IN THE HIGH COURT OF ESWATINI
HELD AT MBABANE CIVIL CASE NO: 365/2019
In the matter between:
GCINA NGCAMPHALALA FAMILY TRUST 1ST APPLICANT
GCINA GIFT NGCAMPHALALA N.O. 2ND APPLICANT
NONHLANHLA PEARL NGCAMPHALALA N.O. 3RD APPLICANT
BHOKILE SHIBA 1ST RESPONDENT
LINDA SHIBA 2ND RESPONDENT
HLENGIWE SHIBA 3RD RESPONDENT
SIHLE SHIBA 4TH RESPONDENT
LUNGILE SHIBA 5TH RESPONDENT
THE NATIONAL COMMISSIONER OF ROYAL
ESWATINI POLICE SERVICE N.O. 6TH RESPONDENT
THE ATTORNEY GENERAL N.O. 7TH RESPONDENT
Neutral Citation: Gcina Ngcamphalala & Another v Bhokile Shiba & 6 Others (365/2019)  SZHC 60 (01 April 2019)
CORAM: NKOSINATHI MASEKO J
FOR APPLICANTS: MR. S.V. MDLADLA & MR. H.N. MDLADLA
(S.V. MDLADLA & ASSOCIATES)
FOR 1ST RESPONDENTS: MR. T. MAVUSO
(MOTSA MAVUSO ATTORNEYS)
DATE HEARD: 21ST MARCH 2019
DATE DELIVERD: 01ST APRIL 2019
PREAMBLE: Application proceedings – Requirements for final interdict – Whether property registered in the name of Applicant at the Deeds Registry Office confers a clear right on the Applicant – Application to strike out in terms of Rule 6 (28) – Whether scandalous and defamatory material liable to be struck out – locus standi – Whether single Trustee can institute application proceedings on urgency for the grant of an interdict to protect the interests and rights of a Trust – Respondents interdicted from conducting burial of deceased on 1st Applicant’s (Trust) property.
 The Applicants launched these motion proceedings on urgency on the 8th March 2019 and seeking the following relief.
1. Dispensing with the usual forms and procedures relating to the institution of the proceedings and allowing the matter to be heard and enrolled as one of urgency.
2. An order interdicting and restraining the First to Fifth Respondents and/or any of their agents and associates from carrying out the burial ceremony of Nhlanhla Bhabhama Shiba at the Applicant’s property being:-
Certain: Portion A of Farm “Bracefield” NO. 303, situate in the Shiselweni District, Eswatini.
Measuring: 234, 0959 (two three four comma zero nine five nine) scheduled for the 9th March 2019 or any future alternative date.
2.1 That prayer 2 operates with interim and immediate effect.
3. That the Royal Eswatini Police Service at Lavumisa be dully authorized to assist the Deputy Sheriff to execute prayer 2 supra and preserve peace.
4. That a rule nisi do hereby issue calling upon the Respondents to show cause why prayers 2, 3 and 4 should not be made final.
5. Costs of suit in the event of unsuccessful opposition.
6. Any further and/or alternative relief.
 The Affidavit of Gcina Gift Ngcamphalala N.O. is hereby filed in support of this application. At paragraph 1 of the Founding Affidavit, he states that he is currently the Trustee for the time being of the 1st Applicant – the Gcina Ngcamphalala Family Trust.
 2nd Applicant states in his Founding Affidavit that the 1st Respondent – Bhokile Shiba used to be the registered owner of Portion A of Farm “Bracefield” NO. 303, situate in the Shiselweni District, Eswatini.
 He states further that during the tenure of 1st Respondent’s occupation of the farm herein described above, the said farm was mortgaged and held encumbered as security on behalf of Eswatini Development and Savings Bank. A copy of Title Deed is annexed to these proceedings and marked Annexure 1.
 He states further that the Creditor, Eswatini Development and Savings Bank foreclosed on the mortgage property being the aforesaid Portion A of Farm “Bracefield” NO. 303 situate in the Shiselweni District and that when the property was sold in execution, he bidded on behalf of 1st Applicant at the auction sale which was conducted on the 27th February 2015 wherein he successfully purchased the farm for the price of E2 150 000.00 (Emalangeni Two Million One Hundred and Fifty Thousand)
 He states that following the successful purchase of the farm at the sale in execution on the 27th February 2015, full title was thus transferred to the 1st Applicant on the 23rd June 2015 as can be seen from the Title Deed marked Annexure 2. To date the farm remains registered in the name of the 1st Applicant.
 He states further that for the period since the 1st Applicant became the registered owner of the property, he has allowed the 1st Respondent and his family to reside on the farm solely on humanitarian grounds after instituting ejectment proceedings under case N0. 569/2016 which are still pending before this Court.
 I must state that there was a Counter-Application filed by the 1st Respondent on the 16th June 2016 for the cancellation of the 1st Applicant’s Title Deed and ejectment of the 1st Applicant and all those holding title under him from Portion A of Farm “Bracefield” NO. 303 situate in the Shiselweni District. There was also a prayer for the cancellation of the Mortgage Bond N0. 656/15 executed by 1st Applicant in favour of Standard Bank Swaziland Limited.
