IN THE HIGH COURT OF SWAZILAND
Case No. 577/2017
In the matter between:
Ntombifuthi Phindile Dlamini 1st Applicant
Busisiwe Ngcamphalala 2nd Applicant
Nondumiso Magongo Respondent
Ntombifuthi Phindile Dlamini 1st Plaintiff
Busisiwe Ngcamphalala 2nd Plaintiff
Nondumiso Magongo Defendant
Neutral citation: Ntombifuthi Phindile Dlamini and Busisiwe Ngcamphalala vs Nondumiso Magongo (577/2017)  SZHC 29 (23 February 2018)
Coram : T. L. Dlamini J
Date heard : 21 August 2017
Date of delivery : 23 February 2018
Summary: Civil Procedure – Summary judgment application – principles thereof considered – Applicants are trustees of a trust that owns immovable property – The trust property is occupied by the respondent, who from the papers filed of record, appears to have been in an intimate relationship with the founder of the trust but now deceased – The trustees instituted action proceedings for her ejectment from the trust’s immovable property – The respondent notified of her intention to defend the proceedings and filed a notice to defend – The applicants then filed an application for summary judgment which is now for determination by this court.
Held: That the respondent’s defence to the summary judgment application has since been dismissed by this court – Order for ejectment granted.
Held Further: That the prayer for payment of monthly rentals by the respondent for the period she refused to vacate the premises is referred to trial – Applicants awarded costs but only in respect of the hearing date and the preparation thereof.
 The applicants are trustees for the time being of a trust known as the Bhubhudla Family Trust. The trust is the registered owner, per Deed of Transfer No. 499 of 2014, of immovable property known as Lot 898 situated in Manzini, Extension No.9 Fairview Township, along Lusutfu Road. The immovable property consists of a wall fence and well secured residential house that is fully furnished.
 The respondent is an adult female business woman who, according to the applicants, operates a beauty parlour at the Gables complex in eZulwini, Hhohho District. She is in occupation of the trust’s immovable property. It appears to me that she resisted to vacate the property when the trustees for the time being ordered her to do so.
 On the 20th April 2017 the trustees instituted action proceedings for her ejectment, payment of monthly rentals for the period she refused to vacate and remained in occupation, interest thereon at the rate of 9% and costs of suit at attorney and client scale.
 On the 21st April 2017, a day after the institution of the ejectment proceedings, the respondent instituted separate proceedings under case No. 587/2017 wherein she sought an interim order interdicting her ejectment pending a determination of the proceedings under Case No. 587/2017. The orders sought in case No. 587/2017 are the following:
1. Declaring that the respondent herein entered into and concluded a universal partnership with the late Nqaba Mhlakayifani Dlamin, who is the founder of the trust, during his lifetime.
2. Declaring the respondent herein to have been a common law spouse of the late Nqaba Mhlakayifani Dlamini during his lifetime.
3. Declaring the respondent herein to be entitled to a reasonable provision out of the estate of the late Nqaba Mhlakayifani Dlamini.
4. That pending finalization of the proceeding the respondent herein be allowed to continue occupying and/or utilizing for residence purposes the property forming the subject matter of the present proceedings.
5. The applicants herein pay costs of the application de bonis propiis at attorney and client scale and the other respondents to pay costs only in the event of opposition to the application.
 After instituting the proceedings under case No. 57/2017, the respondent thereafter filed a notice to defend the ejectment proceedings. The applicants then filed an application for summary judgment. The respondent opposed the summary judgment application and filed an affidavit resisting summary judgment.
 A summary judgment application is filed where the respondent is alleged to be without a defence to the claim but defending the proceedings merely to delay the finalization thereof. There is a plethora of judgments to that effect. See also: Rule 32 of the High Court Rules. It provides, inter alia, as quoted below:
32(1) where in an action to which this rule applies and a combined summons has been served on a defendant or a declaration has been delivered to him and that defendant has delivered notice of intention to defend, the plaintiff may, on the ground that the defendant has no defence to a claim included in the summons, or to a particular part of such a claim, apply to the court for summary judgment against the defendant (own emphasis)
(2) This rule applies to such claims in the summons as is only –
(a) on a liquid document:
(b) for a liquidated amount in money;
(c) for delivery of specified movable property; or
together with any other claims for interest and costs.
 In the affidavit in support of the summary judgment application the applicants make mention of the fact that the respondent instituted separate proceedings after the proceedings for ejectment were instituted against her. In the separate proceedings the respondent seeks an interim order interdicting her ejectment from the property pending finalization of the separate proceedings she instituted under case No. 587/2017.
