HIGH COURT OF SWAZILAND
the matter between:
(PTY) LTD Applicant
B. MOTSA Respondent
: MASUKU J.
Plaintiff : Mr P.M. Shilubane
Defendant : Mr N. Kades (S.C. Instructed by Sibusiso B.
7th April 2004
Notice of Motion, in the long form and dated 15th January, 2004, the
above named Applicant applied for relief in the following terms: -
the Respondent to pay Applicant the sum of E2, 200,000 (Two Million
Two Hundred Thousand Emalangeni) against Applicant furnishing the
Respondent with all the certificates in respect of the issued shares
in Applicant together with signed share transfer forms in blank
negotiable form in respect of the shares sold and a duly completed
Deeds of Cession in respect of loan accounts in Applicant in favour
of the Respondent resignation of the directors of the Applicant
delivery of the books, records and other documents of the company to
That the Respondent pays the costs of this application.
such further and/or alternative relief.
is common cause that the Applicant is a company duly registered and
incorporated under the laws of Swaziland and having its place of
business situate at Plot 180, King Sobhuza Avenue, Matsapha. The
Applicant is represented by one of its Directors Mr Panagoitis Dinos.
The Respondent, on the other hand, is described as a Swazi male adult
businessman of Siteki, District of Lubombo.
Applicant, in its Founding Affidavit, claims that on the 13th
November, 2003, it received a facsimile transmission from the
Respondent, who offered to purchase the Applicant as a going concern
for the sum of E2,200 000.00. A copy of the said facsimile
transmission is annexed to the Applicant's papers.
said letter reads as follows: -
Mr Dinos Dear Sir,
hereby offer to purchase Farmers (PTY) LTD for E2,200.000.00 as a
faithfully MOSES B. MOTSA"
the following day, the Applicant accepted the offer by virtue of a
letter dated 14th November, 2003. The said letter reads as follows:-
Moses B. Motsa P.O. Box 13 Siteki Re: Offer to purchase
Mr Motsa Dear Sir,
this letter wish to confirm in writing that we as Farmers Pty Ltd do
accept the offer of E2,200.000.00 (two million and two hundred
thousand emalangeni which was made on the 11th November 2003 by you.
faithfully For Farmer Pty Ltd
Applicant states further that on the 1st December, 2003, Mr Lambros
Dinos, the father to the Deponent of the Founding Affidavit, went to
meet with the Respondent at Siteki to discuss how the purchase price
would be paid. The Applicant alleges that the agreement reached was
that the Respondent would pay a deposit of E200,000.00 before the
24th December, 2003 and the balance on delivery of the business to
the Respondent, together with the transfer of shares in the
Applicant. According to the Applicant, the agreement regarding
payment was recorded in a letter dated 22nd December, 2003. The
letter, from the Applicant to the Respondent, reads as follows:-
Moses B. Motsa
Re: Farmers Pty Ltd – Sale
this letter, we wish to inform you that until today 22nd December,
2003, Regarding our company's sale to you (FARMERS PTY LTD), we still
have not Received the deposit of "(E200,000.00 — two hundred
thousand emalangeni) Against the total amount of "E2,200,000.00
(two million and two hundred thousand Emalangeni) that was verbally
agreed on the 01st December, 2003 at your offices in Siteki.
would appreciate if you would keep up with out agreement. We will be
waiting for the deposit of E200.00.00 (two hundred thousand
emalangeni) until the 06th January 2004. If we have not received the
deposit by then we
have to pass the matter to our legal department.
wish you all the best for the New Year.
faithfully For Farmers Pty Ltd
" The Respondent's Case
limine, the Respondent took the view that the application did not
disclose a cause of action and therefor prayed that it be dismissed,
Furthermore, the point was taken that prayer 1 of the Notice of
Motion, was not supported by the Founding Affidavit. The Respondent
further alleged that the Applicant approached the Court with "unclean
hands" because the sale of the business the Court was being
asked to enforce was inconsistent with the provisions of the law
relevant to sale of businesses.
was hasten to add that the points raised by the Respondent are not
the mode of clarity. No particulars are furnished for reaching the
conclusions prayed for e.g. the grounds upon which the Court must
find that the application does not disclose a cause of action have
not been disclosed nor is the Court and the Applicant informed what
law governs the sale of business, what that law states, together with
the infractions of the law allegedly committed by the Applicant.
