THE HIGH COURT OF SWAZILAND
M. MAZIYA APPLICANT
S.B. NXUMALO 1ST RESPONDENT
TAYLOR 2nd RESPONDENT
COMPANY LIMITED . 3rd RESPONDENT
APPLICANT ELVIS M. MAZIYA
1st RESPONDENT MR. MKHATSHWA
2nd RESPONDENT . MR. P.R. DUNSEITH
3rd RESPONDENT MRS, CURRIE
applicant in this application seeks an order in the following terms:
the monies invested with the garnishee in the Lilangeni portfolio in
the names of the following minor children, namely;
D. Nxumalo Mangaliso A. Nxumalo to be executable in satisfaction of
judgements granted against the first respondent Nathaniel S.B.
and authorising the garnishee to pay the judgement debt in case No.
3011/03 in accordance with the garnishee notice issued on the 30th
January 2004 act of the aforesaid monies declared executable in
terms of paragraph 1 above.
African Alliance Swaziland Management Company Limited to declare the
interest gained on the investment of E2,000,000- in order to effect
prayer (b) of the judgement granted on the 12th December, 2003 in
case No. 3110/03.
brief background of the matter is as follows:
applicant instituted action proceedings against the 1st respondent
and was granted judgement against 1st respondent on 12th December,
2003 under case No. 3110/03 for the payment of the sum of E65,000-,
being the agreed fees due upon a sale of undeveloped piece of
immovable property - (Portion 1 Lot 2187 Mbabane Old Bus Rank)
including further agreed fees of 10% of the interest earned on the
sum of E2,000,000- invested by the first respondent with the
garnishee in the Lilangeni portfolio in the names of his three minor
D. Nxumalo, and
to applicant, at all material times he was the 1st respondent's
attorney and agent in respect of this transaction wherein Portion 1
of Lot 2187, Mbabane Extension 1, Hhohho District, was sold to Motsa
Investments (Pty) Ltd for a purchase price of Three Million
purchase price was paid into the Trust account of the 1st
respondent's conveyancer P.M. Shilubane. After the transfer had been
registered and certain deductions effected, Mr. Shilubane paid the
sum of E2,380,087-50 to the first respondent (as per Annexure "B"
of the Notice of Application).
first respondent then invested a sum of E2,000,000-00 out of these
proceeds in the Lilangeni portfolio of the African Alliance Swaziland
Management Company Ltd, the Garnishee.
to the applicant when 1st respondent invested the money in this way
he was aware that there existed a written agreement between him and
2nd respondent, that 2nd respondent shall have a claim of half the
proceeds of the sale of the property.
to the applicant the other parties namely, Second respondent is not
opposing the application. However, the garnishee namely, African
Alliance Swaziland Management Company Ltd has refused to comply with
the contents as set out in the garnishee notice.
Mkhatshwa for 1st respondent has raised the following point of law:
the judgement debt that is sought to be satisfied is a judgement debt
that was subsequent to proceedings that were instituted against the
first respondent. The application for the garnishee seeks the
attachment of monies that have been invested in the names of certain
other people. That therefore, the judgement cannot be executable
against third parties as they were not parties in the action
proceedings and there was no judgement granted against them.
the foregoing it is clear that the 1st respondent was trying to make
a donation to his three minor children. Regarding this point of law
the question that has to be answered is whether the 1st respondent
complied with the law in making such a donation. From the papers
filed of record it is clear that the 1st respondent had not paid the
2nd respondent half the proceeds of the sale of the piece of land.
Secondly, he had not paid applicant his fees as agreed. It would seem
that his intention in investing the money in the manner he did was
not genuine, but was done with a simple intention of hiding it so as
to defraud 2nd respondent of his half share of the proceeds.
