Mlangeni v Swaziland Posts and Telecommunications (23/11) [2011] SZHC 60 (04 February 2011);

 

IN THE HIGH COURT OF SWAZILAND

 

HELD AT MABANE                                  Case No.

 

BETWEEN

SIHLE A. VUSUMUZI MLANGENI             Applicant

 And

SWAZILAND POSTS AND                        Respondent    

TELECOMMUNICATIONS       

 

Coram                                                     OTA J.

For the Applicant                                                                                          

For the Respondent                                

____________________________________________________________

JUDGMENT

4^th February 2011

_____________________________________________________________________________

Applicant’s claim as per the notice of motion dated the 9^th day of October, 2008, is as follows: 

1. That the Respondent be ordered to give transfer to the applicant of immovable property described below, so much of it as to satisfy the value particularly the structure described as the SPTC training centre on :

Remainder of Farm 1117

FAILING WHICH:

1. That the Registrar of the High Court of Swaziland or the Deputy be authorized and directed to sign necessary papers and do all necessary deeds in order to give Applicant transfer of the immovable property described in paragraph 1 above.

Alternatively to 1 and 2 above

1. The respondent pays the applicant
2. the sum of E200,000.00
3. Interest at 9% per annum thereon from 2^nd July 2005 to date of final payment.
4. Costs of suit on attorney and own client scale.
5. Such further and or alternative reliefs as the above honorable court seem meet.

When this matter served before me for argument on the 9^th of December, 2010, the applicant was represented by Mr. M. Simelane and the Respondent represented by Mr.  T. Mlangeni.

The case for the Applicant as demonstrated by the affidavit upon which this application is founded, is as follows:

 

That about the year 2004, the Respondent ran a competition titled “The Blue Dot Treasure Hunt Competition” That  the competition rules were as follows:

 

1. The winner will be the holder of the correct key that unlocks the competition house to the value of E200, 000.00.
2.  The house will be given to the person with the key able to unlock the door.
3.  The house was to be won voetstoots or as is
4. The Judges decision was final and no correspondence shall be allowed

 

Applicant exhibited a copy of the rules to his affidavit as annexure SM1

That the applicant qualified for the draw by complying with the rules for playing the competition. That the competition closed on the 20^th September 2004 and the house draw was done at the SPTC training centre, SCOT, Mbabane on the 2^nd July  2005.  That the explanation given to the contestants for the delay was that the competition house was not ready, which the applicant thought odd because the clear reading of the competition rules gave the impression that the house did exist.

 

That on or about the 2^nd of July 2005, the Respondent invited the Applicant to participate in the final draw. That the competition culminated in the Applicant winning the grand prize, when the key he picked from the basket opened a door at the SPTC training centre. That the respondent accepted that Applicant was the

Rightful winner of the competition as shown in the Respondent’s newsletter, the Telepost, September 2005, edition, annexure SM2, as well as the numerous attempts made by the Respondent to settle the matter by paying the applicant.  One of such attempts is  evidenced by annexure SM3, a letter from Respondent’s attorneys  on a revised  offer of E140,000.00.

 

That until date, the Respondent has failed to deliver the competition house to the applicant.  That Respondent has made a series of offers to the applicant, which the applicant rejected. That one of these offers was the transfer of the house on portion 20 of lot 196 Hlathikulu which the Respondents advised applicant’s attorneys that they had secured on 20^th of November 2006, annexure SM4.  The Respondent further advised through its attorneys that the house is valued at E140,000.00  renovating cost E52,743.00, transfer cost E12,028.00, bringing the total cost to E204,771.00 as is shown in annexure SM5.

 

That the applicant rejected the house for the following reasons.

1)        It was extremely overpriced, aimed at giving him less than the actual value of the prize money of E200,000.00

2)        The valuation by Hlathikulu Town council placed the property at E50.000.00

3)        The renovation was not worth E52,743.00

4)        The renovation appeared to be at closing stages, but the house was still letting in water either through the door or ceiling.