Kades fairly and readily conceded that the necessary averments were
lacking in the above points. It behoves me to point out that each
party must put its case clearly, thereby leaving the Court and the
other side in no doubt about what the case to be met is. There must
be "no hide and seek" game played in the papers filed in
Court. The case to be met must be fully, exhaustively and clearly
canvassed, with no obscurities whatsoever.
the merits, the Respondent states that Dinos, whom he has known for
more than five (5) years approached him with a view of selling him
the Applicant's business and this was allegedly done on more than
twenty separate occasions. Dinos, according to the Respondent,
disclosed that the business was being sold because it was performing
poorly financially and
local banks were refusing to deal with him, leaving him the only
option of dealing with South African banks.
Respondent further states that he eventually agreed to purchase the
business as a going concern, but insisted that it was necessary for
Dinos to advertise the sale of the business in accordance with the
law in order to avoid inheriting debts, particularly in view of the
information that the local banks were unwilling to deal with the
Respondent states further that he was assured that the Applicant had
not encumbrances nor debts and that the sale of the business would be
advertised in terms of the law. The Respondent advised that for him
to secure finance, it was necessary for the Applicant to make an
offer to sell the business to him, whereafter the Respondent would
take the letter containing the offer to his financiers. It is the
Respondent's further contention that the sale of the business was
contingent upon him obtaining finance.
Respondent thereafter received advice from his financiers that it
would be difficult to obtain finance in the absence of a deed of sale
in respect of the business and when he contacted the Applicant with a
view to negotiate and finalise the deed of sale in accordance with
the financiers' advice, the Applicant started breathing threats,
including litigation, which would be premised the letter of offer,
the Respondent denies that it was ever agreed that he would pay the
deposit alleged or any other amount. He further denies receiving
annexure "F 4", the letter dated 22nd December, 2003. He
denies that the contents thereof were known to him nor that they were
ever agreed or discussed by him and Dinos.
of the Notice of Motion
days after the receipt of the Respondent's Affidavit, particularly
the contents of paragraph 4.2 thereof, which states that the Notice
of Motion is not supported by the Founding Affidavit, the Applicant
filed a Notice of Intention to Amend dated 19th February 2004. The
said Notice reads as follows: -
NOTICE THAT the applicant intends to amend its notice of motion dated
15th January 2004 as follows:-
inserting an alternative prayer to prayer 1 of the notice of motion
and adding a Prayer for mora interest on the amount claimed in the
following terms: -
the respondent to pay the applicant the sum of E2 200.000 (Two
Million Two Hundred Thousand Emalangeni) against the applicant
delivering to the respondent the business of the applicant."
on the sum E2 200 000 at the rate of 9% per annum a tempore morae
from the date of service of the application to date of final payment
FURTHER NOTICE THAT unless the respondent objects in writing to the
proposed amendment within 10 days of receipt of this notice,
applicant will amend its notice of motion Accordingly."
