PSP Properties (PTY) LTD and v Municipal Council of Manzini and another (1663/2017) [2018] SZHC 86 (15 June 2018);

Search Summary: 

Civil Law –Interdict –Whether necessary in the circumstances to decide interdict application– Review proceedings –Whether review proceedings appropriate where order had been issued by agreement –Whether applicant had not acquiesced to the judgement or proceedings –Principle of acquiescence discussed in detail.

Proper determination of matter calls for the understanding of the context –Necessary in the circumstances to consolidate case numbers 1663/2017 and 416/2018 –Context against which interdict is sought is that after a signed Deed of Settlement was presented to a Magistrate where it was made an order of Court, the current applicant undertook to demolish the structures complained of within 7 days. He failed to do so and instead filed a review application under case no.1663/17, in terms of which he challenged the consent order he was party to, claiming the proceedings resulting in its grant were attended by irregularities.

Without review application having been determined, first and second Respondents notified occupants of their intention to demolish the structures concerned within 2 days as a result of applicants’ failure to comply with the Building and Housing Act –Respondents’ action trigger applicant to file an urgent application under case no. 416/2018 seeking an interdict against the Respondents on their intended demolition of the structures -Whether applicant entitled to the reliefs sought in case no.416/2018.

 Important to determine review application first given it was instituted first and it forms the genesis of the dispute – Whether proper in law to review the proceedings resulting in a consent order without violating the principle of acquiescence –Principle of acquiescence considered in detail –Whether necessary in the circumstances to decide the interdict application – Court of the view it is not necessary in the circumstances to decide the interdict application as it will be academic to do so – Application dismissed with costs.

 

 

 

IN THECOURT OF SWAZILAND

Held at Mbabane                                                           Consolidated Cases No.:        416/2018 and 1663/2017

In the matter between

PSP PROPERTIES (PTY) LTD                                   1st Applicant

BOYCEY MAGONGO                                                         2nd Applicant

AND

MUNICIPAL COUNCIL OF MANZINI                     1st Respondent

JANE DLAMINI                                                          2nd Respondent

Consolidated With

BOYCEY MAGONGO                                                         Applicant

And

MUNICIPAL COUNCIL OF MANZINI                    1st Respondent

COY DLAMINI                                                            2nd Respondent

MAGISTRATE D. KHUMALON.O.                          3rd Respondent

ATTORNEY GENERAL                                            4th Respondent

 

Neutral Citation:          PSP Properties (PTY) LTD and Boycey Magongo Vs Municipal Council of Manzini & another 416/2018 and (1663/2017) [2018] SZHC 86 (18 June 2018)

 

Coram:                                                                Hlophe J.

For the Applicant:                                               Mr B.M. Dlamini

For the 1st and 2nd Respondents:                        Mr S.Simelane

For the 3rd and 4th Respondents:                        No Appearance

Dates Heard:                                                       02/05/2018; 4/05/2018

Date Judgement Handed Down:                        15 June 2018

 

Summary

Civil Law –Interdict –Whether necessary in the circumstances to decide interdict application– Review proceedings –Whether review proceedings appropriate where order had been issued by agreement –Whether applicant had not acquiesced to the judgement or proceedings –Principle of acquiescence discussed in detail.

Proper determination of matter calls for the understanding of the context –Necessary in the circumstances to consolidate case numbers 1663/2017 and 416/2018 –Context against which interdict is sought is that after a signed Deed of Settlement was presented to a Magistrate where it was made an order of Court, the current applicant undertook to demolish the structures complained of within 7 days. He failed to do so and instead filed a review application under case no.1663/17, in terms of which he challenged the consent order he was party to, claiming the proceedings resulting in its grant were attended by irregularities.

Without review application having been determined, first and second Respondents notified occupants of their intention to demolish the structures concerned within 2 days as a result of applicants’ failure to comply with the Building and Housing Act –Respondents’ action trigger applicant to file an urgent application under case no. 416/2018 seeking an interdict against the Respondents on their intended demolition of the structures -Whether applicant entitled to the reliefs sought in case no.416/2018.