5)        There was deceipt on the part of the Respondent.  On the 26^th  of July 2007, the applicant was advised through his attorneys that the renovation was completed.  Yet when an inspection in loco was conducted by all stake holders on the 27^th of November 2007, it was discovered the contractor was still hard at work.  Annexure SM6 highlights the reasons for rejecting the house in particular  annexure C thereof.

That the right to the competition house accrued  to the applicant since the 2^nd of July 2005, the respondent has however failed to keep its part of the bargain by delivering the house to applicant or cash payment of the sum of E200,000.00 value of the competition house.   Therefore, the claim for interest is sustainable.

 

The respondent which is opposed to this application filed  a 15 paragraphs opposing Affidavit, sworn to by one Nathi Dlamini, described in that process as the Managing director of the respondent.

 

In the affidavit in opposition,  heads of argument as well as oral submissions of the Respondent’s counsel in court, the respondent raised points of law seeking to defeat this application in limine.  I find it convenient at this juncture to first consider the points raised in limine before dabbling into the merits of this application, if need be.

 

I want to commence this exercise from the tangent of the allegation of disputes of fact.  In respect of this matter, learned counsel for the Respondent submitted as follows in paragraph 3 and 4 of Respondent’s heads of arguments:-

 

“3. The long and eventful history of this matter, from the day the competition was conducted to the inception of litigation, says it all.  Specifically, there are disputes of fact regarding the following.

 

3.1      Whether in the absence of a house it legally followed that prize money was to be paid:-   see paragraph 12.1 page 32 of Book of Pleadings.

3.2      Whether there was novation of the original agreement to give a house to the winner;

3.3      Whether the Respondent, by rejecting the house at Hlathikulu, effectively repudiated the agreement – assuming  there was a valid contract, which is in any event denied .

4.        The above issue and others mentioned in the opposing affidavit of Nathi Dlamini, are vexed  issues which require oral evidence based on appropriate pleadings ---“          

The applicant for his part contends that there are no disputes of fact in this matter that cannot be resolved upon the papers that  attend the application.

 

Now, case law has demonstrated it beyond disputation that the court can entertain proceedings on motion application.  The approved judicial practice is that if the dispute between the parties is premised on a question of law, that the matter is best pursued via motion proceedings.  This is because such proceedings are not only expeditious but are also manifestly less expensive.  On the other hand where real and substantial disputes of fact exist in a matter, the proper proceedings is by action.

 

See Room Hire Co (Pty) Ltd V Jeppe Street Mansions (Pty) Ltd (1939 (3) SA 113(7). Furthermore,  the learned editors Herbstein and Van Winsen, in their text the Civil Practice of the Supreme  court of South Africa (4^th edition), expressed this position of the law as follows, at page 234:-

“It is clearly undesirable in cases in which facts relied upon are disputed to endeavour to settle the disputes of fact on affidavit, for the ascertainment of the true facts is effected by the trial judge on consideration not only of probability, which ought not to arise in motion proceedings but also of credibility of witnesses, giving evidence viva voce.  In that event it is more satisfactory that evidence should be led and that the court should have the opportunity of seeing and coming to a conclusion”

 

See Pauline Mnguni  V City Jap Auto (Pty) Ltd and another case No. 4728/02 (unreported), Mntomubi Simelane and another V Makwata Simelane and others case NO. 4286/09 (unreported) H.J. Erasmus etal “ superior court practices, Juta publishing services 21, 2004 pages 41 to  48.  

 

I however hasten to add here, that it is not every allegation of fact  that a dispute exists that grants a right to the invocation of this principle.  The test is that the affidavit in opposition of the motion proceedings must demonstrate a real, genuine and bona fide disputes of fact, for the opposer to be availed of this remedy.  The mere allegation by the respondent of the existence of such dispute is not a sine qua non to the exercise of this discretion.  It behoves the court seised with the matter to ascertain whether in truth there is a real issue of dispute that cannot be resolved without the aid of oral evidence.     

