THE
HIGH COURT OF SWAZILAND
DANIEL
MABUZA
Applicant
And
VIVIAN
CAMELIUS DLAMINI 1st Respondent
REGISTRAR
OF DEEDS OF SWAZILAND 2nd Respondent
THE
ATTORNEY GENERAL 3rd Respondent
Civil
Case No. 273/2004
Coram
S.B. MAPHALALA – J
For
the Applicant MR. A.LUKHELE
For
the 1st Respondent MR. P. SHILUBANE
JUDGMENT
(13/08/2004)
The
Applicant by notice of motion brought under a certificate of urgency
dated 2nd February 2004, obtained ex parte an order in the following
terms:
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"That
the usual forms and service relating to the institution of
proceedings be dispensed with and that this matter be heard as a
matter of urgency.
That
the Applicant's non-compliance with the rules relating to the above
said forms and service is hereby condoned.
Pending
finalisation of this application and/or any action that might be
instituted by the Applicant against the 1st Respondent, the
Respondents are hereby interdicted from in nay manner transferring
and/or disposing of the property known as:
Certain:
Remaining Extent of Portion 56 of farm 50 situate in the district of
Hhohho,
Swaziland. Measuring as such: 12, 8649 (one two comma eight six four
nine) hectares.
That
the Applicant be and hereby ordered to institute action or action
proceedings against the 1st Respondent within fourteen (14) days and
confirmation of this order.
That
prayer 3 operates with immediate effect.
That
the Respondents be called upon, on a date to be determined by the
above Honourable Court, to show cause why an order in terms of
prayer 3 and 4 should not be made final.
That
copies of this application and the rule nisi be served on all the
Respondents".
The
1st Respondent filed an answering affidavit where a point of law in
limine was raised in paragraph 3 therein. The said paragraph reads as
follows:
"In
limine, I am advised and accept that the rule nisi should not have
been granted in as much as the ex parte application was not served on
me".
The
point was further amplified when the matter came for arguments on the
return date of the Rule. An additional point on urgency was advanced
from the bar. These points are outlined in 1st Respondent's Heads of
Arguments in paragraph 2.1, 2.2, 3 and 4. They read in extenso as
follows:
2.
AD Points in limine.
2.1
It will be submitted on behalf of the 1st Respondent that the court
should not have made an ex parte order because the Applicant was
claiming specific relief against the 1st Respondent. As provided for
in Rule 6 (1) of the Rules of Court, the Applicant should have
employed Form 3 to the Rules of Court and given 15t Respondent the
appropriate notice as required by the Rules of Court. It was held in
Amalgamated Engineering Union vs Minister of Labour 1949 (3) S.A. 637
(A) at 651 and 659 that
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the
court should not make an order which may prejudice the rights of
patties not before it. See also Glegg vs Pristley 1985 (3) S.A. 1950
and Khuketla vs Malahleha LAC 1990-1994 at 280.
2,2
An ex pane application is an application brought without notice to
anyone, either because no relief of a final nature is sought against
any person or because it is not necessary to give notice to the
Respondent (see Collective Investments (Pty) Ltd vs Brink and another
1978 (2) S.A. 252).
3.
In this case, there is no legal basis upon which this matter should
have been treated as urgent.
4.
The fact the Applicant could dispose of the property does not make
the matter urgent because numerous legal steps must be undertaken
before transfer of immovable property could be affected (see
Paragraph 24 of Founding Affidavit, Record page 17).
Before
attempting to address the issue at hand I wish to sketch a brief
history of the matter, for the sake of clarity. The facts of the
matter are that on or about the 29th July 1963, the Applicant
purchased a property known as Portion 56 (Portion of Portion 1 of
Portion C) of Farm No. 50, situate in the district of Mbabane,
Swaziland on Crown land area no. 52, which he held under Deed of
Transfer no. 184/1963. He subdivided the property and over the years
he had sold various portions to various people.
The
Applicant avers in paragraph 10 of his Founding affidavit that on or
about the 26th January 2004, while on a visit to Swaziland he
discovered that he was no longer the registered owner of the
property. Following this discovery he made certain enquiries which
revealed that the said property was on the 9th June 2003 transferred
into the name of the 1st Respondent under Deed of Transfer no.