Respondent does not appear to have objected to the proposed amendment
within the ten (10) day period allowed. On the 5th March 2004, the
Applicant filed an amended Notice of Motion, and which reads as
PLEASED TO TAKE NOTICE THAT farmers (proprietary) Limited
(hereinafter called the Applicant) intends to make application to the
above Honourable Court on the ...........day of March 2004 at
09.30hrs or so " soon thereafter as Counsel may be heard for an
order in the following terms:-
the respondent to pay to the applicant the sum of E2,200.000 against
the applicant delivering to the respondent the business of
on the sum of E2,200,000 at the rate of 9% a tempore morae
of the applicant
such further and/or alternative relief "
simple reading of the Amended Notice of Motion shows that there was
no alternative prayer inserted as intimated in the Notice of
Intention to Amend. It would appear that Prayer 1 of the original
Notice of Motion was removed and replaced by prayer 1 of the Notice
of Intention to Amend. There clearly was not added any alternative
prayer but the effect was to substitute the initial prayer 1 and to
insert in its place, a new prayer 1. The only prayer consistent with
the tenor of the Notice of Intention to Amend is the addition of
prayer 2, which introduces the element of interest, which was clearly
lacking in the initial Notice of Motion.
Respondent has raised two basic issues for determination and these
are the following:
the application ought to be dismissed for it raises material
disputes of fact which cannot be determined in the present
there was no consensus ad idem between the parties herein and by
logical reasoning, there was no valid and binding contract entered
into inter partes.
now proceed to address the above issues. (a) Material Disputes of
fact It is clear, from a reading of the papers in this matter that
there are disputes of fact. I will enumerate the disputes as I see
Respondent, on the other hand, alleges that it was the Applicant who
approached the Respondent with a vie to selling the business of the
Applicant. This does not appear to be denied by the Applicant in the
Replying Affidavit but serves to give an accurate background that
there was more to the background to this issue than just the letter
of offer from the Respondent marked Annexure F 1"
is a dispute regarding what the terms of the sale were. Firstly, it
is not clear whether the contract was in regard to the business of
the Applicant or the Applicant's shares. Different considerations
apply to each of the above issues. The
is exemplified by the Applicant's a amended Notice of Motion, showing
that what was Sold is unclear.
is also a dispute regarding the nature of annexure "F 1"
and "F 3". According to the Respondent's annexure "F
1" was required for the purposes of soliciting a loan from the
Bank. The Applicant on the other claims that it was the offer and to
which the Applicant respondent positively through annexure "F
3". It is well to mention in this regard that whereas the
Respondent alleges that the sale was subject to him obtaining
finance, which eventually did not materialise, the Applicant denies
is the element of the deed of sale that the Respondent claims was
necessary on the advice of Ms financiers. The Applicant does not
deny this but claims that it was unnecessary because the offer and
acceptance were both in writing. This must be viewed against (i)
is also dispute regarding the nature and contents of annexure "F
4". In that letter, it is alleged that an agreement was reached
on the 11th December, 2003, in terms of which the Respondent was to
pay a deposit of E 200,000.00. The Respondent denies receiving the
said letter nor such discussions and agreement and also denies
knowledge its contents.
the celebrated case of ROOMHIRE CO. (PTY) LTD VS JEPPE STREET
MANSIONS (PTY) LTD 1949 (3) SA 1155 (T.P.D.) at 1162, Murray A.J.P.
stated the following lapidary remarks regarding disputes of fact in
is obvious that a claimant who elects to proceed by motion runs the
risk that a dispute of fact may be shown to exist. In that event (as
indicated infra) the Court has a discretion as to the future course
of the proceedings. If it does not consider the case such that the
dispute of fact can properly be determined by calling viva voce
evidence under Rule 9, the parties may be sent to trial in the
ordinary way either on the affidavits as constituting the pleadings,
or with a direction that pleadings be filed. Or the application may
even be dismissed with costs, particularly when the applicant should
have realised when
his application that a serious dispute of fact was bound to develop.
