HIGH COURT OF SWAZILAND
Case No. 736/2003
S.B. MAPHALALA – J
the Applicant MR. M. SIMELANE
the Respondent MR. S. KUBHEKA
is an application which has been brought by way of urgency. The
Applicant has sought relief on motion for an order in the following
with the usual forms and procedures relating to the institution of
proceedings and allowing this matter to be heard as a matter of
that a rule nisi do hereby issue calling upon the Respondent to
appear and show cause, if any to this Honourable Court at a time and
date to be determined by
above Honourable Court why an order in the following terms should not
be made final.
Directing the Respondent to deliver to the Applicant the motor
vehicle described as follows:
LDV Registered SD 251 FS Engine No. F2724535
Authorising the Deputy Sheriff to attach, remove and restore to the
Applicant the motor vehicle described in 2.1 above, currently in the
possession of the Respondent.
that the rule nisi referred to in paragraph 2 above operate with
immediate effect pending the outcome of these proceedings.
that Respondents pay the costs of these proceedings on au attorney
and own client scale.
that the order together with the notice of motion affidavit and
annexures be served on the Respondent.
the Applicant such further and/or alternative relief as the above
Honourable Court seem meet.
founding affidavit of the Applicant is filed thereto. A number of
annexures are also filed in support.
Respondent opposes the application as shown in the answering
affidavit of the Respondent.
Applicant avers in his founding affidavit that during the year 2000,
he bought the vehicle which is the subject matter of this application
from Carters Mall in Mbabane for a sum of E20, 000-00. When the sale
was concluded, the seller Carters Mall was represented by a certain
appears that the Applicant had moved a similar application under Case
No. 3181/2002, involving the same parties. The matter was before the
former Chief Justice who dismissed the application on the basis that
there was a dispute of fact as to whether the Applicant was indeed
the rightful owner as the Respondent had alleged that the vehicle
belonged to the company, Professional Pumps and Irrigation Technology
Applicant avers In paragraph 6 that it was stated in his previous
application that it escaped both his attention and that of the seller
to have the change of ownership documents signed as envisaged by
Section 23 of the Registration of Motor Vehicle Act That which the
Chief Justice complained about, has been attended to and has filed
annexure "TM1" a document lodged with the registry
authority to effect the change of ownership.
paragraphs 8,9, 10, 11 the Applicant outlines the brief background of
the matter. He avers that he is the majority shareholder and the
Managing Director of the company and that the said motor vehicle came
to the possession of the Respondent whilst he was an employee of the
company. The Applicant had bought the vehicle in his personal
capacity and this motor vehicle was for all intents and purposes his
personal property. As the business demands increased he bought the
vehicle to be used by the company for the timely delivery of
customers orders. On or ahout 18th October 2002, the Respondent when
assigned to do certain work and when asked to leave the vehicle
behind refused to do so. The vehicle is still in the possession of
the Respondent though he is now employed at Turns General Suppliers
and has been removed from being a Director of the company by the
members acting in terms of Clause 75 (c) of the Articles of
Association of the Company. The Respondent's reasons for refusing to
return the vehicle are basically that he wants the remaining
Directors to buy him out. At one point he fixed the sum of E50,
000-00. The Respondent argues that he is a Director and Shareholder
of the company. However, according to the Applicant the Respondent
was only a Director prior to him being removed. Therefore he is not
entitled to decide unilaterally which assets of the company he is
going to appropriate.
paragraphs 13, 14, 15, 16, 17, 18, 19 and 20 of the founding
affidavit averments on the question of urgency are made.
Respondent as pointed out earlier has filed an answering affidavit.
