HIGH COURT OF SWAZILAND
COMMERCIAL AMADODA TRANSPORT ASSOCIATION
INTERSTATE KOMBI ASSOCIATION
Case No. 256/2003
MAPHALALA - J
the Applicants MR. J. MASEKO
the 1st, 2nd, & 3rd Respondents MR. MDLULI
the 4th Respondent MR. MDLADLA
Applicants moved an application under a certificate of urgency on the
7th February 2003, for an order inter alia that a rule nisi be issued
by the court for an order calling the Respondents to show cause why
Respondents should not be interdicted from operating
the Nhlangano bus terminus other than where all kombis and mini buses
have been allocated to park and operate; Respondents should not be
interdicted from interfering with the smooth running and/or
operations of the interstate kombis operating at Nhlangano bus
terminus; Respondents be directed not to conduct themselves in a
manner that is likely to provoke the breach of the peace at Nhlangano
bus terminus particularly among the interstate kombi owners and/or
operators including the drivers thereof.
Applicants were granted the said rule nisi which was returnable on
the 14th February 2003, in terms of prayers 2.1, 2.2, 2.3 and 3 of
the notice of motion. In the meantime the 1st, 2nd and Respondents
filed their opposing affidavits.
the 21st February 2003, the matter appeared before court where the
4th Respondent who had not been joined in the initial application
intimated that they sought to be joined in the proceedings as an
interested party. The 4th Respondent was then represented by Mr.
Mazibuko from Masina, Mazibuko and Partners. In that appearance the
Applicants did not object to the joinder and 4th Respondent were then
to file opposing papers in the main application.
matter was then postponed to the 28th February 2003 and the rule
extended to that date.
the 28th February 2003, the matter appeared before Sapire CJ who
further extended the rule to the 14th March 2003, in the contested
motion. However, on the 12th March 2003, the matter took another
twist. The 4th Respondent applied to be joined in the proceedings and
filed an application under a certificate of urgency to that effect
and also applied amongst other things that the rule nisi granted on
the 7th February 2003, be discharged as it was sought under a cloud
of controversy. Applicant having concealed certain material facts and
thus breaching the principles of uberrima fides. The matter appeared
before me where 1 allowed the Applicants to file opposing affidavits
matter was to be argued the following day on the 13th March 2003 at
2.15pm Indeed. I heard submissions on the application for joinder and
reserved any ruling for the following day the 14th March 2003 at
the 14th March 2003, I delivered my ruling granting the application
for joinder and further ruled that the parties argue the matter on
the merits. My ruling on the application for joinder will form part
of this judgement for ease of reference.
parties then made their submissions on the merits. Counsel filed
Heads of Argument and argued at length in this rather sensitive and a
potentially volatile dispute. In view of the urgency which attaches
to this matter I reserved my judgement on the merits to today the
21st March 2003. The rule was accordingly extended.
first Applicant is Swazi Commercial Amadoda Road Transportationat
Association a juristic body registered in terms of the Protection of
Names, Uniforms and Badges An No. 10 of 1969. The chairman of the 1st
Applicant who deposed to the founding affidavit avers that the 1st
Applicant has the capacity to sue and be sued in its own name. I must
hasten to say, that the Respondents in their opposition has taken
this point up that there is no evidence to show that 1st Applicant
has such power. More of this aspect of the matter will be revealed in
the course of this judgement.
2nd Applicant is Shiselweni Interstate Kombi Association a juristic
body also with the capacity to sue and be sued. Again the 2nd
Applicant's locus suandi is challenges the Respondent. Both the 1st
and 2nd Applicant have their principal pilace of business is
1st Respondent is Fogo Jan Dlamini a Swazi male adult of Ndubase are
within the Shiselweni District.
2nd Respondent is David Mabuza a Swazi male adult of Holneck area in
the Shiselweni District.