 

Having carefully reviewed the facts of this case, I am in concert with the applicant that there are no disputes of fact that cannot be resolved on the papers that attend this application.  I say this because the parties are clearly agreed on the  material facts of this case.

 

The parties are agreed that the Respondent ran a competition called the Blue Dot treasure hunt. They are agreed that it was the term of the competition that the winner of the competition will be the holder of the correct key that unlocks the competition house to the value of E200,000.00.

 

They are agreed that on or about the 2^nd of July, 2005, the applicant was invited by the Respondent  to participate  in the final draw of the competition.  Also not disputed is the fact that the applicant picked  a key from the basked which opened the door of the competition house.  They are agreed that the  door that was opened was a door at the SPTC Training Centre, in Mbabane, because the competition house was not ready at the time.  They are agreed that the respondent acknowledged and recognized the applicant as the winner of the competition.  It is not disputed that since the conclusion of the competition,  that the Respondent  has failed to deliver the  competition house to the applicant.  It is also agreed by the parties that the Respondent has made several attempts to deliver the competition house to the applicant.  In one of those attempts the Respondent had offered to build a house for the applicant in his fathers homestead , which offer the applicant initially accepted but later rejected.  Also common cause is the fact that the Respondent made another offer  to transfer the house on portion 20 at lot 196 Hlathikulu to the applicant, which the Respondent advised applicants attorney’s they had secured on 20^th November 2006. Not disputed is the fact that the Hlathikulu house was rejected by the applicant for the reasons he indicated in annexure SM6 particularly annexure C thereof.   

 

Not disputed also is the fact that the Respondent also attempted to settle the  competition prize by monetary offers to the applicant as is shown in annexure SM3 as well as annexure A exhibited to the applicant’s replying affidavit.

 

It would appear to me from the totality of the foregoing, that there is absolutely no disputes of the material fact of this case. I agree with the applicant that the question of novation and repudiation, as well as the other issues raised by the Respondent in its opposing papers, as well as heads of argument, are crisp legal points that can be resolved upon the papers that attend this application. I see no disputes of fact in this case, contrary  to Mr. Mlangeni’s assertions, that may move the court to exercise its discretion in favour of directing oral evidence to the led.

 

Now, coming to the said question of novation, I see absolutely no basis for  the allegation of novation of contract in the circumstances of this case. I say this because it is established beyond disputation, that at the time the final draw was held and the  applicant declared winner of the competition, that no competition house actually existed, thus the  use of the SPTC centre for, in the  words of the Respondent,  “symbolic purposes”.  The attempt to build a house for the applicant in his parental homestead, to the value of the competition house, was an attempt to effect the original agreement by delivering the competition house to the applicant.  It was a continuation of the original agreement which never lapsed.  There is no evidence before me to show that the parties entered into any subsequent  agreement.  If that were the position, the material particulars of such an agreement ought to have been specifically pleaded in these proceedings in accordance with law.  As the case lies, I  see no such agreement and none is urged in these proceedings.

 

Similarly, the allegation that the applicant repudiated the agreement to deliver the Hlathikulu house to him as the competition house must also fail.  The purchase of the Hlathikulu house by the Respondent was an attempt to effect the terms of the agreement to deliver the competition house to the applicant. The papers demonstrate that it was an offer which was subject to renovations being carried out in the house.  In paragraphs 12, 13 and 14 of the  founding affidavit as well as annexure SM6, the applicant set out the reasons why he rejected the Hlathikulu house.   It is thus obvious to me that the applicant never accepted the offer of the Hlathikulu house.  Therefore no valid contract was created between the parties in relation thereto as to sustain the allegation of repudiation.

