HIGH COURT OF SWAZILAND
FUNANI NKAMBULE N.O.
Case No. 3050/96
MAPHALALA - J
the Plaintiff MR. WARRING
the Defendant MISS GWIJI
matter has a long and chequered history. Further, the tardiness of
this judgment is perhaps explained, though it may not be excused by
the interposing of other matters of immediate urgency which clamoured
for attention. I desire to express my gratitude to counsel for their
patience and understanding.
Plaintiff was initially represented by the offices of the late
Douglas Lukhele who filed the Plaintiff's combined summons on the 6th
December 1996. Mr. Douglas Lukhele subsequently withdrew from being
an attorney of record. The Plaintiff was then represented by Mr. J.G.
Vilakati who also died some years later. Mr. CJ.
then became attorney of record for the Plaintiff.
offices of P.R. Dunseith who represented the Defendant and had filed
the Defendant's plea and counterclaim withdrew as attorney of record
on the 10th June 1997, and Miss Gwiji was appointed to act on behalf
of the Defendant on the 16th June 1997.
November 1997, Mr. J.G. Vilakati who was for the Plaintiff then and
Miss Gwiji for the Defendant held a pre-trial conference in terms of
Rule 37 (1) (b) of the rules of court.
matter came before me for trial on the 3rd April 2000, where I heard
viva voce evidence from a number of witnesses. The Plaintiff gave
evidence herself and then called one witness Mamane Sukati. She then
closed her case.
Defendant then gave her evidence being led in-chief by Miss Gwiji and
she was cross-examined at length by Mr. Littler for the Plaintiff.
The matter was then postponed to another date to be set by the
Registrar of this court. I must add that the evidence in this matter
took two days where substantial testimony for and against the action
matter remained in abeyance until it was set down for continuation
from the 22nd April 2002 to the 23rd April 2002 of the second session
of the court. I must add that part of the reason for this long
postponement was that I was indisposed for most of 2001 -2002.
the matter was called Miss Gwiji informed the court that attorney
C.J. Littler had withdrawn as attorney of record by notice dated the
2nd April 2002, and Plaintiff had not furnished the Defendant's
attorney with an address not being a post officer box within (5) five
kilometres of the court for service of all legal process within 10
days of receipt of
notice. The dies expired on the 23rd April 2002 as reflected in the
certificate of posting.
Gwiji then set the matter for default judgement in terms of Rule 31
(3) (a) of the rules of court based on the Defendant's counterclaim.
It was set for 6th May 2002, where I heard viva voce evidence of the
Defendant under oath in support of the counterclaim. Subsequently, I
invited Miss Gwiji to address me fully on how to proceed in view of
the evidence which has already been adduced in this matter. My query
was based on the dictum in the case of Mauritz Marais Bouers (Pty)
Ltd vs Carizette (Pty) Ltd 1986 (4) S.A. 439 (o) in which the court
refused to grant default judgement on the claim in reconvention.
Miss Gwiji could make submissions on this aspect of the matter the
case took another twist. The Plaintiff had instructed the offices of
Warring, Simelane & Company and Miss Gwiji abandoned the
application for default judgment and the matter then took its normal
course. Mr. Warring went on to cross-examine the Defendant at great
length. The Defendant then closed her case.
court then heard submissions on the 25th November 2002, where both
counsel filed very comprehensive Heads of Argument for which I am
grateful to counsel. In view of the fact that this matter started in
the year 2000 and ended two years later in the year 2002 I heard to
listen to the tapes which are over 10 (ten) in number. This exercise
took a considerable time and my notes are interspersed in three
different Judges Notebooks which made the task even more difficult
and time consuming.
combined summons by the Plaintiff were issued on the 6th December
1996 as I have already mentioned above. The Plaintiff was represented
by the late attorney D. Lukhele.
Plaintiff Tozi Thwala was suing the Defendant Esther Funani Nkambule
in her capacity as the executrix dative in the estate of the late
Albert Msuthu Nkambule that on or about 1980 the deceased Nkambule
and the Plaintiff entered into an oral contract of partnership would
carry on business of moulding and selling cement blocks and buy
properties necessary for carrying on the business of the partnership.
is alleged that it was an express term of the said contract that each
partner would contribute E3, 000-00 initially and that thereafter
various equal sums of money towards the capital of the partnership.