3rd Respondent is Joyce Matsenjwa a Swazi female adult of Nsongweni
4th Respondent who has been joined in these proceedings is the
Swaziland Interstate Transport Association. An association duly
registered according to the laws of the country with the capacity to
sue and be sued in terms of its association. Clause 14 of the
Constitution of the 4th Respondent gives it power to sue and be sued
through its Chairman or its General Secretary.
parties cited above are all involved one way or the other with the
kombi business in Nhlangano. The bone of contention centres around
the right to park and/or use a certain base within the bus terminus
amongst intestate mini buses and/or kombis in Nhlangano.
I have already mentioned that the founding affidavit which launches
the Applicants cause is by one Sonnyboy Masende Zwane who is the
Chairman of the 1st Applicant.
basis of the Applicants case is that the Shiselweni Commercial
Transport Association (known as SCARTA) is one of four branches of
the Swazi Commercial Amadoda Road Transportation Association body.
This fact is, however, is denied by the General Secretary of the
national body who has filed an affidavit disassociating his
association with that of the 1st Applicant. More of this aspect of
the matter will emerge in the course of this judgment where the issue
of the 1st Applicant's locus standi comes to the fore.
Zwane deposes that the 1st Applicant as an affiliate of the regional
body being the Shiselweni Transport Association is in charge of all
operations at the Nhlangano new bus terminus/rank. It was granted
this authority by the Nhlangano Town Council in a letter
"B". This letter is very important because the 1st
Applicant case revolves around it and therefore, I find necessary to
reproduce it in extenso, thus:
BUS RANK AGREEMENT:
Shiselweni Regional SCARTA to be in-charge of all operations at the
bus rank. In exercising its powers due cognisance of the other
smaller transport associations shall be made. The structures as
contained the SCARTA Constitution shall be used. The deployment of
vehicles to be done by SCARTA after consultation with all other
MOTSA TOWN CLERK."
is also a lot of debate as to which body was given this power by this
letter. The Applicants' version is that the letter gave them the
power. On the other side of the coin the Respondents' version is that
it gave SCARTA the power not the 1st Applicant (Swazi Commercial
Amadoda Transport Association) with the acronym "SCATA"
instead of "SCARTA" which is the national body.
Applicant further attaches annexure "C" which is a working
agreement regarding the management of the said bus terminus to
buttress they position that they are the only body vested with the
authority to manage the goings-on in the bus terminus. Again the
Applicant faces the same impediment as in annexure "B"
because according to the Respondents the said document mentions the
Shiselweni Regional "SCARTA" not the 1st Applicant "SCATA".
Applicants avers at paragraphs 15, 16, 17 and 18 how the Respondents
are interfering with the smooth running of the bus terminus to the
detriment of other users thus the application for an interdict. The
Applicants alleges that this has caused animosity between the 1st
Respondent's drivers marshals and owners of the vehicles that use as
their base the allocated area within the terminus. The situation is
so serious that tensions are now heightened and may erupt into
Zwane avers that the 1st and 2nd applicants have attempted to have
the matter resolved amicably but the 1st Respondent has blatantly
refused to meet Applicants.
Applicants alleges that they have a clear right in paragraphs 24 and
25 of the founding affidavit. At paragraph 27 and 28 the Applicants
avers that they have no other remedy other than the one sought i.e.
interdict. The Respondents have refused and/or deliberately avoided
meeting them with a view to harmonize the transport business in
Nhlangano. At paragraph 29 the Applicants alleges that the balance of
convenience is in their favour.
