IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
CASE
NO. 2783/2004
In
the matter between
FREE
EVANGELICAL ASSEMBLIES Applicant
And
EDWARD
AUSTIN MAPHUMZANE DLAMINI Respondent
Coram Annandale,
ACJ
For
Applicant Mr. Mazibuko
For
Respondent Mr. Dunseith
RULING
ON APPLICATION TO FILE A SUPPLEMENTARY
AFFIDAVIT
20th
AUGUST 2004
This
application concerns a most unfortunate and ongoing strife between
two worship leaders and their supporting followers. It commenced
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in
the form of a spoliation application brought as one of urgency
outside normal court hours and the two attorneys were told in no
uncertain terms that their clients were to settle their differences
along Christian principles instead of resorting to the secular
courts. In order to facilitate reconciliation an interim order was
issued in the evening of the 31st October 2003 whereby the respondent
was restrained from preventing access to the disputed church building
during stipulated days and hours of the week and leave was granted to
file opposing papers.
Since
then, the applicant has withdrawn its spoliation application, stating
in the notice of withdrawal that the applicant has been restored
possession of the church building and that the respondent has
complied with the order applied for. That was however not the end of
the matter as the respondent had included in its opposing papers a
counter application for a declaratory order that the respondent be
declared the lawful possessor of the disputed building and to seek a
restraining interdict against the initial applicant.
In
its answering affidavit the respondent ('Pastor Dlamini') levels all
sorts of allegations against the applicant ('Assemblies') which
relate to the
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spoliation
application. It also raises legal points on the locus standi of the
persona of the applicant, represented in the application by the
deponent of the founding affidavit. Issue is also taken with the
correctness of what is termed the Court Order, with an allegation
that it is not the same as what was ordered by the court at the
initial proceedings. There are also allegations that the issued Order
was abused by the Assemblies to gain an unfair advantage by its
members when the intervention of the police was sought by pastor
Dlamini and his group, by telling the police that the matter is sub
judice and that they should leave it alone. These are but a few of
the issues.
There
are various disputes of fact which arise from the papers on diverse
issues, which are not necessary to mention at present.
The
matter has been set down on the court rolls at diverse times prior to
the present hearing without any significant relief or direction by
the court. The present application to be decided is whether the
respondent, pastor Dlamini, should be granted leave to file a
supplementary affidavit or not, and if granted, for the applicant
(Assemblies) to respond thereto.
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The
reason for the current application is to bring it to the attention of
the court that certain new and material developments have taken place
in the interim period, which could affect the ultimate outcome of the
matter.
For
the sake of brevity and due to the ruling made hereunder, it is not
necessary to mention all the issues raised at the hearing of
argument. Suffice to say that there are two opposing views which can
be summarised as follows:
The
applicant's attorney, Mr. Mazibuko, argues that it is trite law that
in spoliation proceedings, no counterapplication for a declaratory
order concerning lawful possession or ownership can be countenanced.
He refers to Willowdale Estate CC and Another v Bryanmore Estates Ltd
1990(3) SA 954 (W) and Van Rooyen and Another v Burger 1960(4) SA
356(0) as authorities. The position as stated is correct and need not
be delved upon.
The
argument continues on the basis that it therefore cannot be that
there is a counterapplication before court to seek a declarator that
the despoiler has a right to possession of the property, since such
an application is not competent as counter application, further that
because of this, there
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also
is no supporting affidavit to justify the application which can now
be sought to be supplemented.
The
counter argument of Mr. Dunseith for the respondent is that since the
spoliation application has been withdrawn, it cannot now be held that
the (counter) application for a declarator is not properly before
court since it is not a 'counter' application anymore - it is a
proper and substantive application supported by the founding
affidavit of the pastor, which he now seeks to supplement. Otherwise
put, it is that although it may be so that a counterapplication by an
alleged despoiler to seek a declarator in spoliation proceedings as
to lawful ownership might not be competent, such a bar has fallen
away after the spoliation application has been withdrawn, which now
leaves only the application for a declarator before the court. The
latter is supported by an affidavit, which it is competent to
supplement.
Both
lines of argument has some merit. The balance of convenience favours
the respondent. But if it is now determined that all proceedings were
terminated at the time when the spoliation proceedings were
withdrawn, it would require the institution of fresh proceedings, de
novo. If ruled to the contrary, it may then be construed that an
application which was
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incompetent
at the time it was made is now given the go-ahead due to the
withdrawal of spoliation proceedings, the very same proceedings which
at first militated against it.
I
have given careful thought to the arguments placed before me and also
to the issues at hand. It is my considered view that it would not be
equitable and just to order a directive strictly along the lines of
either argument. This is fortified by the various factual disputes
that have been raised by each of the litigants in their papers before
me.
The
proper direction to be taken , in my view, is that the matter be
referred for oral evidence. The Notice of Counter-application dated
the 20th February 2004 is deemed to be the application which is to be
considered, not as counter application in spoliation proceedings,
which have been withdrawn, but as a substantive application instead
of an action, which if it is to be brought as a new action will cause
unnecessary delay in bringing finality to the dispute, over and above
unnecessary costs for each litigant. The affidavits which have been
filed by both litigants may be supplemented and replied to after
which a pre-trial conference is to be arranged whereat the
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judge
will endeavour to assist the parties to find common ground and to
limit the issues in dispute, prior to the hearing.
Costs
are ordered to be costs in the main application.
JACOBUS
P. ANNANDALE
ACTING
CHIEF JUSTICE