Pursuant to the said contract the Plaintiff avers that she
contributed E3, 000-00 initially and thereafter the sum of El34,
900-00 towards the capital of the partnership and the deceased
contributed similar amounts.
was further an express term of the said contract that the profits and
losses would be shared equally and assets of the partnership would be
registered in the name of the deceased.
the basis of this her contributions to the partnership the Plaintiff
sought the return of items listed in annexure "A" of the
summons. The assets in the main include plot no. 996/1 situate in
Sidvwashini Township, Hhohho district and various motor vehicles.
Defendant's plea and counterclaim.
Defendant opposes the action and has filed her plea together with a
counterclaim on the 20th January 1996. In her counterclaim she
alleges that she was the lawful spouse of the deceased Albert Msuthu
Nkambule and they were married to each other by civil rites on the
9th April 1976 (per annexure "B") being the marriage
certificate, up until the deceased's death on the 3rd September 1995.
On the 12th August 1995, at Ekupheleni, Motshane area plaintiff and
the deceased purported to enter into a marriage by Swazi law and
custom which purported marriage was null and void ab initio.
Defendant alleges that during the deceased's lifetime Plaintiff and
Deceased resided together as husband and wife at Motshane area, where
the deceased built a home, which is part of the joint estate. The
deceased did keep some personal effect, including some assets of the
joint estate with the Plaintiff. These items include motor vehicle
parts and deceased personal effects.
avers that these items are part of the joint estate by virtue of
their marriage in community of property with the deceased. Defendant
alleges that the Plaintiff is in unlawful possession of these items
and Defendant is the custodian by virtue of being appointed executor
by the Master of the High Court on the 3rd September 1999 to wind up
the deceased's estate.
Defendant prays for an order as against the Plaintiff for (a) return
of the items listed in paragraph 5 alternatively payment of the sum
of E28, 430-00 being the total value of the listed items; (b)
interest thereon at the rate of 9% per annum from the date of service
of summons to date of payment; and (c) costs of suit.
evidence by the parties.
I have already mentioned above that the Plaintiff gave lengthy
testimony in support of her claim and she was cross-examined at
length by the other side. She also called a witness to support her
testimony. This witness was also subjected to a lengthy
cross-examination by Miss Gwiji for the Defendant.
Plaintiff also gave lengthy testimony and her cross-examination was
equally lengthy by Mr. Warring for the Plaintiff. The issue to be
decided at the end of the day is whether a partnership between the
Plaintiff and the deceased existed in law, if so, then the Plaintiff
would be entitled to her judgement. However, if the court finds
otherwise, then a judgement ought to go in favour of the Defendant.
As I have already alluded to earlier in the course of this judgement
I heard comprehensive arguments from counsel on these points.
brief facts as gleaned from the various witnesses in this matter is
that the defendant was married with the deceased in 1976 in terms of
civil rites, in community of property. During the course of such
marriage the Defendant and the deceased started a block making
business at Sidvwashini which was christened "Timnandi".
The Defendant explained in detail how this business started from
humble beginnings until it flourished such that when her husband died
he was a relatively a rich man with considerable assets including
trucks, motor vehicles and other assets. The Plaintiff came later
into the life of the deceased first as an illicit girlfriend who used
to come to Sidvwashini to ask on her husband and she later graduated
and got married to the deceased in terms of Swazi law and custom,
albeit contrary to the Marriage Act. This marriage was entered into
by the two in 1995. The Plaintiff gave evidence that during her
relationship with the deceased they entered into the block making
business which was situated at Sidvwashini which is the same as
claimed by the Defendant. The Plaintiff was able to advance money to
the deceased in furtherance of the goals of the partnership because
she came from a family of means. Her father was a moneyed man in his
own right and would help his children especially the Plaintiff to
venture into business on her own.
bone of contention, therefore as I have stated above is whether there
was partnership between the Plaintiff and the deceased or not.