Maseko for the Applicants advanced very forceful arguments the
essence of which is that the Applicants have fulfilled all the
requirements for a final interdict, viz i) clear right, ii)
irreparable harm and iii) that Applicants have no other remedy. The
court was referred to text by Prest, The Law and Practice of
Interdicts at page 42 in this connection. However, this remains to be
seen in this case.
opposition an answering affidavit of the 1st Respondents has been
filed where he related his version of events. In the said affidavit
the 1st Respondents has raised points of law which are couched in
I get into the merits, I wish to raise the following points of law:
have been advised and verily believe that the Applicant's application
is misdirected in that it is directed to me in my personal capacity
yet all that I am
at the Nhlangano bus rank I am doing it in my official capacity as a
branch chairman of the Swaziland Interstate Kombi Association and
therefore the Swaziland Interstate Kombis' Association should have
been cited in these proceedings as I am mandated by it to look into
its members' interests at the Nhlangano bus rank.
have been advised and verily believe that both first and second
Applicants being associations cannot at law seek an order directing
anyone who is not their member to be guided by their rules and
regulations. Their rules and regulations only bid their members and
not third parties.
have been advised and verily believe that the Applicants cannot apply
for the order they seek for the reason that they have in particular
1st Applicant failed to follow the terms and conditions of annexure
"B" of their application in that they never bothered at any
stage to consult the Swaziland Interstate Kombis' Association, it
being a stake-holder and as such they came before court with dirty
the 2nd Applicant's members have willfully violated a court order
issued by the Nhlangano Magistrates Court on 30th January 2003, and
they are continuing to so violate it and as such they cannot now seek
the assistance of the
with further dirty hands.
have been advised and verily believe that the Applicants ought to
have realized that there is bound to be a serious disputes of fact in
these proceedings and therefore commenced this proceedings in an
action form other than the present form which would have necessitated
the leading of oral evidence to resolve the disputes. The disputes
can be summarized as follows:
dispute that I have threatened, assaulted and breached any place at
the Nhlangano bus rank.
maintain that 1st Applicants' members who are the soul cause of the
violence and it appears that they derive pleasure in it.
deny that there is any agent of mine by the name of Joyce Matsenjwa
and marshal by the name of David Mabuza but state the only David
Mabuza I know is a marshal under my authority as branch chairman for
the Swaziland Interstate Kombis Association.
the merits the 1st Respondent avers that it is the Applicant who are
the cause of the conflict in the Nhlangano bus rank and as a
consequence a court order was obtained from the Nhlangano magistrates
Court restraining members of the Applicant from acts of violence and
1st Respondent took strong exception to the manner the Applicants
obtained the interim order of the 7th February 2003. According to him
"the Applicants have gone behind my back to steal the order
without serving me with the papers and within hours of the court
order being granted they were able to serve me. It is not true that I
am hard to find as I also have an office at Nhlangano which is known
to Applicant and my wife stays at home at Ndubase. I have never
avoided Applicants. The papers were deliberately not served on me and
they went ahead to mislead this honourable court into believing that
I am hard to find yet that is false". I must say in passing that
these allegations by the 1st Respondent were not challenged by the
Applicants in the replying affidavits of Mr. Zwane.
supporting affidavit of the 2nd Respondent is filed where he averred
that he was not in the employ of the 1st Respondent but does work
under the Swaziland Interstate Kombis Association who are his
employers. He also stated that the violence at the Nhlangano bus rank
is not caused by the 1st Respondent but is caused by members of the
Applicants who on many occasions will leave their parking bays to
lure customers from their parking bays to their kombis and if any
customer resist then force will be used to induce fear by the
supporting affidavit of one Mcedi Magagula is filed to buttress what
the 1st Respondent stated in his answering affidavit.
is not clear on the papers why the 3rd Respondent is cited in these
proceedings, as there are no specific acts attributable to her in the
whole dispute. It would appear to me that
is no case against the 3rd Respondent. It is for this reason that I
would discharge the rule in so far as it relates to her forthwith.
to the 4th Respondent who is represented by Mr. Mdladla a founding
affidavit of one Sidumo Dlamini is filed in opposition thereto. I
must say that the 4th Respondent bases its opposition on the founding
affidavit filed in the application for joinder which I have mentioned
earlier on in this judgment.
