Swaziland Development Finance Corporation vs Mauriswazi Investment (Pty) Ltd 3 Others (113/2018) [2018] SZHC 74 (10 April 2018);

 

 

 

IN THE HIGH COURT OF SWAZILAND

HELD AT MBABANE                                                                   CASE NO. 113/18

In the matter between:

SWAZILAND DEVELOMENT FINANCE

CORPORATION                                                                             PLAINTIFF

And

MAURISWAZI INVESTMENT (PTY) LTD                       1st DEFENDANT

THANDI MAZIYA                                                                2nd DEFENDANT

SIZWE SYDWELL SHABALALA                                                3rd DEFENDANT

SWAZILAND PERISHABLE FOODS

WHOLESALERS (PTY) LTD                                              4th DEFENDANT

Neutral Citation: Swaziland Development Finance Corporation vs Mauriswazi Investment (Pty) Ltd and 3 others (113/18) [2018] SZHC 74

Coram:                J.S Magagula J

Date Heard:         10th April 2018

Date delivered:    17th April 2018

 

[1]     This is an application for summary Judgment in which the Plaintiff seeks an order           against the Defendants jointly and severally, the one paying the others to be absolved for:

1.1              Payment of the sum of E1 083 123.92;

1.2              Interest thereon at the rate of prime plus 4.5% per annum    currently 14.5% calculated from the date of summons to date of   final payment;

1.3             An order declaring Mortgage Bond No.666/2012 to be executable;

1.4             Costs on the scale as between attorney and client including collection commission.

         

 

BACKGROUND

[2]     The basis of the claim is a written loan agreement entered into between the Plaintiff and the 1st Defendant and in terms of which the Plaintiff loaned and advanced the sum of E1 500 000.00 to the 1st Defendant. The Plaintiff was represented by its Managing Director Mr. Dumsani Msibi, whilst the 1st Defendant was represented by the 2nd and 3rd Defendants when the agreement was conluded.

[3]     Interest was agreed at prime plus 4.5% currently 14.5% per annum. The loan plus interest were to be repaid in monthly instalment of E34 796 – 00 over a period of 60 months. The principal sum and interest were secured by deeds of suretyship executed by the 2nd and 3rd Defendants in favour of the Plaintiff. The debt was further secured by a surety mortgage bond executed over the 4th Defendant’s immovable property, to wit, Lot No. 684, Matsapha Town in the Manzini District.

[4]     It was further agreed among the parties that in the event of a breach of the agreement by the 1st Defendant, the Plaintiff would be entitled to cancel the agreement and demand payment of the balance of the capital amount outstanding inclusive of interest and all other costs recoverable in terms of the agreement.

[5]     It was a further  term of the agreement that should Plaintiff have to institute legal proceedings against the 1st Defendant to enforce the agreement, the 1st Defendant shall be liable for any legal costs incurred on the scale as between attorney and own client, including collection commission or tracing charges.

[6]     Plaintiff alleges in its Particulars of claim that the 1st Defendant is in breach of the agreement in that:

6.1     It has failed to make any monthly instalments since

March 2015

6.2     It was erratic in the payment of the loan during the period prior to March , 2015.

[7]     Plaintiff further alleges that as at 4th January 2018 the 1st Defendant was indebted to the Plaintiff in the sum of E1 083 123.92 and that this amount is ow due and payable by the 1st Defendant to the Plaintiff.

[8]     The Plaintiff accordingly has now elected to cancel the agreement and foreclose the bond. Plaintiff now demands payment of the outstanding balance together with interest and costs. The Plaintiff also claims that the 2nd, 3rd and 4th Defendants are liable jointly and severally with the 1st Defendant in terms of the deeds of suretyship and surety mortgage bond.

[9]     In response to the Summary Judgment Application the Defendants have raised basically two points in their affidavit resisting summary judgment.

[10]   The first point raised by Defendants is that there is a discrepancy between the amount claimed and the amount stated in the certificate of balance filed by the Plaintiff. Defendants therefore seek an opportunity to interrogate details of how the interest has been calculated in light of this discrepancy.

          The Plaintiff has annexed to the summons and the application for Summary Judgment a statement of account showing clearly the amount debited in respect of interest. It is therefore not clear what it is that the Defendants seek to interrogate about the interest. If they allege that interest has been wrongly calculated they should have simply made such allegation and went on to demonstrate the impropriety in the calculation of interest.

[11]   As regards the seeming discrepancy in the amount claimed and that in the certificate of balance, the Plaintiff has explained in its replying affidavit that the amount in the summons and Summary Judgment application does not include interest debited at the end of January, 2018, whilst the certificate of balance, issued on the 14th February, 2018 includes such interest, hence it reflects a higher balance. In an event the Plaintiff claims the lesser amount reflected in the Summons and Summary judgment application. It is not claiming one amount in the Summary judgment application and another in the Summons. There is therefore no discrepancy in Plaintiff’s claim and I accordingly find no merit in this point.

[12]   The second point raised by 2nd and 3rd Defendants is that although they signed the suretyship deeds attached to Plaintiff’s claim, the legal exceptions renounced by them were never explained to them. They therefore claim that the Plaintiff should first proceed against the 1st and 4th Defendants and only proceed against 2nd and 3rd Defendants on failure to recover from the 1st  and 4th Defendants.

[13]   In its replying affidavit the Plaintiff maintains that the legal exceptions were explained to the 2nd and 3rd Defendants. In support of this contention the Plaintiff referred the court to clause 12 of the loan agreement which was signed by all the parties. Clause 12 states inter arlia that “ The Borrower specifically renounces the legal exceptions ………… and declares that he is fully acquainted with the force, effect and meaning thereof, the same having been explained to the borrower by Swaziland Development Finance Corporation.” In its replying affidavit the Plaintiff specifically states that the officer who explained the legal exceptions to the Defendants was one Zwakele  Matse who has also filed an affidavit supporting such allegation.

[14]   The Plaintiff also maintains that the said Defendants also specifically renounced the legal exceptions in their suretyship bonds which are annexed to the Summons. The exceptions appear ex facie these deeds which are signed by the said defendants. Plaintiff maintains that the Defendants cannot turn around and claim that they did not understand what they were signing for.

[15]   The Plaintiff further maintains that the said Defendants also renounced the legal exceptions in the surety mortgage bond which they executed before a Notary Public, Mr Stanley B.Mnisi. Indeed the exceptions are referred to in page 2 of the said bond.

[16]   From the foregoing there is no doubt in my mind that there is no discrepancy in Plaintiff’s claim and that the legal exceptions were explained to the 2nd and 3rd  Defendants. I have therefore come to the conclusion that Defendant’s affidavit resisting Summary Judgment raises no triable issue and that the application for Summary judgment ought to succeed.

[17]   Accordingly Summary Judgment is hereby entered against the first, second, third and fourth defendants jointly and severally, the one paying the others to be absolved as follows:

          17.1   Payment of the sum of E1 083 123.92;

17.2   Interest thereon at the rate of prime plus 4.5% per annum presently at 14.5%, calculated from the date of Summons to date of final payment;

17.3   Mortgage bond No.666/2012 be and is hereby declared executable;

17.4   Costs of suit on the scale as between attorney and client including collection commission.

 

_______________

J.S MAGAGULA J

 

          For the Plaintiff:           Mr Z.D Jele

          For the Defendants:      Mr L. Howe