 2nd Applicant states that on the 3rd March 2019 he was approached by the 2nd to 5th Respondents who requested to bury their brother, Nhlanhla Bhabhama Shiba in the farm and this was under the instruction of the 1st Respondent.
 2nd Applicant advised 2nd to 5th Respondents that he needed a written communication of whatever issue they needed to address as he could not agree to the request.
 On the 7th March 2019, 2nd Applicant states that he received a telephone call from his employee Abion Phakathi, who informed him that the 1st Respondent was to carry out the burial ceremony of the deceased within the 1st Applicant’s farm, alleging that the property belonged to him.
 2nd Applicant states that the written communication he had requested was served on him on the 7th March 2019 at around 3.15pm, however, he responded to same on the 7th March advising them that their request to bury the deceased on the 2nd Applicant’s farm was being declined as it would prejudice 1st Applicant’s dominion over the farm.
 It appears that the failure to reach a consensus between the parties leD to the institution of these proceedings on urgency by the Applicants, who were of the belief that the burial was to be conducted on the 9th March 2019.
 2nd Applicant states that he has been advised and verily believes that in order for him to obtain an interim interdict he has to meet the following requirements:
AD CLEAR RIGHT
 He states that 1st Applicant has a clear right to protect herein as the 1st to 5th Respondents have commenced the burial ceremony preparation over Applicant’s property without its consent. The clear right emanate from the fact that the 1st Applicant is the registered owner of the farm, and thus conducting the burial ceremony without Applicants’ consent shall infringe on Applicants’ rights to full use and enjoyment of their property.
AD PREJUDICE/IRREPARRABLE HARM & ALTERNATIVE REMEDY
 As regards this requirement, 2nd Applicant states that the 1st Applicant will be prejudiced by the Respondents’ unlawful conduct to conduct the burial ceremony within 1st Applicant’s farm without its consent. Further that the unlawful conduct of the Respondents shall reduce the Applicant’s right to full use of its property, as the farm is utilized for commercial purposes, this being cow rearing.
 2nd Applicant further states that the balance of convenience favours the Applicants because the 1st Respondent is in occupation of the farm on humanitarian grounds since the ejectment proceedings are pending.
 Further 2nd Applicant state that, Applicants have no alternative remedy herein, because the Respondent’s unlawful conduct aims to reduce Applicants dominion over its property to its prejudice without Applicants’ consent to dispose bodies in its farm. He states further that the only remedy to safeguard Applicant’s right to ownership is to interdict the burial ceremony over its property without Applicants’ consent.
 2nd Applicant states further that Applicants have no alternative remedy because they are currently servicing a mortgage bond over the farm and the financier, Standard Bank Eswatini Limited’s security is also being prejudiced by the Respondents’ intention to carry out the burial ceremony in the farm as such action would diminish the value of the said farm.
1ST RESPONDENT’S CASE
 On the 12th March 2019, the 1st Respondent filed an Answering Affidavit and states that Applicants conveniently misled the Court by giving the impression that he owned only one farm (Portion A of Farm 303) yet there were two adjoining farms there as more appears in the Title Deed, the other farm being Remaining Extent of the Farm 303. He states further that the Applicants illegally sold both farms yet, at the very least he is entitled to retain one of the farms.
 1st Respondent states further that, Applicants have conveniently failed to disclose to the Honourable Court that there are pending Court proceedings (High Court Case NO. 569/16) where they seek to evict him and which proceedings he vigorously opposed to the point that the Applicants abandoned that application.
 1st Respondent states further that the Applicants have conveniently not disclosed that the propriety of their title to the property is being challenged as he has filed a Counter-Application to rescind the illegal sale and to have the property in question in the present proceedings returned to him.
 The 1st Respondent has also raised a point in limine of locus standi wherein he states that he is advised and verily believes that the 1st Applicant is not a legal person and therefore lacks the capacity to sue and be sued in its own name.
 He states further that in litigation a trust can only do so through its trustees in their representative capacity as such. The Trustees of the 1st Applicant are one Gcina Gift Ngcamphalala and a certain Nonhlanhla Pearl Ngcamphalala. He states further that the 2nd Applicant cannot sue on behalf of the 1st Applicant (Trust) in the absence of the other Trustee Nonhlanhla Pearl Ngcamphalala, instead both parties must institute the proceedings.
 1st Respondent also alleges that the relief sought herein is one of a final interdict and that for the Applicants to be granted final interdict, they ought to prove that they have a clear right and that such clear right is being violated by the Respondents; and that if the interdict is granted they will suffer irreversible harm.
 1st Respondent states further that, the Applicants do not satisfy these requirements, firstly, because they have failed to establish a clear right and, secondly, the harm sought to be prevented by the interdict is not irreversible.
 At paragraph 20.3 page 55 of the Book of Pleadings, the 1st Respondent states as follows:
‘The Applicants argue that they have a clear right to interdict the burial of the deceased on the farm by virtue of the fact that the property is registered in the 1st Applicant’s name. On account of such registration, the Applicant argued that they are the owners of the property and are accordingly entitled to an interdict.”