to tenor of this affidavit a point of law in limine is also raised
that the application is fatally defective in that the affidavit
attached to the notice of motion does not support the notice. The
Applicant in the notice is cited as Shiselweni Commercial Amadoda
Transport Association (Shiselweni Region) whereas the Applicant in
the affidavit is cited as Shiselweni Commercial Transport
Respondent also makes the point that was made by 1st and 2nd
Respondents that annexure "B" confers authority on the
Swaziland Commercial Transport Association (Shiselweni Region) with
the acronym "SCARTA" and not the Shiselweni Commercial
Transport Association (SCATA). The point made here is that it is only
is vested with the powers to regulate the activities at the Nhlangano
bus terminus as per annexure "B" and "C" attached
to the Applicants papers.
point of great substance in this matter was raised by the 4th
Respondent which point was also raised by the 1st and 2nd Respondents
as I have alluded to that on the 7th February 2003, there was a
meeting at the Road Transportation Board, which meeting had been
convened by the Swaziland Commercial Road Transport Association
(SCARTA). The 1st and 2nd Respondents were present. The agenda of the
meeting was to discuss the confusion at Nhlangano because, there were
two conflicting platforms for cross border operations. The meeting
was adjourned for the lunch hour. After the lunch hour, before the
end of the meeting, the 1st Respondent was served by Mr. Maseko the
1st Applicant's attorney with a court order. According to the 4th
Respondent the fact of the matter is that the said application was
drafted and issued on the 7th February 2003. At all
times since 9.00am that day the 2nd Applicant had been in the company
of the 1st Respondent at Mbabane at the offices of the Road
Transportation Board. The 2nd Applicant left the meeting and
instructed his attorneys to institute the application before court.
The 2nd Applicant was aware of the whereabouts of the 1st Respondent.
At the time the order was obtained the 1st Respondent representing
the 4th Respondent, was at the Road Transportation Board. The
Applicants attorneys knew where to serve the 1st Respondent.
Surprisingly the 4th Respondent was never cited notwithstanding that
Applicants knew well that 1st Respondent was acting in his capacity
as officer of the 4th Respondent. The 4th Respondent as a consequent
cries foul and contends that this application is a clear abuse of the
court process. On this point Mr. Mdladla argued that the Applicants
are guilty of non-disclosure of a material fact and that on this
ground alone the rule issued on the 7th February 2003, ought to be
support of the 4th Respondent's case there is an interesting
affidavit of one Duma Msibi who is the General Secretary of the
Swaziland Commercial Amadoda Road
Association. He makes very interesting revelation in this affidavit
which are not complimentary to the Applicants case at all. Firstly,
he reveals that his association "SCARTA" has been entrusted
by the Swaziland Government with the responsibility of regulating
transport in the country. The second revelation is shocking in that
he confirms what was said by the 1st, 2nd and 4th Respondents that
they were at the meeting at the Road Transportation Board where the
issue of Nhlangano bus terminus was being discussed. The 1st
Respondent was served with court papers and the meeting could not
proceed. Indeed the minutes of that meeting confirms this state of
affairs. Equally, startling is the third revelation where Mr. Msibi
deposed at paragraph 4 of his supporting affidavit that the 1st
Applicant is not a branch of the association and that Applicants
formed their own association as evidenced by their constitution. The
authority they seek to have is exclusively preserved for (SCARTA) and
not the Shiselweni Transport Association. If this is true it would
mean that the Applicants have been masquerading as SCARTA in their
notice of motion, it appears to me that the probabilities are that it
is so. The 1st Applicant therefore, is a mere imposter and has
obtained an order of court through
However, I am still going to closely examine this state of affairs as
I progress with this judgement to remove any doubt that this is so.
