IN THE HIGH COURT OF SWAZILAND
HELD AT MABANE Case No. 3815/10
In the matter between
HLOBSILE CYNTHIA MASEKO Applicant
(NEE Sukati ) & ANOTHER
SELLINAH MASEKO (NEE Mabuza) Respondent
Coram OTA J.
For the Applicant
For the Respondent
Applicants commenced this application on the premises of urgency praying the court for the following reliefs:-
1. Dispensing with the forms and time limits provided for in the rules of the above Honourable court and dealing with this matter as an urgent matter in terms of rule 6 (25) of the Rules of the above Honourable court.
2. Directing that the 1st Applicant forthwith occupy a homestead situated at Madonsa Village for her exclusive use, enjoyment and management.
3. Interdicting the 1st Respondent from collecting any rentals, managing and entering the homestead referred to in prayer 2 above
4. Interdicting the 1st, 2nd and 3rd Respondents from interfering with the estate of the late Thulani Mkhaya Maseko, under reference No. EM 236/2009 in the 4th Respondent’s register.
5. Directing that the 2nd applicant exercise her duties without interference and / or threats from the 1st, 2nd and 3rd Respondents or any of their family members.
6. That the 1st, 2nd and 3rd Respondents forthwith deliver and / or disclose to the 2nd Applicant any assets in their possession for onward transmission to the 4th Respondent.
7. That prayer 2 and 3 above operate with immediate effect pending finalization of this matter.
8. That members of the Swaziland Royal Police of the nearest station, assist the 1st and 2nd Respondent should a need arise, in executing the orders prayed for above.
9. That 1st, 2nd and 3rd Respondents pay costs of this application at attorney and client scale, and 4th Respondent only in the event of unsuccessfully opposition.
10. Further and / or alternative relief
When this matter served before me for argument on the 15th of February, 2011, the applicants were represented by Mr S. Dlamini and the 1st, 2nd and 3rd Respondents were represented by Mr. B. Ngcamphalala. It is worthy of note that the 4th and 5th respondents were not represented and they did not participate in these proceedings. I find it therefore convenient to refer to the 1st , 2nd and 3rd Respondent as Respondents, for ease of reference in this judgment.
Mr. Ngcamphalalafor the Respondents, during argument in court, withdrew two of the points raised in limine by the Respondents, namely, the point of urgency and that of locus standi, opting rather to dwell on the question of disputes of fact. Thereafter, I heard argument from counsel on this question.
Suffice it to say that I have carefully considered the totality of the affidavit evidence tendered, the heads of argument and supplementary heads of argument filed, as well as oral argument tendered by both sides.
It is apposite for me at this juncture, before a consideration of the facts stated, to return to first principles and state the very familiar, but fundamental propositions on the question of disputes of fact, as this will, in my view, help forster a better understanding of my reasoning, whilst analyzing the facts stated herein.
I take it now as judicially settled, that in as much as the court can entertain applications by motion proceedings, such proceedings are however, inappropriate for the purpose of deciding real and substantial disputes of fact, which properly fall for decision by action. The learned authors Herbstein and Van Winsen in the Text, The Civil Practice of the Supreme court of South Africa (4th edition) expressed this position of the law, at page 234, in the following language:-
“It is clearly undesirable in cases in which facts relied upon are disputed to endeavor to settle the dispute of fact on an 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”
The foregoing principle of law has been given effect by courts in this jurisdiction. The cases abound. Some of the cases in which the principle was applied include but are not limited to Pauline Mnguni v city Jap Auto (Pty) Ltd and another case No. 4728/09 (unreported) Mntomubi Simelane and another v Makwata Simelane and others case No. 4286/09 (unreported), Didabantu Khumalo v the Attorney-General Civil Appeal No. 31/2010 (unreported) see also Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty Ltd) 1939 (3) SA, Plascon, Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).
It is thus the judicial consensus, that where the material facts upon which the claim between the parties is founded are disputed, then motion proceedings would not be appropriate.
However, a finding that a dispute of facts exists in a case cannot be had just for the asking. The test is that the affidavit in opposition of the motion proceedings must demonstrate a real, genuine and bona fide dispute of fact for the opposer to be availed of this relief. I say this because the mere allegation by the opposer that disputes of fact exist is not conclusive. The court seized with the matter in which such an allegation is made, is required by law, to go the extra mile of ascertaining for itself if there is a real issue of dispute that cannot be resolved without the aid of oral evidence.
