THE
HIGH COURT OF SWAZILAND
MUZIPIET
NKOSI Applicant
And
SWAZILAND
BUILDING SOCIETY 1st Respondent
DEPUTY
SHERIFF- H.R. LONG 2nd Respondent
REGISTRAR
OF DEEDS 3rd Respondent
Civil
Case No, 558/2004
Coram
S.B. MAPHALALA – J
For
the Applicant IN PERSON
For
the 1st Respondent MR. J. HENWOOD
JUDGMENT
(06/08/2004)
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The
relief sought.
The
Applicant has instituted motion proceedings for an order, inter alia,
setting aside a sale in execution which took place on the 22nd
November 1996, eight years after the event.
The
preliminary issues.
The
Applicant is representing himself in this matter after he has failed
to secure the services of an attorney to act on his behalf. He was
initially represented by the offices of P.R. Dunseith in the year
1997. The firm later withdrew as attorneys of record. As a result of
this the Applicant could not obtain the services of any other
attorney in Swaziland. He then proceeded a running battle with the
Law Society of Swaziland and at some point reported his matter to the
Attorney General. In the former he had laid a complaint against
certain attorneys who were handling the issue of his house which is
the subject matter of this case. The Disciplinary Committee of the
Law Society found that there was no substance in his allegations and
dismissed the matter. The office of the Attorney General advised him
to report the matter to the police if he suspected that there was
fraud in the manner in which his house was disposed of. He reported
the matter to the police. However the police have not arrested the
suspected fraudsters to date.
As
a last ditch effort to save his house he launched the present
application on the 26th March 2004, drawing the papers himself. When
the matter appeared before me in view of the fact that he is
obviously a layman in rather complicated civil matter I considered
appointing amicus curae to assist the court. However after
considering the matter further I came to the conclusion that it would
not be proper for the court to appoint amicus curae in this case.
Then arguments ensued.
The
facts of the matter.
On
the 24th May 1996, the 1st Respondent was granted a judgment by
default by this court following the failure by the Applicant to
service his mortgage loan with the 1st Respondent. The mortgage loan
was in respect of the purchase of a house at Lot No.
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situate in the Msunduza Township, Extension No. 3 in Mbabane.
Pursuant of the said order the 1st Respondent through the 2nd
Respondent prepared to sell the property in execution. The sale was
set for the 26th May 1996 but could not take place. On the 16th
August 1996 another sale was conducted. The property was sold to a
third party who is not cited in these proceedings. The transfer of
the property to the third party has been effected by the 3rd
Respondent.
The
Applicant's case is that the 2nd Respondent failed to follow the
rules in one or more of the following ways: Firstly, that the 1st
Respondent has not complied with Rule 46 (3) in that the person who
was served the Notice of Attachment was a tenant who did not
understand the contents of the document. Whereas the rule provides
that "the mode of attachment of immovable property shall be by
notice in writing prepared by the Deputy Sheriff and served upon the
owner thereof, and upon the Registrar of Deeds or other officer
charged with the registration of such immovable property, and if the
property is in the occupation of some person other than the owner,
also upon such occupier. Any such notice shall be served as provided
in Rule 4 of these rules upon the owner and occupier and in any other
case by registered letter, duly prepared and posted addressed to the
person intended to be served. The Deputy Sheriff shall notify the
Sheriff and the execution creditor of the attachment as soon as it
has been effected". In this regard the Applicant also avers that
no Notice of Attachment was sent to the 3rd Respondent.
The
second irregularity is that the 2nd Respondent failed to serve the
Applicant with a Notice of Attachment as required by Rule 46 (8) (c)
of the High Court Rules. The rule requires that the 2nd Respondent
was to publish a Notice of Sale once in the newspaper and in the
Gazette not later than 14days before the date appointed for the sale.
In the present case the 2nd Respondent only published the said notice
10 (ten) days before the sale. This rule is pre-emptory and failure
to complied with the said rule renders the sale irregular.
The
third allegation is that the Respondents failed to comply with Rule
46 (a) in that the conditions of sale were not prepared 28 (twenty
eight) days prior to the sale as required by the Rule.
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The
fourth complain made by the Applicant is that the 1st Respondent
ought not to have sold his property as he was not in arrears. In
paragraph 17 of his founding affidavit the Applicant attempts to show
that he was not in arrears when the 1st Respondent obtained judgment
against him. In paragraph 18 he avers that not only was he paying the
1st Respondent he was also paying the rates for the house up until
July 1997.
The
Applicant avers further that the 1st Respondent has not complied with
the provisions of the Land Act, 37 of 1968 in that the two mortgagers
were never informed of the action to be taken by the 1st Respondent,
as there are three mortgagers over the said property. Section 54 91)
of the said Act reads as follows:
"If
a mortgage bond or a material bond is passed by two or more
mortgagers, no release from the bond;
of
any mortgager and his property, or of a portion of the property of
any mortgager, may be released without the written consent of the
other mortgager or mortgagers, or;
of
all the property of any mortgager may be registered unless such
mortgager is also released".