I have stated earlier on in this judgment that Mr. Maseko for the
Applicants argued with all the force in his command. Counsel for both
1st, 2nd and 3rd Respondents Mr. Mdluli also advanced formidable
arguments against the confirmation of the rule and he filed very
useful Heads of Argument. Mr. Mdladla for the 4th Respondent also
argued forcefully and filed comprehensive Heads of Argument. I have
read the papers filed of record and have also considered the issues
matter has presented me with a conundrum of issues and for the sake
of clarity and a sense of order I shall proceed to examine these
questions under a number of heads, thus:
the Applicants have locus standi , and is so, whether they have shown
a clear right;
the Applicants have shown that their right has been violated;
they do not have another satisfactory remedy;
issue of non-disclosure of a material fact and the consequences
duty of counsel to the court.
issue of costs.
shall proceed to address these matters sequentially, thus:
the Applicants have locus standi and if so, whether the Applicants
have shown a clear right.
1st Applicant is Swazi Commercial Amadoda Transport Association
(Shiselweni Region) - SCATA, however in its founding affidavit at
paragraph 3 it calls itself the
Commercial Amadoda Road Transportation (SCARTA) and attached annexure
"A" being a certificate of registration in terms of the
Protection of Names, Uniforms and Badges Act No. 10 of 1969 where it
is registered as the Shiselweni Commercial Transport Association
(SCTA). From the above it is not clear who the 1st Applicant is. It
is not clear whether it is moving this application as SCAT, SCARTA or
SCTA. To compound the confusion no constitution is attached to the
1st Applicants papers to show whether the 1st Applicant is a
corporate body of the nature of a universitas personarum and
therefore is a legal persona.
same applies to the 2nd Applicant save for the certificate in terms
of the Protection of Names, Uniform and Badges Act no Constitution of
the said Association is filed and therefore it is impossible to
discern whether the said body is of the nature of a universitas
personanim and thus has powers to sue or be sued. In the case of
Lawyers for Human Rights (SWD) and Human Rights Association Swaziland
and the Attorney General Civil Case No. 1822/2001.a full bench of
this court considered the requirements for a universitas in a
thorough exposition of the law in this regard.
Morrison v Standard Building Society 1932 AD 229 at 238, Wessels JA
propounded the applicable principles in the following language:
order to determine whether an association of individuals is a
corporate body which can sue in its own name, the Court has to
consider the nature and objects of the association as well as its
constitution, and if these show that it possesses the characteristics
of a corporation or a universitas then it can sue in its own name ...
A building society is not a partnership in any shape or form. One
member of a building society is not the agent of the others and his
acts cannot bind his fellow members. Nor can a member of such a
society he held liable for the debts of the society. The society
exists as such quite apart from the individuals who compose it, for
these may change from day to day. It has perpetual succession and it
is capable of owning property apart from its members".
casu, I find that a matter of fact and law that the applicants have
not shown on the papers that they have the necessary power to sue and
be sued in their own name.
flaw in both the 1st and the 2nd Applicant does not give them locus
standi to move these proceedings.
for the sake of completeness I would proceed to determine the issues,
assuming I had found that they have locus standi whether they have
shown a clear right as one of the requirements for a final interdict.
In this regard the 1st Applicant relies on annexure "B"
being a letter from the Nhlangano Town Council which according to the
1st Applicant's contention grants the 1st Applicant authority to be
in charge of all operations at Nhlangano New bus terminus. The 1st
Applicant also relies on annexure "C" being a working
agreement regarding the management of the said bus terminus. However,
on closer examination the said documents do not support the
Applicants' assertion. Annexure "B" which I have already
reproduced in extenso earlier on in this judgment in a letter
directed to the Chairman of SCARTA and reads in part "The
Shiselweni Regional SCARTA to be in-charge of all operations at the
bus rank. In exercising its powers due cognisance of other smaller
transport associations shall be made. The structures as contained the
SCARTA constitution shall be used. The deployment of vehicles to be
done by SCARTA after consultation with all other stakeholders".
