THE HIGH COURT OF SWAZILAND
the matter between:
WABOMAKE (PTY) LTD APPLICANT
BLUE cc t/a SWEET
& ANOTHER 1st RESPONDENT
SUGAR ASSOCIATION 2nd RESPONDENT
THE APPLICANT FOR THE DEFENDANT
is a notice of application brought under the certificate of urgency
for the following relief:
with the usual forms and procedures relating to the institution of
proceedings and allowing this matter to be heard as one of urgency;
that Share Certificate No.7 dated 15th May 2002 is defective and
therefore null and void.
to prayer 2
that the 1st respondent does not hold 6000 shares as that would be
ultra vires the constitution of the applicant;
of this application to be paid by the party or parties opposing the
the applicant such further and/or alternative relief as the above
Honourable Court deems fit.
notice of motion is accompanied by the affidavit of Desmond Tsikati
and a number of annexures from ET1 to ET7. At the
of the hearing, Mr. Gwebu on behalf of the respondent raised certain
points of law, these points are numbered to about five and they are
court has no jurisdiction to hear the matter. By an agreement the
applicant and the 1st respondent agreed to have any dispute arising
out of the agreement referred to and decided by arbitration.
court has no jurisdiction over the matter by virtue of the fact that
1st respondent is peregrinus.
deponent has no authority to bring the application on behalf of the
matter has a likelihood or potential of disputes of facts and as such
should have been proceeded with by way of action proceedings.
matter is not urgent in that the reasons advanced to justify or
satisfy the requirements of Rule 6(25)(b) have not been complied
with the first point. The parties entered into an agreement annexure
ET3 clause 9. Clause 9 of ET provides as follows:
dispute arising at any time between any of the parties in regard to
matter arising out of; or
termination of; or
matter arising out of the termination; of this agreement, shall be
submitted to and decided by arbitration.
is very clear that applicant has not complied with the requirements
of the above said clause. Mr. Simelane on behalf of the applicant
argued that the dispute does not arise from the agreement because
there is no mention in the agreement that first respondent shall be
issued with 600 shares.
don't know whether Mr. Simelane was serious when raising this because
that is what the agreement states. Mr. Simelane also argues that the
issuing of authorised shares certificate amounts to fraud and quotes
in support of his arguments in cases where fraud is involved courts
refused to grant to defendant's request for stay-of proceedings.
my judgment the argument advanced by Mr. Simelane is not only
illogical but is also deliberately avoiding a clear and unambiguous
requirements of clause 9 of the agreement which the parties signed.
First respondent is a peregrinus of this Court and it has not
submitted to the jurisdiction of this Court. Mr. Gwebu for first
respondent referred the court to the agreement ET3 under clause 13
parties elect the following addresses as their respective domicilium
citandi et executandi.
company at King Sobhuza II Avenue, Matsapa, Swaziland.
Corporation at unit 8, Basilumi Park, 6 Hoist Avenue, Montague
Simelane advanced the argument that the first respondent by filing a
notice to oppose, a notice to raise points in limine and asking for a
postponement has submitted to the court's jurisdiction. Again with
the greatest of all respects, how else do you challenge anything
unless you first file something to oppose. And with the greatest of
respects, I cannot agree with Mr. Simelane in this respect.
I uphold the point of law raised by Mr. Gwebu that the parties choose
as the domicilium as provided for under paragraph 13 which I have
just read. I do not propose to deal with all these five points in
limine raised, except to say that the matter is improperly before
this court and it is dismissed with costs.