HIGH COURT OF SWAZILAND
PLUMBING SUPPLIERS & MAINTENANCE
NATIONAL HOUSING BOARD
ASSOCIATES (PTY) LTD
Case No. 1124/2003
MAPHALALA - J
the Applicants MR. SIMELANE
the Respondents MR. MABILA
points of law in limine)
Applicant filed an application under a certificate of urgency with
the Registrar of this court on the 22nd May 2003, for an order as
with the normal and usual requirements of the rules of the above
Honourable Court relating to services and form of processes and
notices and hearing this matter as a matter of urgency.
a rule nisi do hereby issue calling upon the Respondents to show
cause on Friday the 30th May 2003 why an order in the following terms
should not be made final.
that the original Form J whose copies are annexed in this papers
should be set aside.
Directing that all other documents filed by the 2nd and 3rd
Respondents to the office of the 4th Respondent should also be set
that the 5th, 6th, 7th and 8th Respondents should not make any
payment due to 1st Respondent to anybody until his application has
been resolved, and thereafter to pay to the Applicants as Directors
of 1st Respondent.
the 2nd and 3rd Respondents to vacate the premises of 1st
and to hand over all books, furniture and equipment to the
That the rule nisi above operate with immediate interim effect.
costs on attorney and client scale in the event the Respondents
oppose the application.
founding affidavit of the Applicant is filed in support thereto.
Various annexures in support of the Applicant's application are also
1st, 2nd and 3rd Respondent opposes this application and the opposing
affidavit of the 2nd Respondent is filed in opposition thereto.
Annexures "FM1" and "FM2" being a resolution of
the Board of Directors of T.J. Plumbing Suppliers held on 30th
January 2002 and a cheque from Construction Association Ltd payable
to T.J. Plumbing dated the 12th may 2003, respectively. A supporting
affidavit of the 3rd Respondent is filed in support of the main
opposing affidavit by the 2nd Respondent. Further, two confirmatory
affidavits are filed one by Bongiwe Duma of the Attorney General's
chambers and the other by Mduduzi Mabila who is the attorney for the
Respondents in this dispute.
Respondents have raised points of law which are the subject-matter of
this judgment. These are found in 2nd Respondent's opposing affidavit
and they are couched in the following terms:
matter is not sufficiently urgent to warrant the above Honourable
Court dispense with the procedures pertaining to time limits and
manner of service set out in the rules of court.
the alleged urgency is self-created.
application should be dismissed in that it has got a lot of material
disputes of facts which cannot be decided on affidavit.
application is bad in law in that, save for a confirmatory affidavit,
no supporting affidavit has been filed by the 2nd Applicant.
application does not meet and/or satisfy the requirements of an
must state that this matter was argued in a trancated form. Mr.
Mabila argued the points of law on behalf of the Respondent and the
matter was postponed to another date for Mr. Simelane for the
Applicants to reply. In the meantime Respondents filed affidavits and
in turn Mr. Simelane for the Applicant filed a replying affidavit on
behalf of the Applicants. An issue arose when Mr. Simelane made his
reply whether the replying affidavit should be considered as
Respondents had commenced their points without the existence of the
replying affidavit. Mr. Mabila expressed the view that the replying
affidavit should be disregarded for purposes of arguing the points of
law as some averments therein are put forth to cure the defects in
the founding affidavit. I agreed with Mr. Mabila in this regard
despite Mr. Simelane's protestations. I ruled that for the time being
for purposes of determining the points of law the replying affidavit
should not be referred to by Mr. Simelane for the Applicants.
Mabila argued at great length in support of the points of law in
limine. In turn Mr. Simelane filed very comprehensive Heads of
Argument as usual and the court is indebted for his industry.
shall determine the points raised in seriatum. 1. Urgency.
counsel in this regard are in total agreement as to the legal
position in urgent applications. I find it not necessary to recount
the law in this regard as it has become trite in this division that,
firstly, the Applicant shall in his affidavit or petition set forth
explicitly the circumstances which he avers renders the matter urgent
and secondly, the reasons why he claims that he could not be afforded
substantial redress at a hearing in due course. (see Luna Meuber
Vervaardigers [EDMS] BPK vs Makin and another T/A Makins Furniture
Manufactures 1977 (4) S.A. 135 (W) at 136G en fin 137G; Gallagher vs
Norman's Transport Lines (Pty) Ltd 1992 (3) S.A. 50; Humprey H.
Henwood vs Maloma Colliery Ltd - Case No. 1623/94 per Dunn J (as he
H.P. Enterprises (Pty) Ltd vs Nedbank (Swaziland) Ltd (per Sapire CJ
(as he then was).
casu the Applicant in support of the allegation of urgency in terms
of Rule 6 (25) (b) avers at paragraphs 27 to 30 of the founding
affidavit as follows:
submit that the matter is urgent in that presently I ma out of a job
and the company was
for my upkeep.
