Lumbela General Trading C.C. v Swazi Industries Agencies (Pty) ltd & Another (668/2018) [2019] SZHC 34 (28 February 2019);

 

 

IN THE HIGH COURT OF ESWATINI

               RULING ON POINT IN LIMINE

Case No. 668/18

In the matter between:

LUMBELA GENERAL TRADING CC                     APPLICANT               

V      

SWAZI INDUSTRIES AGENCIES (Pty)                             1^st RESPONDENT

Ltd t/a BUILDERS DISCOUNT CENTRE

 

MCINISELI ZWANE N.O.                                         2^nd RESPONDENT

IN RE:

SWAZI INDUSTRIES AGENCIES                                     PLAINTIFF

t/a BUILDERS DISCOUNT CENTRE

AND

KENNETH LUMBELA                                              DEFENDANT

Neutral citation:  Lumbela General Trading C.C. v Swazi Industries Agencies (Pty) ltd & Another [668/18] [2019] SZHC 34 (28^th February, 2019)

Coram:                FAKUDZE, J

Heard:                 12^th February, 2019

Delivered:            28^th February, 2019

Summary:           Civil Procedure – attachment of movable property – Applicant                                      alleges that Deputy Sheriff attached property belonging to itself                           and not to Defendant –1^st Respondent raises issue of                                            Deponent’s locus standi – alleges that in the Founding                                        Affidavit, Applicant has not been described properly – Further                                       alleges that no connection between the Deponent to the                                        Founding Affidavit and the Applicant  -

                             The 1^st Respondent argues that by virtue of being the sole                                    owner of the closed corporation, the necessary documentation                                       showing registration of the Applicant as well as the                                              directorship of Applicant suffices to establish the direct interest                                       of the           Applicant on the motor vehicle at issue.  Locus standi has                           been accordingly established. 

                             Held – the description of the Applicant in the Founding                                                 Affidavit did not describe Applicant at all and it is therefore not                           clear as to who the Deponent is.

                             Held further that the Deponent does not state in which capacity                                     she is deposing to the Affidavit let alone whether or not she has                                     authority to depose to such Affidavit.  Point law raised by the                              1^st Respondent is therefore upheld with costs.

 

Prayers

[1]     This matter came under a certificate of urgency for an order in the following terms:

          1.       Dispensing with the manner of service and time limits prescribed in the           Rules of this Honourable Court and hearing this matter as one of     urgency;         

          2.       Condoning the Applicant’s non-compliance with the said Rules of    Court;

          3.       Setting aside the Notice of attachment of movable property in respect          of a motor vehicle belonging to the Applicant who is not a party to the    matter in respect of which the writ of execution was issued;

          4.       That the 2^nd Respondent be and hereby ordered to return the movable           property attached pursuant to the writ of execution dated 11^th June, 2018 (annexure KL1) being YBN 49 GP ISUZU that belongs to the           Applicant;

          5.       Costs of suit at attorney and own client scale;

          6.       Further and/or alternative relief.

 

 

Brief Background

[2]     The 1^st Respondent obtained an Order of Court against Kenneth Lumbela (the Defendant in the Main case) wherein she claimed a payment of the sum of One Hundred and Seven Thousand Nine Hundred and Seventy Three Emalangeni and Forty Three Cents (E107,973.43) for goods sold and delivered at the special request of the defendant.  The 1^st Respondent eventually obtained a Writ of Execution against the said Kenneth Lumbela which was executed by the 2^nd Respondent through a Notice of Attachment.  In executing the Writ the 2^nd Respondent attached a motor vehicle that does not belong to Kenneth Lumbela despite being aware of same and despite being aware of other properties and assets that could have been attached instead of the motor vehicle in question.

 

Points of law

[3]     The 1^st Respondent initially raised three (3) points of law.  The first one related to the locus standi of the Applicant.  The second related to the description of the Applicant and the last one related to the doctrine of dirty hands.  The Respondent did not pursue the third point and it therefore remains abandoned. 

 

The parties’ contention

The Respondent

[4]     The 1^st Respondent contends that a claimant must establish his or her locus standi.  In the case before court the Deponent has failed to state in what capacity she is acting and whether or not she has capacity to so act.