This certainly does not refer to either the 1st or the 2nd Respondent
because they are not SCARTA.
annexure "C" viz Nhlangano Bus Rank Working Agreement dated
the 12th December 2001, with the motto "we show the way and
others follow (sic) follow" is a
paged document. Throughout the document the Shiselweni Regional
SCARTA is granted powers to be in-charge of all operations at the bus
rank. Again there is no mention of either the 1st Applicant or the2nd
the supporting affidavit of Duma Msibi has diminished any chances of
either the 1st Applicant or 2nd Applicant claiming a right let alone
a clear right in the running of the Nhlangano bus terminus. Mr. Msibi
who is the General Secretary of SCARTA has unequivocally stated
SCARTA's position as regards the 1st Applicant in the following
language at paragraph 4. "I further confirm that 1st Applicant
is not a
of the Association and that they (sic) formed them (sic) their (sic)
own Association as evidenced by their constitution. The authority
they seek to have is exclusively preserved by the (SCARTA) and not
the Shiselweni Commercial Transport Association".
is abundantly clear from the above that the Applicants have not shown
a clear right which entitles them to a final interdict.
the Applicants' have shown that their rights have been violated.
this regard I have studied the papers before me and it appears to me
that on a balance of probabilities the papers show that it is either
the 1st or 2nd Applicant together with their members who breach the
peace that exist at the Nhlangano bus rank. The court Order by the
Nhlangano Magistrates issued on the 30th January 2003, is testimony
of the fact the 1st and 2nd Applicant members are the instigators of
the violence at the Nhlangano bus terminus. That order still stands
as it has not been appealed against by the Applicants.
all probabilities, I find that the Applicants have not proved that
they have a right and that right is being violated or wrong actually
committed or reasonably apprehended. The requirement enunciated in
the celebrated case of Setlogelo vs Setlogelo 1914 A.D. 221 at
has not been met in casu.
they do not have another satisfactory remedy.
would appear to me that the Applicants have another equally available
relief from the Road Transportation Board being the Board responsible
for issuing, renewing and revoking of road passenger permits.
Evidence before court suggests that Applicants have refused to abide
by judgment by the Road Transportation Board in relation to this
matter. A meeting was called by the Board of all stakeholders in the
transport business to discuss inter alia the thorny issue of the
Nhlangano bus terminus. The 1st and 2nd Applicants were represented
in that meeting but instead of participating in the resolution of the
the 1st Applicant opted to rush to this court to obtain a court
order. In these circumstances it can hardly be said that the
Applicants had no other satisfactory remedy available to them. Again
the Applicants have failed to prove this requirement as, per the
dicta in Setlogelo (supra) at 227.
there are disputes of fact in casu for a grant of a final interdict.
to the writer R.G. Mckerron, The Law of Delict (7th ED) (Juta) at
page 140 the learned author states the following: "A final
interdict is usually obtainable only on action, but it may be granted
on motion if the facts in issue are not in dispute". (see
Prinsloo vs Shaw 1938 AD 570 and also Hilleke vs levy 1946 AD 214).
The present application is replete with disputes of fact the most
notorious being the issue as who has the authority to administer the
Nhlangano bus terminus.
on this ground the Applicants would not have succeeded in obtaining a
final interdict on the facts.
issue of non-disclosure.
is common cause that the interim order was granted in the absence of
the Respondents. It is also common cause that the Respondents were
not served with the application prior to the order being granted. The
explanation given by the Applicants when it launched the application
for this was that at paragraph 33 of the founding affidavit. "It
has been (sic) possible to serve this application before hearing as
the Respondents live in the outskirts of Nhlangano, and this being
very far from Mbabane and the court. Further the 1st Respondent has
two homesteads one in Ndubase and another in the Republic of South
Africa. The 1st Respondent can hardly be found in the homestead and
since the whole issue started he has been avoiding the Applicants".
the above it is clear that for all intents and purposes the order of
the 7th ultimo was granted ex parte.
