Case No. 1952/2003
the matter between
NTOMBANE DLUDLU Applicant
NGULUBE SIFUNDZA Respondent
Applicant Advocate P.E. Flynn
by Cloete Corporate In association with E.J. Henwood
Respondent Mr. P.M. Shilubane
6th February 2004
the purchase of his property at a sale in execution, the erstwhile
owner of the land refuses to vacate it in favour of the purchaser,
due to his insistence on an alleged lien he holds over the property.
The purchaser now seeks to have him evicted so that she can take
possession of the property.
applicant seeks an eviction order to eject the respondent from Lot
522, Ngwane Park, Manzini, with costs. In her founding affidavit,
Grace N. Dludlu states that she is the lawful owner of the property
concerned having purchased it from the Swaziland
Society on the 16th May 2002 at E200 000. A copy of the Deed of
Transfer, No. 493 of 2002 is attached to her application in support
same property is also described in a further and earlier Deed of
Transfer, No. 122 of 2002, wherein by virtue of a Writ of Execution
following a judgment of the High Court dated the 5th May 2002, in a
matter between the Swaziland Building Society as Plaintiff and
Philemon Ngulube Sifundza as Defendant (the present Respondent),
wherein it was sold after attachment at a Public Auction on the 21st
December 2001 for the sum of E121 000 to the Swaziland Building
Society. Thus, the property, which used to belong to the present
respondent, was sold after attachment on an order of Court to the
Building Society, which in turn sold it to the present Applicant.
is the former ownership of the property by Sifundza that is said to
be the fly in the chemist's ointment, as Sifundza is alleged to be
"embroiled in a dispute with the Swaziland Building Society
relating to the property and in the light of this fact he simply
refuses to vacate the property concerned."
state of affairs is not in contention, save for the respondent's
averment that the "applicant bought the property from the
Swaziland Building Society which has a defective title in that it
purported to have purchased the property at a public auction when in
fact and in law the property was bought by Mr. E.J. Henwood". He
goes on to say that: -
any event I have a Hen over the property for useful and necessary
improvements made on the property by me in the sum of E259 000. "
limine, the Respondent pleads that the present matter ought to be
stayed pending finalisation of Civil Case number 1033/2002 between
the Swaziland Building Society and Philemon Ngulube Sifundza wherein
ejectment of the same respondent from the same property is sought,
Mr. Shilubane argues that the plea of lis pendens meets all the
requirements as set out in Amler's pleadings, 5th edition, at page
260 and the authorities there cited. I have yet to receive the
relevant photocopies of Amler's from the attorney because the High
Court Library does not have it available. Attorneys by now should
know that when they refer to textbooks which are not available to the
and if they do not file copies of the portions referred to, it is
difficult to properly consider the material they rely on. However, in
Beck's Theory and Principles of Pleading in Civil Actions, 6th
Edition at page 157, Mr. Justice Daniels refers to Voet 44.2.7,
WESTPHAL V SCHLEMMER 1925 SWA 127 and MOSTERT V VON HIRCHBERG 1959(3)
SA 956(0) as authorities to state that:
validity or otherwise of this dilatory plea depends on whether the
same suit is in fact pending elsewhere. It must be pending elsewhere
between the same parties concerning the same thing, and founded on
the same cause of action. The demand made and the point at issue must
be the same in the pending suit which it is sought to stay, and the
court in which the suit is pending must have jurisdiction to
entertain it. "
Respondent argues that the Applicant derives her title to sue from
the Swaziland Building Society, which is the Plaintiff in the other
matter, relying on FERREIRA V MINISTER OF SOCIAL WELFARE, 1958(1) SA
93 ECD at 95, to state that the Building Society and Grace Dludlu are
"privies" in the matter. Otherwise put, it is to say that
the present applicant derives her action from the plaintiff in the
other case. Mr. Shilubane says that Dludlu is to be deemed to be the
same person as the Building Society, that it is merely a change of
names, justifying the plea of lis pendens to succeed and to put the
present proceedings on hold.
is so that lis pendens does not have to be pleaded as a special plea
(see MARKS AND KANTOR V VAN DIGGELEN 1935 DPD 29), but in appropriate
• circumstances it can also be raised by way of an application for
a stay of the action, as it is done presently (see KERBEL V KERBEL
1987(1) SA 562(W).
essential problem with the raising of lis pendens that Advocate Flynn
placed before Court is the assumption that Dludlu gets title for this
action from the Building Society, that they are "privies"
in that her action is derived from the plaintiff in the pending case.