requirements for a donation from parent to child are clear. A
donation from parent to child is a unilateral contract in the sense
that it imposes obligations on one party only. However, it requires a
bilateral consesus for its creation. The donor's gift should not only
be offered to the donee, but, it must be accepted by or on behalf of
a donation from parent to child to be effective against the parent's
creditors and confer enforceable rights on the child there must be;
intention to donate on the parent's part;
overt and irrevocable act by the parent, manifesting this intention,
whereby he divests himself of the subject - matter of the donation;
clear and unequivocal acceptance of the donation by or on behalf of
Contant Vs Contant 1912 EDL 63 it was held per Said Sherl J at page
can be no doubt that when a parent acquires property and has it
registered in his child's name, there is a strong presumption that he
intends to benefit the child; but his presumption is not juris et de
jure, and may be rebutted by evidence manifesting a clear intention
that the child shall only take as trustee"
this matter where the above quotation was extracted an
unrehabilitated insolvent, had not intended to make a donation to his
son when he had acquired a mining concession and two farms in his
son's name, as he had been under the impression that until he
obtained his rehabilitation he was civilly dead, and that he could
acquire no property as against his trustee. His object was to acquire
property for himself, and by having it transferred into his son's
name was to render it secure against the possibility of execution at
the instance of his creditors, but that he never intended to confer
any immediate benefit on his son.
is clear from the instant case that there was no donation made by 1st
respondent to the three minor children. The investment was made
render the money secure against the possibility of execution at the "
instance of his creditors as is the case right now.
respondent cannot therefore; hide behind this investment to say the
money belongs to the three minor children, because there was no valid
donation at the first place. This point of law fails.
second point of law raised by the first respondent is that the
application is irregular for non compliance with the rules of this
honourable court as it is not preceeded by any attempt to levy
execution of the judgement herein by a writ of execution against any
common law a special application to court is necessary in order to
enable the judgement creditor to execute upon money due to the
judgement debtor and in the hands of the third party.
proceedings are now governed by uniform rules of court. Whenever it
is brought to the attention of the sheriff that there are debts which
are subject to attachment, and are owing or accruing from a third
person to the judgement debtor, the sheriff may, if requested thereto
by the judgement creditor, attach the same, and thereupon shall serve
a notice on such third person, hereinafter called the garnishee,
requiring payment by him to the sheriff of so much of the debt as may
be sufficient to satisfy the writ, and the sheriff may, upon any such
payment, give a receipt to the garnishee which shall be a discharge,
pro tanto, of the debt attached.
effect of this rule is that without reference to the court a
judgement creditor may cause to be issued a writ for the attachment
of debts in the form of salary or any money accruing from a third
party to the judgement debtor. If the garnishee refuses or neglects
to comply with the notice, the
must forthwith notify the judgement creditor who may call upon the
garnishee to appear before the court to show cause why he should not
pay to the sheriff the debt due, or so much thereof as may be
sufficient to satisfy the writ.
the garnishee does not dispute the debt due, or claimed to be due by
him to the party against whom execution is issued, or he does not
appear to answer to such notice, the court may order execution to
issue, and it may issue accordingly, without any previous writ or
process, for the amount due from such garnishee or so much thereof as
may be sufficient to satisfy the writ.
is clear from the above quoted rules that it is not necessary that a
writ of execution against movables be issued in this instance. The
applicant has complied with the rules of court. This point of law
the merits of this application it is clear that the first respondent
cannot rely upon the fact that the money deposited by him in the
names of his minor children in the third respondents undertaking
belong to the children. This court has found that there was no valid
donation and as such the money belongs to the first respondent and
not the children. This therefore means that the applicant had no
obligation to join the three children as respondents in this matter.
is however, an order dated 3rd December 2003 issued by the Acting
Chief Justice which does not reflect a case number. The order as
annexed as Annexure 'D' of the Notice of Application is an interdict
restraining the first, second, third, fourth and fifth respondents
from in any manner dealing with the moneys in the custody of the
fifth respondent including withdrawing from or transferring same.
court will vary this order in so fax as it concerns this application
and the satisfaction of this order. It is therefore ordered as
is hereby declared that the monies invested with the garnishee in
the Lilangeni portfolio in the names of the following minor children
M. Nxumalo Vulindlela D. Nxumalo, and Mangaliso A. Nxumalo be and
hereby executable in satisfaction of judgement granted against the
first respondent Nathaniel S.B. Nxumalo under case No. 3011/03.
garnishee is hereby directed and authorised to pay the judgement
debt in case No. 3011/03 in accordance with the garnishee notice
issued on the 30th January 2004 out of the aforesaid monies declared
executable in terms of paragraph No. 1 above.
African Alliance Swaziland Management Company Ltd to declare the
interest gained on the investment of E2,000,000-in order to effect
prayer (b) of the judgement granted on the 12th December 2003 in
Case No. 3110/03.
Respondent to pay costs of this application.