brought the proceedings ex pane, it is trite law that the Applicants
have an obligation to the court to disclose fully the true
circumstances and facts pertaining to the application; Roper J in the
case of De Jager vs Heibrow and others 1947 (2) S.A. 419 (w) said the
following and I quote:
has been laid down, however, in numerous decisions of our court that
utmost good faith must be observed by litigants making ex parte
applications, and that all material facts must be placed before the
court (see Re: Leysdorp and Pieterburg Estates Ltd 1903 T.S. 254;
Crowley vs Crowley 1919 T.P.D. 426). If any order has been made upon
an ex parte application, and it appears that material facts have been
kept back which might have influenced the decision of court whether
to make the order or not, the court has a discretion to set aside the
order on the ground of non-disclosure (Venter vs Van Graan 1929
T.P.D. 435; Barclays Bank vs Gilfs 1931 T.P.D. 9; Hillman Bros vs Van
Den Heuvel 1911 W.L.D. 41). It is not necessary that the suppression
of the material fact shall have been wilful or malafide" (my
J in the case of Cometal Nometal vs Corlana Enterprises 1981 (2) S.A.
the same sentiments at page 414 (G - H) in the following terms; and I
seems to me that, among the factors which the court will take into
account in the exercise of its discretion to grant or deny relief to
a litigant who has breached the uberrima fides rule, are the extent
to which the rule has been breached, the reasons for the
non-disclosure, the extent to which the court might have been
influenced by proper disclosure in the ex parte application, the
consequences, from the point of doing justice between parties, of
denying relief to the Applicant on the ex parte order, and the
interest of innocent third parties, such as minor children, for whom
protection was sought in the ex parte. Application".
authority can be found in the following: Herbstein at el The Civil
Practice of the Supreme Court of South Africa (4th ED) at 367; Nathan
Barnett and Brink, Uniform Rules of Court, 1977 (2nd ED) at page 58;
Spieg vs Walker 1947 (3) S.A. 499 and Stanley Matsebylu vs Aaron
Mavimbela Civil Appeal No. 54/1999, that if there are any material
facts that might have influenced the court's decision and such facts
are wilfully, negligently or in bad faith withheld, the court will as
a rule set aside or rescind its earlier order.
casu, it is my considered view, that on the reading the Applicants'
founding affidavit Mr. Zwane who deposed to this affidavit has failed
to make a full and frank disclosure of all the relevant facts which
were within his knowledge at the time the application was launched on
the 7th February 2003.
is clear evidence which is in sharp contrast to what Mr. Zwane told
the court at paragraph 35 of his affidavit that he was in a
stakeholders meeting on the 7th February 2003, and the 1st and 2nd
Respondents were also present in that meeting. Mr. Zwane left that
meeting during the lunch break to launch these proceeding. The
statement by Mr. Zwane at paragraph 35 was made under oath, and thus
Mr. Zwane has purjured himself. The affidavit of Duma Msibi put the
matter beyond doubt that 1st and 2nd Applicants were present in the
meeting of the 7th February 2003 where 1st and 2nd Respondents were
also present. As I have mentioned earlier on the modus operandi of
that meeting amongst other things was to find a lasting solution to
the feud which had engulfed the affairs of the Nhlangano bus
at paragraph 27 and 28 alleges that the Respondent have refused
and/or deliberately avoided meeting them with a view to harmonise the
transport business in Nhlangano. However, this statement cannot be
correct when viewed in the context of the meeting of all the
stakeholders on the 7th February 2003 called by the Road
Transportation Board. This is another example of bad faith on the
part of the Applicants.
the reasons advanced above and also on the basis of the legal
authorities I have cited the rule can be discharged on this ground
duty of counsel to the court.