Essentially, the argument goes, although there might be an action for
ejectment of Sifundza, which is instituted in a Court with
jurisdiction to entertain it, it may also be for the same relief, but
it is between different parties. Founded on the same cause of action,
to have the defendant or respondent ejected from the same
it is not the same suit, not pending elsewhere and not between the
bottom line, so to speak, is whether the applicant in the present
matter and the plaintiff in the pending matter can be said to be
essentially one and the same party, causing the dilatory plea to be
successfully upheld. Thus, it requires to be decided if the
assumption made by the respondent, namely that the applicant obtains
title to the application from the plaintiff in the pending action, is
correct or not.
Swaziland Building Society, who at the time was the owner of the
property, instituted the pending action. In that action, it claimed
to be the registered owner of Lot 522, Ngwane Park, Manzini, having
purchased it at a sale in execution conducted by the Deputy Sheriff.
It further filed a copy of the Deed of Transfer, wherein this is
substantiated prima facie from the face of the papers, Inter alia it
reads that: -
by virtue of a Writ of Execution dated the 12th day of May, 2000 and
issued out of the High Court of Swaziland for the execution of a
judgment of the said Court, dated the 5th day of May, 2000 in an
action wherein Swaziland Building Society was plaintiff and Philemon
Ngulube Sifundza (born on the 8th February, 1948), was Defendant, in
case No. 955/2000 the undermentioned property was attached and sold
by Public Auction on the 21st December, 2001 to the undermentioned
transferee" (the Building Society took transfer from the Deputy
Sheriff of the High Court.)
pending action was instituted by the Building Society against the
occupant, Sifundza, who initially held title to the property but lost
it in the aforesaid action, after which the Building Society
purchased the property at a public sale in execution, giving it
dominium over it and on which basis it sued for ejectment. The lis
therein is between the then registered owner, Swaziland Building
Society, and Sifundza, the erstwhile owner. It sued qua registered
owner of the property, with a defence (an improvement lien) raised by
the defendant against the claim, which still has to be decided in the
High Court of Swaziland.
the property again acquired new ownership on the 17th September 2002
when it was transferred by the Building Society to Grace Ntombane
Dludlu, following the selling of it to her on the 16th May 2003. She
acquired full ownership of the property, financed through a bond in
favour of the Building Society, from which she bought it, which in
turn bought it at the execution sale, following a judgment against
Sifundza. The conditions of the Sale in Execution contains in
paragraph 8 thereof provision that the property may be taken
possession of immediately after the sale, pending payment of a
deposit in cash and furnishing of security for the balance. The sale
in execution was concluded on the 21st December 2001 and the Building
Society which bought it through its agent, attorney E.J. Henwood,
instituted the still pending action against Sifundza on the 8th
April, 2002, thereafter, on the 16th May 2002 selling it to the
applicant with transfer effected on the 17th September, 2002.
the Building Society is not the owner of the property anymore, as it
was at the time it instituted the action against the Defendant,
Sifundza. It is questionable whether it still has any interest to
pursue that matter as it is not affected by it anymore, having sold
it off to Dludlu, the Applicant herein.
sues the same person, for the same cause, but based on her present
ownership, just as the Building Society did. She is the registered
owner and cannot take occupation of her land and house, while the
respondent continues to occupy it. She has no quarrel with any claim
Sifundza might have against the Building Society for any improvements
he may have made over the property. She does not sue him for
ejectment because he did not service his bond with the Building
Society. She does not sue him on strength of a cession either. She
sues as registered owner of the property having purchased it from the
erstwhile owner, Swaziland Building Society, who bought it through
Henwood at a Public Sale in Execution. She has no privity of interest
in the action between the former owner and Sifundza.
present Applicant and the Plaintiff in the pending action are two
entirely different parties. To succeed on a plea of Us pendens, it
has to be shown that the same suit is pending elsewhere, between the
same parties. Elsewhere or not, the parties are simply not the same,
nor can it be found that the applicant derives title to sue from the
Society, She obtains title to sue by virtue of being registered owner
of the property, which the Respondent prevents her from occupying.
the plea that there is a pending suit between the same parties
concerning the same thing and founded on the same cause of action
stands to be dismissed. Costs of arguing the point in limine are to
follow the event, as already indicated during the hearing of the
the merits, the applicant's case is that she bought the property
concerned from the Swaziland Building Society for E200 000, that she
is the registered owner of the property and that she cannot take
occupation due to the respondent's refusal to vacate it. She filed a
copy of the Deed of Transfer in support of her claim of ownership.