 Important to determine review application first given it was instituted first and it forms the genesis of the dispute – Whether proper in law to review the proceedings resulting in a consent order without violating the principle of acquiescence –Principle of acquiescence considered in detail –Whether necessary in the circumstances to decide the interdict application – Court of the view it is not necessary in the circumstances to decide the interdict application as it will be academic to do so – Application dismissed with costs.

 

JUDGMENT

 

 [1]    Applicant instituted proceedings seeking an order of this court inter alia interdicting the Respondents from demolishing certain structures the latter claimed had been built without complying with certain applicable municipal laws and also because the Applicants had allegedly failed to comply with an order of the magistrates’ court authorizing the demolition of the structures concerned.

 

[2]     In support of the prayers the applicant contends, by means of the Founding affidavit deposed to by one Boycey Magongo, that its attention was drawn to some notices affixed on the walls of the structures forming the subject of these proceedings, notifying the occupants thereat that the said structures were to be demolished in two days’ time from the date of their affixing.  Considering the said notices to be inadequate, the applicant approached this Court under a certificate of urgency seeking the reliefs referred to above.  It is noteworthy that the application was not moved by any of the occupants to the affected structures, but by the person or entity which allegedly leased out the structures.  On the possible effect of this observation I shall revert thereto later on in this judgement.

 

[3]     The deponent to the founding affidavit contends that the property where the structures concerned are found was given to him for use by its then owner, Dr PSP Dlamini during his lifetime in 1991; that is before he died in 1994.  Mr Magongo contends further that he renovated the said premises by constructing certain structures thereon which he leased to eight tenants.  Dr PSP Dlamini was an uncle to Mr Magongo, he says.  In 2008, Mr Magongo and his sister, incorporated the Applicant company and caused it to take over the business of letting the structures in question to tenants.  When the Respondents sought to have these structures demolished, the applicants approached this court under a certificate of urgency.

 

[4]     I note that although the applicant’s director, Mr Magongo claims to have been given use of the property on which the concerned structures are built by the late Dr PSP Dlamini during his lifetime, he says nothing about the stance taken by the Executor appointed to take care of the estate property after the death of the late Dr PSP Dlamini.  It does not seem like he ever obtained the authority of the executor lawfully appointed to handle the estate properties of the late.  It is clear he has always acted on the basis that he was given use of the property by the late during his lifetime.    This seems to be a deviation from the general rule that all properties belonging to a deceased person are subject to be taken under the control of the executor for purposes of being wound up under the supervision and control of the Master of the High Court.  No sound reasons seem to have been given why this one should have been treated differently including the legality of any action taken outside this formal legal requirement.

 

 

[5]     It is however disclosed that for some time in March 2016, the property in question was transferred to its new owner, one Jane Dlamini, the second Respondent herein, who is the daughter to the late Dr PSP Dlamini as her inheritance.  I note however that despite this fact being acknowledged, the applicant’s director says nothing about the second respondent’s having allowed him to continue leasing out the property concerned to the current tenants except that the acknowledged owner of the property is now herself a Respondent in these proceedings instituted by the second applicant who seems to have assumed control of her property without setting out a legal basis allowing him to do so.  The closest to his recognizing her ownership is the admission that he had negotiated a sale agreement of the property to him or his company which the second Respondent however refused to sign.  This makes me construe that the ownership of the property and therefore its control should realistically remain with the Second Respondent; who should be entitled in law to vindicate it from whosoever possesses or controls it without her consent or authority.

 

[6]     Another area of note from the facts of the matter is the undisputed fact that the applicant does not say that he has been given authority by the occupants of the property or premises or structures concerned to bring the proceedings on their behalf.  He seems to be acting on their behalf without their mandate and therefore possibly acting on an actio popularis, which is not allowed in law.  Having said this, I note from the papers and also from the argument that this point was neither raised nor argued before me.  It was only raised in a different sense namely that the tenants of the premises concerned were not joined in the proceedings.  I will therefore revert to deal with the point in that sense, should the circumstances of the matter necessitate I do so.