 In her affidavit resisting summary judgment, the respondent inter alia states what is quoted below:
“3.4 The circumstances under which I came to be in occupation of the house are more fully stated in my application which is pending before the Honourable Court under Case No. 587/17. This is the very application to which the plaintiffs allude they have filed an answering affidavit. It is therefore surprising that they have not placed before the Court, the entire set of papers filed thereunder but only placed their answering affidavit which advances one side of the story.
3.5 I beg leave therefore to refer to the notice of motion and founding affidavit under Case No. 587/17 and beg further leave to incorporate the averments stated therein, as if herein specifically pleaded. A copy of the notice and affidavit is hereto annexed marked “D1”.
3.7 I have a claim in the estate as well as in the business of the trust. I was a common law wife to the late Nqaba Dlamini and had also entered into and concluded a universal partnership with him hence the acquisition of the property and it being handed over to myself for occupation.
3.8 During his lifetime the late Nqaba Dlamini supported me. Part of the support I got from him was in form of shelter being the house in issue. My occupation of the house was therefore in part, a discharge of the maintenance obligation owed to myself by the late. His estate owes this duty as well. I cannot therefore be evicted from the house at this stage.”
 The pleadings of case No. 587/17 were annexed to the papers filed. On the 9th August 2017 this court, per Mlangeni J, dismissed the prayers sought under case No. 587/17, save prayer 3.1 (for ejectment) that was pending under the present proceedings. In other words the claims made by the respondent in her affidavit resisting summary judgment were dismissed by Mlangeni J.
 After the claims made by the respondent were dismissed by Mlangeni J, the applicants, on the 15th August 2017, filed an application seeking leave of this court to reply to the respondent’s affidavit resisting summary judgment. The application was made in terms of Rule 32 (5) which provides as quoted below:
“32 (5) (a) A defendant may show cause against an application under sub-rule (1) by affidavit or otherwise to the satisfaction of the court and, with the leave of the court, the plaintiff may deliver an affidavit in reply.”(own emphasis)
 The purpose of the replying affidavit was to bring to the attention of the court the order that Mlangeni J issued on the 9th August 2017 in case No.587/17, and to also bring to the attention of the court the applicants’ reply to the affidavit resisting summary judgment.
 The applicant opposed the application made in terms of Rule 32 (5) and stated in its affidavit filed on the 18th August 2017that allowing the applicants to reply would cause prejudice to it as it would “put the cart before the horse in that it actually introduces the reply into the record before a decision on its admission may be made” by the court.
 In exercise of the discretionary power vested to this court in terms of Rule 32 (5), I hereby grant to the applicant the leave as prayed for. The reply to the affidavit resisting summary judgment is admitted as part of the pleadings. There is no good or sound reason in my opinion, why an order that has been issued by a Judge of this court on an issue that is also before me should not be brought to my attention for consideration. I also find no convincing reason why I should not allow an affidavit that speaks to the order that has since been issued by the court.
 When the matter appeared before me on the 21st August 2017 the order of Mlangeni J had not been rescinded or set aside. I am still not aware about any order to that effect. The order of Mlangeni J therefore still stands and is binding.
 The respondent’s attorney however, made attempts to explain how the order was issued. The respondent also deposed to her affidavit filed on the 18th August 2017 about how the order was issued by Mlangeni J. Their argument is that the order was not based on the merits of the case but on non–appearance of the respondent or her attorney.
 I have no power to review a decision issued by a Judge of this court. In any event, before me is not a review or rescission application. This court is functus officio in respect of the issues on which Mlangeni J issued the order. The ultimate result is that the respondent’s defence to the ejectment proceedings was dismissed by Mlangeni J. She is therefore left with no recognizable defence and summary judgment on the ejectment prayer is to be granted and I so order.
 On the merits of the case the respondent raised the issue of locus standi in judicio and submitted that the applicants (plaintiffs in the main action) have no locus standi to sue her as they do not own and cannot own the property.
 In the affidavit resisting summary judgment filed on the 4th August 2017 the respondent states in paragraph 3.6 what is quoted below:
“3.6 I submit that, the trust does not own and cannot own the property in issue. I submit that, at law, the property remains that of the late Nqaba Dlamini and since his demise, the property vest in the estate of the late Nqaba Dlamini.”
 In argument the respondent’s attorney submitted that in our law a trust is not a legal person and cannot acquire property. He submitted that this was held by the Supreme Court. The property, he further argued, therefore remains vested in the deceased and only the executor of the estate of the deceased is to make decisions concerning the property.
