IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE
In the matters between:
CASE NO. 4004/2007
SWAZILAND DEVELOPMENT AND SAVINGS BANK PLAINTIFF
and
ABSALOM NGWENYA DEFENDANT
Consolidated with:
CASE NO. 4004/2007
ABSALOM NGWENYA PLAINTIFF
and
SWAZILAND DEVELOPMENT AND SAVINGS BANK DEFENDANT
Neutral Citation : Swaziland Development & Savings Bank v Absalom
Ngwenya (1674/17) [2018] SZHC 14 (10 JULY 2017)
Coram : MABUZA – PJ
Heard : DURING 2014 AND 2017
Delivered : 10 JULY 2018
SUMMARY
Civil Law: Law of Contract – Plaintiff’s claim is for moneys lent and
advanced to the Defendant - Defendant denies that these
monies are due and has filed a claim against the Plaintiff
for inter alia damages.
RULING
(For application on absolution from the instance)
MABUZA -PJ
[1] The Plaintiff is Swaziland Development and Savings Bank, a body corporate established in terms of the Statutory Laws of the Kingdom of Swaziland and carrying on business and registered as a bank with its Head Office at Engungwini Building, Allister Miller Street, Mbabane District of Hhohho.
[2] The Defendant is Absalom Mvana Ngwenya, an adult male Swazi Business person who chose domicilium citandi et executandi for purposes of the Mortgage Bond herein referred to, at the remaining Extent of Farm No. 223 situate in the District of Manzini, Swaziland.
[3] The two matters were consolidated and for ease and convenience, Swaziland Development and Savings Bank (Swazi Bank) shall be referred to as the Plaintiff and Absalom Mvana Ngwenya (Ngwenya) as the Defendant.
re: Case 797/1996
[4] The Plaintiff claim against the Defendant is for:
(a) Payment of the sum of E440,102.30 (Four hundred and forty thousand one hundred and two Emalangeni thirty cents);
(b) Costs of suit on the scale between attorney and own client including payment of the Collection Commission;
(c) An order declaring the property mortgaged in terms of Mortgage Bond No. 126/1994 to be executable;
(d) Further or alternative relief.
re: Case No. 4004/2007
[5] During November 2007, the Defendant (Ngwenya) issued summons against the Plaintiff (Swazi Bank) wherein he claimed the following:
1. Payment of the sum of E572,470.00 (Five hundred and seventy two
thousand four hundred and seventy Emalangeni);
2. Interest thereon at the rate of 9% per annum a tempore morae calculated from the 28th June 1995 to the date of payment;
3. Failing to comply with prayer 1 and 2 within (14) fourteen days of the grant of the Order the mortgage bond held in favour of Defendant in this matter be deemed cancelled; and
4. The Registrar of Deeds be authorized to cancel the security (mortgage bond) in favour of Plaintiff against Defendant’s Property; and
5. The Plaintiff to release the Title Deed to Defendant within (15) fifteen days after the grant of the Order;
6. That the Plaintiff forfeits all monies advanced on behalf of Defendant to his creditors in terms of this loan agreement;
7. That the Plaintiff pays to Defendant a sum of E8,541,126.00 (Eight Million five hundred and forty one thousand one hundred and twenty six Emalangeni) as damages due to unrealized net annual income.
8. Costs;
9. Further or alternative relief.
[6] At the trial the Defendant stated that he was no longer pursuing prayers 1, 2, 3, 4 & 5 and was abandoning these prayers. And that he was pursuing prayers 6, 7, 8 and 9. The oral evidence was in respect of these prayers and that the effect of prayer 6 if granted would be the dismissal of the Plaintiff’s claim in Case No. 797/96.
[7] The parties also agreed that this Court would decide the issue of liability and that they would determine the quantum of damages thereafter if need be.
[8] The Defendant says that there was an oral agreement entered into between himself and the Plaintiff. And that the then Managing Director, Mr. Kuhlase and Mr. Makhubu represented the Swazi Bank when this oral agreement was entered into. There has been no evidence to controvert this allegation of the existence of an oral agreement.
[9] The Defendant states that the Plaintiff advanced certain unsecured moneys to him to pay off his creditors without any written agreements; for example the sum of E183,000.00 (One hundred and eighty three thousand) and the sum of E44,000.00 (Forty four thousand Emalangeni). The Plaintiff has not produced any evidence to controvert the Defendant’s allegations because from the paper trail, the Defendant’s evidence seems to be correct in this aspect. If correct, it seems to me that the parties’ business relationship could have and may have been flexible enough for the oral agreement to have been entered into. Oral evidence from the Plaintiff could dispel or confirm the existence of such an oral agreement.
[10] A mortgage bond for the sum of E800,000.00 (Eight hundred thousand Emalangeni) was registered in favour of the Plaintiff. The Defendant says that it was to receive the moneys to be advanced to him for his intended project. The Court needs to hear the Plaintiff’s side of the story as the Defendant’s story has not been controverted. The Court needs to hear from the Plaintiff what the bond for E800,000.00 (Eight hundred thousand Emalangeni) was for.
[11] Why did the Plaintiff register a bond for E800,000.00 (Eight hundred thousand Emalangeni) when the money it advanced to the Defendant was no more than half of that amount, what was envisaged in bonding up to this amount? Only the Plaintiff can answer this question.
[12] The Plaintiff has not led any evidence with regard to its claim in respect of Case No. 797/96 nor has it dealt with it in its heads of argument. What then is to be made of that claim?
[13] The feasibility study was submitted on the 28th June 1995. The letter declining financing the project was dated 11th September 1996 and was signed by Mr. Enock Mavimbela, Senior Manager Recoveries. The Plaintiff was quiet and did not communicate with the Defendant for a year. The Plaintiff must explain the reason for this delay.
[14] That period of silence in my view is critical for the possible finding of liability in respect of damages in prayer 7 of the Defendant’s particulars of claim.
[15] There are five key players in respect of the Plaintiff namely; Mr. Kuhlase, Mr. Makhubu, Mr. Tucker, Mr. Stanley Matsebula and Mr. Enock Mavimbela all of whose evidence is necessary in order to controvert the Defendant’s evidence.
[16] While the restructuring of the Plaintiff was taking place where were all these key players positioned and what were their roles during this time?
[17] Did the restructuring affect/include the lending portfolio and if so in what way? Did this have any effect on the application for the loan by the Defendant in respect of the feasibility study. Why was the lending portfolio suspended?
[18] In view of the foregoing it is my finding that Mr. Ngwenya has made out a prima facie case and the application for absolution is refused and dismissed. Costs to be in the cause.
_______________________
Q.M. MABUZA
PRINCIPAL JUDGE
For the Plaintiff : Mr. M. Simelane
For the Defendant : Mr. M. Mdladla