 

Now, the Respondent contends that at the material time of the competition, the Applicant’s mother one Patricia Lokothwayo – Mlangeni was an employee of the  Respondent. That she was employed in 1976 with employee No. 4201904.  That in terms of the rules of the competition “SPTC, SUB and MUTEL employees, distributors, advertising and promotion agencies and their immediate families were not allowed to enter the competition”. Therefore,  so goes the argument, the applicant violated the rules of the competition and is not in law entitled to the  prize or any portion of it.

 

The fact that his mother was an employee of the respondent at the  material time of the competition is not disputed by the applicant.  I hold the firm view that the fact that the applicant’s  mother was an employee of the Respondent at the material time of the competition, is of no moment  to these proceedings. In fact the Respondent is estopped from  contending this issue. I say this because, the applicant inspite of this disqualifying factor was not disqualified by the Respondent.  He was allowed to participate in the competition.  The Respondent invited him to the final draw on or about the 2^nd of July 2005.  The applicant who picked the key that opened the competition house was adjudged the winner of the grand prize by the judges, whose decisions  according to the rules of  the competition were “final”. The Respondent accepted the applicant as the winner of the grand prize.  It acknowledged the applicant as the “Blue Dot Treasure Hunt House Winner” in annexure SM2 which is the Respondent’s news letter, the telepost, September, 2005 edition.  The Respondent acknowledged the applicants victory by the several offers made to deliver  a “competition house” to the applicant, and thereby acknowledged his entitlement to the prize.  Respondent attempted to build a house for the applicant in his father’s homestead; when the applicant changed his mind and rejected the said construction, the Respondent further acknowledged his entitlement by purchasing the Hlathikulu house and embarking on extensive renovation of same in order to deliver it to the applicant as the “competition house” won. See annexures SM4 and SM5 respectively. A further demonstration of the applicant’s entitlement is the offers made by the Respondent for cash settlement of the competition prize in lieu of the competition house as is shown in annexures SM2 as well as annexure A  exhibited to the applicants replying affidavit.

 

It is apparent to me from the totality of the foregoing, that it is too late in the circumstances for the Respondent to allege that the applicant was not qualified to participate.  The Respondent cannot with one side of it’s mouth acknowledge the applicant winner of the grand prize and take copious steps to ensure that applicant gets his entitlement, inspite of knowledge of this alleged disqualifying factor,  and yet with the other side of it’s mouth  allege that the applicant was not qualified to participate and thus not entitled to the grand prize.  The Respondent cannot sing in two different voices. This allegation at this stage, in my view, is tantamount “to shutting the stable after the horse has bolted away”.  I will discountenance this line of defence in the circumstances.  Now, there is no dispute at all that both parties knew that the competition house did not exist at the time of the competition.  The mere fact that the draw took place at the SPTC Centre is an indication that the competition house was non existent.  If the competition house were in existence, it is the house that should  have been opened not the SPTC Centre.  It is because of this fact that the Respondent contends that since the competition house which is the subject matter of the intended contract was not in existence at the time of the competition, no binding contract can flow therefrom.

 

Let me say it straightaway here without more ado, that this line of defence is not only preposterous but if allowed will epitomise injustice of the highest order.  The Respondent organized the competition and fixed the prize, knowing full well that the prize did not exist.  After the applicant was adjudged and acknowledged winner, the Respondent took several steps to deliver the prize to the applicant as is demonstrated by annexures SM3, SM4, SM5 and A.  The line of defence which the Respondent now advances cannot aid it in the circumstances.  By it’s tenure of contention on this issue, the Respondent blatantly agrees, that it misrepresented  facts to the entire public, thereby, inducing  them to enter into the competition.  I say this because as rightly contended by the applicant, a reading of the terms of the competition gave the impression that the competition house existed at the outset of the competition, when that was not actually the case.  The applicant based on this representation that the holder of the key that unlocks the competition house will be given the competition house, entered the competition in good faith.  The Respondent cannot now seek to  rely on this disingenuous and scandalous line of defence to avoid its obligation under the contract.   Respondent cannot eat its cake and have it at the same time.  It is estopped from towing this line of defence. Substantial justice demands that the agreement between the parties be enforced and I so hold.

