IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 1080/2009
In the matter between:
SIBONGISENI FUNDZILE XABA APPLICANT
LINDIWE BRIDGET DLAMINI N.O. RESPONDENT
Coram OTA J.
For the 1st Respondent Mr. N. Fakudze
28th JANUARY 2011
This judgment is in respect of two actions Case No. 1080/09 and Case No. 884/2010, respectively, consolidated. Applicants main prayers in Case No. 1080/09 are as follows:-
Rescinding and or setting aside an order granted by this Honorable Court dated the 25th March 2009,
That 1st, 2nd and 5th Respondents be jointly and severally ordered to pay the sum of E228,000-00.
A declaration that applicant is entitled to half of the value of the properties held under DT 162/88.
Cost of the application to be paid by 1st and 2nd Respondents de bous proprius.
In Case No. 884/2010, the 1st Respondent Lindiwe Bridget Dlamini N.O prays for the following relief’s against the applicant Sibongiseni Xaba and the Registrar of Deeds, The Master of the High Court and the Attorney General as 1st, 2nd, 3rd and 4th Respondents respectively, namely
That the 1st Respondent be and is hereby ordered to take all necessary steps to pass transfer to the estate of the late Amos Mgcwembe Dlamini (EM 108/98) the immovable property whose particulars are:
CERTAIN: Portion 22 of Forum ‘‘ The Peebles’’ Block (North) No. 9 situate in the Manzini District, Swaziland.
HELD: Under Deed of Transfer 162/88
MEASURING: 8,2755 (Eight Comma Two Seven Five Five) hectars
That if 1st Respondent fails within seven days of the
Court order to take the necessary steps, the sheriff be and is hereby authorized to take such steps, on 1st Respondent’s behalf.
Cost of this application in the event that it is
Further and/or alternative relief
I will first determine the application pursuant to Case No. 1080/09, wherein the applicant seeks the reliefs herein before enumerated. The applicant in that application seeks a recission of the order of this court granted in favour of the 1st Respondent on the 25th day of March 2009, which was confirmed on the 17th day of April 2009 and subsequently varied on 12th of June 2009. Her grounds for seeking the recission order as clearly borne out of her founding affidavit, is that the court granted the said order erroneously because although applicant has a direct and substantial interest in the matter, she was however not made a party to the application and was not served with the application. That the properties which were the subject matter of the main application are registered in the name of the applicant. Therefore, applicant is the owner of the properties and ought to have been cited and served with the main application. That she is entitled to 50% of the monies paid in respect of the said property because she was married in Community of Property with the late Amos Mgcwembe Dlamini, whom she divorced on the 23rd of January, 1995. That she never entered into a Deed of Settlement with the deceased Amos Mgcwembe Dlamini and her then attorney, Mr. Collin Ntiwane (deceased) had no authority to sign the Deed of settlement. Applicant averred that the Deed of Settlement is null and void.
Now this application is brought pursuant to Rule 42 (1) (a) of the rules of this Court which provides as follows:-
‘‘ The Court may, in addition to any other powers it may have, mero motu or upon the application of any party affected rescind or vary:
a) An order or judgment erroneously granted in the
absence of any party affected thereby’’
Case law has demonstrated that the principle that must guide the Court in an application for recession, is that, if the Court Commits an error in the record in the sense of a mistake which if it had been aware of, would have induced it not to grant judgment, then the Court in that instance would be entitled to rescind the judgment in question see Tasneens Investments (Pty) Ltd V Choice Investments (Pty) Ltd civil trial No. 2871/09, Bakoven Ltd V G.J. Homes (Pty) Ltd 1922 (22) SA 466 (E), The Attorney General V Austin Bonginkosi Nhlabatsi and 2 others Case No. 91/10 (unreported).
Now, the question that vexes the Court at this juncture is whether the applicant has demonstrated that the order sought to be rescinded was erroneously granted by the Court. Her grounds for the allegation of error on the part of the Court is premised on the allegation that though she has a direct and substantial interest in the matter, she was not cited as a party in the man application nor was she served with the papers therein. Is there any efficacy or substantiality in this contention?
It is common cause that the applicant and the late Amos Mgcwembe Dlamini were married in Community of Property.
It is common cause that the applicant was the dominis litis in divorce proceedings instituted at the Manzini Magistrates Court Case No. 195/93 (see pages 57 to 59 of the book of pleadings.) Not controverted also is the fact that the applicant was represented by her late Attorney Sidumo Ntiwane in the divorce proceedings. It is not disputed that on the 23rd of January 1995, a Divorce Decree was issued by the Manzini Magistrate’s Court and a Deed of Settlement entered into by the applicant and the deceased Amos Mgcwembe Dlamini was made the order of Court. It is record and not disputed, that prior to making the Deed of settlement the order of Court, that the said Deed of Settlement was admitted in evidence as ext B and the power of attorney to applicants late attorney Mr. Ntiwane, who signed the Deed of Settlement, tendered in Court as ext C. (See pages 45 to 46 book of pleadings)
It is not disputed that the said order of the Manzini Magistrates Court made on the 23rd January 1995 was not appealed against or reviewed, or rescinded.