I am not heard on an urgent basis I will suffer irreparable harm as
the 2nd and 3rd Respondent will continue to incur further liabilities
on the company and by time that I have been heard by the court I will
find that the company is not worth anything.
submit that the reckless spending of money by the 2nd Respondent the
company will incur many debts, as he will not have anyone who is
going to stand up against him.
this company has clients through my hard work and should the present
application take its normal course I would find that I do not have
anybody to supply.
submit that there is no reasonable cause why the 2nd Respondent
should not leave the company as he has paid back his loan. I remember
that at around November 2002 we made more than E30, 000-00 profit.
the 2nd Respondent blew all this money as he did not give me a
Christmas bonus (my emphasis)".
the papers it would appear to me that the Applicant has satisfied the
requirements of Rule 6 (25) (b), for abridging the rules and
procedures and I would thus overrule the objection in this regard.
filing of a confirmatory affidavit by the 2nd Applicant.
argument advanced on behalf of the Respondents in this regard is that
the 2nd Applicant should have filed a founding affidavit or
supporting affidavit in her own right. The filing of a confirmatory
affidavit was improper.
have considered the arguments advanced for and against this point. I
am inclined to agree with Mr. Simelane that this court should be
guided by rules and in the case of Gideon Gama vs Peter Masango -
Court of Appeal Case No. 20/97 (unreported) where the following was
enunciated; and I quote:
governing procedure such as the rules of the Court, are not made to
enable the lawyers representing parties to a dispute to score points
off on another, without advancing the resolution of that dispute in
any way. They are guidelines aimed at obliging the litigants to
define the issues to be determined, within a reasonable time and
enabling the Courts, as a consequence to organise their
administration as quickly, effectively and fairly as possible".
prejudice is suffered by the Respondents that the 2nd Applicant has
not filed a founding affidavit. I agree in toto with Mr. Simelane
that substantive justice dictates that this matter should be resolved
as a matter of urgency as I have already found in the 1st head above.
thus find that the point of law in limine raised is without substance
in the circumstances of this case.
3. Disputes of facts.
was contended on behalf of the Respondents that the application
should be dismissed in that it has a lot of material disputes of
facts which cannot be decided on affidavit. It is contended on the
other hand on behalf of the Applicant that there are no disputes of
facts in this matter.
is trite law that a real dispute of fact arise most obviously when
the Respondents denies material allegations made by the deponents on
the Applicants' behalf and produces positive evidence to the contrary
(see Herbstein et al, The Civil Practice of the Supreme Court of
South Africa (4th ED) at page 238 and the cases cited thereat).
determination of the question whether a real and genuine dispute of
fact exists is a question of fact for the court to decide (see Ismail
and another vs Durban City Council 1973 (2) S.A. 362 (W) 2X374).
casu, I am inclined to agree with Mr. Mabila that there are numerous
disputes of facts. Firstly, there is a glaring dispute of fact as to
the directorship of the company. The Applicant maintains that he is
still a Director of the 1st Respondent whilst the Respondents hold
the direct opposite. This cannot be reconciled on the papers.
Secondly, and this seems to have been conceded by Mr. Simelane for
the Applicant that there is a dispute as to whether the business was
sold or that they entered into an agreement. There is also a dispute
as to the amount which changed hands in this transaction. Thirdly,
there is a dispute of fact as to whether the Applicant was present on
the 10th October 2002, at Ngwenya when the Board of Directors held a
meeting. Lastly, the validity or otherwise of "Form J"
presents a further dispute of fact.
found that there are disputes of fact the court then has to determine
the future course of the proceedings. The trite principles which
govern in such circumstances is that where, at the hearing of motion
proceedings, a dispute of fact on the affidavits cannot be settled
without the hearing of oral evidence, the court may in its
discretion, (a) dismiss the application; (b) order oral evidence to
be heard on specified issues in terms of the rules of court; or (c)
order the parties to trial (see Herbstein (supra) at page 241). In
the instant case it is my considered view that the Applicant ought to
realized when launching his application that serious disputes of fact
were bound to develop. (see Plascon vs Evans Painting Ltd vs Van
Riebeeck Painting (Pty) Ltd 1984 (3) S.A. 623 (A) at 634 H
and Hudson vs The Master 2002 (1) S.A. 862 (T) at 870 B
the above-mentioned reasons I would dismiss the application on this
ground. I find it unnecessary in view of the conclusion I have
reached immediately above to proceed with the determination of the
other outstanding matters viz, whether Applicant has satisfied the
requirements of an interim interdict.
to the question of costs Mr. Mabila applied that I award costs at a
punitive scale as Applicant ought to have known that disputes of fact
would arise. The question of costs is always in the discretion of the
court. In this instance I would not go so far as to grant costs at
this scale but costs at the normal scale.
application is dismissed with costs at the normal scale.