This is to avoid the potential danger of this principle being employed to “hoodwink” the court and thus make a complete mockery and nonsense of disputes by motion. As the court put it in Reed v Wittrup SA 1962 (4) at page 443.
“ If by a mere denial in general terms a respondent can defeat or delay an applicant who comes to court on motion, then motion proceedings are worthless, for a respondent can always defeat or delay a petition by such a desive . It is necessary to make a robust, common sense approach to a dispute on motion as otherwise the effective functioning of the court can be hamstring and circumvented by the most simple and blatant stratagem. The court must not hesitate to decide on issues of fact on affidavit merely because it may be difficult to do so. Justice can be defeated or seriously impeded and delayed by an over fastidious approach to dispute raised on an affidavit”
See also the dictum of Price JP in Soffiantini v Mould 1995 (4) SA 150 at 154.
It is in appreciation of the ill consequence of the scenario enunciated ante, that case law has evolved certain parameters to guide the court in coming to the conclusion that real dispute of fact exist. These principles are as follows:-
1. When the respondent disputes material allegations made by the deponent on the applicant’s behalf and produces positive evidence to the contrary. See Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd (Supra).
2. When the respondent admits the applicants affidavit evidence but alleges other facts which the applicant disputes.
3. When the respondent concedes that he has no knowledge of the main facts stated by the applicant but denies them, putting the applicant to proof and himself gives or proposes to give evidence to show that the applicant and his deponents are biased and untruthful or otherwise unreliable and that certain facts upon which the applicant relies to prove the matter are untrue. See Erasmus H.J. etal “superior court Practice, Juta Publishing 2004 page 61, Herbstein and Van Winsen (Supra) page 238 – 240. See also Plascon – Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 SA 623 (A)
I find it imperative to state here that irrespective of the foregoing parameters, that the courts have been enjoined, to, even when it is clear that there is no bona fide disputes of fact, reserve itself the discretion in appropriate circumstances to deny on applicant the use of motion proceedings, in cases where a trial action would be the appropriate course. See R Bakers (Pty) Ltd v Ruto Bakeries (Pty) Ltd 1948 (20 SA 626 (t) AT 631 It appears to me therefore, that the court must determine each case in accordance with its own peculiar facts and extigencies .
It is thus convenient for me at this juncture to visit the facts stated in this case, as depicted in the totality of the affidavits serving before court in a bid to resolve this question.
The case for the 1st and 2nd applicants respectively, is founded in the affidavit of 1st applicant Hlobsile Cynthia Maseko (nee Sukati) as follows:-
That the 1st applicant, got married to one Thulani Makhaya Maseko (deceased) on the 10th January 2009, in terms of Swazi law and custom, as evidenced by the marriage certificate annexure “HMS1”. That prior to their marriage, the deceased was married to one Khanyisile Maseko (nee Dlamini) with whom he bore one child, Jabulani Maseko. The said Khanyisile died in 2002. That prior to the marriage with the 1st applicant, that the deceased had already secured land in Madonsa. That after the marriage the 1st applicant and the deceased erected a three, one roomed houses on the said land which they rented out. That this is the premises which 1st applicant and deceased used to occupy whenever they returned to Madonsa from the deceased’s work place at Kloof Gold Mining Company in south Africa. That 1st applicant had moved to stay with the deceased in South Africa the marriage. That during the subsistence of the marriage, they also secured a place through “kukhonta” at Evusweni in the Manzini District, where they intended constructing a second home.
That some time during the month of August 2009, whilst they were in South Africa, the deceased fell sick. That 1st applicant duly informed his relatives when the sickness got worse. That on the 29th August 209, one of her in laws came to the house and collected certain documents and information further without intimating her that the deceased had passed on. That she learnt about the deceased’s passing the following morning. That during the lifetime of the deceased she maintained a smooth relationship with her in laws including the Respondents. However, immediately after the demise of the deceased, 1st applicant received inhuman and disgraceful treatment from the Respondents. She was denied access to the corpse, stopped from attending his funeral, evicted from their home in South Africa and dispossessed of all their belongings by the Respondents. That she enlisted the help of the Department of Justice and constitutional committee in South Africa, to be able to take control of the deceased’s assets as evidenced by annexure “HMS2”. That inspite of this, all she recovered were her personal belongings and the rest were withheld from her.