 

[7]     In the merits of the opposition the Respondents contended that applicant had deliberately failed to disclose all the facts of the matter which would have a bearing on the decision of the Court.  These facts were allegedly that sometime in 2014, and precisely by means of case no. 3705/2014, the First Respondent instituted proceedings before the Manzini Magistrates Court, in terms of which it sought an order inter alia allowing it to demolish the same structures as the ones that form the subject of these proceedings.  Although that matter took years to finalize, it eventually was in 2017, when a Deed of Settlement reached by the parties was made an order of Court.  The terms made an order of Court were inter alia that the current applicants were going to demolish the structures complained of within 7 days of the date of registration of the Deed of Settlement, which was the 23rd March 2017.

 

[8]     It is not in dispute that despite this order having been entered by consent, the current applicants did not comply with it.  They did not demolish the structures as they had undertaken to do or at all.  After 7 months of the date when the demolitions should have been carried out, the current applicants moved an application in terms of which they sought to review the proceedings or the order of court reached by consent before this Court.  This they did under Case No.1663/2017.

 

 [9]    According to the Respondents in the application concerned the grounds on which the review application was based were spurious.  In reality the applicants in that review application contended that it was not true that the structures complained of were built without the Municipality’s consent or approval.  It was contended that the application had cited a Respondent, Dr PSP Dlamini, as a party when he had long died.  Before renovating or constructing the structures complained of, the applicant in the matter, contended that, Mr Magongo had obtained the approval of the then Chief Executive Officer of the Municipality concerned, Mr Terry Parker who had personally examined and approved the renovations. The applicant in that application further contended that the property had been given to Mr Magongo by its previous owner and that Mr Magongo had continued to use it even after the death of its previous owner. It was contended further that the estate of the late PSP Dlamini and the company PSP Properties (Pty) Ltd should have been cited and served with the application. The subsequent application to join the executor in the estate of the late PSP Dlamini and the said Mr Magongo as a representative of the company PSP Properties (Pty) Ltd was said to be irregular. In any event it was further argued, as at the time the consent order was granted, that ownership of the property had already been registered in the name of the current second Respondent who was not party to those proceedings.  These were the obvious grounds for the review brought under Case No.1663/2017. What is peculiar about them is that they were all raised after the matter was concluded by agreement in circumstances that presuppose they were in existence before the conclusion of the matter in that manner.

 

[10]   The review application concerned was moved on the basis of urgency despite that this was seven months of the grant of the consent order to demolish the structures in question by the current applicants which they never did.  It was contended they only used the review application to gain more time and prolong their use and enjoyment of the property in question.

 

[11]   The Respondents contended that the review application concerned was an abuse of the court process because despite moving it seven months after their undertaking to demolish the property concerned but not doing so, the applicants in it, applied and obtained a stay of execution of the order they had consented to and that they thereafter, had not bothered to prosecute the application with the same zeal and speed.

 

[12]   It was in any event appropriate for the owner of the property in the current second Respondent to seek to demolish the unlawfully constructed structure on her property, the Respondents contended. A letter was annexed to the papers in terms of which the second Respondent in these premises sought the assistance of the first Respondent in carrying out the demolitions, apparently trying to show that the Second Respondent was not a party to the review proceedings or those that resulted in the order being challenged.

 

[13]   It was argued that the applicants were in contempt of the Magistrate’s order and that they should not be heard until they had purged such contempt.  It was argued as well that the said applicants had approached this court with dirty hands and that they should not be heard until they had cleansed their hands by complying with the consent order in question.

