HIGH COURT OF SWAZILAND
the matter between:
MARKETING (PTY) LIMITED Applicant
NSIBANDE N.O. 1st Respondent
MANSOOR 2nd Respondent
TWEEDIE 3rd Respondent
: MASUKU J.
the Applicant ; Mr M.B. Magagula (Millin & Currie)
the Respondent : Mr E.M. Simelane
21st June, 2004
is an application in which the Applicant prays for the following
Declaring the purported attachment of the Augsburg Alpine Fine Impact
Mill 630 UP 2 by the 1st Respondent unlawful
Setting aside the purported attachment of the Augsburg Alpine Fine
Impact Mill 630 UP 2 by the 1st Respondent.
Interdicting the removal of the said machine from the Applicant's
premises at Flat 515,12th Street, Matsapha Industrial Sites,
That the 1st and 2nd Respondents be and are hereby ordered to pay the
costs of this application on the scale between attorney and own
2nd Respondent obtained a summary judgement against the 3rd
Respondent on the 30th May, 2003 for the payment of E192, 850.00,
interest thereon and costs. It would appear that in execution of that
judgement, the 1st Respondent attached the machine referred to above
which was at the Applicant's premises at the time.
Jacomina Sauerman, the Deponent to the Applicant's Founding
Affidavit, states that the Applicant is the owner of the machine in
question, having acquired it from the 3rd Respondent and his partner,
one Berahard Schutte in June, 2002. She states that the Applicant had
initially entered into an agreement of rental and sale of the machine
with the Respondent and his business partner. The agreement, a copy
of which was annexed to the papers, was entered into at Matsapha on
the 26th November, 2002.
machine was installed at the Applicant's premises aforesaid.
Thereafter, Tweedie and Schutte became indebted to the Applicant in
amounts in the excess of E274, 000.00. An agreement of set off was
thus entered into between the Applicant of the one part and Tweedie
and Schutte of the other. This was in recognition of the amounts due
by the Applicant to the Tweedie and Schutte, in respect of the
machine. In consequence of this agreement, Tweedie and Schutte
transferred all their rights, title and interest in and to the
machine to the Applicant, who accepted transfer in full and final
settlement of all claims the Applicant had against Tweedie and
Schutte. A copy of the set off agreement was also annexed to the
is in view of the set off agreement that the Applicant contends that
it is the owner of the machine and that it was in peaceful and
undisturbed possession of the said machine from the time of the
installation of the machine after conclusion of the rental agreement.
Applicant states that in early December, 2003, the 1st Respondent
came to the Applicant's premises and purported to attach the machine.
When advised that the machine belongs to the Applicant, the 1st
Respondent stated that the 3rd Respondent had told him that the
machine belongs to him and that it should be attached in order to
satisfy his indebtedness to the 2nd Respondent.
Applicant informed its attorneys of the imminent attachment and it
was advised to make payment by a post-dated cheque. This cheque
appears to have assuaged the 1st Respondent. This advice was complied
with. When the full story was later related to the Applicant's
attorneys, it was realised that in fact the Writ was issued against
Tweedie and had nothing to do with the Applicant. The payment of the
cheque was therefor stopped.
the 6th February, 2004, the 1st Respondent again called at the
Applicant's premises to attach and proceeded with dismantling the
machine. The lst Respondent refused to reason, resulting in an ex
parte application being moved and granted, restraining the 1st
Respondent from removing the machine.
2nd Respondent, in opposition to the said application, filed an
affidavit in which he alleges that the machine belongs to Tweedie,
Schutte and one Dumisa Mahlambi. The 2nd Respondent further, contends
that the rental agreement and purchase and sale of the mill is null
and void for non-compliance with the Stamp Duties Act No.37 of 1970.
Respondents also attacked the agreement of set off for failure to
comply with the Stamp Duties Act. Furthermore, the 2nd Respondent
also attacked the authenticity of the signatures of the agreements. A
confirmatory affidavit or Dumisa Mahlambi was attached. Mahlambi, in
the affidavit alleged that he co-owned the machine together with
Tweedie and had no objection to it being attached in satisfaction of
matter must be considered with one prime consideration in mind. The
Writ of Execution in Issue and dated 2nd June, 2003, authorised the
Sheriff or his lawful Deputy, to attach the movable goods of Glen
Tweedie. No other person or entity was cited in the Writ as a
Co-Defendant and whose property was liable for attachment in terms of
the said Writ. For that reason, an attachment of another person's
goods would clearly be wrong and ultra vires the strict confines of
the enabling Writ of Execution.
the foregoing in mind, I proceed now to consider the various grounds
of opposition raised by the Respondents.