 

[5]     Furthermore, there is a conspicuous absence of the description of the Applicant in the description of the Deponent.  In paragraph 1 of the Founding Affidavit, the Deponent states as follows:-

                   “I am an adult female South African of Devon area, Johannesburg, in       the Gauteng Province, South Africa.  The facts deposed to herein are     within my knowledge and contain information given to me by Kenneth    Lumbela (the defendant).”

 

[6]     The 1^st Respondent’s argument is that since Lumbela General Trading CC is the Applicant it should be the one described in the above paragraph instead of the Deponent.  This is because the Applicant has its own legal personality.  The fact that the Deponent is the owner of the Applicant by virtue of it being a closed corporation, does not detract from the well known principle of corporate law that, an entity like the Applicant, has its own legal existence.  It must be clearly pointed out that the Applicant has locus standi in judicio and that it can sue or be sued in its own.

 

The Applicant

[7]     The Applicant on the other hand, contends that paragraphs 9 and 16 of the Founding Affidavit show that the Applicant is a South African Company and owner of the motor vehicle in question and this proves the locus standi of the Applicant beyond any reasonable doubt. Furthermore, the locus standi has also been established in different annexures annexed to the Application.  The Applicant also derives the locus standi by virtue of having a clear right in the present matter and by virtue of her being the owner.

 

[8]     On the issue of the description of the Applicant, the response is that same has been adequately described.  Paragraphs 9, 10 and Annexures KL 4, KL 5 and KL 6 of the Founding Affidavit establish this point.  In these paragraphs, the Applicant is a South African Company and the motor vehicle is solely used for the Applicant’s business purposes in and out of South Africa.  There is therefore a strong link between the Deponent to the Affidavit and the Applicant.

 

The Applicable law

[9]     In VIF Limited v Vuvulane Farmers Association (Public) Company Ltd Case No. 30/2000 (unreported) at page 8, Tebbut J.A stated as follows:

                   “It is well established that an Applicant must make the appropriate allegation in its founding or launching affidavit to establish its locus       standi to bring an application.”

          Likewise, in the High Court Case of Ayandza Emadvodza Farmers Association Ltd v Majalimane Mvila and Others, Case 67/2003, His Lordship Maphalala S.B stated as follows:

                   Before one cites a party in summons or in application proceedings, it         is important to consider whether the party has legal capacity to sue or be sued (legitima persona standi in judicio) and ascertain what the           correct citation of the party is.”

 

 

Court’s observation and conclusion

[10]   The 1^st Respondent’s case is clear and straight forward.  All that the Applicant has done in the Founding Affidavit is to cite the owner of the closed corporation.  The motor vehicle is not registered in the name of the owner, but is registered in the name of the closed corporation.

 

[11]   It is also worth noting that the parties to the proceedings are Lumbela General CC (Applicant) and Swazi Industries Agencies (Pty) Ltd (Respondent).  Mciniseli Zwane is cited in his capacity as the Messenger of Court.  There is no mention of Dorcas Maleka.  In paragraph 1 of the Founding Affidavit, Dorcas should have clearly established the link she has with Lumbela General Trading CC.  She should have clearly stated that she appears as a representative of Lumbela Trading CC by virtue of her being owner of Lumbela Trading CC.

 

[12]   It is therefore this court’s firm conviction that the Applicant has dismally failed to establish its locus standi in the Founding Affidavit.  The fact that Dorcas Maleka is the sole owner of the closed corporation and that she has the necessary documentation showing that the Applicant is owned by her (thus, establishing that the Deponent has a direct and substantial interest) does not absolve the Deponent from clearly describing the Applicant for purposes of locus standi.  The Supplementary papers which are part of the Applicant’s Replying Affidavit do not take its case any further.  The point of law that is raised by the Respondent on the issue of locus standi is hereby upheld with costs.

 

 

 

_______________________

 

M.R. FAKUDZE

JUDGE OF THE HIGH COURT

 

 

 

1^st Respondent:    W. Maseko

 

Applicant:            M.S. Dlamini