 

[14]   Whatever responses the Applicants had in their replying affidavit they did not dispute in any material respects the forgoing facts as revealed by the Respondents herein. They of course denied being in contempt of the Magistrates court order and also having approached this court with dirty hands. They argued that they were not in contempt of court because they had approached the court for an order staying execution of the order they had initially consented to, which was granted.

 

[15]  The Applicants insisted they had been forced to move the interdict application by the Respondents’ conduct of attempting to demolish the structures in circumstances they were aware the same question was pending before the High Court where the Magistrate’s court order was being reviewed after its execution was stayed.

 

[16]    Although the Respondents had asked for an order staying the proceedings for interdict currently serving before this court in the main proceedings pending the finalization of the review proceedings also serving before this Court, I took the view that these were not proceedings deserving to be dealt with piecemeal and separately from each other. I was of the view that the fears of abuse of the court process raised by the Respondents were real if the proceedings sought to be reviewed were concluded by consent with a deed of settlement prepared by the parties themselves having been made an order of court.  I was convinced it is not open to a party to challenge such proceedings in light of the principle of acquiescence or preemption. This made the contention by the Respondents that the review proceedings were spurious real.  I was of a strong view it was going to be in the interests of justice for these matters to be consolidated and dealt with as one. 

 

[17]   To this and I called the parties counsel to meet me in chambers together with the Registrar where the pros and cons of the view I had taken could be discussed. It was after such an exercise that I directed the Registrar to request the Honourable Judge seized with the review application to consider dealing with that matter jointly with the interdict application because of their peculiar facts and circumstances. I directed the Registrar to from there meet Justice Langwenya in the presence of counsel and explain the situation to her.

 

[18]   The Registrar later advised that they had since met the Honourable Judge LaNgwenya who had since agreed that the matters could be dealt with as one and further requested that I deal with them. It was for that reason I am now hearing the matters as one, which in my view is in the interests of justice as it  eliminates the possibility of a multiplicity of applications and contradictory orders.

 

[19]   It is my considered view that whatever the propriety or otherwise of the attempt by the current Respondents to demolish the structures concerned without an order of court, it is imperative that one first decides the propriety or otherwise of the applicants’ review application, which is the one that has brought about all the confusion.  I am sure deciding it will obviate the need to decide the application for interdict in view of that judgement being likely to be academic should the principle of acquiescence be upheld.

 

[20]   The order sought to be reviewed by the applicant was granted by consent after the parties had on their own accord prepared a draft order of court for the Court to endorse; which it did.  Assuming all the grounds raised by the applicants in their review were valid (I refrain from making any such finding in light of the view I have taken of the matter), there is no denying they would have all been in existence as at the time the consent order was drafted by the parties and eventually made an order of court.  This is to say that the parties had agreed to have the matter finalized in a certain way, irrespective of those grounds now forming the basis of the review being application.   This means that since the court had yielded to their request of finalizing the matter by consent, the applicant had acquiesced to the proceedings or to the order and they cannot in law be allowed to challenge them or it.

 

[21]   It is an established position of our law that a party cannot agree to abide by a judgement of a court only for him to turn around later on and challenge it.  Such conduct is against the principle of acquiescence or peremption which is firmly entrenched in our law.  Faced with a matter in which the applicant in certain review proceedings against a judgement or proceedings he had acquiesced to in Commissioner of Labour And 3 Others Vs Judge of the Industrial Court And Another High Court Case No. 770/2016, Judge M.D.Mamba had the following observation to make at paragraph 5 of the unreported Judgement:

“The doctrine of preemption (acquiescence) was the subject of discussion in at least two cases before our Supreme Court in June 2016.  As a matter of law, a party cannot equivocate by agreeing to abide by a judgement of the court and then later deciding to challenge it.  Where a party unequivocally accepts a judgement, he may not thereafter appeal against it (as shall be seen in a later extract in the same matter, he may not review it as well).  The acceptance of acquiescence need not be express.  It may be by conduct that is clearly inconsistent with an intention not to appeal or challenge the judgement in question.”