Invalidity of Agreements
main founding upon which the Respondents based their argument is that
the agreements do not comply with certain provisions of the Stamp
Duties Act, No.37 of 1970, (hereinafter referred to as "the
Act"). The provision relied upon in this regard is Section 13
(1) of the Act, which has the following rendering: -
as is otherwise expressly provided in any law, no instrument shall he
made available for any purpose whatever unless it is duly stamped,
and in particular shall not be produced or given in evidence or be
made available in any court of law, except in criminal proceedings,
or in any proceedings by or on behalf of the Government for the
recovery of any duty on such instrument or of any penalty alleged to
have been incurred under this Act in respect of such instrument. "
13 has a proviso which states the following: -
that the court before which any instrument is tendered may permit or
direct that, subject to the payment of any penalty incurred in
respect of such instrument under Section 10 (I), it be stamped in
accordance with this Act and upon the instrument being duly stamped
may admit it in evidence."
is worth noting that section 13 is entitled, "Invalidity of
instruments not duly stamped". Notwithstanding the use of the
word "invalidity" in the title of the Section, there is no
indication in the body of that Section that an instrument, to which
duty applies but has not
stamped, thereby becomes invalid. In terms of the Section, the
instrument shall not be produced or given in evidence or be made
available in Court. In other words, the Court may not have regard to
it and its contents for want of compliance with the provisions of the
Act. That does not, in the absence of clear and unambiguous language
serve to invalidate the instrument in question as both the Applicant
and Respondents' representatives believed.
parties in this matter, including the Applicant assumed that the
agreements in issue were subject to stamp duty as provided in the
Act. The relevant place to look at in determining whether any duty is
payable in respect of the contracts in issue is the Schedule,
containing the tariff of stamp duties. No.2 of the Schedule, dealing
with agreement or contract provides as follows: -
or contract, in respect of which no other duty is specifically
agreement or contract, other than a hire purchase agreement or
contract or agreement of lease, which relates to the sale, supply or
delivery of goods, wares or merchandise including livestock and
agricultural produce; and
agreement or contract for the hire of domestic servants, labourers
or seamen. "
must confess that the language employed in (a) above is ambiguous and
is in my view subject to two divergent interpretations of agreements
or contracts in respect of which the exemption obtains. In my view,
if my interpretation is correct, the exemption applies to agreements
or contracts which relate to the sale, supply or delivery of goods
wares or merchandise, including livestock and agricultural produce.
Agreements or contracts relating to hire purchase or contracts or
agreements of lease do not enjoy exemption from liability to pay
first agreement does not fall, in my view in the pigeonhole of
agreements subject to stamp duty. Further, it does not fall within
the category of matters in relation to which No. 16 of the schedule
i.e. dealing with lease or agreement of lease. I say so for the
that item No. 16 relates to immovable property. The machine in issue
is clearly 'movable. Similarly, I am of the view that even the
agreement of set off is not subject to the provisions of the Act,
falling as I see it, within the category of exemptions.
would, based on the foregoing, find that the Applicant has made
sufficient allegations to prove ownership for the aforesaid machine.
This would be so in the light of the provisions of the agreements
referred to above.
I not be correct in this regard, I need to consider an argument
raised by Mr Magagula for the Applicant. This argument is premised on
the assumption that the agreement offends against the provisions of
the Act in the manner referred to above.
Magagula submitted that the Applicant, did make sufficient
allegations in the Founding Affidavit which prima facie show that it
was entitled to retain the machine. This is to be found in paragraphs
7 and 8, and paragraph 12 of the Founding Affidavit. The said
paragraphs provide the following: -
The Applicant is the lawful owner of a certain Augsburg Alpine Fine
Impact Mill 630 UPZ, which it acquired from the 3rd Respondent with
is partner Bernhard Schutte, on or about 20th June 2002.
The Applicant had initially entered into an agreement of rental,
purchase and sale of Alpine Fine Impact Mill 630 UPZ, with the 3rd
Respondent and his partner Bernhard Schutte. In that agreement the
Applicant was represented by Stephanus Sauerman and myself. The said
agreement was entered into at Matsapa on 26th November 2002. A copy
of the aforesaid agreement is attached hereto marked "MJS 1"
The parties then agreed to a set off, in terms of which Messrs.
Tweedie and Schutte transferred all their rights, title and interest
in and to the said Alpine Mill, to the Applicant who accepted such
transfer in full and final settlement of all claims the Applicant may
have had against Messrs. Tweedie and Schutte."
Magagula, argued that the copies of the agreements were attached to
the papers for purposes of record, sufficient allegations regarding
ownership having been made in the affidavits, independently of the
copies of the agreements. I agree with this line of reasoning.
GOLDBLATT VS FREMANTLE 1920 AD 123 at 128 - 9, Innes C.J. stated the
to certain exceptions, mostly statutory, any contract may be verbally
entered into; writing is not essential to contractual validity. And
if during negotiations mention is made of a written document, the
Court will assume that the object was merely to afford facility of
proof of the verbal agreement, unless it is clear that the parties
intended that the writing should embody the contract.... At the same
time, it is always open to the parties to agree that their contract
shall be a written one..., and in that case, there will no binding
obligation until the terms have been reduced to writing and signed.