 At paragraph 184.108.40.206, the 1st Respondent states as follows:
‘Firstly, the mere fact that there is a pending Court case wherein I am seeking the rescission and reversal of the registration of my property in the name of the 1st Applicant. Clearly, where the title of the Applicant is being question in Court Proceedings which have not been finalized he cannot claim to have a clear right.’
 1st Respondent also states that he is residing in the farm with the consent of the Applicants and this entitles him and his family to certain rights of farm dwellers under The Farm Dwellers Act.
 1st Respondent also states that he has reported the matter to the Human Rights Commission and it is now being investigated by that Commission.
 1st Respondent also states that there is no irreparable harm that would be suffered by the Applicants because the body of the deceased can be exhumed if the 1st Applicant is confirmed to be the owner of the property.
 I must state that on the 14th March 2019, the Applicants filed a Notice To Strike Out paragraph 26.3 of the 1st to 5th Respondents’ Answering Affidavit on the ground that, firstly, the allegations are defamatory, scandalous, vexatious and embarrassing, and secondly, that the allegations are irrelevant for the current application.
 For clarity’s sake, paragraph 26.3 is worded as follows:-
‘As to my counter-application wherein I seek an order that Portion A of Farm 303 be returned to me, the Applicants did not oppose that application yet they continue to claim ownership of same. If the property was theirs they would not have hesitated to oppose the application. These are clear signs of collusion between the Bank and the 1st Applicant. Strangely, the same firm of attorneys which represented the Bank in selling my property is the same firm of attorneys representing the buyer. Interestingly, the property was also sold at the reserve price as a clear indication that there were no bidders.’
 During arguments of this matter Mr. S. V. Mdladla who appeared with Mr. H.N. Mdladla, argued the Application to Strike out paragraph 26.3.
 Mr. Mdladla Snr. submitted that the basis for 1st Respondent’s allegations as they appear ex facie the affidavit is simply because the Bank was represented by the Law Firm and the Applicants are also represented by the same Law Firm. He argued that there is nothing to support these allegations which are baseless and defamatory and therefore prejudicial. He submitted further that there is nothing sinister about such representation. He submitted further that scandalous allegations are those which may or may not be relevant but which are so worded as to be abusive or defamatory.
 Mr. T. Mavuso who appeared for the 1st to 5th Respondents submitted that these allegations are unfounded and not defamatory. He submitted that the Bank did not oppose the Counter-Application but Mr. Mdladla Snr. filed the Answering Affidavit on behalf of the Bank.
 Mr. Mavuso submitted further that these facts as contained in paragraph 26.3 are necessary and if needs be, then let the Applicant deal with them in the suit as and when instituted. He therefore applied that the Application to Strike Out paragraph 26.3 be dismissed.
 Mr. H.N. Mdladla Jnr. who argued the main matter submitted that the Applicants have satisfied all the requirements for the grant of a final interdict, in that, the Applicants have proven lawful and factual ownership of the property subsequent to a sale in execution. He submitted further that the right to ownership arises out of a registration of real rights to such immovable property through a Title Deed.
 Mr. Mdladla Jnr. submitted further that the Applicants have proven on a balance of probabilities a prima facie and or clear right through the registration of the farm in the name of the Trust. He emphasized on numerous instances that the farm is still registered in the name of the Trust.
 Counsel submitted further that the farm was sold in execution after the 1st Respondent had breached a Deed of Settlement which then entitled the Bank to execute on the farm.
 He submitted further that the Respondents have no basis for their opposition of the interdict, because the 1st Applicant is the registered owner of the farm. He argued that the fact that a body can be exhumed is immaterial because it reduces the Applicant’s dominion on the farm and as such is prejudicial and an irreparable harm.
 Counsel submitted further that the Respondents did not even allege in their papers that there is no other available or alternative place to bury the deceased, instead they allege only that they want family members to be buried together.
 Counsel further submitted that the occupation of the farm by the 1st Respondent is unlawful, as he has no right of retention and or a lease agreement. He argued further that the 1st Respondent does not qualify to be a farm dweller in terms of The Farm Dwellers Act, because the 1st Respondent was not a squatter or “Umnumzane” in the farm but that he was the owner of the farm which was however sold in execution, and thus he does not qualify to be a squatter or “Umnumzane” and therefore The Farm Dwellers Act does not apply to him.
 Counsel submitted further that 1st Respondent’s Counter-Application in Case NO. 569/2016 does not amount to a defence in these proceedings, firstly, because such proceedings do not cancel the Title Deed which proves ownership of the farm by the 1st Applicant, and, secondly because such proceedings do not even suspend the ownership of the farm. He argued that to-date the 1st Applicant enjoys full title as evidenced by the Title Deed in favour of the Trust (1st Applicant).
 Counsel argued further that the Counter-Application was instituted almost three (3) years ago and that to-date, the 1st Respondent has not prosecuted same, and that the mere fact that these proceedings are pending has no effect on the ownership of the farm by the 1st Applicant and certainly does not cancel, and or rescind, and or suspend the said ownership of the farm by the 1st Applicant.