 

[22]   In the same judgement the purpose of the doctrine of acquiescence or peremption was explained as the desire to ensure the obtainment of just and equitable results.  To this end the Honourable Judge in the judgement referred to in the foregoing paragraph quoted with approval an excerpt from the Judgement of Jimson Jeke Tfwala Vs Swaziland Development Finance Corporation (71/2015) [2016] SZHC 72 where the Supreme Court per Justice Odoki had cited with approval an excerpt from the judgement of Botha V White 2004 (3) SA 184.  In the said matter Judge Mamba had quoted the following passage at paragraph 6 of Justice Odoki’s  judgement:-

“6. In Jimson Jeke Tfwala Vs Swaziland Development Finance Corporation (71/2015) [2016] SZHC 72 (30 June 2016) Justice Odoki JA, writing for the Court stated as follows:

“47…the principles of the doctrine of acquiescence were canvassed in the case of Botha V White 2004 (3) SA 184 where the court stated as follows:

“[31] The doctrine of acquiescence is competent to halt cases where its application is necessary to attain just and equitable results.  The test for inferred acquiescence is the impression created by the Plaintiff or applicant on the defendant or respondent.  It can be proven by some act, conduct or circumstances on the part of the Plaintiff or applicant, for example, by the applicant’s delay in taking action, so that the Respondent is lulled into a false sense of security.  Then in such circumstances the enforcement of a right would cause a real inequity and the applicant’s conduct in issue amounts to unconscionable conduct.

48..The Respondent also relied on the case of Hartley Roegshaan and Another V First Rand Limited and Another, High Court Case No. 276/2010 where the court held that according to the Common Law doctrine of peremption a party who has acquiesced to a judgement cannot subsequently seek to challenge the judgement because he cannot be allowed to opportunistically endorse two conflicting positions or both approbate and reprobate, or to blow hot and cold.  In other words, a party cannot be allowed to have his cake and it too. The conduct of the applicant must be unequivocal and inconsistent with any intention to appeal.  See Bhekiwe Vumile Dlamini V Standard Bank Swaziland, Appeal Case No.13/2005.  See also Mphetseni Cooperative Society Limited V L.R.Mamba And Associates (22/16) [2016] SZHC 02 (30 June 2016) at paragraph 10-11.” (underlining is mine)

 

[23]   The point on acquiescence was further magnified in the following words in Venmop 275 (PTY) LTD And Another Vs Cleverland Projects (PTY) LTD And Another GLD, Case No.2014/14286:-

“An unsuccessful litigant who has acquiesced in a judgement cannot appeal against it.  The onus of proof rests on the person alleging acquiescence and in doubtful cases it must be held not to be proven.  Although preemption has its origin in policy considerations similar to those of waiver and estoppel, the question of acquiescence does not involve an enquiry into the subject or state of mind of the person alleged to have acquiesced in the judgement.  Rather it involves a consideration of the objective conduct of such person and the conclusion to be drawn therefrom. See in this regard Dabner V South African Railways And Harbours 1920 AD 583 at 594, Standard Bank V Estate Van Rhyan 1925 AD 266 at 268; Gentiruco AC V Firestone SA (PTY) LTD 1972 (10 SA 589 (A) at 600 A-D; Natal Rugby Union V Gould 1999 (1) SA 432 SCA at 443 F-G; SAMANCOR Group Pension Fund V SAMANCOR Chrome And Others 2010 (4) SA 540 (SCA) at page 546 para 25; Qoboshiyane N.O. & Others V Avusa Publishishing Eastern Cape (PTY) LTD And Others 2013 (3) SA 315 (SCA) at 318”.

