3.1
It does not appear in the founding affidavit that Applicant has
locus standi in
judicio
and it can sue and be sued in its own name".
When
the matter came before me on the 5th instant the above point was
argued where counsel filed very comprehensive Heads of Argument for
which I am most grateful.
The
Respondents attack is directed at paragraph 3 of the Applicant's
founding affidavit that the said paragraph, so the argument goes,
does not show that the Applicant has locus standi in judicio and that
it can be sue and be sued in its own name.
Paragraph
3 reads as follows:
"The
Applicant is Ayandza Emadvodza Farmers Association Limited an
association duly formed in accordance with the Laws of the Kingdom of
Swaziland, carrying on its farming operations at Nyakatfo in the
Hhohho District".
The
essence of the arguments advanced by Mr. Ntiwane for the Respondent
is that the fact that Applicant might have been formed according to
the Laws of Swaziland does not give it juristic personality or that
it is a universitas according to our common law. That in casu it
ought to have been stated in the founding affidavit that the
association was capable of suing and being sued in its own name. And
had juristic personality to such an extent that it could own or
acquire immovable in its own name.
Mr.
Ntiwane referred the court to a number of South African cases (see
Malebjoe vs Bantu Methodist Church of South Africa 1957 (4) S.A. 465
at 466 F; Morison vs Standard Building Society 1932 AD 229; Ex
parte
Doornfontein Judiths Paarl Rate payers Association 1947 (1) S.A. 477
and Aail vs Muslim Judicial Council 1983 (4) S.A. 855 at 860 at 861).
Mr.
Ntiwane further argued that the Applicant cannot seek to cure the
defect in the replying affidavit by attaching annexure "Al"
thereto. To support this view he cited the Appeal Court case in VIF
Limited vs Vuvulane Irrigation Farmers Association
4
(Public)
Company (Pty) Ltd Case No. 30/2000 (unreported) at page 8 and the
authorities cited therein where Tebbutt JA stated as follows; and I
quote:
"It
is well established that an Applicant must make the appropriate
allegation in its launching or founding affidavit to establish its
locus standi to bring an application..."
Mr.
Ntiwane further contended that even if the court were to be permitted
to have regard to annexure "Al" then Applicant's problems
would be compounded from the reading of the certificate of collation.
According to Mr. Ntiwane this document does not advance the
Applicant's case any further.
Mr.
Magagula for the Applicant argued per contra. The thrust of his
opposition is that according to the rules, particularly Rule 6 it is
not a pre-requisite that the Applicant must specifically aver in its
founding affidavit that it has locus standi. Paragraph 3 of the
Applicant's affidavit, according to Mr. Magagula has sufficiently
described itself as an association duly formed in accordance with the
laws of the Kingdom of Swaziland, which automatically means that it
is a legal person. What more is expected of the Applicant - asked Mr.
Magagula. He also referred the court to the writing of Herbstein et
al (supra) at page 155.
Mr.
Magagula further submitted that a universitas is a legal fiction, an
aggregation of individuals forming a personal or entity having the
capacity of acquiring rights and incurring obligations to a great
extent as a human being. He cited the case of Morrison vs Swaziland
Building Society 1932 AD 229 where it stated that where an
association is a universitas personerum, it has full legal capacity
and any action may be brought in the name of the association.
These
are the arguments advanced by counsel for and against the point of
law in limine. Herbstein (supra) at page 129 opens the discussion on
this subject with these apt words: and I quote;
"Before
one cites a party in summons or in applications proceedings, it is
important to consider whether the party has legal capacity to sue or
be sued (legitima persona standi in judicio) and ascertain what the
correct citation of the party is".
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The
learned authors proceed and state that the rules make no specific
provision for the description of parties in application as they do in
respect of action proceedings in Rule 17 (4). Rule 6 (2) simply
provides that when relief is claimed against any person, or when it
is necessary or proper to give any person notice of an application,
the notice of motion shall be addressed both to the Registrar and to
that person. It has been held that this Rule must be viewed as a
provision complete in itself, for the purposes of which locus standi
in judicio will be presumed when the parties are natural persons and
there is nothing to indicate a lack of legal capacity. The learned
authors are of the view that this decision seems, however, to
overlook the fact that civil summons is defined as including a notice
of motion and that the provisions of Rule 17 (4) may therefore be
applicable to the citation of parties in application proceedings. The
learned authors further submit that parties should be cited in the
same way as for actions.
This
appears to me to be the proper approach to adopt in application
proceedings. Citation as provided for by Rules 6 (2) and 17 (4)
cannot be replaced by notification to a group or to persons in
general so as to bring a number of faceless Respondents into the
proceedings. Further, the words of Tebbutt J
A
in the case VIF Limited vs Vuvulane Irrigation Farmers Association
(Public) Company - Appeal Case No. 30/2000 (unreported) at page 8 are
apposite. The learned Judge stated the following at page 8: and I
quote;
"It
is well established that an Applicant must make the appropriate
allegations in its launching or founding affidavit to establish its
locus standi to bring an application and not in the replying
affidavits".
In
the present case the Applicant has dismally failed to establish its
locus standi on the founding affidavit as required by the law. The
fact that Applicant might have been formed according to the Laws of
Swaziland does not give it juristic personality or that it has a
universitas according to our common law. The paragraph is couched in
such general terms that it is not clear under which law the Applicant
is constituted and thus would have loci standi to sue or be sued. In
this regard I agree entirely with the submission advanced by Mr.
Ntiwane.
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As
further proof that Applicant has not established at paragraph 3 locus
standi sufficiently the Applicant sought to cure this defect in its
replying papers. This in law is not permissible and the dicta by
Tebbutt J
A
in VIF Limited case (supra) is quite clear in this regard.
Legal
practitioners should not expect to get sympathy from the court for
shoddy draftsmanship.
For
the above reasons I uphold the point of law in limine with costs.
It
is still open to the Applicant to re-launch its application on fresh
papers.
S.B.
MAPHALALA
JUDGE