 Counsel referred this Court to Section 7 of the Deeds Registry Act NO.37/1968 and submitted that a Title Deed and ownership of immovable property can only be cancelled by an Order of Court, which is not the case in this matter. He argued that until the Title Deed in favour of 1st Applicant is cancelled by the Order of Court, it remains the owner of the farm and enjoy full rights of ownership as can be proven from the Title Deed.
 Counsel further referred the Court to the case of Dups Properties (Pty) Ltd v Robert Lobi Zwane Case NO. 597/2013 decided by my brother, His Lordship Justice N.J. Hlophe where he stated the following at page 4, paragraph 4:-
‘It is imperative I mention that as at the time the Respondent sought to rescind the order transferring the property in question to Mr. Du Plessis; the latter had long transferred same to the Applicant. There being no Court Order reversing the transfer of the property to the Applicant as there is no order as well suspending the Applicant’s enjoyment of the property as an owner, the said property remains under the ownership of the Applicant, who is entitled in law to exercise all such rights in the property as are associated with being an owner”.
 Hlophe J continued to state as follows at pages 7-8 paragraphs 9-10:-
‘The position is now settled that in order to succeed in such relief, the Applicant should establish or prove that he has a clear right, that there is an injury which is continuing or is about to occur and that he does not have an alternative relief ----. The position is settled in our law that vindication protects ownership or rights of an owner whereas spoliation protects possession or the rights of the possessor ----
In view of the relief sought the first question is whether that facts as pleaded do establish a clear right. Considering the fact that the Applicant is the holder of a Title Deed which confirms the transfer of the property in question to him, does it entitle him to protect his right of ownership of the property? A property owner is entitled to protect his ownership to the property he owns in law. There can therefore never be a doubt that the Applicant is entitled to interdict the Respondent in the manner set out in the Notice of Motion, where the latter’s conduct seeks to undermine his right of ownership of the property.’
 On the other hand Mr. Mavuso dealt with the point in limine of locus standi in judicio wherein he submitted that the Applicants have conceded to this point and sought to cure this defect by filing a Notice of Joinder. He submitted that this does not cure the defect in any way, as it does not assure the Court that both Trustees are suing and that the 2nd Applicant is not on a frolic of his own. A resolution of the Trustees or a Confirmatory Affidavit from the other Trustee could have given that necessary assurance, so submitted Counsel.
 On the issue of clear right, Mr. Mavuso referred this Court to Herbstein and Van Winsen in their book, THE CIVIL PRACTICE OF THE SUPREME COURT OF SOUTH AFRICA 4th Edition at page 1068 where the learned authors when describing the concept of clear right stated as follows:
‘The meaning of the term “clear right” has been a matter of some difficulty. It has been held that the original words used by Van der Linden, “een liquid recht” are more correctly translated as a “definite right” but it is submitted that this takes the matter no further. The authors of JONES AND BUCKLE suggest that what is meant by the phrase “a right clearly established”, that the word clear, relates to the degree of proof required to establish the right and should strictly not be used to qualify the right at all.’
 Counsel submitted further that the interdict sought herein by the Applicants is not an interim interdict but a final interdict, hence a higher degree of proof of the right is required of the Applicants.
 Counsel referred to Webster v Mitchell 1984 (1) SA (W) 1189 at 1189 where Clayden J stated the following:
‘The use of the phrase “prima facie established though open to some doubt” indicates I think that more is required than merely to look at the allegations of the Applicant, but something short of weighing up the probabilities of conflicting versions is required. The proper manner of approach I consider is to take the facts as set out by Applicant, together with any facts set out by the Respondent which the Applicants cannot dispute, and to consider whether, having regard to the inherent probabilities, the Applicant could on those facts obtain final relief at a trial. The facts set up on contradiction by the Respondent should then be considered. If serious doubt is thrown on the case of the Applicant he could not succeed in obtaining temporary relief, for his right, prima facie established, mainly only be open to some doubt. But if there is mere contradiction, or unconvincing explanation, the matter should be left to trial and the right be protected in the meanwhile.’
 Mr. Mavuso submitted that the mere fact that the 1st Respondent was challenging the Title Deed on the basis that the Writ of Execution referred only to Portion A of Farm NO. 303, Shiselweni District Measuring 234 0959 hectares, whilst there is no Writ of Execution as regards the Remaining Extent of Farm 303 Measuring 85 65 32 hectares does not give rise to a clear right and thus this Court should not grant the interdict sought.
 Counsel submitted further that the Counter-Application under Case NO 569/2016 is pending before Court and as such is an indication of the lack of clear right on the part of the Applicants which would give rise to a clear right.
 Mr. Mavuso was quick to mention that this Court is not called upon at this stage to deal with the cancellation of the Title Deed currently in existence in favour of the 1st Applicant because those issues will be dealt with by the Court seized with that matter.
 I am in full agreement with Counsel in this regard, as my task in this matter is to deal with the prayers as outlined in the Notice of Motion herein.
EVALUATION OF THE EVIDENCE
 I have carefully considered the evidence in these proceedings and hereby state that notwithstanding the long history of the matter, I am only called upon to deal with the interdict which is the subject matter of these proceedings. I am also called upon to deal with the point in limine of locus standi of the Applicants in casu, and for convenience I will address this point first.
