Hlatshwayo v Swaziland Property Market and Others (4186/08) [2010] SZHC 98 (30 June 2010);

 

IN THE HIGH COURT OF SWAZILAND

 

HELD AT MBABANE                      CIV. CASE NO. 4186/08

 

In the matter between: 

 

JOHANNES HLATSHWAYO                    Applicant

 

 

Versus

 

 

SWAZILANDPROPERTY MARKET

(PTY) LTD                                                1^st Respondent

 

A.M.P INVESTMENTS (PTY) LTD            2^nd Respondent

 

SWAZILANDDEVELOPMENT AND

SAVINGS BANK                                      3^rd Respondent

 

CECIL JOHN LITTLER N.O.                    4^th Respondent

 

 

No Appearance for the Applicant

Mr. Attorney M. Ndlovu for the 1^st & 2^nd Respondents

Mr. Attorney T.M. Mlangeni for the 3^rd Respondent

 

 

MASUKU J

 

[1]    By notice of motion in the long form, the applicant approached this Court, seeking inter alia:-

 

(1)    Pending finalization of this application, the first respondent be restrained and or interdicted from evicting applicant form Lot No: 350 situated at Extension 3, Zakhele Township.

 

(2)    The third and fourth respondents be directed and ordered to give (sic) the full account of the proceeds of sale in respect of Lot No: 350 situated at Extension 3, Zakhele Township.

 

(3)    The notice of sale which resulted (sic) to second respondent purchasing Lot No. 350 situated at Extension 3, Zakhele Township be declared null and void.

 

1. Costs of this application.

 

[2]    The application is opposed by the respondents, some of whom have, in addition to raising points in limine, also filed comprehensive opposing papers in which this Court is implored to dismiss the application with costs on the punitive scale.  There is a further application that the applicant’s attorneys of record Messrs. Magongo and Associates be mulcted with costs de bonis propiis.  I shall deal with the issue of costs at the opportune time.

 

[3]    I should mention in this regard that the applicant’s lawyers withdrew as attorneys of record and the applicant did not provide a new address of service as required.  This, considering that the applicant is the dominis litis, agitated the respondents since they were desirous of putting the matter to final rest.  They, for that reason, compiled the book of pleadings and prepared the necessary documentation for making the matter ready for hearing.  I ordered that the 1^st and 2^nd respondents’ attorneys should prepare a notice of set-down and serve same on the applicant at his known address of service by registered post.  This was done.  The applicant did not personally or by attorney appear and the matter proceeded in his absence.

 

[4]    The background giving rise to the present application is common cause and is straightforward.  It acuminates to this:  The applicant is a widower, who had been married to Thandi Judith Hlatshwayo, now deceased.  The deceased had during her lifetime, entered into a loan agreement with the 3^rd respondent.  Certain balances remained outstanding at the time of her demise, resulting in the property mentioned above, which was the subject of the loan agreement, being advertised after judgment, for sale.

 

[5]    That property was, pursuant to execution processes, sold by public auction on 22 December, 2006, to the 2^nd respondent.  Having purchased the property, the 2^nd respondent was understandably anxious to acquire possession thereof.  The stumbling block in that regard, is that the applicant still occupies same and contends that it is the matrimonial home.  He punches holes in the sale, alleging that there certain irregularities that were committed which vitiated the sale.  He thus contends that he is entitled to an interdict against his eviction from the premises.

 

[6]    There are formidable obstacles in his way.  These have been pertinently raised as points in limine and I propose to deal with them in turn.

       

        Locus standi

[7]    It is argued in the first place that the applicant has no locus standi in judicio to bring these proceedings.  This is said to be chiefly so because the applicant is not an executor or curator of his late wife’s estate.  This Court was referred to Nkambule Esther v Masinga Sbongile 1987-95 S.R.L. 300.

 

[8]    In that case, a widow, who had been married in community of property to her late husband, sought the transfer of a certain vehicle to her.  She did not allege that she was the executor nor that one had been appointed to take charge of the estate property.   At 303 A-B, Sapire A.J., as he then was, said:-

 

“The founding affidavit does not disclose whether an executor has been appointed to administer the estate of the deceased or not, nor is any mention made of any curator having been appointed as contemplated in the Act to preserve the assets of the estate pending the appointment of an executor.  It is only the executor or such curator who would have locus standi to recover property of the deceased.”

 

See also Krige and Others v Scoble and others 1912 TPD

 

814.

 

 

[9]    What is clear in this case is that the 4^th respondent had been properly appointed as the executor in the deceased’s estate.  This is apparent from paragraph 2.5 of the Applicant’s originating papers.  It is therefor clear that the 4^th respondent is the only person at law, who had the right to challenge the sale or any irregularities, even if this was to be at the applicant’s behest.  It follows that this point of law is good and must be upheld.

 

[10]  Section 22 of the Administration of Estates Act, 1902, which is relevant to the instant case, reads as follows:-

 

“The estates of all persons dying either testate or intestate shall be administered and distributed according to law under letters of administration to be granted in the form contained in Schedule “B”, by the Master to the testamentary executors duly appointed by such deceased persons, or to such persons who are in default of testamentary executors appointed executors dative in terms of this Act.”

