HIGH COURT OF SWAZILAND
ESTATE AGENTS Applicant
STANLEY 1st Respondent
KELLY NO. 2nd Respondent
ESTATE AGENTS Respondent
Case No. 1228/2004
S. B. MAPHALALA – J
the Applicant MR. M. MABILA
the Respondent MR. G. MASUKU
Serving before Court is an application brought under a Certificate of
Urgency for an order rescinding and/or setting aside the Order
granted by this Court on the 6th
2004, for the Respondents, in particular the 2nd Respondent, to
forthwith restore possession of the attached items to the Applicant;
that the execution of the order granted by the Court on the 6th May,
2004 be stayed and/or set aside; and costs.
The Managing Director of the Applicant one Brian Martin has filed a
Founding affidavit outlining the facts of the matter leading to the
lis between the parties. The facts of the matter are that the
Applicant is an estate agent. On the 1st September 2003, the
Applicant, acting for and on behalf of Ngwane Mills (Pty) Ltd
(hereinafter referred to as the "landlord"), entered into
an oral agreement of lease in terms of which the landlord leased to
the Respondent, who accepted, certain premises being Plot 37, Kelly
Street, Coates Valley, Manzini district (hereinafter referred to as
the "premises"). The lease was on a month-to-month basis
and the rental payable was E3, 500-00 per month payable with the
Applicant for onward transmission to the landlord.
According to the Applicant the Respondent breached the agreement
between the parties when the latter defaulted in payment of the
rental as she only paid the sum of E2, 000-00 from March 2004,
leaving a balance of El, 500-00 and did not pay any amount at all for
the month of April 2004, May 2004 and June 2004 and as such was in
arrears in the sum of E12, 000-00. On the 4th May 2004, the landlord
instructed the Applicant to lock out the Respondent from the
premises. On the 2nd August 2004, the Applicant was served with a
writ of execution by one William Kelly who is the Acting Deputy
Sheriff for the district of Manzini wherein payment of the sum of E4,
956-22 was being claimed in respect of a taxed Bill of Costs.
The 1st Respondent successfully moved a spoliation application before
this Court after she was locked out by the Applicant on the 4th May
2004. The court granted the said Order on the 6th May 2004.
The Applicant then launched the present application for the
rescission of the Order of the 6th May 2004. In paragraph 11 of the
Founding affidavit the Applicant avers that the said Order was
granted in error in that no proper service was effected on the
Applicant before the same was obtained. That where a company is being
served the purported service must be done in accordance with Rule 4
(2) (e) which requires
same be done at that particular company's registered office and/or
principal place of business on a responsible employee.
The second leg of the application for rescission of the Order of the
6th May 2004, is that the Applicant was not given sufficient notice
to instruct attorneys to enter an appearance in the matter as it was
served hardly three hours before the hearing of the matter.
The third leg of the application is that there was non-joinder of the
landlord viz Ngwane Mills (Pty) Ltd as a Respondent in the principal
application yet the 1st Respondent had been informed that the
instruction to lock the premises had come directly from the landlord
and when she moved the application she failed to bring this to the
attention of the court.
The fourth argument advanced in support of the application for
rescission is that the 1st Respondent failed to inform the court on
the 6th May 2004 of the existence of an oral lease agreement between
the parties and that 1st Respondent was in arrears amounting to E12,
000-00 and therefore, so the argument goes, has breached the
principle of uberramae fides in ex parte applications.
After hearing the parties and reserved judgment and on perusal of the
Judge's file I discovered that I had granted the Order which is the
subject-matter of this application. Thereafter I called Counsel to
chambers with a view to let another Judge to hear the matter, so as
to give the matter an independent consideration as sitting in
judgment over your own judgment may raise suspicions of one or other
kind. However, both sides managed to persuade me to hear the matter.
I proceed to examine the above questions ad seriatim: thus i) Whether
the spoliation order was granted in error.
In this regard, it is contended for the Applicant that the initial
urgent application for a spoliation order was granted in error as no
proper service on Applicant had been effected in terms of Rule 4 (2)
(e) of the Rules of Court
4 (2) (e) thereof provides as follows:
the case of a corporation or company, by delivering a copy to a
responsible person at its registered office or a responsible employee
thereof at its principal place of business within Swaziland, or if
there is to such person willing to accept service, by affixing a copy
to the main door of such office or place of business, or in any
manner provided by law",
Annexure "VJR3" to the Applicant's Founding affidavit being
the affidavit of service reads, inter alia, as follows:
I did on the 6th day of May 2004 at ll00hrs effect service upon the
Respondent's Grace Maseko as follows:
Exhibiting the original along with copies and carefully explaining
the nature and exigency thereof;
Issuing her with process to receive and sign for same;
Leaving behind a copy of the urgent application;
Grace refused to sign for a receipt of service of process..."