That upon her return to Swaziland she enlisted the help of her family to resolve the problem with the respondents. Whereupon the day preceding the burial, she and her family visited the deceased’s family home stead at Nkiliji, but the Respondents refused her audience, denying that she was ever married to the deceased. That she sought the assistance of both the Royal Kraal and Evusweni royal Kraal but her efforts proved abortive. That the deceased was eventually buried without her involvement and consent.
That after the deceased was buried, 1st applicant reported his death at the office of the 4th Respondent in Manzini. That a meeting of the deceased’s next of kin was called. None of the in laws attended. That at the 4th attempt at having a meeting, the 4th Respondent appointed the 1st applicant Executor Dative of the deceased’s estate. That 1st applicant served a letter confirming the appointment to all the relevant parties including her in laws. That she caused an advert to be published in the news page calling on creditors to lodge their claim and debtors to pay their debts and any person with any query to lodge such in the office of the 4th Respondent.
That she reported the death to the employment Bureau Africa (TEBA) Manzini branch and enlisted their assistance in claiming any benefits of the deceased from his employers. That in June 2010, the 1st Respondent by passed TEBA and collected the deceased’s benefits to the tune of E95,000.00. that a sum in excess of E20,000.00 was also paid in respect of Jabulane Maseko. That 1st applicant then reported the matter to the Regional Secretary’s office in Manzini. That The Swazi National Court President called a meeting of all parties and issued an order that the estate be liquidated jointly and in terms of the law. And that the parties hold talks regarding the monies received by the 1st Respondent. That ever since the 1st Respondent avoided any meetings with the 1st applicant or the National Court President or the 4th Respondent’s officials.
That 1st and 2nd Respondents have evicted her from her house in Mandonsa and taken control of the house in Nkiliji. That when she requested for her personal belongings the 1st Respondent informed her that she burn them. That the 1st Respondent presently rents out the house at Madonsa and pockets the rentals.
It is on record that the Respondents filed two affidavits in opposition of this application. The two Affidavits are both sworn by the 1st Respondent Sellinah Maseko (nee Mabuza). In the said Affidavits the 1st Respondent denied every material allegation of fact deposed to by the applicant and adduced new facts. A summary of the facts are as follows:-
That the deceased is the 1st Respondent’s son. That deceased married Khanyisile Norah Dlamini in terms of Swazi law and custom on the 6th February 1998. That at that time of the marriage the deceased lived with the Respondent’s at Nkiliji. That after the marriage the deceased khontaed at Mandonsa. Thereafter, the deceased constructed the three one roomed flats therein and took his wife Khanysile to live there. That Khanyisile occupied one of the rooms whilst the others were occupied by tenants. That Jabualani Maseko was born to Khanyisile and the deceased. That the said Khanyisile passed away on the 17th February 2004 as evidenced by annexure A. That the late Khanyisile was buried at Madosa her marital home. That the 1st Applicants marriage was not conducted in terms of Swazi law and custom because she was not tekaed at the deceased’s parental home stead. The marriage was not reported to the family. That the family only became aware of the 1st applicant after the deceased passed away and 1st Applicant came with her family to pay condolence. That 1st applicant was requested as custom demands to go and fetch those that smeared her with red ochre so that they could confirm that such a marriage took place. That 1st applicant left and never returned. That the 1st applicants alleged marriage to the deceased is thus questionable and this was confirmed by the court per Q M Mabuza J. in case no. 3213/09, wherein the 1st applicant sought an interdict restraining the respondents from conduction the funeral of the deceased at Madonsa, rather that the funeral be conducted at Evusweni. The court dismissed the application questioning 1st applicant’s locus standi in moving that application. That the deceased was thus buried beside the late Khanyisile at Madonsa. That another house was constructed on the said premises a day preceding the funeral in order to avoid evicting one of the tenants when the funeral procession was underway.
That after the deceased died the Respondents were informed about his death by the deceased’s co-employees and not 1st applicant. That after the demise of the deceased, two of his siblings also resident in the Republic of South Africa, namely, Polly Maseko and Mbongiseni Maseko went to his house to collect his personal belongings, but found only the fridge and the bed as all other items has been taken away by the 1st applicant. That the bed and fridge were eventually also taken away by the 1st applicant who was in the company of officials from the South Africa Ministry of Justice and Constitutional Development. That 1st Respondent did not receive the alleged sum of E95,000.00, that all she received was the sum of E5,000.00 for the minor child’s school fees. That the minor child has been in her custody since the demise of Khanyisile. That the minor child is also a beneficiary in the deceased’s pension fund as well as 1st Respondent as shown in annexure D.
