THE HIGH COURT OF SWAZILAND
the matter between:
DORAH SHABANGU PLAINTIFF
MDLULI 1ST DEFENDANT
DISTRIBUTORS (PT) LTD 2nd DEFENDANT
PLAINTIFF B.W. MAGAGULA
DEFENDANTS PHATHAPHATHA MDLULI
is an opposed application for summary judgement. The summons
commencing action is a claim for an amount of E23,910- being half
share of a sum of E47,820- made by second defendant from the sale of
lapels (aids awareness pins) to various business and government and
non profit organisations.
is common cause from the papers filed of record that an agreement was
entered into between the parties on or about October 2000 in terms of
which it was agreed inter alia, that:
plaintiff and defendant embark on a business venture whereby they
would supply lapels (aids awareness pins) to various business
government and non-profit organisations,
lapels would be acquired at a basic cost of E2-56.
lapels would be sold at a cost of E18.50.
profit made on the lapels would be an amount of E15-94.
plaintiff and defendant would share the profits made through the
supply of pins on an equal basis.
was further agreed between the parties that they form a company, the
second defendant, of which the plaintiff and the defendant would be
directors and 50% subscribers to the memorandum. A banking account
was opened in the name of second defendant at the Swaziland Building
Society of which both the plaintiff and the defendant were
to the plaintiff's particulars of claim on the 28th of August 2001
the first defendant, unilaterally and contrary to the provisions of
the Companies Act 7 of 1912, and without notice to the plaintiff,
caused the plaintiff's name to be removed from the register of the
Registrar of Companies by way of Form J (Annex "SDSZ").
the same day (28th August 2001) the first defendant, without notice
to plaintiff, caused a certain Thembinkosi Mdluli to be appointed as
director of the second defendant. The very same Form J was used in
opening another account of second defendant at Nedbank. This account
excluded the plaintiff as the authorised signatory. This was on the
basis of plaintiff's purported resignation as evidence by the
fraudulent Form J.
this set of events, an order was received from the Aids Crisis
Committee in Manzini, which is a government department for 3000
lapels - (as per Annex "SDC4". The value of the order
amounted to E55,500-, which at a profit of E15-94 per lapel would
have resulted in a profit of E47,820-. The plaintiff and the
defendant as 50% shareholders in second defendant would be entitled
to an amount of E23,910- each.
amount of E55,500- was paid to first defendant by the Aids Crisis
Committee. Defendant paid same into the fraudulent bank account held
in the name of second defendant at Nedbank.
first defendant avers that he has a valid defence. He denies the
verbal agreement as stated by the plaintiff in the particulars of
claim. He alleges that they had entered into an agreement regarding a
company known as Phathela Properties (Pty) Ltd.
first defendant further alleges that the plaintiff is entitled only
to certain proceeds where she contributed in finding business. This
submission by the first defendant is strange. Attached to the
combined summons is the memorandum wherein the plaintiff is clearly
reflected as a 50% shareholder.
defendant does not deny that the amount of E55,000- relating to this
transaction was deposited in defendant No.2's account at Nedbank.
is however, very economical with the details of this amount - as to
how it was deposited in this account instead of the Swaziland
Building Society Account.
question of determination in the instant case is whether by entering
in the verbal, agreement as stated above and further confirming the
agreement by forming a company, the obligations of 1st defendant,
towards plaintiff were discharged.
is now clear that the applicant with the first respondent entered
into a business relationship with the intention of sharing profits at
50% basis. For this purpose they were the founders of the second
defendant. This is clear from the Memorandum and the Articles of the
an effort to defraud the plaintiff the first respondent, when he
received payment of E55,000- as proceeds from the order on annexure
"PM1" decided to file Form J saying plaintiff had resigned
and replacing him with a Mr. Mdluli and around those days depositing
this cheque of E55,0Q0-. 1st defendant has dismally failed to
contradict these serious allegations leveled by the plaintiff against
the foregoing I agree with the plaintiff's representative. I am
satisfied that the defendant has no bona-fide defence to the
applicant's claim and that the notice of intention to defend was
given merely to procrastinate. The judgement will therefore be given
against the 1st defendant for payment of the sum of E23,910-00
together with interest thereon a 9% from the date of summons to the
date of payment.
also order that the applicant be reinstated as a director of the
company and is to be reinstated as such in the Registrar of Companies
register until lawfully removed through a company resolution.