In the said affidavit two points in limine are raised as follows:
The same cause has already been tried and decided upon by this court
under Case No. 3181/2002. The matter is, therefore, res judicata;
The Applicant has failed to allege his locus standi to make the
therefore, pray that the application, in so far as Applicant is
alleged to be the rightful owner, be dismissed with costs on an
attorney and own client scale.
the merits the Respondent contends in the main that the Applicant is
not the owner of the said vehicle. The former Chief Justice
complained that there was no proof that Applicant was the owner of
the motor vehicle in issue. Applicant has not regularised ownership
of the said vehicle. Annexure "TM1" is inadmissible.
the matter appeared before me on the 18th February 2004, both the
points in limine and the merits were argued. Mr. Kubheka for the
Respondent commenced arguments.
the issue of res judicata Mr. Kubheka relied heavily on the legal
authorities of Hoffmann and Zeffert, The South African Law of
Evidence, 4th ED at page 335, Rabie, The Law of South Africa Vol. 9
paragraph 338 and Herbstein & Van Winsen, The Civil Practice of
the Supreme Court of South Africa, 4" ED at page 470. These
authorities are for the general proposition that res judicata may be
raised as a defence to a claim that raises an issue disposed of by a
judgment in rem or a judgment in personam delivered in a prior action
between the same parties, concerning the same subject matter and
founded on the same cause of action. It is contended for the
Respondent that in casu the relief sought is similar to the relief
sought in Case No, 3181/02 and that it eminated from the same cause
of action and that the former Chief Justice gave a final judgment on
the other hand, it is argued for the Applicant in this regard that it
is denied that the same cause of action has been tried and decided
upon under Case No, 3181/02 and that the matter is now res judicata.
The true position it is contended is that the Chief Justice, as he
then was, dismissed the matter on the basis that the Applicant had
not sufficiently set out his ownership and therefore the court was
not in a position to decide the issue in the absence of such
document. The crucial document required by the Chief Justice was the
transfer form signed by the seller. Under the present application,
Applicant has managed to get the seller to sign the same. For a
matter to be res judicata, the court must have decided the same on
instant case, so the argument goes, the court dismissed the matter
for lack of supporting documents. Beck - Theory and Principles of
Pleadings at page 765 states the following:
action dismissed on exception without enquiring into the facts is
therefore no bar to the institution of a fresh action founded on the
authors Hoffmann and Zeffert at page 344 - 345 also expresses the
same principle that a judgment is final if it has determined the
substantive rights of the parties even if it can be rescinded or
reversed on appeal.
would appear to me in this regard that Mr. Simelane for the Applicant
is correct that in the earlier order issued by Sapire CJ (as he then
was) the said order did not finally determine the substantive rights
of the parties and for that reason the plea of res judicata ought to
the issue of the locus standi of the Applicant it would appear to me
that he has established this on the facts of the matter. It appears
to me that the Applicant has a better title than the Respondent on
the basis of annexure "TM1". The said annexure was a
further step to acquire full ownership of the motor vehicle. The
Applicant could not complete the full registration process in terms
of the Road Traffic Act. The Act requires that the Applicant was to
take the vehicle to be examined by the police who would then issue
the "police clearance" to finalise the registration of the
vehicle in his name. The motor vehicle is in the possession of the
Respondent who is refusing with it. The Respondent has not produced
contrary evidence to state who then is the owner of the vehicle.
Respondent alleges that he is a shareholder and director of the
company. However no such evidence of ownership of the company has
been produced by the Respondent. In fact, in casu, the company has
resolved that it will not contest the issue involving two parties, as
it does not own the vehicle in question. This is reflected in the
minutes of the Board of Directors of the 12th November 2002 at
Matsapha where in item 1.1 the following appears:
Directors agreed and hereby resolved that the company should not
apply to either intervene or be joined as an interested party in the
matter involving Mr. Timothy Mavimbela and Cuthbert Fakudze pending
at the High Court. The Directors having satisfied themselves with the
help of Mr. Ntshalintshali that the company does not own the vehicle,
described as follows; Mazda LDV registered SD 215 FS...".
the allegation by the Respondent that the Applicant is appropriating
assets of the company cannot stand on the face of the above-cited
resolution from the members of the company.
sum, I find that on the basis of the evidence before me that the
Applicant is the owner of the vehicle, which ownership he acquired
when the vehicle was delivered to him. Acquiring ownership of a
vehicle is not per se dependent upon the formality of signing the
transfer forms, those are merely required for registration purposes.
the result, an order is granted in terms of prayer 2.2 of the Notice
of Motion and Respondent to pay costs on the ordinary scale.