 

[24]   On the question whether the principle of acquiescence is only limited to appeals, that is to say whether it is applicable to matters whose decisions are being reviewed, this court had to say the following in the Commissioner of Labour And 3 Others V Judge of the Industrial Court and Another (Supra) at paragraph 7, where it was citing with approval an excerpt from Paragraph 26 of the Venmop 275 (PTY) LTD and  Another Vs Cleverland Projects (PTY) LTD And Another GLD, Case No. 2014/14286

“Although the doctrine of peremption has its genesis in relation to appeals, it has been extended to applications for rescission of default Judgements (Hlatshwayo V Mare & Deas, 1917 AD 232; Sparks V David Garlick & Company (PTY) LTD 1963 (2) SA 491 (T) at 496 D-L; Nkatha V First Rand Bank LTD & Others 2014 (2) SA 412 (WCC) at 421) and to the common law right of Judicial  review in respect of the exercise of statutory authority;(See for instance Liberty Life Association of Africa V Kachelhoffer N.O. And Others 2001 (3) SA 1094(C).  Although there appears to be no precedent for peremption in the context of an application to set aside an arbitration award, there appears to be no reason, either in policy or principle, not to apply the doctrine of peremption  to such a right.’ (underlining is mine)

 

[25]   Coming back to the present matter; the applicant had specifically agreed to the consent order which inter alia required the applicant to demolish the specific structures within seven days of that consent order being made an order of court.  This as pointed out above was agreed notwithstanding the existence of whatever irregularities there may have been which the applicant now seeks to raise challenging the order or judgement reached by consent.  It is clear therefore that the applicants are not allowed in law to challenge the said judgement or order by means of review given that they had expressly agreed thereto which means that they had acquiesced there to and that they can no longer challenge same in law on the basis of their having acquiesced to the same judgement or order of court.

 

[26]   Having reached the conclusion I have, I find it no longer necessary to decide the question whether or not to grant the interdict sought by the applicant in Case no: 416/2018.  I do that because having decided the question of acquiescence to the judgement or order or proceedings now under review, it would be academic for me to decide whether to issue an interdict against action putting into effect the agreement by the applicant.  In other words such an order would be academic.  This court is not and should not be in the habit of issuing academic orders.  I am also convinced that in handling the matters in the manner they did; the applicants were abusing court process as all they were expected to do was compliance with the Order of Court.  I am convinced their purporting to seek a review of an order they had consented to and even going further to seek an order staying its execution, the applicants were abusing the court process, which calls for censure.

 

[27]   Consequently, I have come to the result that the applicant’s application cannot succeed and I make the following Orders:-

 

27.1.  The rule nisi issued by this Court staying execution of the consent order reached by the parties and made an order of court on the 23rd March 2017 be and is hereby discharged.

27.2.  The application for review filed by Applicants under Case No.1663/2017; which sought to review the proceedings culminating in the consent order referred to above, be and is hereby dismissed.

27.3.  In view of the orders referred to in orders 27.1 and 27.2 above, this court finds it unnecessary to decide the proceedings under case no. 416/2018 because its decision therein will be academic in view of the decision it has come to with regards the propriety or otherwise of the review proceedings and it is convinced the latter proceedings were a direct consequence of the applicants own abuse of the Court process.

27.4.  The rule nisi issued by this Court on the 19th March 2018 pursuant to the proceedings under case no.416/2018 be and is hereby discharged.

27.5.  Although the tenants occupying the contentious premises had always decided to tie their fate to that of the applicants, which should be resulting in their being forthwith ejected from the premises, it is ordered that each one of the said tenants be, in the interests of fairness, accorded one calendar month notice to wind down their affairs from the premises concerned and leave the premises at the end of the said period.

27.6.  In the event of failure by the Applicants to demolish the structures concerned after 7 days from the end of the calendar month referred to above which is itself reckoned from today’s date, the Respondents are granted permission to demolish the structures concerned under the supervision of a lawfully appointed Deputy Sheriff, who shall ensure the exercise is carried out lawfully

27.7.  Due to the downright abuse of the Court process by the Applicants in both applications, they are ordered to pay the costs of the applications in both matters at the ordinary scale, one paying the other to be absolved.

 

 

 

                                                                             ______________________

N. J. HLOPHE

JUDGE – HIGH COURT