The question is in each case one of construction. "
3, 14, 26 also holds the same view. He states the following: -
contract of sale may be in writing or without writing. A written sale
is not considered to be complete until the writing has been fully
executed. But with us, although there is mention of writing, this is
understood not to be with a view to a written contract, but merely
for the purpose of reducing to writing the terms agreed upon for
better remembrance and proof unless there is clear evidence of a
also R.H. Christie, The Law of Contract 3rd Ed, Butterworths, 1996 at
page 116 and the authorities therein cited.
am of the view that this is the light in which the matter should be
viewed. There is no indication whatsoever that the intention of the
parties was that writing would embody the contract. In the premises,
the Court is entitled in my view, to assume that the written texts
were made to afford the facility of proof of the verbal agreements or
as Grotius puts it, for purposes of better remembrance and proof.
the foregoing in mind, I am of the considered opinion that Mr
Magagula is correct. What is of more significance is that other than
relying on the alleged invalidity of the documents and which has been
considered in detail, above, the Respondents only recorded a bare
denial, and have not placed before Court any material which can be
said to dislodge the position asserted by the Applicant as to its
ownership of the machine.
Mahlambi is correct that he is the joint owner, it was incumbent upon
him to show how he and his partner became owners and how the property
reached the Applicant to enable the latter to deal with it in a
manner suggesting ownership or at the least, lawful possession. The
attack on the witnesses to the agreement, in my view are of no moment
in the light of my conclusions above. The Respondents, it may be
added, have not explained, if they were the owners, Mahlambi added in
that list of owners, why they did not do anything since June, 2002,
when the Applicant took possession of the machinery. The inaction,
particularly of Mahlambi is in this regard telling.
it is apparent, does not contest the ownership of the machine by the
Applicant. Because of Mahlambi's inaction, and allowing Tweedie and
Schutte to deal with the machine as if they were the sole owners and
therefor in a position to alienate the machine and to pass transfer,
I am of the view that Mahlambi is estopped from claiming ownership.
In the circumstances, a third party in the position of the Applicant
was entitled to believe that Schutte and Tweedie were the owners and
therefor entitled to dispose of it. His conduct amounted to a
negligent representation upon which the Applicant relied and acquired
the machine, thus acting to its detriment. For the foregoing reasons
Mahlambi, is in my view estopped from claiming ownership of the
machine at this juncture.
this regard, I refer to OAKLAND NOMINEES LTD VS GELMA MINING &
INVESTMENT CO. LTD 1976 (1) SA 441 (AD) at 452, where Holmes J.A.
stated the following: -
with this, it has been authoritatively laid down by this Court that
an owner is estopped from asserting his rights to his property only –
the person who acquired the property did so because, by the culpa of
the owner, he was misled into the belief that the person, from whom
he acquired it, was the owner or was entitled to dispose of it;
where, despite the absence of culpa, the owner is precluded from
asserting his rights by compelling considerations of fairness within
the broad concept of the exceptio doll"
am of the view that (a) is fully applicable to Mahlambi. The
requirements, for estoppel to succeed, as stated by Holmes J.A.
(infra) at paragraph F - G have in my view been satisfied in view of
what I said above. The elements are the following: -
must be a representation by the owner, by conduct or otherwise,
person who disposed of his property was the owner was entitled to
dispose of it.
representation must have been made negligently in the
representation must have been relied upon by the person raising
person's reliance upon the representation must be the cause of his
acting to his detriment.
also JOHAADIEN VS STANLEY PORTER (PAARL) (PTY) LTD 1970 (1) SA 409
am of the view, in the circumstances that the Applicant has shown
that it is the owner of the machine. The Respondents have dismally
failed to allege and prove otherwise. In the circumstances, the 1st
Respondent, in view of the clear and unambiguous wording in the Writ
of Execution was not entitled to attach the Applicant's property,
particularly where the basis of the alleged ownership of the machine
was so shaky as to constitute sinking sand as it were. I also find,
for the reasons appearing above, that Mahlambi is estopped from
claiming ownership of the machine.
am of the view that the Applicant is entitled to relief, which is
hereby granted in terms of prayers 1,2 and 3. The conduct of the
Respondents in pursuing this matter in view of the clear wording of
the Writ, together with the agreements, in my view entitle the
Applicant to costs on the punitive scale. If the Respondents believed
that the machine belonged to Mahlambi and his partners, then the
proper route to follow was to seek a declarator and not to harass the
Applicant by seeking to remove the machine, under the guise of
attachment, which was in any event not authorised by the very Writ
3rd Respondent did not oppose this application and I find no reason
why he should be tarred with the same brush as the 1st and 2nd
Respondents, who are hereby ordered to pay the costs at attorney and
own client scale jointly and severally, the one paying and the other