HIGH COURT OF SWAZILAND
the matter between:
TIBIYO (PTY) LIMITED Plaintiff
(PTY) LIMITED t/a
Plaintiff : Mr Z.D. Jele
Defendant : No Appearance.
parties, the Plaintiff and the Defendant are the lessor and the
lessee, respectively. In or about 9th April, 2001, the Plaintiff,
(Lessor), concluded a written agreement of lease in terms of which
certain premises described as Shop No.U35, Bhunu Mall Manzini, were
let out to the Defendant. Both parties were represented by duly
appointed officials to conclude the aforesaid agreement of lease and
a true copy of which was annexed to the pleadings.
or about June 2002, the Plaintiff sued out a summons from the
Registrar's Office and in which it claimed the following: -
of the sum of E34, 516.76, in respect of arrear rental;
of the sum of El7 545.92 in respect of damages for three months
on the above amounts at the rate of 9% per annum a tempora morae;
of the suit.
delivery of a notice to defend by the Defendant, the Plaintiff moved
an application for summary judgement which was granted as prayed
above by Matsebula J. on the 26th July 2002. The Defendant thereafter
moved an application for rescission of the summary judgement. By
judgement dated 25th October 2002, I granted the application for
rescission and placed the Defendant on terms to file its affidavit
resisting summary judgement.
the 10th July 2002, the matter again served before me and Mr
Mkhatshwa for the Defendant informed the Court that after the
rescission was granted, the parties engaged in negotiations which
culminated in the Defendant conceding claim (a) but resisting claim
(b) for damages. The concession in (a) saw the Defendant paying a sum
of E24, 350.90 (Twenty four Thousand Three Hundred and Fifty
Emalangeni and fifty cents). This payment was accepted by the
Plaintiff. A dispute then arose regarding whether this payment was or
was not in full and final settlement, as alleged by the Defendant and
vehemently denied by the Plaintiff.
the claim for damages, the Defendant was put to terms to files its
Plea on or before close of business on the 17th July 2003, with the
Plaintiff granted leave to file its replication, if any, on or before
close of business on the 23rd July 2003. The parties undertook to
hold a pre-trial conference before the trial and the matter was
postponed for trial. The date of trial was set for the 29th July
2003, in the presence of Counsel on both sides. To this end, it was
agreed that the parties would exchange the summary of evidence of any
witnesses they wished to call in relation to this head of the claim.
relation to the dispute regarding whether the aforesaid payment by
the Defendant was or was not in full and final settlement, the
Defendant sought and obtained leave to file a supplementary affidavit
strictly on this question on or before close of business on the 17th
July 2003. The Plaintiff was to respond thereto on or before close of
business on the 23rd July 2003
Defendant filing a reply thereto, on or before the 28th July 2003, by
noon. The parties were further ordered to avail any witnesses that
may be necessary for resolving this dispute if viva voce evidence
proved essential, according to the Court's determination, based on
the affidavits filed. The matter was then postponed to the 29th July
on the foregoing terms for hearing of the outstanding issues in both
claims (a), and (b), at the usual Court time, namely 09h30.
the matter was called well after l0h00, Mr Mkhatshwa was not present
in Court. Mr Jele indicated that he called Mr Mkhatshwa's office to
remind him that the matter was to proceed, but the latter was
reportedly out of office. Mr Jele then left a message for him to
attend Court as early as practicable. Mr Jele further informed the
Court that he had not received any papers from Mr Mkhatshwa as
ordered by the Court, in respect of both claims and that as such, he
could not file any papers in response. He further informed the Court
that two (2) attempts to hold the pre-trial conference and to prepare
a minute thereof failed because of Mr Mkhatshwa's non-attendance.