Warring argued at great length in this matter. The gravaman of his
submissions is that sometime in 1980 the Plaintiff entered into an
oral agreement of partnership with the deceased. The terms of the
partnership were that the partnership would carry out the business of
moulding and selling cement blocks and buy properties necessary for
the carrying on the aforesaid business. Plaintiff also testified that
the partnership would be involved in the borrowing and lending of
money. The plaintiff made extensive financial contributions to the
partnership. This oral agreement was on the 24th August 1997
to writing. Inspite of all the evidence that has been presented
before court, the crux of this case is whether the deed of
partnership exhibit "A" can be said to be a valid deed of
Warring went on to outline to the court the general legal principles
applicable in the present case and cited a number of decided cases.
According to him the Defendant has failed to attack the validity of
the partnership deed either on the ground of i) fraud (see Dawson vs
Cape Times Ltd PD 144 ii) duress or misrepresentation (see Janourski
vs Erans 1978 (3) S.A. 16 (o); iii) void for mistake (see Munnik and
Munnik vs Sidney Clow and Co. Ltd 1965 (4) S.A. 313 (T); iv) lack of
consensus or failure of a basis underlying assumption (see Williams
vs Evan 1978 (1) S.A. 1170 (c); v) illegally (see Nottlee vs Credit
Corporation of S.A. 1964 (3) S.A. 451 and vi) failure to comply with
the terms of a statute (see Campbell Discount Co. Ltd vs Gael (1961)
2 AK. ER. 102.
casu, it is argued on behalf of the Plaintiff that the Defendant has
simply denied the existence of a contract, in fact has made bald
allegations both in pleadings and in her evidence. The result is that
the signed deed of partnership is left unscathed. The general rule is
that a document is conclusive as to the terms of the transaction
which it is intended by law to embody. To this effect he referred the
court to the case of Union Government vs Vianini Fero - Concrete
Pipes (Pty) Ltd 1941 A.D. 43 at 47.
assuming that the court does not base its decision on the parole
evidence rule, the court have held that a clear intention to enter
into a partnership must be demonstrated (see Deary vs Deputy
Commissioner for Inland Revenue 1920 C.
541 at 547). That in the present case, the intention may be gleaned
from the existence of a written contract whose validity has not been
put into issue.
Warring went on at length to outline partnership essentialia relating
them to the facts in this case.
in all Mr. Warring referred to the Court of Appeal case of Thandi
Elizabeth Malaza vs Margaret Lomdumo Malaza Case No. 9/93
(unreported) where it was propounded that the degree of proof
required to establish the existence of a partnership was not whether
"the conduct relied upon is not only consistent with the making
of the contract alleged. But is consistent with no other reasonable
interpretation". The court has held that the true inquiry "was
simply whether it was more probable than not that a partnership had
the Defendant's counterclaim it is contended on behalf of the
Plaintiff that it is without any substance as it is based on what she
was told by Albert Nkambule when he was moving some of his items. As
to whether these items eventually arrived at Plaintiff's residence
she cannot confirm as Defendant in her own words has stated that
Albert Nkambule had numerous other girlfriends.
documentary evidence in terms of receipts were submitted by Defendant
to show the value of the items.
Gwiji argued per contra. Plaintiff claims certain assets from the
executing dative, on the basis that she was in partnership with the
deceased. The executrix dative is the legal wife to the late Albert
Msuthu Nkambule. The partnership was allegedly formed orally. The
Defendant does not dispute that a partnership can be concluded
orally. However, the alleged partnership has not given its name to
the court. A partnership only has the capacity to sue or sued in its
Plaintiff was aware when the deceased passed on. It was her
responsibility to have the partnership liquidated, for purposes of
bringing her claim to court. She did not do that and from the record
no account was ever opened with a bank in Swaziland which proves the
existence of this partnership.
