HIGH COURT OF SWAZILAND STANDARD BANK SWAZILAND LTD
INVESTMENT (PTY) LTD 1st Defendant
S. BAARTJIES 2nd Defendant
Case No. 1197/04
S.B. MAPHALALA – J
the Plaintiff MISS L. KUNENE
the Defendants MR. M. MABILA
court is an application for summary judgment where Defendants have
filed a notice in terms of Rule 6(12) (c) raising points in limine.
These points are couched as follows:
The matter is res judicata as it was finalized by the Magistrates'
Court for the district of Hhohho (under Case No. 1779/03) on the 27th
August 2003, Reference is made to
"RB" hereto (being a copy of the notice of motion in the
Magistrates' - Court) and annexure "STC4" to plaintiff's
particulars of claim. –
The matter is Iis pendens in the Magistrates Court for the district
of Hhohho under Case No. 1779/03",
Plaintiff has issued out summons against the Defendants for payment
of the sum of E120, 408-25; interest thereon at the rate of 16% per
annum and 3% penalty interest from 30th April 2003 to date of
payment; and costs as between an attorney and his own client.
substantial allegations made by the Plaintiff is that on or about
14th November 2000, the Plaintiff represented by its Manager Mr. Alan
Murray and the 1st Defendant represented by the 2nd Defendant as its
Director concluded a written lease agreement annexed marked "STC1"
and "STC2". In terms of which the Plaintiff leased and
delivered to the 2nd Defendant a certain motor vehicle, a Mercedes
Benz Sprinter 413 panel van registration no. SD 030 PG.
"STC1" and "STC2" set out the standard terms and
conditions operating and effective between the parties.
paragraph 7, 7.1, 7.1.1, 7,1.2, 7.2, 7.3, 7.4, 7.5, 7.6 and 8 the
Plaintiff outlines how the parties were bound to each other in terms
of the lease agreement.
or about 29th August 2003, the Plaintiff was granted a final order by
the Magistrate's Court for the district of Hhohho under Case No.
1779/2003. At the time the court ordered seizure and attachment of
the said motor vehicle, the Defendant was in arrear payment of
instalments in the amount of E88, 435-91 and the total outstanding
amount was the sum of E275, 197-65. The messenger of the court duly
executed the order and delivered the vehicle to the Plaintiff.
Plaintiff on receipt of the motor vehicle appointed a valuator who
valued the vehicle at E122, 139-00. The Plaintiff communicated the
valuation of the said motor
to the 1st Defendant and requested payments of the balance of
instalments outstanding in the sum of E120,420-25 from the 1st
Defendant in accordance with the material terms of the agreement.
Plaintiff avers that the 1st Defendant is in breach in that it has
failed to tender the outstanding balance due to the Plaintiff since
the agreement was cancelled and the motor vehicle repossessed and
valued. The Plaintiff has duly cancelled the agreement as per the
Magistrates Court order under Case No. 1779/2003. (Annexure "STC4").
the matter came for arguments on the points in limine it was
contended for the Defendants that in the present case, as seen in
annexure "STC4" and "RB", the issue between the
parties has been finalized and this court cannot deal with it anymore
as the Magistrates Court made a final and definitive order thereon.
The alternative argument advanced is premised on the principle of lis
pendens. The court was referred to the cases of Lindiwe-Kunene vs
Bheki Kunene - High Court Civil Case No. 2390/99 and that of FNB T/A
Wesbank vs Commissioner of Police and another Civil Case No. 280/01.
argument against the plea of res judicata is that the relief sought
is not identical in the two courts. The matter under Case No. 1779/03
in the Magistrates Court was a matter wherein the Applicant was
seeking for an order for seizure and attachment of a motor vehicle
due to arrear rental payments due to the Applicant by the Respondent
in accordance with the terms and conditions of the lease agreement.
The Magistrate Court on the 23rd July 2003 on hearing of the notice
of motion issued an interim order returnable on the 29th August 2003.
On the return date the court confirmed the interim order and a final
order was issued forthwith.
is contended for the Plaintiff that in the present case the
plaintiff's cause of action is significantly different from the one
before the Magistrates Court. In casu the Plaintiff is claiming for
liquidated damages arising from the balance outstanding less the nett
value of the motor vehicle after it was recovered by the Plaintiff
and disposed of. Therefore, so the argument goes, a plea of res
judicata in the circumstances cannot succeed as one of the intergral
requirements has not been fulfilled.
would appear to me that the plaintiff's contention is correct that
the plea of res judicata cannot be sustained on the facts. However,
it remains to be seen whether the ratio decidendi in the case of
Lindiwe Kunene vs Bheki Kunene (supra) applies to the facts of the
present case. I shall revert to this aspect of the matter later on in
the course of this judgment.
the plea of lis pendens the contention advanced for the Plaintiff is
similar to the submission made in respect to the plea of res
would appear to me again that the plaintiff's submissions are correct
that on the facts a plea of Us pendens cannot be sustained. Having
said that however, it behoves me to further examine whether the dicta
in the case of Lindiwe Kunene (op cit) applies in casu. In that case
the Applicant instituted divorce proceedings against the Respondent
before the Subordinate Court for the district of Lubombo, based on
malicious desertion. The matter- which came before Masuku J was for
inter alia the determination of a point in limine by the Respondent
as to whether the High Court had jurisdiction to entertain the matter
in light of the fact that the lis was pending before the subordinate
court. The learned Judge in that case held that the subordinate court
had jurisdiction to entertain and grant the relief sought by the
Applicant. The court relied on the provisions of Section 15 (c) of
the Magistrates Court Act No. 66 of 1938. The relevant provision
reads as follows:
any other jurisdiction assigned to any courts by this Act, or by any
other law the persons in respect of whom the court shall have
Any persons whatever, in respect of any proceeding incidental to any
action or proceeding instituted in any action or proceeding
instituted in the court by such person himself'.
learned Judge at page 3 of the unreported judgment stated the
application in issue is a proceeding pendente lite, incidental to an
action instituted by the present Applicant before the Siteki
Magistrate's Court. For that reason, it is clear that court has
jurisdiction to entertain the application and grant relief that it
may be minded to give".
Mabila for the Defendants in the present case relied heavily on what
was said in the above-cited case and urged me to hold that the
liquidated damages claim is incidental to the proceedings in the
Magistrate Court. Therefore the Plaintiff ought to have instituted
the present claim in that court.
my respectful view, the facts in Lindiwe Kunene (op cit) are clearly
distinguishable from the facts in the instant case. In the Kunene
case the Applicant had instituted divorce proceedings in the
Subordinate Court and sought to move an application in terms of Rule
43 pendente lite before the High Court. The proceedings at the time
the matter was brought before the High Court were still pending in
the Magistrate Court. This in my view, is the most distinguishing
feature from the present case. The proceedings in the Magistrates
Court were finalized culminating in a court order. In the present
case the claim in the Magistrate Court was for the attachment of the
vehicle yet in the case before this court the claim is for liquidated
damages. The dicta in the Lindiwe Kunene case does not apply to the
facts in casu.
the afore-going reason I dismiss the points of law in limine and rule
that the matter proceeds on the merits. Costs to be the costs in the