 As stated above Mr. Mavuso submitted that the Applicants do not have locus standi to institute these proceedings because the other Trustee had not been cited in these proceedings, but only the 2nd Applicant was cited. On the hand Mr. H.N. Mdladla submitted that owing to the extreme urgency of the matter only the 2nd Applicant instituted the proceedings and on 13th March 2019, there was a Notice of Joinder of the other Trustee Nonhlanhla Pearl Ngcamphalala N.O.
 I have carefully considered this point and have noted that whilst the initial papers were filed without citing the second Trustee, however the 2nd Applicant stated as follows in his paragraph 1 page 10 of the Book:-
‘I the undersigned Gcina Gift Ngcamphalala N.O. I a major male Liswati of Ezulwini, in the District of Hhohho, Eswatini and currently the Trustee for the time being of Gcina Ngcamphalala Family Trust. By virtue of my position as aforesaid, I am duly authorized to depose to this Affidavit on behalf of the Gcina Ngcamphalala Family Trust. The facts deposed to are within my own personal knowledge and belief and/or have come to my knowledge in my official capacity through the perusal of official documentation pertaining to this matter. The facts deposed to being both true and correct. I swear positively thereto.”
 Further on the 13th March 2019, the Applicants filed a Notice of Joinder of the other Trustee Nonhlanhla Pearl Ngcamphalala N.O. There was no opposition to the filing of this Notice of Joinder. The joinder of parties is regulated by Rule 10 of the Rules of Court and it provides as follows:
‘10. (1) Any number of persons, each of whom has a claim, whether jointly, jointly and severally, separately or in the alternative, many join as plaintiffs in one action against the same defendant or defendants against whom any one or more of such persons proposing to join as plaintiffs would, if he brought a separate action, be entitled to bring such action, provided that the right to relief of the persons proposing to join as plaintiffs depends upon the determination of substantially the same question of law or fact which, if separate actions were instituted would arise in each action, and provided that there may be a joinder conditionally upon the claim of any other plaintiff failing.’
 In casu the other Trustee was joined in the proceedings after Respondents raised the point in limine of lucus standi. The joinder of the other Trustee had the effect of rectifying any defect, if ever there was, because it was not opposed by the Respondents. The 2nd Trustee Nohlanhla Pearl Ngcamphalala was therefore joined in these proceedings as 3rd Applicant in nomine officii capacity.
 I must also mention that the 2nd Applicant acting in his nominee officio status and faced with the urgency of an intended burial of the deceased in the farm registered in the name of 1st Applicant, was justified in the urgent circumstances to initiate these proceedings. 2nd Applicant is acting in the best interest of the 1st Applicant and it would be justified for him to protect the interests of the 1st Applicant against the intended harm from the Respondents even in the absence of the other Trustee. There is no hard and fast rule which would prevent any trustee faced with urgent circumstances from instituting proceedings on behalf of the trust to protect interests of the truste from unlawful violation of those rights. This is the situation in which the 2nd Applicant found himself in.
 Further there is no prejudice that is occasioned on the Respondents by joinder of the other Trustee. Instead it bolsters the intention of the Trustees to protect the rights the 1st Applicant from the intended and unauthorized burial of the deceased in 1st Applicant’s farm, which farm was registered in its name and title transferred thereto on the 23rd June 2015 through the Deed of Transfer executed in favour of the Trustees For The Time Being of Gcina Ngcamphalala Family Trust.
 In the then Court of Appeal Case of Shell Oil Swaziland (Pty) Ltd v Motor World (Pty) Ltd t/a Sir Motors (23/2006)  SZSC 11 (21 June 2006] Tebbut JA stated the following at paragraph 32:-
‘The learned Judge a quo also referred to the decision in South African Milling Co. Ltd v Reddy 1980 (3) SA 431 (SEC) for the proposition that the Founding Affidavit must contain all essential averments and that there cannot be supplemented in a Replying Affidavit. That decision has been criticized in a number of subsequent cases where it has either been distinguished or not followed, including one of the most recent cases on the subject viz Smith v Kwanonqubela Town Council 1999 (4) SA 947 (SCA). In that case the Supreme Court of Appeal in South Africa (per Harms JA) held that a party to litigation does not have the right to prevent the other party from rectifying a procedural defect. Referring to the South African Milling case, supra, the Court stated that there the Court had approached the matter from a procedural point of view viz that a party is not entitled to make out a case in reply and that a ratification relied upon in reply infringes that Rule. The Appeal Court held that this was not a correct approach. It again stated that the Rule against new matter in reply is not absolute but “should be applied with a fair measure of common sense”. As Ebersohn J stated, the law in Swaziland is the same as that in South Africa. The Court in this country should therefore also follow that approach.
The approach in any event commends itself to me as being in accordance with sound commonsense. An allegation by a deponent that is duly authorized to depose to an affidavit on behalf of a corporate body is generally not expected to be challenged and accordingly the source of his authorization is not usually set out by the deponent. If, however, as occurred in casu his authority is challenged or denied in the Answering Affidavit, it would obviously be grossly unfair not to allow the deponent to set out the source of his authority. Fairness to the parties dictates this (see per Holmes J, as he then was in Milne N.O. v Frabric House (Pty) Ltd 1957 (3) SA 63 (N) at 65A. (My emphasis).