324/2003; that the transfer was on the basis that he had on the 8th
April 2003, sold the said property to the 1st Respondent for a sum of
E20, 000-00 and that the transfer was done by the 2nd Respondent in
his capacity as his nominated conveyancer and agent. On further
investigations on the pertinent documents he concluded that the 1st
Respondent had perpetrated a fraud in this matter. He then approached
this court for an interdict to maintain the status quo until the
issues have been resolved.
The
1st Respondent on the other hand avers in his Answering affidavit
that the Applicant sold him the property in question. To this end he
has annexed "VD1" being
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a
Memorandum of Agreement of sale between him and the Applicant. He
annexes also an affidavit marked "VD2" allegedly made by
the Applicant. In this affidavit the Applicant deposes that on the
21st January 2002, he sold to the 1st Respondent certain Portion 299
(a Portion of Portion 56) of Farm No. 50, situate in the district of
Hhohho, Swaziland. He also sold to the 1st Respondent, a further
piece of land being Rem 56 of Farm 50 which is adjacent to Portion
299. The 1st Respondent alleges at paragraph 7.2 of his Answering
affidavit that he paid for the property in question before they
signed the Deed of Sale on 8th April 2003.
Reverting
to the points of law in limine, Mr, Shilubane in arguing the point
that the Applicant was not served with the papers cited a Lesotho
Court of Appeal judgment in the case of Khaketla vs Malahleha and
others 1990 - 1994 at page 280 where Ackermann JA (Browde JA and
Kotze'JA concurring) stated in paragraph C in fin F as follows:
"Audi
alteram partem is a fundamental principle of procedural justice. I do
not propose burdening this judgment with an exposition of the
circumstances under which the rule may be departed from in civil
litigation. Apart from cases where:
Statute
or the Rules of court sanction such a departure; or
The
relief sought does not affect any other party,
The
rule should only be departed from in exceptional cases. One such
exceptional case is where there is a reasonable likelihood that
notice to the opposing party would enable him to defeat or render
nugatory the relief sought or precipitate the very harm which the
Applicant is seeking to avert, (see in general, Herbstein and Van
Winsen, The Civil Practice in the Superior Courts of South Africa,
3rd ed at page 59 -60). The principle of audi alteram partem ought
not to be subverted, even when granting a rule nisi, by ordering the
rule (or any part thereof) to operate as an interim order if such
interim order affects the rights of another party, unless such
interim order can itself be justified by the exceptions above
referred to."
On
the issue of urgency it was contended for the 1st Respondent that the
Applicant has not laid the basis for urgency in his Founding
affidavit and therefore the application should not have been enrolled
as an urgent matter.
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Mr.
Lukhele advanced arguments au contraire that in casu the court
exercised its discretion to grant an ex parte order, on good cause
shown. The court was referred to Jourbert, The Law of South Africa
(Vol 3) in paragraph 348 at page 300 where it is stated that a court
always has a discretion to refuse an interim interdict even if the
requisites have been established.
It
was further submitted for the 1st Applicant that the nature of the
relief that the Applicant was seeking ought to have been granted on
an urgent basis to preserve the status quo and to prevent irreparable
harm being occasioned on the Applicant in the event of a transfer.
Having
considered the affidavits before me and the legal arguments advanced
for and against the points of law in limine I have come to the
conclusion that the objections cannot be sustained on the facts. A
court has a wide discretion in such matters and important factors
taken into account are the relative strengths of the parties'
respective cases and whether any other adequate remedy is available.
In my view, the learned Acting Chief Justice exercised his discretion
to grant an ex parte order on good cause shown thereof.
It
would appear to me further that the issue of urgency is now academic
in view of the effect of the ex parte order granted on the 2nd
February 2004. The operative prayers being prayer (a) and (b) read as
follows:
"a)
That the usual forms and service relating to the institution of
proceedings be dispensed with and that this matter be heard as a
matter of urgency;
That
the Applicant's non-compliance with the rules relating to the above
said forms and service is hereby condoned..."
It
is abundantly clear therefore from the above that the arguments
advanced by Mr.
Shilubane
as to urgency and form cannot be sustained.
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In
the result, I rule that the points of law in limine be dismissed and
order that the matter proceeds on the merits. Costs to be costs in
the cause.
JUDGE