Plaintiff cannot account why such partnership's affairs had to be
registered in the deceased's name solely, but does confirm having
been involved in an extra marital affair with the deceased. This does
not give her the right to be involved in any way in the
administration of the deceased's estate. She cannot prove her alleged
contribution of E3, 000-00 nor the alleged sum of El34, 000-00 she
claims to have contributed to the partnership in paragraph 6 of her
Particulars of Claim.
law vis a vis the facts in casu and the conclusions thereon.
test to be applied in this case was elegantly enunciated in Malaga vs
Malaga (supra) as follows:
simply whether it was more probable than not that a partnership had
to writer Robert Sharrock, Business Transaction Law (4th ED) at para
25.1 at page 313 the nature of the contract of partnership is
described in the following terms:
is a contract between two or more parties whereby each contributes or
undertakes to contribute towards an enterprise to be carried on
jointly by them with the object of making a profit and of sharing it
partnership, unlike a company, is not a legal person with an identity
separate from those of its members. But for some purposes it is
treated as if it has a separate identity. The Insolvency Act, for
instance, provides for sequestration of the estate of a partnership
in addition to the estates of the individual partners. And the rules
of court allow proceedings by or against partners to be brought in
the name of the partnership and require execution to be levied
against partnership aspects (i.e. those owned jointly by the
partners) before the estates of individual partners. Because of these
features of separate legal personality, it has been held that a
partner may validly bind himself as surety and co-principal debtor
with the partnership for payment of a debt owned to a creditor.
the present case it is alleged in the Plaintiff's Particulars of
Claim at paragraph 3 as follows:
about 1980, the deceased Albert Msuthu Nkambule and Plaintiff entered
into an oral contract of partnership".
combined summons were issued on the 6th December 1996 and there is no
mention at all of exhibit "A" viz, a written partnership
deed between the Plaintiff and the deceased entered into on the 24th
August 1995. A document entered into 16 months before the launching
of the action. It is curious that this vital document is not
mentioned in the combined summons to buttress the oral agreement
which was entered sometime in 1980. Exhibit "A" is written
in the Siswati language and it embodies what is averred in paragraphs
4, 5, 6, 7 and also annexure "A" in the combined summons is
duplicated in the written deed of partnership being the assets the
Plaintiff brought into the partnership business.
is common cause that Defendant was married to the deceased in terms
of civil rites in community of property. There is no doubt that the
Defendant were for all in intents and purports husband and wife with
the attendant rights and obligations to each other. On the other hand
evidence revealed that the Plaintiff at the time of the purported
oral agreement of partnership was merely a girlfriend to the deceased
who it has become apparent was a ladies' man with a number of
girlfriends on the side. It would appear to me that at one point in
time the relationship between the deceased and the Plaintiff was
contra bones mores and no action could be entertained which arose
from that relationship following the principle of ex turpi causa non
oritur actio. The Plaintiff and the deceased subsequently contracted
a marriage by Swazi law and custom. Clearly that marriage was
bigamous and contra bones mores.
a fair assessment of the facts presented before me I am inclined to
rule in favour of the Defendant following the test enunciated in
Malaza vs Malaza (supra). I am unable to find that a partnership had
been reached in casu. Firstly, the exclusion of exhibit "A"
the written partnership deed between the Plaintiff and the deceased
in the summons when they were launched is highly suspect. As I have
said earlier on this was a vital document and there is no reasonable
explanation why it was not included when the action commenced.
Secondly, on the principle of ex turpi causa non oritur actio at the
time the alleged partnership is alleged to have been entered into
between the Plaintiff and the deceased the Plaintiff knew that the
deceased was a married man. That hers with the deceased was an
illicit affair and it was not even salvaged by the subsequent
marriage in terms of Swazi law and custom which was bigamous in terms
of the Marriage Act. These courts are loathe to recognise agreements
which are contra bones mores.
to the Defendants counterclaim I am not convinced that the Defendant
has proved her case on a balance of probabilities on the facts before
me. The evidence of the Defendant is based on what she was told by
her late husband Albert Msuthu Nkambule when he was moving some of
his items. As to whether these items eventually arrived at
Plaintiff's residence she cannot confirm as Defendant in her own
words stated that her husband had numerous other girlfriends.
following order is accordingly recorded:
Plaintiff's action is dismissed with costs.
Defendant's counterclaim is also dismissed and no order as to costs
is made in this regard.