It is certainty not proper that an applicant should commence
proceedings by motion with knowledge of the probability of a
protracted enquiry into disputed facts not capable of easy
ascertainment, but in the hope of inducing the Court to apply Rule 9
to what is essentially the subject of an ordinary trial action,"
is clear that some of the disputes in this case, cannot be resolved
on the papers as they stand. This points to one direction and one
direction only, that motion proceedings were not appropriate in this
matter and it would be undesirable to attempt to resolve them in this
forum. Trial proceedings were the natural choice and which the
Applicant either foresaw or ought to have foreseen, regard had to the
material averments later presented before Court by the Respondent. He
clearly must have been aware of the Respondents position in this
matter before launching these proceedings.
would be remiss of me not to quote with approval the timeless
trenchant remarks of Price J. in GARMENT WORKERS UNION VS DE VRIES
AND OTHERS 1949 (1) SA 1110 (W) at 1133, where the following is
is becoming a habit to bring applications to Court on controversial
issues and then to endeavour to turn them into trial actions.
Applicants thereby obtain a great advantage over litigants who have
proceeded by way of action and who may have to wait for many months
to get their cases before the Court. Such applications -cum-trials
interpose themselves, occupying the time of Judges and still further
delaying the hearing of legitimate trials. Applications for the
hearing of viva voce-evidence in motion proceedings should be granted
only where it is essential in the interests of justice."
also ELMON MASILELA VS WRENNING INVESTMENTS (PTY) LTD AND ANOTHER
CIV. APPEAL 1768/02 (per Masuku J.) unreported at pages 4 and 6 and
the cases therein cited.
am of the view that the point taken by the Respondent, regarding the
disputes of fact is good and deserves to be upheld with costs. It is
clear that action proceedings were the appropriate proceedings.
of cohsensus ad idem and nature and terms of the contract.
Kades, in his spirited address, argued that there was no consensus ad
idem in this case for the reason that it is not clear what was sold
and on what terms. He argued that in this regard, the Applicant, in
the initial Notice of Motion sought payment of the sum in question
from the Respondent, against it furnishing the Respondent with share
certificates and related paraphernalia. Later, the Applicant alleged
the sale of the business and amended the Notice of Motion
Shilubane, in response, argued that the Applicant's case is made out
in the Affidavit and that whatever is contained or not contained in
the Notice of Motion must not be given undue weight. He argued
correctly that the Affidavit contains the evidence.
is however clear that in view of the divergent interpretations placed
on the events, as can be seen from the conflicting allegations set in
the various sets of affidavits, the minds of the parties can not be
said to have been ad idem. According to the Respondent, it was the
Applicant who made the offer and the Respondent accepted it, subject
to the finance being made available.
there is no consensus regarding the purpose of annexure "F 1".
The Applicant, on the one hand regards it as having been an offer,
oblivious to the history set out by the Respondent above i.e. that
the Applicant was the offer or. The Respondent, on the other,
regarded it as a preliminary step towards obtaining finance for the
contract to be concluded. Can it be said in view of the foregoing
that there was consensus regarding the entry into a contract? I think
Shilubane's argument regarding the Notice of Motion vis-a-vis, the
affidavit, is correct. That notwithstanding, the initial Notice of
Motion reflects the Applicant's state of mind regarding the subject
and effect of the sale at the time of drafting the Founding Affidavit
and the Notice of Motion. If there was consensus ad idem regarding
what exactly was being sold, the initial Notice of Motion would, in
my view have been drafted and worded differently.
Intention to Amend, it must be mentioned, only came into existence
after the Respondent took the point that the Notice of Motion is not
supported by the allegations in the Founding Affidavit. The Intention
to Amend, in my view further obfuscated matters for the reason that
it sought to add an alternative prayer to initial Notice of Motion.
Where the parties are clear about what is being sold and there is
animo contrahendi there would in my view, be no need to insert
alternative prayers which are inconsistent in wording and effect as
the ones before the Court. If agreement was for the sale of shares,
one Notice of Motion, the initial one alone would have sufficed. If
on the other, it was for the sale of the business, then the proposed
amendment would have sufficed.
