HIGH COURT OF SWAZILAND
PANELBEATERS (PTY) LTD
Case No. 821/2003
MAPHALALA - J
the Applicant MR. P. DUNSEITH
the Respondent MR. L. MAMBA
point of law in limine)
before court is an application brought under certificate of urgency
on the 16th April 2003, for an order inter alia a) staying the sale
in execution to be held in Case No.
on the 17th April, 2003 at 09h 30; b) directing the 2nd Respondent to
deliver an interpleader notice in terms of Rule 58 within 7 days; c)
directing that the vehicle certain Toyota Camry SD 605 DN be kept in
safe custody at the Applicant's residence at Bhunya pending final
determination of the interpleader proceedings; d) costs to be costs
in the interpleader proceedings.
founding affidavit of the Applicant is filed in support thereto.
heard the matter at 8.00am on the 17th April 2003, as the purported
sale was scheduled for 9.30am that very same morning. Mr. Mamba
placed it on record that his client was served late with the papers
hence they could not file answering affidavits, however, he advanced
a point of law in limine from the bar. I heard arguments for and
against the point raised and reserved my ruling on the matter.
However, I granted prayer (a) viz staying the sale in execution to be
held in Case No. 271/2002 on the 17th April 2003 at 9.30am. I
intimated to the parties that a full judgement would follow in due
course. Mr. Mamba was of the view that the point raised disposes of
the matter. However, Mr. Dunseith holds a contrary view. Following
are my views of the matter.
point of law raised by Mr. Mamba for the 1st Respondent is simply
that the Applicant does not have locus standi to move this
application. Mr. Mamba attacked the paragraph which seeks to
establish her locus standi. The paragraph reads as follows:
I am an adult Swazi married woman, duly assisted by my husband in so
far as may be necessary, residing at Lamgabhi area, Bhunya, Manzini
attack is premised on the dicta in the South African case of Wilson
Yelverton vs Gallymore 1950 (2) S.A. 26 at page 27 that a woman
married in community of property, who is not a public trader, cannot
sue in contract, even with her husband's assistance. That in casu, it
is presumed that the marriage is in community of property unless the
contract be proved. Mr. Mamba further directed the court's attention
to the work by H.R. Hahlo, The South African Law of Husband and Wife
(3rd ED) at page 203 to buttress
point. The learned author states that capacity to make a contract and
capacity to appear in court are two different matters and are not
necessarily coincident in any one person. "It is not the subject
matter of the suit, but the woman's legal capacity which makes the
husband's assistance necessary (see Watkins vs Fick, 1941 W.
229 at 233, per Ramsbottom J. If the husband assist his wife she has
locus standi in judicio and can bring or defend an action herself.
But she may still be the wrong party to sue or be sued, for the claim
in dispute may not be enforceable by or against the wife.
essence of Mr. Mamba's objection is that from the face paragraph 2 of
the founding affidavit the Applicant is presumed to be married in
community of property and thus she cannot sue in contract, even with
her husband's assistance.
Dunseith advanced au contraire arguments. The gravamen of his
arguments is that the presumption relied upon by Mr. Mamba only
applies in South Africa as in Swaziland Section 25 of the Marriage
Act created a different presumption to that which operates in South
25 (1) reads as follows: "If both parties to a marriage are
Africans, the consequences flowing from the marriage shall be
governed by the law and custom applicable to them unless prior to the
finalization of the marriage the parties agree that the consequences
following from the marriage shall be governed by the common law".
Mr. Dunseith contended that in casu we only have the affidavit of the
Applicant and there is nothing to gainsay what she has deposed in
this affidavit. The issue of marital power does not arise in this
are the issues before me. The right to sue or the liability to be
sued depends in the first place on capacity. In order to be capable
of either suing or being sued, a person must have locus standi in
judicio. Consequently persons who are wanting in the capacity cannot
be parties to any civil action unless that want of capacity has first
been implemented. Thus where the marital power of the husband over
his wife has not been excluded by antenuptial contract the general
rule is that the wife has no locus standi in
unless she is assisted by her husband (see Beck Pleading in Civil
Actions (3rd ED) by I. Isaacs at page 2 in fin 3 and the cases cited
have considered the arguments for and against the point in limine
raised and my considered view is that paragraph 2 of the founding
affidavit of the Applicant suffices to establish that she has the
necessary loci standi to launch these proceedings. The paragraph
appears to me to be the standard paragraph in matters of this nature.
The issue of marital power does not arise in this case. Further it
would appear to me that the presumption enunciated in the South
African case of Wilson - Yelverton vs Gallymore would not apply in
our law in view of Section 25 (1) of the Marriage Act No. 47 of 1964.
I agree with Mr. Dunseith 's submissions in this regard.
the result, I overrule the point of law in limine and order that the
Respondent file the requisite affidavits. Costs to be costs in the