THE
HIGH COURT OF SWAZILAND
LUNGILE
NYANBZENI
Plaintiff
And
JEREMIAH
MKHGNTA
Defendant
Civil
Case No. 2306/03
Coram
S.B. MAPHALALA – J
For
the Plaintiff MISS ZWANE
For
the Defendant MR. DUNSEITH
JUDGMENT
(07/05/2004)
Before
court is an opposed application for summary judgment where the
Plaintiff is seeking for an order of ejectment of the Defendant from
Lot No. 1142, Ngwane Park Extension 1, his family or any other person
holding title under him and cost of suit.
According
to the Particulars of Claim she is suing in this matter in her
capacity as executrix in the estate of the late Thembi Nyawo
registered with the Master of the.
2
High
Court under Case No. EM 133/03. She resides at Madonsa Township, in
the district of Manzini.
The
Defendant is an adult Swazi male residing at Lot No. 1142, Ngwane
Park, Extension 1 and is carrying on business as a traditional healer
at Ka Ngeobo in Bethany, in the district of Manzini.
The
deceased, Thembi Nyawo was the lawful registered owner of Lot No.
1142. During January 2003, the deceased served the Defendant with a
notice to vacate within one full calendar month, as she required the
premises for her own use. Defendant had no written lease with
deceased and according to the Plaintiff is occupying the aforesaid
property wrongfully and unlawfully.
A
copy of the notice to vacate is attached to the plaintiff's
Particulars of Claim, as annexure "LN2". The said notice is
a letter from the deceased to Mr. & Mrs Mkhonta dated the 9th
January 2003. The deceased in this letter was informing the
addressees therein that she has since acquired ownership of Lot 1142;
Ngwane Park and she attached the title deed for their perusal. She
proceeded to give the Defendant a one-month notice to vacate the
premises on or before January 31, 2003 as she intended to use the
said property thereafter.
The
Defendant filed a Notice of Intention to Defend on the 22nd November
2003. The Plaintiff filed an application for summary judgment on the
14th February 2004. On the 29th January 2004, the Defendant filed his
opposing affidavit.
In
the opposing affidavit the Defendant has raised a point in limine and
has also advanced his case on the merits.
The
point of law raised is that the plaintiff's combined summons was not
served upon the Master of the High Court, notwithstanding that the
action concerns a deceased estate and purports to be instituted in
the name of an executrix. In the premise, the action is irregular and
the application for summary judgment is defective and should be
dismissed with costs.
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In
argument on this point Mr. Dunseith for the Defendant submitted to
the court that the Plaintiff purports to institute the proceedings in
her capacity as executrix in the estate late Thembi Nyawo. The
proceedings were instituted by issue of summons on the 15th September
2003. The Plaintiff was only appointed as executrix on the 17th
January 2004. Therefore the summons is a complete nullity because the
Plaintiff had no authority nor locus standi to institute proceedings
on behalf of the estate on the 15th September 2003. Moreover, the
Plaintiff perjured herself when she stated on oath in her affidavit
sworn on the 14th January 2004, that she was the executrix in the
estate of the late Thembi Nyawo. The affidavit in support of the
application for summary judgment is likewise a complete nullity.
When
the matter was argued on the 29th February 2004 and counsel for the
Plaintiff being confronted with this anomaly could not advance a
convincing argument save to argue that if the application were to be
dismissed on this ground alone then that would mean the Plaintiff
will have to start the proceedings afresh. I must say that I cannot
accept this argument, if it is an argument at all.
In
terms of Rule 17 of the High Court at sub-Rule 4 the following is
provided:
"Every
summons shall set forth:
The
name (including where possible the first name or initials) by which
the Defendant is known to the Plaintiff, his residence or place of
business and where known, his occupation and, if he is sued in any
representative capacity, such capacity, and it shall also state the
Defendant's sex and, if female, her marital status;
The
full names, sex and occupation and the residence or place of
business of the Plaintiff, and where he sues in a representative
capacity, such capacity, if the Plaintiff is female, the summons
shall state her marital status".
Although
in casu the Plaintiff has made all the averments in accordance with
the said rule, her title to sue as an executrix at the time she did
was defective. The facts before me show that she issued the combined
summons on the 15th September 2003, in her capacity as executrix in
the estate late Thembi Nyawo EM 133/03. However, the Letters of
Administration giving her title to sue as executrix of the estate
were only issued on the 171 January 2004. Therefore she could not
have been the executrix of the estate prior to that date. It follows
therefore that the summons is a complete
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nullity
because the Plaintiff had no authority nor locus standi to institute
proceedings on "behalf of the estate on the 15th September 2003.
It
would appear to me further that Mr. Dunseith is correct on the facts
of this case that the Plaintiff perjured herself when she stated on
oath in her affidavit sworn on 14th January 2004, that she was the
executrix in the estate of the late Thembi Nyawo. The affidavit in
support of the application for summary judgment is likewise a
complete nullity.
In
the result, the application is dismissed on the basis of defective
title and costs to follow the event.
S.B.MAPHALALA
JUDGE