 I have deliberately referred to the Shell Oil case, supra, not because of the similarity of the facts but because the principle applied is universally applicable to other factual situations as well, and I have no reason to believe that in casu, the mere filing of the Notice of Joinder by Applicants on the 13th March 2019 should be disallowed simply because it concerns proceedings instituted on behalf of a Trust – the 1st Applicant.
 The Shell Oil case supra is very emphatic on the observance of substance over form by judicial officers. In casu it has been argued that the matter was extremely urgent in that the proceedings had to be instituted by one trustee to protect the best interest of the 1st Applicant by interdicting temporarily the burial of the deceased on the 1st Applicant’s property without its consent and permission.
 These proceedings were not meant to put the 1st Applicant at a disadvantage, but were instituted to protect and serve the best interests of the 1st Applicant by the 2nd Applicant who deposed to the Founding Affidavit and affirming that he was duly authorized to depose thereto, by virtue of being a Trustee, and when the absence of the Second Trustee was questioned, the Notice of Joinder was duly filed and rectified technicality as it were. I will reiterate that no opposition was filed by the 1st Respondent to the Notice of Joinder of Nonhlanhla Pearl Ngcamphalala. She is therefore effectively a party to these proceedings as at the 13th March 2019.
 In the Supreme Court case of Sikhumbuzo R. Mabila Trust v Syzo Investment (Pty) Ltd & 3 Others (47/2013)  MCB Maphalala JA (as he then was) stated the following at paragraph 24:-
‘Labuschange J in the case of Mariola and Others v Kaye-Eddie N.O. and Others 1995 (2) SA 728 (W) at 731 stated the common law position of trusts in the following:
“In our law a trust is not a legal person but a legal institution, sui genris. The assets and liabilities of a trust vest in the trustee or trustees. The trustee is the owner of the trust property for purposes of administration of trust, but qua trustee he has no beneficial interest therein.
Unless one of the trustees is authorized by the remaining trustee or trustees, all the trustees must be joined in suing and all must be joined when action is instituted against a trust ----
In legal proceedings trustees must act nomine officii and cannot act in their private capacities.”’
 In the case of Sibonino Clement Dlamini N.O. v Deputy Sheriff Hhohho & Another in re Swaziland Building Society v The Trustees For The Time Being of Siboniso Clement Dlamini Family Trust Case NO. 38/08 Mamba J stated the following at paragraph 6 with regard to trusts:
‘I now examine each of these grounds for the stay and rescission in turn. But before doing so I think it is opportune at this stage to state the law relating to the status and locus standi of a trust regarding being sued or being able to sue.
In Goolam Ally Family Trust t/a Textile, Curtaining and Trimming v Textile, Curtaining and Trimming (Pty) Ltd 1989 (4) SA 985 (c) at 988 D-E the Court stated that the general rule is that joint trustees must act jointly.
Generally speaking a joint trustee may delegate his duties to a co-trustee or to any other agent but the power to do so depends on the provisions of the trust deed ---- if it is prohibited it cannot be done. Where the trustees litigate in their representative capacity judgment cannot, of cause, be given against them personally and neither does a judgment in their favour enure for their personal benefit, since it accrues to the fund of the trust. It follows from the above that all trustees must act jointly unless one has the authority of the others to act. The trustees must also act nomine officii and not in their personal capacities, be cited as such in legal proceedings.’
 It is clear therefore regard being had to the Sikhumbuzo Mabila and Siboniso Clement Dlamini cases supra respectively that the general rule is that where trustees intend to institute action on behalf of a trust, they must do so jointly unless only one of them is duly authorized to act on behalf of the trust. 2nd Applicant is cited correctly in his nomine officii and so is the 3rd Applicant.
 I will repeat that in casu, the 2nd Applicant instituted the proceedings together with the 1st Applicant in the absence of the Second Trustee Nonhlanhla Pearl Ngcamphalala who was later joined in the proceedings as 3rd Applicant on the 13th March 2019. The joinder of the Second Trustee therefore rectified the defect or technicality that may have existed, although 2nd Applicant in his Founding Affidavit has in my view sufficiently explained his authority to initiate the proceedings by virtue of the authority vested in him, and more particularly because of the urgency of the matter aimed primarily at protecting the interests of the 1st Applicant, and further and also most importantly because there is no prejudice occasioned on the Respondents by this technical defect, in as much as there is no prejudice on the Respondents by the joinder of the 3rd Applicant in these proceedings.
 Mr. Mavuso in his arguments submitted that the Applicants had not satisfied the requirements for the grant of an interdict. He submitted that the Applicants do not have a clear right on the farm and that the title deed in favour of the 1st Applicant was infact impeachable.
 I have carefully considered the submissions concerning the title deed, and am of the considered view that it confers a clear right on the 1st Applicant by reason of transfer of title and ownership of the property to the 1st Applicant on the 23rd June 2015.