wish to make a few comments on the conduct of Mr. Maseko for the
Applicants in this matter. Mr. Maseko knew when the application was
launched that the contents of paragraph 35 of the Applicants'
founding affidavit were not true because an hour after the
was granted the 1st and 2nd Respondents were served with the
application and also the court order. For the duty of counsel which
he owes to the court I refer to the case of Barlow Rand Ltd vs Lebos
and another 1985 (4) S.A. 341 where the well-known passage in the
book by CH Van Zyl "The Theory of Judicial Practice of South
Africa (Vol. 1)" which was published as far back as 1921 were
the following pearls of wisdom were expressed:
these general remarks may be said to be axioms applicable to all
professions and callings of life, but still it is with regard to
legal practitioners that they have mostly occupies the attention of
the Courts and of the public. The origin and development of these
principles, I shall now endeavour to illustrate. Some of the duties
of an attorney are by lawyers better understood than can be fully
described. There are many canons of duty which have not yet been in
print but (apply) not only to oneself and to one's client, but also
to the Bench and to the public. This duty on the part of an attorney
is not a servile thing; he is not bound to do whatever his client
wishes him to do. However much as act or transaction may be to the
advantage, profit or interests of a client, if it is tainted with
fraud or is mean, or in any way dishourable, the attorney should be
no party to it, nor in any way encourage or countenance it. Better
far to part with such a client forever, though he may have been till
then 'the goose that laid the golden eggs'. 'Honestly' in law, as in
everything else, is always and after all, 'the best policy'. The law
exacts from an attorney uberrima fides - that is, the highest
possible degree of good faith. He must manifest in all business
matters an inflexible regard for truth. There must be meticulous
accountancy, a minute high sense of honour and incorrigible
casu, Mr. Maseko failed dismally to live up to this ancient axiom
which is one of the pillars of the legal profession. 1 condemn with
in the strongest terms the actions of counsel in this regard.
issue of costs.
from the Respondents moved the court to impose costs at attorney-
and-own client as it is their view that the launching of this
application was tantamount to an abuse of the process of this court.
Mr. Maseko on the other hand opposed that costs should be levied at
leading case on the award of costs on an attorney and client basis in
Nel vs Waterberg Randbouwers Ko-Operaative Vereeniging 1946 AD 597,
interpreted in Mudzimu vs Chinhoyi Municipality & another 1986
(3) S.A. 140 (ZH).
grounds upon which the court may order a party to pay his opponents
attorney-and-client costs include the following: that he has been
guilty of dishonesty or fraud or that his motives have been
vexatious, reckless and malicious or frivolous (see Real Estate &
Trust Corporation vs Central India Estates Ltd 1923 W.L.D. 121). In
casu, I have found that the 1st Applicant perjured himself in the
founding affidavit of Mr. Zwane. The affidavit was made in bad faith
in view of the meeting of the 7th February 2003, where he was present
and 1st and 2nd Respondents were also present. The order of the 7th
February 2003 was obtained through stealth. An order for costs at
attorney-and-own client is appropriate in this case to mark the
court's displeasure on the conduct of the Applicants. It will be so
reading the papers filed of record it appears to me that the
situation at the Nhlangano bus terminus is volatile and that acts of
violence where loss of life and property is imminent. It is also
apparent from the papers filed of record that there is a long
standing feud between the 1st and 2nd Applicant's association with
the Respondents and that various steps have been taken in the past to
resolve these differences. It also appeared to me that the meeting
called by the Road Transportation Board on the 7th February 2003, was
called inter alia to resolve the matter amicably. However, this
meeting was rudely interrupted when 1st and 2nd Applicants took the
matter to court and obtained an order in their favour. In the
circumstances of the case I would urge the Road Transportation Board
together with the leadership of SCARTA to reconvene a similar meeting
as a matter of urgency of the various parties to sit around the table
to resolve this matter as time is of the essence. I would also
implore the legal representatives of the various parties in this
matter to impress on their clients the need to find a peaceful
solution and to desist from resorting to acts of violence. Failure to
heed this call would
to a state of anarchy at the Nhlangano bus terminus at the expense
not only of disputants but also the general public which uses those
facilities at the bus terminus
my part, for the reasons I have advanced above the rule nisi granted
on the 7th February 2003, is discharged forthwith. The order by the
Nhlangano Magistrate Court of the 30th January 2003 is to prevail.
1st and 2nd Applicants are to pay costs of this suit levied at