That the home in Madonsa belongs to Khanyisile Maseko therefore the only person that can claim ownership thereof is the minor child, Jabulani Maseko.
That the 1st Applicant right vests with the land she alleges was acquired in Evusweni which the Respondents are not aware of. That the house in Nkiliji was built by all of 1st Respondent’s children and that is where they stay whenever they visit home.
The affidavit of Selina Maseko was suppoted by the confirmatory affidavit of the 3rd Respondent Johane Maseko. It is on record that the applicant swore to a Replying Affidavit to the affidavit of 1st Respondent, wherein she denied several material fact contained in 1st Respondent’s affidavit, alleging new facts.
There is no doubt from the totality of the foregoing facts stated, that there is serious disputes of the material facts of this case.
Mr. Dlaminifor the applicant urges the court to discountenance the disputes of fact, as they are being advanced to derail the court from the main purpose of the application which is to interdict the respondents and thus protect the deceased’s estate from dissipation by the respondents. That since the dispute alleged by the Respondents go to the case of the 1st applicant not the 2nd applicants, that the case put forward for the 2nd applicant stands unchallenged in the circumstances.
I must say straightaway here, but with respect to counsel, that his argument is for another day. I say this because this whole application is founded on the Affidavit of the 1st applicant which she swore on her behalf and on the behalf of the 2nd applicant. Therefore, the 2nd applicant is joined at the hips with the 1st applicant and her case must stand or fall on the strength of the case made out in the 1st applicants Founding Affidavit.
There is no doubt that the 1st applicant is appointed and holds the position of Executor Dative of the deceased’s estate. That fact is not disputed. It is also the position, that the law gives her certain rights to the said deceased,s estate by virtue of that position. One of which is that the deceased’s estate is vests in her prior to distribution to beneficiaries. She would thus have had a clear right to the deceased’s estate entitling her to a final interdict, if this application was premised on her right as the said executor Dative alone. That is however not the case. It is apparent from the facts stated by 1st applicant that she is claiming ownership of certain portions of the deceased estate which transcends beyond her rights as such executor, especially in view of the fact that she herself has admitted in her answering affidavit, that the minor child of the deceased, Jabulani Maseko, is also a beneficiary to the deceased’s estate. The main spirit behind this application therefore is not based on the interest of the 2nd applicant alone but also on that of the 1st applicant more particularly her claim of ownership of the house at Madonsa. This is apparent from the tenor of the claim itself and the facts stated as well the words of the 1st applicant herself in paragraph 30 of her Founding Affidavit under the rubrics “Relief sought” wherein she deposed as follows:-
“30.1.1 I am so desirous to enjoy the use and benefits of the home at Madonsa, as it is the only place left for me to call a home
30.2 I am also diesirous to have the 1st, 2nd and 3rd Respondents restrained and / or interdicted from any interference with my usage and occupation of the said home. They should further be restrained from squandering any property belonging to the estate of my late husband until such time it is liquidated in terms of the law of Administration of Estates.
30.3 The 1st Respondent should also be directed to forthwith deliver any assets belonging to the estate held by her. She should further deposit to the 4th Respondent all monies received by her from the benefits of the employment of my husband for same to be accordingly distributed amongst the rightful beneficiaries as per the laws governing the Administration of Estates.
3.4 I desire that the 1st, 2nd and 3rd Respondents be interdicted from entering and managing the home at Madonsa, the same be left to me as I am the rightful person to use and manage it.