4.
The Respondents defence
The
answering affidavit of the Managing Director, Joseph Vusumuzi
Ndlangamandla with annexures is filed in opposition thereto. A number
of objections in limine have been raised therein. These are the
subject-matter of this judgment.
These
points were neatly paraphrased in Mr. Henwood's Heads of Argument and
with due apologies I shall reproduce them here, for the sake of
convenience. They run as follows:
"1.
The common law principal relating to sales sub-hasta is that a sale
in execution conducted by the Deputy Sheriff shall not, in the case
of movable property after delivery thereof, or in the case of
immovable property after registration of transfer be liable to be
impeached as against a purchaser in good faith and without notice of
any defect. 2. Non-joinder.
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The
Applicant has not cited the purchaser of the property Nompumelelo
Malicia Dlamini (born Mavuso) who is an interested party in the
present proceedings and who should be cited in terms of the
provisions of Rule 6.
3,
The academic nature of the application.
The
relief which the Applicant seeks is academic in the circumstances of
the present case as the Applicant has not sought a rescission of the
judgment which was obtained against him by the 1st Respondent nor has
he set out how the debt which was due to the 1st Respondent at the
date judgment was granted, would be satisfied together with all
interest and costs, in the event that the Applicant is successful in
obtaining the relief which he seeks,
Dispute
of fact.
The
Applicant has sought to approach this court by way of motion when it
is clear that a material dispute of fact would exist in the matter".
I
shall proceed to determine these questions ad seriatum. However,
before doing so I wish to point out en passant that the Applicant was
faced with insurmountable difficulties when arguing this matter and
he ended up appealing to the emotions of the court. However, as much
as there might be an injustice suffered by the Applicant in the
manner in which his property was sold the role of the court is to
dispense justice between man and man within the confines of the law.
Teary-eyed sentiments have no place in a courtroom.
I
proceed thus:
Impeachment
of sale in execution.
The
guiding principle at common law relating to sales sub-hasta is that a
sale in execution conducted by the Deputy Sheriff shall not, in the
case of movable property after delivery thereof, or in the case of
immovable property after registration of transfer, be liable to be
impeached as against a purchaser in good faith without notice of any
defect, (see Messenger of the Magistrate's Court Durban vs Pillay
1952 (3) S.A. 678 at 683 and Conrandi vs Jones 1917 OPD 112).
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In
casu, the property which forms the subject matter of this application
was sold in execution on the 22nd November 1996, to one Nompumelelo
Malicia Dlamini. Registration of the property into the name of the
purchaser was effected on the 20th March 1997. A copy of the Title
Deed marked "AA" is evidence of this fact.
On
the basis of the above-cited legal authorities the Applicant cannot
succeed in impeaching the sale after transfer of the property has
been effected almost eight (8) years after the event. It would appear
to me in this regard that the only available route for the Applicant
is to proceed by way of an action for damages against any of the
Respondents.
Non-joinder.
If
a third party has, or may have, a direct and substantial interest in
any Order the court might make in proceedings or if such Order cannot
be sustained or carried into effect without prejudicing that party,
he is a necessary party and should be joined in the proceedings,
unless the court is satisfied that he has waived his rights to be
joined (see Amalgamated Engineering Union vs Minister of labour 1749
(3) S.A. 637 (A)). In the present case the Applicant has not joined
an interested party in the proceedings namely Nompumelelo Malicia
Dlamini who was the purchaser of the property at the sale in
execution. Furthermore, the 2nd Respondent has long passed away and
the Applicant should have either sued the executor in his estate
alternatively the Sheriff of the High Court but it is abundantly
clear from the fact that the 2nd Respondent at this stage cannot be
sued.
Therefore
on the basis of the above reasons the point of law in limine in this
regard succeeds.
The
academic nature of the application.
The
reasons I have advanced under the first head above viz impeachment of
the sale in execution also applied under this head. The Applicant's
application is academic, whilst he seeks to impeach the sale in
execution on one hand, he does not seek to
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rescind
the judgment, which was granted by this court in terms of which the
property was sold.
Again
under this head the objection in limine is good in law and ought to
be sustained. iv) Dispute of fact.
There
is a glaring dispute of fact in the present case. There is a dispute
of fact between the Applicant's version and the 1st Respondent's
version of how the sale took place and as such, the matter cannot be
determined by way of application, (see Room Hire Co. (Pty) Limited vs
Jeppe Street Mansions (Pty) Limited 1949 (3) S.A. 1155).
Therefore
on the basis of the above legal authority the application ought to be
dismissed as the dispute of facts are so glaring that they cannot be
cured on affidavits.
v)
Conclusion.
It
is clear from what I have said in respect of the various heads that I
have addressed that the present application cannot in law be
sustained.
It
would appear to me that the Applicant should have instituted action
proceedings for damages which he may have suffered as a result of the
sale of his property by the 1st Respondent.
vi)
Order.
In
the result, the application is dismissed with costs.
S.B
MAPHALALA
JUDGE