Now in the said Deed of Settlement entered into by the plaintiff (applicant herein) and the Defendant (the late Mr. Amos Mgcwembe Dlamini) which is annexed to the applicants founding affidavit as annexure A, as appears on pages 11 to 15 of the book of pleadings, the plaintiff and Defendant therein, covenanted in part as follows:-
‘‘ (i) Upon the conversion of the agreement into an order of the Court the Defendant shall pay to Attorney’s Shilubane, Ntiwane & partners of 4th floor Mbandzeni House, Smuts Street, Mbabane an amount of E20,000-00 (Twenty Thousand Emalangeni) to the account and benefit of plaintiff as her sole property which amount the said lawyers shall hold in trust and only, pay to plaintiff as soon as the herein below mentioned immovable property of the plaintiff and defendant has been transferred into and registered in the name of the Defendant.
(ii) The parties immovable (farm) property and all improvements thereon presently registered in plaintiff’s name and held by her under Deed of Transfer No. 162/1988 be transferred and registered into Defendant’s name as his sole property as soon as the Defendant has caused to be paid to Attorney Shilubane Ntiwane & Partners the sum of E20,000-00 (Twenty Thousand Emalangeni) in terms of paragraph (1) hereof hereinabove.
(iii) The plaintiff and the defendant shall keep, each of them as their own property such of the property of the joint estate of the plaintiff and defendant as if already in their various possessions.
(iv) That each of plaintiff and defendant shall pay their own legal costs of the said legal action.
(v) The Defendant shall pay costs as may be necessary to effect registration and transfer of the immovable property referred in paragraph (ii) hereof into his name as soon as demand is made to him by the conveyancers carrying out the transfer, which conveyancers it is hereby specifically provided shall be any conveyancers in the firm of Attorneys Mthembu & Simelane Zwane and Kubheka of 2nd Floor Mandlenkosi Ecumencal House, Esser Street, Manzini.
(vi) In so far as it is legally necessary for any documentation to be signed by the plaintiff in this matter to facilitate the transfer and registration of the immovable property referred to in paragraph (ii) hereof into the name of the Defendant any of the partners in the said firm of Attorneys Shilubane Ntiwane & Partners be and is hereby authorized to do sign the same on behalf of the plaintiff and any papers be signed shall be of full legal force and effect for any legal and / or administrative purposes necessitating the signing of any such documentation’’.
There is no disputing the fact that the subject matter of the order sought to be rescinded is property held under Deed of Transfer No. 162/1998. This is the same property which pursuant to paragraph (ii) of the Deed of settlement made by the parties which I have hereinbefore set out above, was ordered to be transferred into the Defendant’s name Amos Mgcwembe Dlamini as his sole property. By reason of the foregoing fact, I find that there is much force in the contention of the Respondents that the applicant has no direct or substantial interest in the said property to warrant the recession sought. I agree completely with the Respondents. The parties were married in Community of Property no doubt. Ordinarily, by virtue of this sort of marriage, each party is entitled to half of the assets of their joint estate. However, by the judgment of the Manzini Magistrate’s Court of the 23rd of January 1995, particularly pursuant to paragraph (ii) of the Deed of settlement which forms a part and parcel of the said judgment, the applicant gave up all her rights to the property held und Deed of Transfer No. 162/1988. This was premised upon payment of the sum of E20,000-00 to the applicants Attorneys. The said sum of E20,000-00 has been duly paid as is clearly demonstrated by the record. The said judgment of the Manzini Magistrate’s Court has not been appealed against, reviewed, varied or rescinded. It is subsisting and binding upon the parties there to as well as this Court. The contentions of the applicant that this Court should disregard the said judgment of the Manzini Magistrates Court and hold that she is entitled to half of the proceeds of the said property cannot hold sway in the circumstances.
Neither is her allegation that the Deed of Settlement is null and void because it was not authorized by her and even if it was authorized is against her interest, of any moment in the circumstances. Similarly, the allegation that the said Deed of settlement is null and void because the power of Attorney was signed on the 10th of December 1994 and the Deed of Settlement was signed on the 8th of December 1994, are also not maintainable in the absence of a valid appeal or application for review of the said judgment.