30.5 I desire that 1st, 2nd and 3rd Respondents should be restrained and / or be interdicted from occupying the vacant land that we khontaed for at Evusweni”
My view on this matter is further buttressed by the submission of counsel for the applicants in paragraph 4.6 of applicants heads of argument, under the heading: “whether the 1st Respondent is entitled to the home at Madonsa?” Counsel submitted as follows:-
“It is submitted that the right naturally flows from the fact that she is the surviving spouse of the late Thulani Mkhaya Maseko. The home has been used by her and her late husband. In fact it has been their matrimonial home. Over and above that it forms part of the estate late Thulani Mkhaya Maseko and as an executo,. She has the exclusive right to control and manage it until such time that the estate is legally liquidated…”
The foregoing in my view demonstrate beyond disputation, that the interest of the 1st applicant instant cannot be divorced from that of the 2nd applicant. The two are interwoven. Whilst is one breath the deponent assumes the position of the applicant and says to the court, interdict the Respondents from squandering any property belonging to the estate of the deceased until such time as it is liquidated in terms of the law of Administration of Estates, yet with the other breath, she says to the court some parts of the deceased’s estate are mine, restrain the Respondents from interfering with my exclusive use and occupation of same. 1st applicant is thus not just as king that the deceased’s estate be vested in her as executor Dative but she is outoughtly claiming ownership of same portions of the Estate, with particular reference to the home of Madonsa
I hold the view therefore that a resolution of the issues raised herein will entail a resolution of the following disputes of fact.
1) Whether or not the 1st applicant and the deceased were married in terms of Swazi law and customs. I say this irrespective of the presence of the marriage certificate evidencing the said marriage. The existence of the marriage still needs to be proved in terms of Swazi law and custom. This is more so as in case no. 3213/09, the court per Q M Mabuza J, rejected the marriage certificate as questionable and dismissed the applicants entreatries to be allowed exclusive possession of the deceased’s corpse and to bury same in Evusweni on the grounds of locus standi. This is common cause in this applicantion
2) Whether or not the marital homestead of the 1st applicant is at Madonsa or Evusweni.
3) Who is entitled to the house at Madonsa in terms of Swazi law and custom,the 1st applicant or the minor child born to the deceased and Khanyisile Maseko i.e Jabulani Maseko.
4) Whether or not the deceased’s benefits from his employment was received by the 1st Respondent.
I hold the firm view that the foregoing disputes of the material facts of this case are of such magnitude as cannot be resolved without viva voce evidence, some of which will include expert evidence to be tendered by assessors vested with the knowledge of Swazi law and customs.
The foregoing disputes raise doubts in my mind as to the rights of the 1st applicant to ownership of the deceased’s estate as well as her right to usage of same to the exclusion of the Respondents. This is a dispute which I must resolve in favour of the respondents in accordance with the principles Iaid down in Plascons-Evans.
What remains to be considered at this juncture is what then becomes of this application? Do we dismiss it? The Respondents call for a dismissal of same on the premises that the disputes were reasonably forseable to the 1st applicants before applicants launched the motion proceedings.
I agree entirely with the respondents that the disputes were reasonably forseable prior to litigation. This is clearly borne out of the long history of litigation and wranglings between the parties, as is clearly demonstrated in case No. 32131/09, as well as this case, the contradictions in the depositions of the 1st applicant in 32133/09 and case instant, as to her marital homestead Evusweni or Madonsa, as well as Mbauza J’s rejection of 1st applicant marriage certificate in 3213/09 as questionable. I am firmly convinced that disputes in the foregoing issues should have been reasonably forseable to the 1st applicant prior to litigation. What then, should I dismiss this application?
I am statutorily empowered to either dismiss this application or make such orders as I seem fit with a view to ensuring a just and expeditious decision. I am so empowered by Rule 6 (17) of the rules of this court. It would appear to me therefore that a dismissal of a. motion proceeding, put in this sort of quagmire, is not mandatory, but is left entirely to the discretion of the court, which discretion the court must exercise judicially and judiciously taking into account the peculiar facts and extigencies of each case.
A lot of water has indeed gone under the bridge between the parties herein. I do not think that a dismissal of this case will serve the cause of justice in the circumstances. I am rather inclined to refer this matter to trial, as that course in my view will ensure a just and expeditious decision of same. Of course with appropriate costs to the Respondents. Since the applicant asked for costs on the scale as between attorney and own client. I hold the view that the same courtesy must be extended to the respondents Mr. Ngcamphalala aptly put it “what is good for the goose is good for the gander”
On these premises, I make the following orders:-
The parties herein do and are hereby referred to trial action.
The affidavits filed herein do and are hereby ordered to serve as pleadings at the trial.
This matter do and is hereby referred back to the Registrar to take its course as is required by the rules of court.
Applicants to pay costs to the Respondents on the scale as between Attorney and own clients.
JUDGE OF THE HIGH COURT