 As the farm is registered in the name of the 1st Applicant wherein the 2nd Applicant and 3rd Applicant are trustees, this means therefore that as from the date of transfer of the ownership of the said farm to the 1st Applicant on the 23rd June 2015, the Applicants assumed clear rights in respect of the said farm over everybody else, and therefore they are entitled to institute these proceedings to protect their dominion over the farm and also to interdict the 1st – 5th Respondents from conducting the burial of the deceased.
 I must state that a title deed confers a clear right on the person in whose name the property is registered. Unless there is a Court Order or pronouncement either cancelling that ownership or suspending same, no activity can ever reverse or cast a doubt on the ownership and clear right which is vested in that person or entity in which the property is registered.
 I must state very clearly that where proceedings are pending in Court for the cancellation of a title deed, or whatever title that is being challenged, and there is no interim order either for such cancellation or suspension thereof, the title deed as conferring title and ownership on that person or entity in whose name the property is registered remains in force and he or that entity remains the owner of that immovable and remains conferred with the clear right over enjoyment, occupation and exclusive use of that property, and can at law interdict any person or entity who intends to violate those rights.
 In casu the farm was registered in the name of the 1st Applicant on the 23rd June 2015, and is on a mortgage bond with Standard Bank Eswatini Limited. It is only the registered owner – the 1st Applicant who has the right to have the farm bonded with the Bank through its Trustees – the 2nd and 3rd Applicants respectively. No financial institution would ever execute a mortgage bond over immovable property whose title is either cancelled or suspended. Financial institutions execute mortgage bonds in favour of immovable properties whose full title is bestowed on the registered owner through the title deed in order to safe-guard their financial interests.
 In casu the Applicants are currently servicing the bond with Standard Bank because the 1st Applicant is the registered owner of the farm as per the Title Deed filed herein as Annexure 2. The fact that there are pending proceedings in Case NO. 569/2016, where the 1st Respondent, amongst other prayers, is applying for cancellation of the ownership of the farm and cancellation of the mortgage bond executed by Standard Bank, and there is no interim order cancelling or suspending such title deed and ownership by 1st Applicant, does not give the 1st Respondent any right whatsoever to interfere in any manner whatsoever with the farm and or any activities in the farm. The pending proceedings do not amount to a Court Order cancelling the title deed and ownership therefore and certainly does not give the 1st – 5th Respondents any rights to conduct the burial of the deceased unless the Applicants consent thereto.
 Further the ownership of the farm as currently vests on the 1st Applicant confers a clear right on the 1st Applicant, which clear right qualifies the 1st Applicant to interdict the 1st Respondent and those holding title under him not to conduct the burial of the deceased Nhlanhla Bhabhama Shiba on the said farm.
 I must emphasize therefore that until title deed and ownership of the farm is reversed or suspended by a Court of competent jurisdiction, the 1st Applicant shall remain vested with all the rights that a registered owner of an immovable property enjoys, including having a clear right over the property which qualifies that registered owner of that immovable property to protect its property from whatever interference at that particular point in time through injunction proceedings.
 Silberberg and Schoeman in their master work titled THE LAW OF PROPERTY 3RD EDITION KLEYN & BORANIE – BUTTERWORTHS 1992 in dealing with “the function and substance of the law of property” at pages 3-4 states as follows:
‘The focal point of the law of property is therefore the control of something of economic value, and it is hardly surprising that the sum total of the powers by which a person exercises such control was in Roman Law, and in Roman Dutch Law still is, called “dominium”. For, although dominium and ownership have the same legal connotations, the former expresses far more vividly than the latter that the essence of ownership is the legal power to control the use of a thing.
To illustrate the implications of this power it will be useful to consider some of the different ways in which an owner may exercise his dominion over the things he owns. He may:
- Use them for the satisfaction of his own and his family’s immediate wants and needs;
- Use them for his own benefit, but in order to provide for the satisfaction of the need and wants of others (which means that he converts the things he owns from consumer goods into means of production) and in this case he will usually employ others to operate them for him and on his behalf;
- Make the things he owns temporarily available to others for their use;
- Alienate them, that is, transfer his dominium to another person;
- Diminish his dominium and renounce fractions of his legal power over the things he owns in favour of others;
- Hoard things, that is, decline to use them himself and refuse to make them available for use by others; or
- Destroy them altogether.
Freedom of property is often said to be a basic right and when it is used in this sense it amounts to no more than the expression of a demand that society (as represented by the authority of the state) should guarantee an owner’s power to deal with his thing as he may deem fit and protect him against interference by others in his exercise of this power.
The law of property thus becomes inter alia a means for defining the limits within which an owner shall be free to deal with his property, how and to whom he may transfer it and whether or not a person shall have the right to acquire any particular kind of property.’
 At pare 61 the learned authors refer to the case of Frye’s (Pty) Ltd v Ries 1957 (3) SA 575 at 583 F where Hoexter JA said –
‘It is quite clear ---- that registration is intended to protect the real rights of those persons in whose names such rights are registered in the Deeds Office. It is obvious that the Deeds Office is a source of information concerning such rights; but the real function of registration is the protection of the persons in whose names real rights have been registered. Such rights are maintainable against the whole world ----’
 In casu it is common cause that the farm was registered in the name of the 1st Applicant after the 2nd Applicant bidded for it on behalf of the 1st Applicant at the auction sale in execution on the 27th February 2015.