The said Annexure "VJR3" is an affidavit of service deposed
to by one Zanele Fakudze who describes herself therein as an adult
female messenger of Masuku & Company attorneys. Her duties, inter
alia, involve serving court process on behalf of Masuku &
The attack by the Applicant is that it is not clear ex facie Annexure
"VJR3" that the person named therein viz Grace Maseko is a
"responsible employee" in terms of the Rule.
It would appear to me that the Applicant bases its application for
rescission on Rule 42 of the High Court Rules though this has not
mentioned in the application as per the dicta in the case of Leonard
Dlamini vs Lucky Dlamini - Civil Case No. 1644/97 (unreported).
Rule 42 of the High Court Rules thereof reads as follows:
(1) The Court, may in addition to any other powers it may have, mero
motu or upon the application of any party affected, rescind, or vary:
order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby;
order or judgment in which there is an ambiguity, or a patent error
or omission, but only to the extent of such ambiguity, error or
order or judgment granted as the result of a mistake common to the
Any party desiring any relief under this rale shall make application
therefore upon notice to all parties whose interests may be affected
by any variation sought
The Court shall not make any order rescinding or varying any order or
judgment unless satisfied that all parties whose interests may be
affected have notice of the order proposed.
Applicant seems to be relying on Rule 42 (1) (a) that the Order of
the 6th May 2004, was erroneously sought or erroneously granted in
the absence of any party affected thereby.
According to the dicta in the case of Deary vs Deary 1971 (1) S.A.
227 (C) and at 230 H an Applicant must satisfy the court that the
judgement was granted, not only in his absence, but erroneously. The
question of what constitutes an error for purposes of Rule 42 has
been a subject matter of a number of decided cases (see Topol &
others vs L.S. Group Management Services (Pty) Ltd 1988 (1) S.A. 639
(W) at 648 E - 650 C, Dawson 's Fraser (Pty) Ltd vs Havenga
Construction (Pty) Ltd 1993 (3) S.A, 397 (B) at 402 - 403 B and
Bakoven Ltd vs G. J. Howes (Pty) Ltd 1992 (2) S.A. 466 (E) at 417 F).
In casu it appears to me that the service being attacked was good for
purposes of the application made by the Respondent as it did, on
urgent basis. Therefore I find that the Applicant cannot succeed
under the Rule 42 (1) (a).
In this regard the Applicant contends that it was given insufficient
time of three (3) hours to instruct an attorney. The Respondent on
the other hand argues that the court granted 1st Respondent relief in
terms of Rule 6 (25) (a) and (b) exempting her from strict compliance
to the rules relating to time limits and service. In this regard I
agree with the submissions made by the Respondent and also wish to
add that 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,
(see in general, Herbstein and Van Winsen, The Civil Practice in the
Superior Courts of South Africa, 3rd ed at page 59 - 60 and Jourbert,
The Law of South Africa (Vol. 3) in paragraph 348 at page 300).
For the afore-going reasons the Applicant cannot succeed in this
argument. iii) Non-joinder of landlord,
In this regard, it is contended by the Applicant that the other error
which is glaring in the matter is the non-joinder of the landlord
being Ngwane Mills (Pty) as a Respondent in the principal application
yet the 1st Respondent had been informed that the instruction to lock
the premises had come directly from the landlord. It appears to me
that the argument advanced by the 1st Respondent countering that of
the Applicant is correct that the lease agreement was entered into by
the former with the latter and not Ngwane Mills and therefore the
issue of non-joinder does not arise. Even if the source of the
instruction to lock the Applicant out eminated from Ngwane Mills, it
was an illegal act despoiling her without a lawful order hence both
landlord and Applicant both stand at fault in law. In any event, it
is trite law that it is no defence for the spoliation that the
despoiler acted as an agent of another person. Since the mandament
van spolie is aimed at discouraging unlawful spoliation the remedy
should be instituted and enforced against the person who has actually
committed the spoliation, and therefore this defence is inadmissible,
(see Bennett vs Black 1918 EDL 253, Silberberg and Schoeman, The Law
of Property, 1983 Butterworths at page 139 and Olivier et al, The Law
of property (Students' Handbook), 2ndEdition, Jut a & Co. at page
293 and the cases cited thereat).
For the afore-going reasons I find that the argument of non-joinder
has no merit in law.
The principle uberramae fides.
It is trite that in all ex parte applications, the Applicant must
observe the utmost good faith in placing material facts before the
court (see Herbstein and Van Winsen, The Civil Practice of the
Supreme Court of South Africa, 4th Edition, Juta at page 312 and the
cases cited thereat). In the present case the argument advanced on
behalf of the Applicant is that the 1st Respondent failed to inform
the court that she was in arrears in respect of rental and thus
breaching the principle of uberramae fides. This argument in my view,
overlooks the general principle in spoliation proceedings that even a
lessee who is in arrears is entitled to the spoliation remedy should
he be ousted of his possession, (see Silberberg and Schoeman (supra)
at page 138).
In the final analysis, no basis is shown for rescinding the Order,
which was obtained on an application by mandament van spolie.
The present application is therefore dismissed with costs.