IN THE HIGH COURT OF ESWATINI
RULING ON POINT IN LIMINE
Case No. 668/18
In the matter between:
LUMBELA GENERAL TRADING CC APPLICANT
SWAZI INDUSTRIES AGENCIES (Pty) 1st RESPONDENT
Ltd t/a BUILDERS DISCOUNT CENTRE
MCINISELI ZWANE N.O. 2nd RESPONDENT
SWAZI INDUSTRIES AGENCIES PLAINTIFF
t/a BUILDERS DISCOUNT CENTRE
KENNETH LUMBELA DEFENDANT
Neutral citation: Lumbela General Trading C.C. v Swazi Industries Agencies (Pty) ltd & Another [668/18]  SZHC 34 (28th February, 2019)
Coram: FAKUDZE, J
Heard: 12th February, 2019
Delivered: 28th February, 2019
Summary: Civil Procedure – attachment of movable property – Applicant alleges that Deputy Sheriff attached property belonging to itself and not to Defendant –1st 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 1st 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 1st Respondent is therefore upheld with costs.
 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 2nd Respondent be and hereby ordered to return the movable property attached pursuant to the writ of execution dated 11th 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.
 The 1st 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 1st Respondent eventually obtained a Writ of Execution against the said Kenneth Lumbela which was executed by the 2nd Respondent through a Notice of Attachment. In executing the Writ the 2nd 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
 The 1st 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 1st 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.
 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).”
 The 1st 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 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.
 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
 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
 The 1st 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.
 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.
 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.
JUDGE OF THE HIGH COURT
1st Respondent: W. Maseko
Applicant: M.S. Dlamini