HIGH COURT OF SWAZILAND
INVESTMENTS (PTY) LTD
DAVIDSON 1st Respondent
NSIBANDE N.O. 2nd Respondent
Case No. 2139/96
S.B. MAPHALALA – J
the Applicants MR. S.B. SHONGWE
the Respondents MR. P. M. SHILUBANE
ON POINTS IN LIMINE (23/01/2004)
before court is an application under a certificate of urgency for an
order inter alia setting aside the sale in execution advertised by
the 1st Respondent's attorneys for the 12th December 2003, staying
the sale in execution.
founding affidavit of the Applicants is filed in support thereto.
matter appeared before me on the 12th December 2003, where attorneys
for the Respondent argued points of law in limine from the bar.
Counsel for the Applicants replied to the points raised. I rule in
favour of the Applicant and overruled the objections raised. The
points raised then were issues of urgency the essence of which was
that the Applicants have not followed the prescribes of Rule 6 (25)
of the High Court Rules.
granted an order as follows:
That a rule nisi do hereby issue and returnable on Thursday the 18th
day of December, 2003, staying the execution;
That the orders sought in terms of paragraph 2 and 3 hereof operate
with immediate effect and interim relief.
the intervening period the sale of the property proceeded regardless
of the order cited above. Further the Respondent filed an answering
affidavit of their attorney Mr. Paul Mhlaba Shilubane who has raised
two points of law in limine. These are the subject matter of this
points were argued before me on the 18th December 2003, being the
return date of the rule nisi issued on the 12th December 2003. The
objection is couched in this fashion:
In limine, I am advised and accept that the Applicants application is
At the time it was made the sale in execution had already been
perfected and the rule nisi issued by the court on 12th December
2003, was brutum fulmen and was therefore not binding on any one. The
sale in execution took place
approximately 11,30am in the presence of the Applicant's attorney who
falsely represented to the court when the rule was made that a sale
had not taken place.
The court made an error issuing the rule without giving the
Respondents an opportunity to file their answering affidavit in as
much as the application was not ex parte contrary to Rule 6 (9) of
the Rule of court. Ex parte application are governed by Rule 6 (4) of
the rules of court and requires that Form 2 be used and not Form 1
which was used in this case,
The application had not been served on the second Respondent.
outlining the various arguments for and against the points of
objection I wish to record that Mr. Motsa was in attendance appearing
on behalf of the purchaser of the property in dispute. He informed
the court at the close of submissions by counsel for the Applicants
and the Respondents that Ms client would not enter the debate at this
stage but would only enter the fray when the matter is considered on
facts of the matter are that a writ of execution was issued in terms
of a court order of 1997 on instruction of the 1st Respondent to his
attorney the said order of 1997 was an order in which the 1st
Respondent was granted a sum of E104, 666-60 a percentage of shares
that he held in Sibhimbi Investments (Propriety) Limited. The parties
in this case save 2nd Respondent are siblings who were beneficiaries
in the estate of their late mother.
to the writ of execution the said instrument was issued through the
offices of L.R. Mamba & Associates who were the attorneys of 1st
Respondent at the time. No attempts were made to execute the writ on
the movable property of the Applicants and what followed thereafter
was that the writ of execution against the immovable of the
Applicants. The writ is annexed and marked "A".
Applicants avers that on the 31st May 2003, this matter appeared
before this court where a rule nisi was issued staying the execution
of the writ of execution of immovable property issued by the 1st
Respondent in case number 2139/1996 dated 8 day of April 2003 and
judgement was reserved.
to the Applicants, although this fact is vehemently denied by the
Respondents, negotiations were held between the Applicants attorney
and the 1st Respondent to have the matter settled out of court. As a
result an agreement was reached between the attorneys to have the
rule discharged based on the fact that they were attempting to settle
the matter out of court. A settlement was reached between the
attorneys, the terms of the settlement was the payment of E201,
733-31 annexure "B" a letter dated 11th July 2003 from P.M.
Shilubane & Associates is filed by the Applicant indicated the
amount agreed upon.
the other hand, on the issue of the negotiations between the parties
the Respondent's deny such negotiations. They aver that no settlement
was reached because the Applicants did not pay the amount due to 1st
Respondent notwithstanding numerous promises that payment would be
Applicants further avers that while means were being made to have the
sum of money paid to 1st Respondent's attorney placed a notice of
sale in the local newspaper for the sale of the property.
negotiations were held with 1st Respondent's attorney to have the
sale stopped as the Applicants had indicated their intention to pay
the 1st Respondent the amount agreed upon.
paragraph 17 of their founding affidavit the Applicants aver that
they have since paid the sum of E201, 733-31 to the 1st Respondent's
attorneys as full and final settlement of the matter. Despite such
payment the sale in execution, which was scheduled for 12th December
2003 at 11.30am, was still to proceed. They therefore, sought the
court's intervention to stop the sale as 1st Respondent's attorney
has been paid the agreed sum of E201, 733-31 owed to the 1st
the stance taken by the Respondent on the cheque issued by the
Applicant's attorneys for the payment of the sum of E201,733-31 is
that the said cheque is made in foreign currency, which is not legal
tender in Swaziland in terms of Section 33 of Order in Council No.
6/1974 nor is it bank guaranteed. Furthermore, it did not include the
costs which were due to 1st Respondent in terms of the deed of
an order of court. Consequently, 1st Respondent was not obliged in
law to accept the cheque which was tendered. The above, therefore are
the facts of the dispute.
now revert to the subject-matter of this judgment viz, the
determination of the points in limine raised that at the time the
application was made the sale in execution had already been perfected
and the rule nisi issued by the court on the 12th December 2003 was
brutum fulmen and was therefore not binding on any one. Without
further ado, it would appear to me that this objection overlooks
prayer 2 which seeks the setting aside of the sale in execution
advertised by the 1st Respondent's attorney for the 12th December
2003. The argument advanced by the Respondent would only apply in
respect of prayer 1 staying the sale in execution.
the above reason this point of law in limine cannot succeed.
second point raised is that the court made an error in issuing the
rule without giving the Respondent an opportunity to file their
answering affidavits. In my view, this cannot be a point of law in
limine as this is not a proper procedure to challenge the decision of
the court made on the 12th December 2003. It would not be proper for
this court to revisit its own judgment. In this regard I agree with
the submissions made by Mr, Shongwe for the Applicant. Therefore,
this point of law in limine cannot succeed.
the issue that the purchaser in this case has not been served with
the papers my view is that when the application was launched on the
12th December 2003, the purchaser had not appeared in the scene as
this was before the sale. During the arguments on the point in limine
Mr. Motsa appeared for the purchaser and submitted before court that
they will abide by the decision of the court on the points in limine.
He intimated that they will join the suit in the event the court
dismissed the points in limine and order that the matter proceeds on
the merits. Therefore, for the above reasons the point of law raised
has no real substance and is thus dismissed.
to the last issue raised by Mr. Shongwe that this application is
brought in terms of Rule 45 (13) (g). This issue is on the merits of
the matter and therefore, I
not make any finding either way but would refer it to be argued on
the merits, and so it is ordered.
the result, the points of law raised by the Respondents are dismissed
and the matter to be argued on the merits.