HIGH COURT OF SWAZILAND
Case No. 1914/2002
MAPHALALA - J
the Applicant MR. A. LUKHELE
the Respondent S.C. SIMELANE
Applicant has filed an application against the Respondent, seeking
amongst other things, the eviction of the Respondent from certain
premises and payment of certain monies said to be outstanding.
the Applicant obtained an order by default against the Respondent.
The Respondent then applied for and was granted an order for
rescission of the judgement.
point taken, in the application for rescission was that the Applicant
had not shown in its papers that it had locus standi before the
Applicant now seeks to renew the application on the same papers
unamplified. It is now argued that in fact the Applicant does not
have locus standi to sue or be sued, in that Applicant is neither a
company, nor is it a statutory organization, nor can it be called a
firm or sole proprietorship.
gravamen of the Respondent attack is premised on a dictum by the
Court of Appeal in the case of VIF Limited vs Vuvulane Irrigation
Farmers Association (Public) Company (Pty) Ltd and another Case NO.
30/2000 (unreported) per Tebbutt J
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".
Simelane for the Respondent further directed the court's attention to
the cases of Ben Scott & others vs Haneson 1980 (3) S.A. 1182 C
and that Ben M. Zwane vs The Deputy Prime Minister and another, High
Court Case No. 624 to buttress his point.
essence of the Respondent's contention is that the Applicant is
described in the founding papers as a body corporate with full legal
capacity and power to sue or to be sued, established by Royal
Prerogative and having its head office at Lozitha. These allegations
according to the Respondent, do not establish locus standi on the
part of the Applicant, since there is no provision in our law for the
establishment of corporate bodies by Royal Prerogative. These
allegations are therefore empty in substance and do not establish
locus standi on Applicant's part.
Lukhele for the Applicant filed very comprehensive Heads of Argument
per contra. It is Mr. Lukhele's view that the Respondent's objection
is misconceived in two respects.
the first place it lacks a factual basis. Indeed, the Respondent has
not filed any answering affidavit to place in issue the various
factual averments made on behalf of the Applicant in the founding
affidavit, which must accordingly be accepted as being admitted. Mr.
Lukhele went on in great length to outline the various averments
pertinent to this point.
the second place, it is contended, the Respondent's argument pay no
regard to the fact that the Applicant is a public institution
established by Royal Prerogative and derives its capacity inter alia
to litigate from its status as a public body. To this effect he cited
the cases of Swaziland Government vs Njenje 1963 - 1969 S.
201 at 204 and Njenje vs Swaziland Government 1970 - 1976 S.
(1) Court of Appeal and that of Sachs vs Donges No. 1950 (2) S.A. 265
(a) at 275 - 276.
are the issues before me. I have considered them very carefully and
it would appear to me that Mr. Lukhele for the Applicant is correct
on the two points he has advanced per contra. Firstly, the Respondent
has not answered the averments in paragraph 3.1, 3.2, 3.3, 3.4, 3.5
and 3.6 of the Applicants founding affidavit which facts seeks to
establish the Applicant's locus standi. The Respondent is deemed to
have admitted this paragraph by not filing any answering affidavit.
There has been no suggestion that the Applicant has lacked, for
example, the contractual capacity to enter into the lease agreement
or other agreements. He has also not alleged or laid any basis for
suggesting that it lacked the capacity to own assets such as the
leased premises in question. Having over many years accepted the
benefits under the lease agreement with the Applicant, it can hardly
lie in the mouth of the Respondent now to contend that the Applicant
"is not a legal person".
agree with Mr. Lukhele that the legal objection not only lacks a
factual and legal foundation but has been raised as a dilatory tactic
to avoid the relief sought by the Applicant where he has raised no
defence on the merits.
the second point, viz the Applicant is a public body or institution
which has been established by Royal Prerogative. Legislation
expressly recognises that the executive authority of Swaziland shall
vest in the King and that such authority may be exercised by the King
directly or through officers or authorities. I refer to Section 69
(1) and (2) of the Establishment of the Parliament of Swaziland Order
read with Section 10 (1) (b) of the Swaziland Administration Act 79
of 1950. See also Section 5 (3) of the Mining Regulations of 1948, as
amended in terms of Notice 94 of 1976. It would also appear to me
that Rule 14 of the High Court rules would be applicable in casu.
agree in toto with Mr. Lukhele that the Applicant is accordingly a
public body established by Royal Prerogative. It clearly has legal
personality separate from that of the individual who compose it, and
it has perpetual succession and is capable of owning (and in fact
owns) property from those appointed to it.
the result, the objection raised by the Respondent is dismissed with
is accordingly granted in terms of prayer 4.1, 3.2 and 3.3 on the
Applicant's application dated the 17th June 2002.