These are matters which ought to be properly placed before an
appellate or reviewing Court, whose jurisdiction is properly
invoked to set aside, vary or review matters. The application
presently under contemplation is neither an appeal
against the said judgment of the 23rd of January 1995 nor is it
an application for review, recession or variation of same.
This Court therefore lacks the jurisdiction to interfere with the
said judgment of the Manzini Magistrate Court which is
definitive, valid and subsisting and must be presumed to be
right until it is set aside by an appellate or reviewing Court.
As this Court said in the Case of Clement Nhleko V M.H. Mdluli & Company and Sandile Dlamini in Case No. 1393/09 (unreported)at pages 12 to 13.
‘‘ So long as the judgment is not appealed against, it is
unquestionably valid and subsisting. This is so no matter how perverse it may be perceived. It is binding and must be obeyed by all including this Court. This is because a Court is powerless to assume that a subsisting order or judgment of another Court can be ignored because the former whether it is a superior Court in the judicial hierarchy, presumes the order as made or the judgment as given by the latter to be Manifestly invalid without a pronouncement to that effect by an appellate or reviewing Court’’.
It is by the totality of the reasons ante, that I am convinced that the order sought to be rescinded was not erroneously granted by the court. The applicant has failed to demonstrate any direct or substantial interest in the subject matter of the application that gave birth to the said order to entitle her to be cited as a party in those proceedings and served with the processes. She has also failed to demonstrate a bona fide defence to the action. The fact that the property is still registered in her name is immaterial in the circumstances. The application for rescission of the said judgment therefore fails and is dismissed accordingly.
Now we come to Case No. 884/2010, wherein it is prayed that the Respondent be ordered to take all necessary steps to pass transfer of the property held under Deed of Transfer No. 162/88 to the estate of the late Amos Mgcwembe Dlamini (EM108/98). The applicant in Case No. 884/2010 is asking for specific performance of the Deed of Settlement between the parties as per the order of the Manzini Magistrate’s Court. In general an aggrieved party has a right to an order of specific performance. The classic statement of this rule is by Innes JA in Farmer’s Cooperative Society V Berry (1912) AD 343 At 350, where he declared “prima facie every party to a binding agreement who is ready to carry out his own obligation under it, has a right to demand from the other party, as far as possible, performance of his undertaking in terms of the contract”
In the heads of argument filed on behalf of the applicant
Lindiwe Bridget Dlamini, learned Counsel set out in
paragraph 6.3 the requisites of an order for specific
performance on the part of the applicant as follows:-
‘‘ 6.3.1 Allege and prove the terms of the contract.
Allege and prove that he has complied with his antecedent or reciprocal obligation.
Allege non performance by the defendant of his obligation.
Claim specific performance’’.
Counsel relied on the Case of SA Cooling Services (Pty) Ltd V Church Counsel of the Full Gospel Tabernacle 1955 (3) SA 541 (D).
I agree entirely with Counsel that those are the requirements that must be met for the orders sought to be granted. The question is has the applicant fulfilled these requirements?
I have hereinbefore demonstrated in this judgment that the parties entered a Deed of Settlement pertaining to their proprietary rights in the Divorce proceedings instituted at the Manzini Magistrate Court. I have demonstrated that by the terms of the Deed of Settlement Sibongiseni Xaba was to transfer immovable property held under DT 162/1988 to the late Amos Mgcwembe Dlamini. I have also demonstrated that the obligation of Sibongiseni Xaba to transfer the said property was predicated upon a reciprocal obligation by Amos Mgcwembe Dlamini (Deceased) to pay the sum of E20,000-00 to the Attorneys. The record has established beyond disputation that Amos Dlamini (deceased) duly paid the sum
of E20,000-00 to Sibongiseni Xaba’s Attorney in compliance with the agreement between the parties, as is evidenced by annexure C, exhibited to the replying affidavit of Lindiwe Bridget Dlamini. See page 63 of the record. The fact of the payment of the said sum of E20,000-00 is not disputed or challenged throughout the tenure of this application. It is thus established. The record has further demonstrated that inspite of the payment of the said sum of E20,000-00 to Sibongiseni Xaba’s Attorney’s, that she has failed neglected or refused to honour her obligation pursuant to the settlement agreement by transferring property No. DT62/1988 to the Estate of the now deceased Amos Mgcwembe Dlamini. It appears to me therefore in the circumstances, that Lindiwe Bridget Dlamini applicant in Case No. 884/2010 has fulfilled all that is required of her by law to be entitled to the specific performance sought. Her application obviously has merits and it succeeds. On these premises, I grant reliefs 1 and 2 as prayed in Case No. 884/2010. No order as to Costs.
JUDGE OF THE HIGH COURT