IN THE HIGH COURT OF ESWATINI
Case No. 1948/18
In the matter between:
SWAZILAND NATIONAL PROVIDENT FUND APPLICANT
FALLA INVESTMENT (PTY) LTD RESPONDENT
Neutral citation: Swaziland National Provident Fund vs Falla Investment (Pty) Ltd [1948/18]  SZHC 58 (29th March, 2019)
Coram: FAKUDZE, J
Heard: 26th March, 2019
Delivered: 29th March, 2019
Summary: Civil procedure – Applicant filed an application for an Order for the cancellation of the lease agreement between the Applicant and the Respondent – Applicant further sought an Order for payment by the Respondent of all arear rentals in respect of the premises leased to the Respondent – the Applicant finally sought for an Order ejecting the Respondent from the leased premises – Respondent raised a point of law that the Applicant took the law into its own hands by locking out the Respondent before approaching the court – Papers filed of record reveal that Respondent was never locked out. The Return of Service bears testimony to this truth. It proves that the Interim Order was served on the Respondent at No. G10 Estel House on the 1st February, 2018. Sheriff also took an inventory of all the things that were in the rented premises – This would not have happened if rented premises had been locked – Respondent’s point of law that Applicant approached court with dirty hands in that it had locked the premises is therefore dismissed.
 On the 17th December, 2018, the Applicant filed an Application based on the following:-
1. That the usual forms and service relating to the institution of proceedings be dispensed with and that this matter be heard as one of urgency.
2. Condoning Applicant’s non-compliance with the Rules of the above Honourable Court relating to service and hearing the matter on an exparte basis.
3. Pending payment of the arrear rentals and other charges in the amount of E47,005.59 claimed by the Applicant from the Respondent in respect of the offices No. G10 Estel House, Manzini, District of Manzini, Eswatini:-
3.1 The removal of any movables from the said premises be and is hereby interdicted;
3.2 That the Deputy Sheriff for the District of Manzini be and is hereby authorised and directed to;
(a) Forthwith serve the Notice of Motion and the Order upon the Respondents and to explain the full nature and exigency thereof to it;
(b) Attach all movables on the premises;
(c) Make an inventory thereof; and
(d) Make a return to the Applicant’s Attorneys and the Registrar of what he has done in execution of this Order.
3.3 That the Rule Nisi referred to above operate with immediate and interim effect pending the determination of this Application;
4. The Respondent is called upon to show cause why the Orders below should not be made final:
4.1 Confirming the cancellation of the lease agreement between the Applicant and the Respondent.
4.2 Payment of the arrear rentals and other charges in the amount of E47,005.99.
4.3 Ejecting the 1st Respondent from the premises owned by the Applicant at offices No. G10, Estel House, Manzini, District of Manzini, Eswatini.
4.4 Interest on the sum of E47,005.99 at the rate of 9% per annum a temporae morae.
4.5 Costs of suit at Attorney and own client scale including collection commission; and
5. Such further and/or alternative relief as the above Honourable Court may deem fit.
 The Respondent has filed a Notice of Intention to Oppose the confirmation of the Interim Order. It has raised a point law that the Applicant closed and locked out the Respondent from the leased premises on the 27th December, 2018. The Interim Order was obtained on the 17th December, 2018. The premises were allegedly locked without a court Order. The serving of the Order before the Return date was to legitimise the Applicant’s self-help tactics and to force the Respondent under duress to submit to Applicant’s demands of paying the arrear rentals. The point of law should be upheld and the entire Application be dismissed.
 The Applicant contends that the Application should be not dismissed because it has approached the court with clean hands. At the time of the filing of the Application, the Respondent was continuing with its business notwithstanding that it owes the rent. The same applied when the interim order was served. At no point in time did the Applicant lock out the Respondent. The point of law should therefore be dismissed.
 The court’s view is that the point of law should be dismissed and the parties should argue the merits. This view arises from the fact that the letter informing the Respondent of the lock out is dated 28th December, 2018. It was written after a few days the Interim Order had been obtained by the Applicant. On the 1st February, 2019, the Deputy Sheriff served on the Respondent the Application and the Interim Order. This took place at the Respondent’s place of business as shown in the Return of Service. The Deputy Sheriff went further to prepare an inventory of all the goods that were in the Respondent’s premises. He would not have done that if the premises were locked. It stands to reason that the Respondent was never locked out. The point of law raised by the Respondent is therefore dismissed and the parties are ordered to go into the merits of the Application.
JUDGE OF THE HIGH COURT
Applicant: W. Maseko
Respondent: N. Mabuza