 The respondent’s attorney also referred this court to clause 6.7 of the Deed of Trust which provides that “The Trust fund or capital shall not form part of the personal estate of the Trustees.”
 Notwithstanding however, an undertaking to furnish the court with the decision he referred to, the respondent’s attorney did not honour the undertaking as no judgment or decision was furnished.
 On the other hand the applicant’s attorney submitted that in terms of the Deed of Trust the property vests in the trustees, namely; Nqaba Dlamini who is the founding trustee, Ntombifuthi Dlamini and Busisiwe Siphiwe Ngcamphalala. He argued that if the respondent’s argument is anything to go by, then the property equally cannot vest in the late Nqaba Dlamini as he himself was a trustee. He further argued that in all truthfulness, the property is for the beneficiaries of the trust but vests in the trustees for the time being.
 Appearing ex facie the Deed of Trust document, the Bhubhudla Trust is the owner of the property. The respondent’s argument that the trustees have no locus standi to sue her in respect of the property, in my opinion, is legally incorrect. Just like an executor of an estate has the power to sue and to be sued in respect of issues pertaining the estate, a trustee has the same power to sue and to be sued in respect of the property that is owned by the trust. The power to administer an estate does not vest in the executor ownership of the estate property. This is equally true with trustees of a trust. The trustees’ power to administer the trust property does not vest ownership of the trust property in the trustees.
 Dlamini J cited with approval Labuschague J in the case of Moriola and others v Kaye-Eddie N.O and Others 1995 (2) SA 728 at 731 who held as quoted below:
“ In our law a trust is not a legal persona but a legal institution, sui generis. The assets and liabilities of the trust vest in the trustee or trustees. The trustee is the owner of the trust property for purpose of administration of the trust but qua trustee he has no beneficial interest therein.”(own emphasis)
 A trustee therefore, has the locus standi to sue and to be sued pertaining property that vest in the trust. The first and second applicants are trustees of the Bhubhudla Family Trust to which the property is vested. They have the locus standi in judicio to institute legal proceedings in relation to the trust property. The respondent’s point of law on lack of locus standi by the applicants is accordingly dismissed.
 Regarding the prayer seeking payment of monthly rentals for occupation of the property, it was submitted on behalf of the respondent that the occupation was not pursuant to a rental or lease agreement. The respondent’s attorney therefore submitted that this is a claim for damages and may not be dealt with on summary judgment.
 I wish to mention that the monthly rentals sought are based on an evaluation report of the property and the amount was determined by the evaluator. The respondent’s attorney argued that since the amounts are based on an evaluation, what the evaluator did was simply to quantify the damages. He submitted that notwithstanding the quantification, such a claim is not one to be sought in terms of Rule 32 (summary judgment application).
 The respondent’s attorney also referred this court to the summons wherein the monthly rental was fixed at E15, 000.00 whereas in the affidavit in support of the summary judgment application the monthly rental is E9, 534.96. He accordingly submitted that the affidavit in support of the summary judgment application is put to question and the summary judgment is therefore not to be granted.
 The attorney for the applicants submitted that the property owes an amount of E1.6 million by virtue of a mortgage bond that was entered into in favour of FINCORP in respect of a loan agreement. He accordingly argued that the respondent cannot be allowed to occupy this owing property for free. He explained that the monthly rental amount stated in the affidavit in support of the summary judgment is based on a valuation report which was done by a professional evaluator. He argued that there is no dispute of fact because the evaluation has not been challenged.
 In paragraph 12 of the heads of arguments the applicants submit as quoted below:
“ The claim for rental does not constitute damages in the manner that the defendant contends. Indeed a claim for such rentals even in a situation where a lease agreement has lapsed through affluxion of time is a common feature in ejectment proceedings. This is known as holding over.”
 Legally, the holding over concept arises and becomes claimable where a tenant continues to occupy a leased property beyond the agreed lease period. The Black’s Law Dictionary, 10th ed, define ‘holding over’ as “a tenant’s action in continuing to occupy the leased premises after the lease term has expired.
 In casu, no lease agreement is alleged to have ever been entered into with the respondent. As a matter of fact the respondent’s attorney denied without being challenged that his client occupied the premises under a lease agreement.
 Now I turn to the law applicable in respect of summary judgments. Herbstein and Van Winsen, The Civil Practice of the High Court of South Africa, 5th ed, at page 516, state that Rule 32 (summary judgment) is “designed to enable a plaintiff whose claim falls within certain defined categories to obtain judgment without the necessity of going to trial, in spite of the fact that an intention to raise a defence has been intimated by the delivery of a notice of intention to defend.”