Jele is an officer of this Court and I am, because of his position,
entitled to rely on the information which he furnished to Court. Mr
Mkhatshwa, for reasons yet unknown to the Court, was not present to
refute what Mr Jele stated for the record. I decided, ex abudanti
cautela, to call an official in the Civil Registry of the High Court,
Mrs Gloria Mabuza and she testified under oath that the Registrar's
office had not, from the records, received any papers from Mr
Mkhatshwa in relation to this matter on the 17th July 2003 or
subsequent thereto. I therefor find for a fact that notwithstanding a
clear and unambiguous Order, issued in the presence of the parties'
representatives, the Defendant has defaulted in filing the relevant
papers on the stipulated dates and times and there is no explanation
view of the foregoing, Mr Jele urged the Court to proceed with the
matter and in view of its history, as postulated above, I could not
but agree with him. I shall now proceed to address both claims having
due regard to the Pleadings and Mr Jele's unchallenged submissions.
(a) - Arrear rental.
indicated above, the Defendant abandoned its opposition to this claim
and this was evident when it paid the amount of E24, 350.90, thereby
leaving a balance of E10, 165.86 from the
claim. The Defendant's only contention was that the amount paid was
in full and final settlement, which was denied by the Plaintiff. When
provided an opportunity to prove that the payment was indeed in full
and final settlement of the claim as alleged, the Defendant failed to
is a trite principle of the law that he who alleges must prove. No
evidence was presented by the Defendant in proof of this assertion on
the date stipulated in the Order of Court. The issue was further
exacerbated by Mr Mkhatshwa's non-appearance in Court. In view of the
foregoing. I am of the view that the Plaintiff's claim, which is now
reduced to E10, 165.86 must stand, in the absence of proof that the
payment was in full and final settlement. Subject to what I say later
in this judgement, it is clear that the Plaintiff, is entitled to an
Order for payment of the aforesaid amount of E10, 165.86, as prayed.
- (b) - Damages.
relation to this leg of the claim, the averrals made by Plaintiff as
set out in the in Particulars of claim are the following at
paragraphs 7 to 10: -
or about the 28th of January 2002, the Defendant informed the
Plaintiff that it sought a premature termination of the agreement of
lease due to certain difficulties. A copy of the letter is annexed
hereto marked "RMS 2".
response, the Plaintiff advised the Defendant that it would accept
the early termination subject to certain conditions. A copy of the
letter to the Defendant setting out the conditions is annexed hereto
and marked "RMS 3".
Defendant failed to comply with the terms set out in annexure "RMS
the premises at the end of March 2002.
Plaintiff seeks damages of three (3) months rental as compensation
termination of the lease.
is necessary, for purposes of putting matters in proper perspective,
to refer to the two annexures referred to above. Annexure "RMS
2" is from the Defendant, and is undated. It
to a conversation with the Plaintiffs Mr Vilane regarding the early
termination of the lease due to the Defendant's financial
difficulties. The Defendant in that letter, undertook to settle the
arrear rentals and made a proposal in that regard.
"RMS 3", dated 6th March 2002, the Plaintiff appears to
refer to a letter addressed to the Defendant in which the terms for
early termination acceptable to the Plaintiff were set out. This
letter was not included in the annexures however. "RMS 3"
stated that early termination would be acceptable to the Plaintiff if
the Defendant would pay three (3) months flat rental as compensation.
the affidavit resisting summary judgement, the Defendant deposed as
follows in relation to this claim at page 8 thereof: -
is not denied that the letter (i.e. "RMS 3 ") was addressed
to Defendant's attorneys. It is respectfully submitted however that
same did not pre-determine the question of damages as it only
amounted to a proposal by the Plaintiff. The parties did not
subsequently abide (sic) such proposal and Defendant's vacation of
the premises was subject to mutual agreement. Indeed, pursuant
thereto, it was Plaintiff that waived its hypothec by surrendering
keys to the premises to the Defendant and allowing Defendant to
remove its property even assisting by providing some of its human
am accordingly advised that the said letter could not have
pre-determined the question of damages and as such the question of
damages has to be tried and evidence led. "
its affidavit in reply, the Plaintiff said the following at paragraph
8: -"The allegations contained in this paragraph are denied.
