THE
HIGH COURT OF SWAZILAND
METRACLARK
(A Division Of Carrier South Africa (Pty) Limited
Plaintiff
And
YVONNE
NISSIOTIS Defendant
Civil
Case No. 221/2002
Coram
S.B. MAPHALALA – J
For
the Plaintiff MR. B. MAGAGULA
For
the Defendant MR. P. DUNSEITH
JUDGEMENT
(04/02/2004)
The
Defendant came before court on the strength of a notice in terms of
Rule 45 (13)
of
the rules of court.
The
said rule provides as follows:
Whenever
a return has been made to a writ of execution, that the officer
charged with the execution has been unable to find sufficient
property subject to attachment to satisfy the amount of the writ or
whenever a judgment debt remains wholly or in partunsatisfied after
the expiration of twenty-one days from the date of the judgment, the
judgment creditor may be notice call upon the judgement debtor or,
where the judgment debtor is a body corporate, any director,
manager, secretary or other similar officer thereof, or any person
purporting to act in any such capacity, to appear before the court
on a day fixed by such notice, and to produce such documents as may
reasonably be necessary, in order that the court may investigate the
financial position of the judgement debtor.
2
The
Defendant was examined under oath to ascertain her financial position
for purposes of the rule. She is a 50 year old lady and divorced with
her husband who ran the family business. The said business was
involved in electrical and industrial wholesaling and was started in
1984 but has since gone into liquidation. The principal debt in this
case was that of the said company. The Defendant is being pursued as
one of the shareholders of that company.
She
told the court under oath that the company made between E500, 000-00
to E800, 000-00 per month in its heyday. Her husband took care of the
financial aspect of the business such that she had no knowledge of
where profits went except to say that during those days her family
led an opulent existence. Their home was a mansion in one of the
well-appointed suburbs of Mbabane with all the trappings common to
such places. This unfortunately did not last as the company went into
liquidation in 2001 and she subsequently divorced her husband in
acrimonious circumstances.
Presently
her station in life has been considerably lowered in that she now
resides in a nondescript suburb at Fairview and works as a bookkeeper
for a monthly salary of E2, 000-00. She outlined in great detail how
she spends the said sum to support herself. A sum of El, 000-00 is
paid towards the rental of the house she occupies at Fairview. She
tabulated how the remaining amount is expended in the various
expenses for her existence. She offered that she can pay a sum of
E500-00 towards the debt in this matter. It emerged in her evidence
that she has also been called upon to account in another family
business which is also in financial doldrums, in the matter of
Eberhardt Martin vs Mrs Yvonne Nissiotis Civil Case No. 3198/2001.
This case was postponed to a future date for an examination in terms
of Rule 45 (13) (i).
I
have assessed the evidence before me and I have also considered the
submissions made by Mr. Magagula for the Plaintiff and Mr. Dunseith
for the Defendant. Mr. Magagula contended that a sum of E500-00 would
be appropriate in this case. However, Mr. Dunseith argued that a sum
of E250-00 would be in order. I am inclined to agree with Mr.
Dunseith that a sum of E250-00 would be appropriate in the
circumstances of the Defendant. A sum of E500-00 would be too much
for the
3
Defendant
regard being had to the fact that she still has to answer in Case No.
3198/2001 mentioned above.
In
the result, the Defendant is to pay a sum of E250-00 per month
commencing from the date of this judgment.
S.B.
MABHALALA
JUDGE