 It is common cause that the farm was only registered on behalf of the 1st Applicant on the 23rd June 2015. Authority is legend that the registration and transfer of ownership of the farm into the name of the 1st Applicant created and vested real rights on the 1st Applicant.
 It is this real right that qualities as a clear right for purposes of instituting proceedings wherein the relief of an interdict is sought. It is for this reason why I have dealt with the issue of the registration and ownership of the farm in the name of the 1st Applicant first before dealing fully with the other requirements for the relief of the interdict as sought in these proceedings.
 According to Herbstein and Van Winsen in their master work titled THE CIVIL PRACTICE OF THE HIGH COURTS OF SOUTH AFRICA 5TH EDITION JUTA 2012 at page 1454 where they say:
‘Interdicts are orders of Court which normally prohibit (prohibitory interdicts) or compel (mandatory interdicts) the doing of a particular act to avoid injustice and hardship. Another purpose of a mandatory interdict is to remedy the effects of unlawful action already taken. The procedure is usually resorted to when other remedies are not available or when the delays associated with the use of other remedies could cause irreparable harm.
It is a procedure which has its origins in the Roman Law, although our Courts have on occasion looked to the English Law of injunctions, its principles as developed in the Roman-Dutch Law of procedure are generally accepted and applied by our Courts.
An interdict can either be final if the order is based on a final determination of the rights of the parties to the litigation or interim, pending the outcome of proceedings between them.’
 At page 1456 the learned authors continue to state as follows:
‘In order to succeed in obtaining a final interdict, whether it be prohibitory or mandatory, an applicant must establish:
- A clear right;
- An injury actually committed or reasonably apprehended; and
- The absence of similar or adequate protection by any other ordinary remedy.’
 At page 1461 the learned authors refers to the case of Fereirra v Levin N.O.: Vryenhoek v Powell N.O. Streicher J stated the following:
‘It has up to now, been accepted that in order to establish a prima facie right entitling an Applicant to an interim interdict, an Applicant has to make out a case that he is entitled to final relief. If on the facts alleged by the Applicant and undisputed facts alleged by the Respondent a Court would not be able to grant final relief, the Applicant has not established a prima facie right and is not entitled to interim protection.’
 In casu, the 1st Applicant is the registered owner of the farm and is applying for an interdict to prohibit the 1st Respondents and those holding title under him from burying the deceased in the farm. Surely the 1st Applicant has that clear right because of being the registered owner of the farm.
 The rest of the requirements and that is, the apprehension of harm, and the absence of similar or adequate protection by any other ordinary remedy follow naturally.
 The 2nd Applicant stated in his Founding Affidavit that the burial of the deceased in the farm would impact negatively on the use of the property in particular the cow rearing business he was involved in, and that there was no alternative remedy than to obtain the interdict because Respondent’s intention of burying the deceased on the farm without their consent would reduce the Applicant’s dominion over the farm to their prejudice. I am also of the considered view that even the balance of convenience favours the 1st Applicant by virtue of being the registered owner of the farm, hence I granted the rule on the 8th March 2019.
 I have also considered the application to strike out paragraph 26.3 of the 1st Respondent’s Answering Affidavit. The application has merit because of the allegations of collusion of the Law Firm, the Bank and the Applicants. There is sufficient documentary evidence filed of record to demonstrate how the farm was eventually sold the Applicants through the sale in execution – (the auction sale) and eventually registered in the name of the 1st Applicant. The collusion and or fraud alleged by the 1st Respondent has not been proven before me, and not even on the balance of probabilities test which is applicable in these proceedings.
 I am of the considered view that the paragraph is scandalous and vexatious and thus falls within the ambit of Rule 16 (28) and therefore I hereby order that it be so struck out.
 I am therefore of the considered view and in light of the judgment by Hlophe J in the case of Dups Properties, supra, that as long as the ownership of the property remains in the name of 1st Applicant, it is therefore entitled in law to interdict the 1st Respondent and those who hold title under him from burying the deceased in the farm.
 In the aforegoing, the Applicant having satisfied the requirements for the grant of a final interdict, I hereby order as follows:
1. The Rule Nisi hereby issued by this Court on the 8th March 2019 is hereby confirmed as a final order of Court, in that the 1st – 5th Respondents are hereby interdicted and restrained from conducting the burial ceremony of the deceased Nhlanhla Bhabhama Shiba on the Applicants’ property being –
Certain: Portion A of Farm “Bracefield” NO.303, situate in the Shiselweni District.
Measuring: 234, 0959 (two three four comma zero nine five nine)
2. The National Commissioner of the Eswatini Royal Police Services and/or his officers is hereby ordered to assist the Deputy Sheriff to execute order NO. 1 herein and preserve peace.
3. The Application to strike out paragraph 26.3 of the 1st Respondent’s Answering Affidavit is hereby granted.
4. The point in limine of locus standi is hereby dismissed.
5. 1st – 5th Respondents are hereby ordered to pay costs on the ordinary scale.