 

The applicant is not a person named in the above section and does not purport to be.  He cannot in those circumstances, arrogate himself the right to bring this application.  The application should accordingly fail.

 

 

Interdict

 

[11]  The second point in limine raised by the respondents is that the applicant, though seeking the grant of an interdict, has not satisfied the requisites thereof in his papers.  I must preface my dealing with this issue by stating that it is unclear whether the interdict sought is final or interim, requirements for which, it is common cause differ.  I will consider that the applicant wishes to have an account rendered in the interregnum and hold therefor that the interdict he seeks is interim in the circumstances.

 

[12]  The requirements for such an interdict were set out by Dunn A.C.J. in Makama v Skillshare and Another 1987-95 S.L.R. 280 at 283 h-j in the following terms:-

 

“In order for the applicants to obtain the relief sought, the applicants the applicants must show:

 

1. That the right which is sought to be protected by means of the interim interdict is clear or if not clear, is prima facie established.

 

1. That there is a well grounded apprehension of irreparable harm to the applicants if the interim relief is not granted and the applicant ultimately succeeds in establishing their rights.

 

 

1. That the balance of convenience favours the granting of the interim relief.

 

1. That the applicants have no other satisfactory remedy.”

 

 

[13]  There can be no doubt that the applicant has failed to allege any of the above requirements in his papers.  Worse, he has not satisfied these requirements, because it would appear to me that the facts of this case weigh heavily against the propriety of granting an interim interdict.  In the first place, it is clear that the applicant has no right or one open to some doubt because the property in question was sold pursuant to a judgment of this Court.  An attempt to challenge that judgment was dismissed by the Supreme Court by its judgment dated 16 November, 2006.

 

[14]  In particular, at paragraph 19, the Supreme Court, per Ramodibedi J.A., appears to have cut any limbs on which the applicant can conceivably stand on.  That Court said:-

 

“In my view, the peculiar circumstances of the instant case as fully outlined above cry out for finality of litigation in the interest of justice.  I discern the need to put an end to the whole saga.  In this connection it is as well to observe that the debt owing to the first respondent was never seriously contested in the first place, in my view.”

 

It is clear that the Supreme Court did not strike the matter off from its roll but dismissed it and clearly as it appears, to put litigation in this matter at an end.  The applicant cannot now seek to reopen sutured and healed wounds by alleging this or other irregularity.  In addition, his lack of locus standi in judicio deals a shattering blow to his right to obtain an interdict.

 

[15]  In this regard, it would appear also that the balance of convenience, putting everything in the balance, does not favour the granting of the relief sought.  I say so because the property was purchased in 2006.  The property was and is still registered in the name of Sabelo Maziya without any successful challenge.  It would constitute an extreme travesty of justice to say that the buyer must not enjoy the fruits of his purchase by being vexed by fruitless litigation with no prospect of success whatsoever.  I need not deal with the issue of the interdict in any greater detail.

 

[16]  What I need to comment on and which is astounding is that the applicant appears to sing in two voices.  On the one hand, he challenges (without good or sound bases) the sale.  On the other, he seems to accept the same by then seeking the respondents to render an account.  These prayers appear to be contradictory and which could possibly have been properly sought in the alternative.

 

[17]  The centrality of the role of the office of the executor, who it is clear was appointed without demur, is unavoidable to this case.  His role and competence to deal with the estate or its assets, to the exclusion of the applicant, also applies equally regarding the applicant’s prayer for the rendering of the account by the 3^rd respondent.  See in this regard, the learned author Meyerwitz, Administration of Estates, 5^th Ed, at p106.  

 

[18]  In any event, if the applicant’s claim is that the 4^th respondent did not properly account or deal with the estate property, his relief would, appropriate grounds permitting, be for him applying to this Court to have the 4^th respondent removed in terms of section 84 of the Administration of Estates Act.  The applicant is not just barking the wrong tree.  He has no right to bark this tree regarding this matter.  Period.

 

[19]  I will not, in view of what I have said above, devote any time and effort to responding to the bases upon which the sale is sought to be impeached.  I can only say that those are equally without merit.  The only inescapable conclusion in all the circumstances, is that this application ought be dismissed with costs, which I hereby do.

 

Costs

 

[20]  The respondents have applied in the first instance that the applicant ought to be mulcted with costs on the punitive scale.  They have also applied for a similar order to be granted de bonis propriis against the applicant’s attorneys.

 

[21]  For the reason that Messrs. Magongo and Associates withdrew as attorneys of record, I order that copies of the heads of argument relating to the costs be furnished on them.  They are ordered, within ten (10) days from service of the heads of argument and a copy of this judgment, on them, to file written submissions as to why they should not be ordered to pay costs de bonis propiis and on the punitive scale.

 

[22]  A ruling on the question of costs be and is hereby reserved, pending compliance with the contents of paragraph [21] above.

 

DELIVERED IN THIS OPEN COURT IN MBABANE ON THIS

THE 30^TH JUNE, 2010.

 

_____________________

T.S. MASUKU

JUSTICE OF THE HIGH COURT

 

No appearance for the Applicant.

Messrs. Masina, Ndlovu Mzizi Attorneys for the 1^st & 2^nd Respondents.

Messrs. Mlangeni and Company for the 3^rd Respondent.