 Herbstein and Van Winsen further state at page 517 that the courts have stressed in many decisions the fact that “the remedy provided by this rule is of an ‘extraordinary and drastic nature’ which is ‘very stringent’ in that it closes the door to the defendant, and that the grant of the remedy is based on the supposition that the plaintiff’s case is unimpeachable and that the defendant’s defence is bogus or bad in law.
 After having considered the above stated legal position, I am persuaded to exercise the caution given in respect of summary judgment, viz, that “the court must also guard against an injustice to the defendant who is called upon at short notice and without the benefit of further particulars, discovery or cross-examination, to satisfy the court that he has a bona fide defence.” See: Marsh v standard Bank of SA Ltd 2000 (4) SA 947 at 950.
 In paragraph 6 of the particulars of claim the applicants state what I quote below:
“6. For the period beginning 1 March 2017 until the date of either vacation by, or ejectment of, the defendant, the Plaintiff is entitled to compensation from the Defendant in rentals payable monthly in advance.” (own emphasis)
 In the affidavit attached to the notice of motion dated 14th August 2017 the first applicant states in paragraph 15 what is quoted below:
“ I submit that for every additional day that the respondent remains in unlawful occupation of the premises in dispute, she is liable to compensate the Trust to the extent of the expert valuation determined rental.” (own emphasis)
 In answering the allegation made in the above quoted text, the respondent stated inter alia what is quoted below:
“AD PARAGRAPH 14 -15
I deny that the plaintiffs’ claim is liquidated. It remains a fact that I have not occupied the property pursuant to a rental agreement. No such agreement may be implied under the circumstances. The claim is for damages and may not be dealt with on summary judgment.”
 In my opinion, the issue concerning the sought rental payment, and the amount to be paid, if that becomes the case, is to be referred to trial. I find it not important that the rental amount being sought was not challenged. It is however a fact that the respondent disputes that she is liable in any way to pay the rental amounts. This is therefore a triable issue that I should refer to trial.
 In the case of Zanele Zwane v Lewis Stores (Pty) Ltd t/a Best electric, Civil Appeal No. 22/2007 (unreported), Ramodibedi CJ stated the following regarding summary judgments:
“ … the remedy must be confined to the clearest of cases where the defendant has no bona fide defence and where the appearance to defend has been made solely for the purpose of delay.” (own emphasis)
 For the foregoing, the prayer for payment of monthly rentals is referred to trial. It would be an injustice, in my view, to grant an order compelling the respondent to pay the sought monthly rentals in the present proceedings. I find this is to be more true because the respondent submitted without being challenged that her occupation of the property did not start in March 2017 but long before. It has also not been alleged and proved that the occupation was under any lease agreement that has lapsed. The holding over principle cannot therefore be invoked in casu.
 On costs, as a general rule, the successful party should be awarded costs. The court is vested, however, with the discretionary power to award costs. In casu, the applicants seek costs against the respondent at the punitive scale of attorney and client. The respondent on the other hand seeks costs against the applicants de bonis propriis.
 I have taken into consideration the fact that the fundamental relief sought by the applicants against the respondent is ejectment from the premises. The claim for rental payments is ancillary and born out of the respondent’s alleged refusal to vacate the property. The applicants are successfully on the fundamental relief of ejectment and in my view are entitled to costs for the date of appearance before court for arguments on the 21st August 2017, including costs for the preparation thereof. The costs are however granted at the ordinary scale.
 The matter is to proceed to trial for determination of the relief sought regarding the payment of monthly rentals. For that reason, and save for the costs that I have ordered in the preceding paragraph, costs will be costs in the determination of the pending issue of rental payment.
 For the aforegoing, I issue the following order:
1. An order for the ejectment of the respondent (defendant in the main action) and all those claiming title under her from the premises, namely: Lot 898 situate in Manzini Extension No.9 along Lusutfu Road in Fairview, Manzini District, is hereby granted.
2. The prayer for payment by the respondent of monthly rentals from March 2017 up to the date of vacation or ejectment from the premises is referred to trial
3. The respondent is ordered and directed to pay costs but only in respect of the hearing date of 21st August 2017, including the preparation thereof. Costs that fall outside the order that I have issued will be costs in the trial for determination of the prayer for payment of monthly rentals by respondent.
For Applicants : Mr S. Dlamini
For Respondent : Mr S.C. Simelane