Therein, it appears that Lot 522, Ngwane Park, Manzini, was sold to
her by the Building Society and transferred in her name, with
registration on the 17th September 2002. This transfer followed on an
earlier transfer, on the 21st March 2002, from which it appears that
the same property was sold at a sale in execution by the Sheriff
following a judgment of the Court on the 5th May 2000, wherein the
Swaziland Building Society was the plaintiff and Philemon Ngulube
Sifundza, who was the owner of the property prior to the sale in
execution, presently the respondent. The transfer was in favour of
the Building Society. The second paragraph on page four of the Deed
of Transfer reads that: -
the appearer (the conveyancer authorised by a power of attorney
granted by the Acting Registrar of the High Court of Swaziland - my
insertion) renouncing all the right and title his (sic) said Philemon
Ngulube Sifundza heretofore had to the premises, on behalf as
aforesaid, did in consequence also acknowledge her (sic) to be
entirely disposed of and disentitled to the same... ".
purchase price was recorded as E121 000. There was no reserve price,
but no bids under E1 000 were to be accepted.
papers filed in the initial litigation between the Building Society
and Sifundza, incorporated by reference in this matter by the
respondent, it appears that in March
a valuation surveyor, subject to various pre-conditions, determined
the open market value of the property as E259 000 . The execution
sale realised E121 000.
is common cause that the successful bidder at the auction was
attorney E.J. Henwood. Applicant's counsel argues that Henwood
purchased on behalf of his principal, the Swaziland Building Society,
which then became the registered owner of the property. There is no
evidence to gainsay this argument and the Deed of Transfer, according
to which ownership was conveyed to the Building Society from the
former owner, Sifundza, and not from Henwood, supports it.
this regard, in his terse answering affidavit, the respondent avers
that the "...applicant bought the property from the Swaziland
Building Society which has a defective title in that it purported to
have purchased the property at a public auction when in fact and in
law the property was bought by Mr. E.J. Henwood. "
Shilubane argued in court that it cannot be said that the Building
Society bought the property, with its improvements, as it was not
sold to the Society but to Attorney Henwood, who did not disclose
that he acted as agent for a principal. This argument is not
contained in the respondent's heads, but nevertheless requires
is placed on Rule 49(9)(a) and Form 23, and the absence of a
statement by Henwood that he purchased as agent for a principal.
Therefore, it is said that the Building Society did not buy the
property and it could not take title as purchaser, as only Henwood
could do so.
argument misses the point. The dispute is not whether the Building
Society acquired ownership, which it could pass onto the applicant,
but whether the respondent is entitled to retain possession. To now
use bad title by the applicant, vis-a-vis the Building Society, is to
raise a smokescreen. Whether Henwood purchased on behalf of an
undisclosed principal or not, is not the issue. Fact remains that the
Court granted a judgment against the present respondent, ordering the
property to be executable, following which it was sold at a sale in
execution. This did happen, and it eventually found its way to the
applicant. For the present circumstances, it does not matter whether
she obtained her title from the Building Society, with, or without
intervention. The property now belongs to the applicant and not to
Henwood, or the Building Society, or to the respondent for that
matter. Transfer was affected to the Building Society in consequence
of the sale in execution, before it was eventually sold off to the
applicant. The sale itself has not been set aside and there is no
pending application or action to have it done. The sale was conducted
as long ago as the 21st December, 2001, with no action having been
taken to nullify it, at least until the present application was
instituted on the 12th August 2003 and argued on the 7th November,
point cannot be accepted as a bar to the application before court.