the Respondent (i.e. Defendant herein) sought an early termination of
the agreement of lease, the Applicant declined but as a concession
agreed to the early termination of the lease.
letter dated 6th March 2002, clearly set out the terms on which the
Applicant (Plaintiff) was prepared to agree to the early termination.
suggest that having refused to agree to early termination, and
without there being any concessions, the Applicant then waived its
rights to claim payment to the balance of the lease (which it was
entitled to) is to say the least very disingenuous on the part of the
Respondent. The Applicant never waived its right nor does the
Respondent even suggest this.
reiterate that the Respondent accepted the terms set out in the
letter dated 6th March, 2002 and it was on this basis that it was
allowed to remove the goods. "
is clear from the foregoing that the Defendant does not deny that it
prematurely vacated the premises nor that the Plaintiff sustained
damages as a result of that early termination. This is indubitably
proved and accepted. The question, it would seem, relates to the
quantum. Without in any way attempting to settle this dispute, it is
a matter of note that the Defendant's explanation is not only
preposterous, but it is also febrile. I say so for the reason that it
refers to a "mutual agreement", in terms of which it
vacated the premises. The terms thereof are not specified and more
importantly, no full account is given for the reason why the
Plaintiff could forgo the balance of the rentals due after the
termination and thereafter release the hypothecated items to the
Defendant without any security whatsoever. This conduct would be
unbecoming of the Plaintiff and unbusinesslike. It would reflect the
absence of astuteness and a low business acumen on the part of the
Plaintiff, inconsistent with a seasoned and reputable property
company of the Plaintiff's calibre. The Defendant's version to me
appears to be nothing less than puerile and disingenuous.
assessment of the veracity or the believability of the one version as
opposed to the other is however of no moment in view of the fact that
this very question was, by consent, referred to trial. It was in this
very wise that the Defendant was on the 10th July 2003 ordered to
file a plea by the 17th July, but it is now an indubitable fact that
it did not. This fact, for all intents and purposes renders this
claim one to proceed by default. The Defendant was afforded an
opportunity to contest the Plaintiff's allegations but did not do so.
It is in my view clear that there is no defence to the claim and
judgement must, subject to what I say further below, be granted in
the Plaintiff's favour in respect of prayer (b) as well. There is in
my view no need to
the Rules regarding the service of a Notice of Bar as the Court had
fixed the deadlines for the filing of the relevant papers, including
a Plea. Failure to comply with the Order did not entitle the
Defendant to any further notice.
is abundantly clear in casu, that the duration of the lease agreement
was a period of five (5) years. It is also not disputed that
cancellation of the lease agreement was done by mutual consent.
learned author Joubert, in his work entitled "The Law of South
Africa", First re-issue, Vol. 14 Butterworths 1991 page at 181,
par 180, states the following:-
lessor may also claim damages in addition to cancellation so he may
claim under this heading an amount equivalent to the rent for the
time during which the property remains unlet provided that the time
would have been within the period of operation of the lease which has
been cancelled, and that mitigation of loss has not been possible ",
- See also A.J. Kerr, "The Law of Sale and Lease",
Butterworth Publishers, 1984, at page 234.
is clear from the foregoing that due to early cancellation, the
Plaintiff was entitled to claim for damages and which it has done.
This claim is clearly in respect of a time falling within the period
of operation of the lease. The only outstanding question for
determination is the quantum of damages. In this regard, Mr Jele
applied for and was granted leave to prove damages by affidavit. I
await receipt of that affidavit in order to determine the amount of
damages due to the Plaintiff.
appears to me proper in the present circumstances, to postpone the
matter sine die and to defer pronouncement of the prayers to be
granted until such time that the affidavit in proof of damages has
been filed and considered by the Court.