Amended Notice of Motion makes no reference to the alternative but
jettisoned the initial prayer altogether, leading to some confusion
regarding what the Applicant's real case is. It is significant that
the Amended Notice of Motion was prepared after the Replying
Affidavit had been filed, i.e. after all the evidence was in.
correctly pointed out by Mr Kades, there is an inconsistency in the
Applicants own version. Paragraph 6 of the Founding Affidavit reads
on 1stDecember, 2003 Mr Lambros Dinos went to the respondent's office
at Siteki to discuss how the purchase price was to be paid. It was
agreed between the parties at that meeting that respondent would pay
a deposit of E200.000.00 (Two Hundred Thousand Emalangeni) before the
24' December 2003 and the balance thereof on delivery of the business
to respondent and transfer of shares in applicant to respondent."
paragraph 6 of the Founding Affidavit, the Applicant states the
agree that respondent agreed to purchase the business but deny that
such purchase was conditional on the sale being advertised nor is the
sale vitiated by not being advertised in terms of the insolvency
is clear from the foregoing that, in paragraph 6 of the Founding
Affidavit, a case is made for the sale of the business and its
shares, hence the initial Notice of Motion. When once the
denied this, the Applicant, in reply made a new cause of action,
alleging the sale of the business and not the shares, hence the
amendment of the Notice of Motion.
is clear, from the foregoing that there is confusion in the
Applicant's own papers regarding what was agreed upon. The
Respondent's allegations throw the true nature of the Applicant's
story into further disarray. It is therefor clear that there was no
consensus between the parties in casu.
is important to give heed to the wise injunctions of Caney J. in
GODFREY VS PARUK 1965 (2) SA 738 (D) 734 C, quoted by RH .Christie in
his work entitled, "The Law of Contract in South Africa, 3rd Ed,
Butterworths, 1996, at page 29:-
The phrase 'offer and acceptance' ...is not to be applied as a
talisman, revealing, by species of esoteric art, the presence of a
contract. It would be ludicrous to suppose that businessmen couch
their communications in the form of a catechism or reduce their
negotiations to such a species of interrogatory as was formulated in
the Roman stipulatio".
learned author Christie added the following important excerpt after
the above quotation:-
which it is only necessary to add that offer and acceptance must
never be sought for their own sake, but as aids in deciding whether
an agreement has been reached. "
am of the view that if put to use as aids for determining whether in
casu, an agreement was reached, the concept of offer and acceptance
would lead to the conclusion that agreement was never reached.
the inconsistent allegations in paragraphs 6 of the Founding
Affidavit and paragraph 6 and 7 of the reply, which were quoted in
full above, Mr Kades argued that the Applicant sought to make out a
new case (which is supported by the amended Notice of Motion) in the
Replying Affidavit. I quite agree that that indeed is the case.
course is not permissible and authority against such practice is
legion. In this regard, Dunn J. (as he then was) held the following
in ROYAL SWAZILAND SUGAR
t/a SIMUNYE VS SWAZILAND AGRICULTURAL PLANTATION WORKERS UNION AND 8
OTHERS CIV. APPLICATION 2959/97 (unreported, per Dunn J.) See the
numerous cases therein cited.
BOWMAN N.O. VS DE SOUZA ROLDAO 1988 (4) SA 326 at 327 D, Kirk - Cohen
J. had this to say in this connection: -
speaking, an applicant must stand or fall by his founding affidavit;
he is not allowed to make out his case or rely open new grounds in
the replying affidavit."
learned Judge above proceeded to quote the following excerpt from
Krause J. in POUNTAS' TRUSTEE VS LAHANAS 1924 WLD 67 at 68:-
applicant must stand or fall by his petition and the facts alleged
therein and that, although sometimes it is permissible to supplement
the allegations contained in the petition, still the main foundation
of the application is the allegations of the facts stated therein,
because those are the facts which the respondent is called upon
either to confirm or deny.
it is clear that the applicant stands or falls by his petition and
the facts therein alleged.
is not permissible to make out new grounds for the application in the
view of the foregoing, I am of the view that the application be and
is hereby dismissed with costs,