THE HIGH COURT OF SWAZILAND
the matter between:
O R A M : DUNN J.
THE APPLICANT : MR G.B. SIMELANE
THE RESPONDENT : MR P. FLYNN
applicant obtained an order on an ex parte application on the 29th
January 1993 for the attachment of certain movable property on the
premises known as Mr Tasty Restaurant, Manzini. The restaurant is
operated by the respondent. In terms of the order the property was to
be attached and delivered to the applicant. The applicant was to
retain the property pending the outcome of an action to be instituted
by him against the respondent for payment of the sum of E60,000.00. A
rule nisi was issued simultaneously with the order for attachment,
calling upon the respondent to show cause why the attachment should
not be made final pending the outcome of the action.
amount of E27,000.00 was paid by the respondent on the 5th February
(the first return day of the rule). The applicant issued summons
claiming payment of the balance of E33,000.00. This judgment is
concerned with the rule nisi which was, by consent, extended on
several occasions until the 26th March when the matter was argued
became necessary, during the course of . the arguments regarding
confirmation of the rule 'nisi, for me to direct that oral evidence
be given in order to supplement and clarify the affidavits on the
question of the applicant's alleged fears that the respondent was
winding up his affairs with a view to leaving Swaziland without
settling the amount of E33,000.00 owed to the applicant. The order
for attachment had been made on the basis of these fears. It
transpired in the course of the evidence that the parties had come to
an agreement regarding the property to be attached. The agreement was
that the Sheriff or his deputy would attach the property on the
premises but not deliver it to the applicant in terms of the order of
the 29th January. The respondent was to have the continued use of the
property in operating the restaurant on condition he did not move the
property from the premises. There is no return of service by the
Sheriff or his deputy to indicate precisely what was done in
effecting the order.
must, in the circumstances, accept the evidence that the parties
agreed to a variation of the court order. That being the agreement
between the parties, it becomes difficult to appreciate the
applicant's fears that the respondent will flee the country. The
applicant sought and obtained an order for the attachment and
delivery to him of the property he claims was purchased with the
E60,000 he originally claimed. Armed with that order he then entered
into an agreement with the respondent in terms of which the property,
though attached, remained under the respondent's use and control. He
cannot now be heard to say he fears that the respondent will flee the
country with the property or remove the property in contravention of
the agreement which does not form part of the rule nisi issued on the
29th January. All that the court should have been called upon to
decide is whether or not the applicant has made out
case for confirmation of the attachment pendente lite and not the
question of an anticipated breach or otherwise of the agreement
between the parties.
respondent on the other hand denies the applicant's claim and claims
the property as his own. He
however, prepared to enter into an agreement with the applicant
regarding a variation of the court order. He has the use of the
property in the operation of the restaurant.
duty was to move for a discharge of the order for attachment as
framed on the 29th January.
would in my view be no end to litigation if litigants who compromise
rights which they have had secured by court orders are allowed to run
in and out of court for adjudication on matters arising from such
proper course to adopt is, in my view, to make no order on the order
for attachment, which was clearly abandoned by the parties in
reaching the agreement regarding the property. The parties should be
left in the position in which they were, following their agreement.
Should they have any difficulty regarding that agreement or any
breach thereof the necessary relief will have to be sought on papers
dealing specifically with that agreement.
accordingly make no order on the order for attachment. The property
remains subject to the agreement between the parties. Each party is
to pay his own costs.