 

 Now I agree entirely with the Respondent that the property  described as “Remainder of Farm 1117” in  pursuit of prayers (1) and (2) of the notice of motion falls short of the requirements of section 12 (1) of the Deeds Registry Regulation 1973. That legislation requires  the following particulars in describing  land, as rightly set out in Respondent’s heads of argument.

a)        District in which the property is situated

b)        In the case of land situated in a township or urban area, the name of the township.  The urban area and the district .

c)         The registration number of the land and the extent of the land.

 

 The foregoing material particulars are conspicuously absent in the description of

The land pursuant to prayers 1 and 2.

 

I agree entirely  with the Respondent that any order granted in relation to the said property will be incapable of enforcement.

 

Besides, applicants contention that he is entitled to this portion which is located at the SPTC Centre where the final draw was held  is not maintainable .  I say this because the applicant was fully aware at the time of the final draw that the competition house did not exist and that the SPTC Centre was used for the final draw only for symbolic purposes.  It is by reason of this fact that he considered the option of constructing a house for him at his Father’s homestead and later rehabilitating another house for him at Hlathikulu.  It therefore does not lie in his mouth to contend  that he is entitled to a portion of the property upon which the SPTC Centre is situated.

 

The applicant claims the sum of E200,000.00 in the alternative.  The Respondent contends that this alternative claim sounds in damages and is thus not appropriate for action proceedings.  Respondent also contends that by the rules of  the competition the grand prize was the competition house and not a monetary reward. I must say that I am not swayed by these contentions. Respondent’s contention that the rules of the competition entailed a house and not a cash prize must fail.  It is estopped from contending as such having made cash offers to the applicant itself in a bid to settle this matter.  One example of such a cash offer is demonstrated by annexure SM3, which appears on page 13 of the book of pleadings.  In that annexure dated the 14^th of December 2007, the Respondent’s Attorney’s,  Mlangeni and Company wrote to applicant’s attornery’s Waring Simelane, making a cash offer of E140,000.00. For avoidance of doubts. I find it expredient to set out the material details of annexure SM3.  It reads:-

 

“Dear Sir,

RE: BLUE DOT COMPETITION WINNER SIHLE MLANGENI

1.        Your letter dated 10^th December 2007 refers.

2.        Notwithstanding  paragraph (3) thereof, our client hereby makes a revised offer of E140,000.00 plus contribution  towards legal costs amounting to E10,000.00.

3.        Client is committed to pay the amount immediately upon acceptance of the revised offer.

4.        Awaiting your advice in due course …………”

Furthermore is annexure A, to be found on pages 52 to 55 of the book of pleadings  wherein the Respondent made a cash offer of E70,000.00 to the applicant in lieu of the competition house.

     

It is obvious to me upon the totality of the foregoing that the Respondent is not only willing but also able to make a cash payment in lieu of the competition house. 

The competition house is expressed by the rules of the competition, annexure SM1, to be to the value of E200,000=00.  Therefore, the value of the competition house is fixed and accepted to be to the value of E200,000.00.  That is why the Respondent made efforts to deliver a house of that value to the applicant see annexure SM5. The applicant’s claim in the alternative for E200,000.00 shows that he is willing to accept a cash prize in lieu of the competition house.

 

The justice of this matter therefore demands that the applicants alternative claim for the sum of E200,000.00 be upheld and I so hold.

In the circumstances, I hereby make the following orders.

a)        The Respondent do and is hereby ordered to pay the applicant the sum of                E200,000.00  in lieu of the competition house

b)        Costs to follow the event.

 

OTA J.

JUDGE OF THE HIGH COURT