second point on which the respondent misplaces his hope for a
dismissal is a purported lien.The respondent states in paragraph 5.2
of his answering affidavit that: -
any event, I have a lien over the property for useful and necessary
improvements made on the property by me in the sum of E259 000 as
morefully appears in annexure "PNS2 " "
it is a very terse statement of fact. The applicant does not disclose
at which time the alleged improvements were made, before or after the
sale in execution. He also does not state whether all or only some of
the buildings etcetera, as described by the valuation surveyor,
(annexure "PNS2") were made by him, nor how it was
financed. One has to bear in mind that the original cause of the
action against him would have been non-servicing of a registered
bond, without any details of it placed before court. For instance, it
is unknown what the initial bonded value of the land was or whether
there were any improvements way back then, further, what the amount
of that bond was. It also remains unknown whether the alleged
improvements by the respondent were financed by the Building Society
or from his own pocket. In addition, the value of the alleged lien is
questionable. It is founded on the valuation report, which is not
before court as an affidavit, which has as basis the open market
value, limited by the valuer for "...the stated purpose and sole
use of the client to whom it is addressed. "
opinion is furthermore based on "the best price at which the
sale of an interest in the property would have been completed
unconditionally of cash consideration" as at March 2003; subject
to "a willing seller"; "a reasonable period for the
completion of the sale"; "the state of the market, level
values and other circumstances"; "no account of any
additional bid by a prospective purchaser with special interest"
and "that both parties to the transaction had acted
knowledgeably, prudently and without compulsion."
applicant states in paragraph 6.2 of her replying affidavit that the
avoids to point out ...that he was granted a loan by the Swaziland
Building Society to build/purchase the property concerned at the
time. Acting in accordance with the provisions of the mortgage bond,
the Swaziland Building Society called up the bond and sold the
property in execution ".
no papers are before court to sustain this averment, it is common
practice for properties to be sold in execution following orders of
Court, despite improvements that may have been effected on it, when
bond repayments fall into arrears.
gist of the matter is however not based on the above scenario, but
whether the existence of a lien by the respondent can successfully be
raised against the applicant, an innocent purchaser from the Building
Society, who obtained title through a sale in execution.
relies on a lien, said to be a valid defence to a claim of rei
vindicatio raised against the applicant on her claim for eviction,
founded on Carey Miller in his work "The Acquisition and
Protection of Property", at page 267, where it is stated that: -
basis of a salvage or improvement lien — which, in view of its
proprietary nature, may, appropriately be designated a real lien, is
recognised to be the unjustifiable enrichment of the owner at the
expense of the one who
incurred expenditure in preserving or usefully improving the
respondent further relies on the judgment in SINGH V SANTAM INSURANCE
LTD 1997(1) SA 291(A), by saying that he has proved all the
requirements of an improvement lien, i.e. that the improvements were
made whilst respondent was in possession of the property and that
such improvements were made lawfully.
this may be true or not does not resolve the matter. There is
absolutely no averment or proof that any of the improvements
allegedly affected by the respondent were made after the date of sale
to either the Building Society vis-a-vis Henwood as its agent, or the
later sale to the applicant, which might have established a lien in
respect of the applicant. The vague allegation by the respondent
cannot be sustained against the claim of the applicant. An
improvement lien over the property, effected by the respondent at the
time he was the owner of the property and which ownership finally
came to an end in December 2001 when it was sold in execution, cannot
now be validly raised against the subsequent purchaser, the
applicant, when regard is had to the existing circumstances.
refrain from expressing any opinion on the outcome of a possible
action by the respondent against the Building Society, by Sifundza.
The fact remains that the former had the property sold at a sale in
execution, pursuant to the judgment it obtained against the latter.
Flynn correctly pointed out that a lien, or right of retention (ius
retentionis), is a right tacitly conferred on a person who is in
possession of someone else's property, of retaining the property
until the value of improvements (or necessary expenses to retain its
value or preserve it), is paid to him. It is a right that arises when
the occupier incurs necessary or useful expenditure on the property
of another. (See Wille and Millin's Mercantile Law of South Africa)
18th edition, at page 417). Such an occupier acquires a "real"
or enrichment /improvement lien.
maxim of superficies solo cedit also applies. All the permanent
structures erected on the then bonded property, owned at the time by
the respondent, permanently attached to the land, Lot 522 Ngwane Park
in Manzini, which property was sold in execution.
the above reasons, the application stands to be granted. It is
ordered that the Deputy Sheriff for the district of Manzini is hereby
authorised to eject the Respondent and/or any other person in
occupation of the property under his authority from Lot 522 situate
in Ngwane Park, Manzini. For no other reason than purely humanitarian
grounds and a consideration of the practical difficulties to arrange
alternative accommodation, it is further ordered that the eviction be
held over for a period of twenty one calendar days following service
of this order on the respondent, to allow him to vacate the property,
failing which the deputy sheriff shall evict forthwith,.
of the application are ordered against the Respondent.