Swazi Timber Products Ltd and Others v Hartwood Industries (Pty) Ltd and Another (NULL) [1994] SZHC 48 (18 July 1994);

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Civ. Case No.887/91


In the matter between:


SWAZI TIMBER PRODUCTS LTD 1st Applicant


M. RAMKOLOWAN 2nd Applicant


R S MINETT 3rd Applicant


And


HARTWOOD INDUSTRIES (PTY) LTD 1st Respondent


THE DEPUTY SHERIFF DISTRICT OF MANZINI 2nd Respondent


In re:-


HARTWOOD INDUSTRIES (PTY) LTD Plaintiff


And


SWAZI TIMBER PRODUCTS LTD 1st Defendant


M RAMKOLOWAN 2nd Defendant


R S MINETT 3rd Defendant


JOHN LINDSAY SABATTA 4th Defendant


REGINALD ANTHONY ZAMMIT 5th Defendant


ROBERT EDWARD ALEXANDER 6th Defendant


The application of the First Second and Third Defendants (now -Applicants).


CORAM : Hull, C.J.


FOR APPLICANTS Mr. Dutoit S.C.


And


Mr. Fine FOR SECOND RESPONDENT Mr. Burman S.C. and Mr.Dunseith


Order (18/7/94)


By this application the applicants ("Swazi Timber Producer", Mr.


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Ramkolowan and Mr. Minett) seek to interdict the Deputy Sheriff for Manzini from levying execution on behalf of the second respondent ("Hartwood") on the assets of the applicants. They also seek to interdict Hartwood from levying execution on their assets pending the outcome of an appeal that they are bringing to the Court of Appeal against my judgment of 15th June or, alternatively, to interdict Hartwood from levying execution pending the finalising of a petition that they propose to bring to the Court of Appeal for a stay of execution of the judgment or, alternatively, temporarily staying execution pending an appeal to the Court of Appeal against my order of 5th July refusing a stay of execution.


The present application was lodged on 7th July. It was supported by an affidavit sworn on that day by Mr. Ramkolowan. On 11th July an amended application was filed. This seeks the relief that I have just described.


Hartwood filed an answering affidavit on 12th July. This stands. The applicants on Friday filed an affidavit in reply by Mr. Ramkolowan, which also stands.


There is in my judgment no merit in this latest application.


In paragraph 4 of his founding affidavit Mr. Ramkolowan, referring to the decision on 5th July, said:


"As I understand the judgment of the Chief Justice an interim attachment was authorised with the result that the plaintiff" (i.e. Hartwood)" was no longer entitled to execute in terms of the judgment given at the end of the trial until the appeal (had) been finalised". (My emphasis added).


Hartwood having taken issue with this in its answering affidavit, Mr. Ramkolowan then said in paragraph 7 of his affidavit in reply:


"I readily concede that my understanding of the judgment may be wrong. However, as indicated by the Chief Justice, the judgment


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As a matter of fact, Mr. Ramkolowan's stated understanding as to the terms of the judgment of 5th July is incorrect. My ruling, unequivocally, was that a stay of execution was refused, as counsel for the applicants now accepts.


A person who gives evidence on affidavit enjoys certain advantages. He can couch his deposition deliberatively, in his own words. Accordingly he has a strict duty of care. In this case the taped record of the ruling as well as a typed draft that was in all material respects correct, were available to Mr. Ramkolowan when he sworn his first affidavit. It was incumbent on him to ensure, which he did not do, that he described the ruling accordingly.


Although in the same affidavit he annexed five deeds of hypothecation (to which I will come), the only other overt basis on which a stay of execution was sought was an allegation in paragraph 10 that essential new facts to the issue, namely that the agreement of suretyship referred to in that paragraph was invalid, had come to his attention that very day. I will come on to this as well. However as the application originally stood when it first came before me on 7 July, notwithstanding that Mr. Du Toit for his part did say that even if Mr. Ramkolowan's understanding turned out to be incorrect, that was not an essential aspect of the application, I am of the view that it was in practical terms a factor in the postponement that then followed until, as amended, it was heard on 15th July - and in the deferring of ...execution that also followed.


Although it is plainly the objective of the applicants to achieve a stay of execution, it appears to me that they are pursuing this course by two means. In their second alternative prayer in paragraph 2.2 of their notice of motion they have asked that execution be stayed temporarily, i.e. in those terms. In respect of the other heads, they seek relief by way of interdict.


My first observation is that the Court of Appeal Rules 1971 expressly deal with the manner in which an unsuccessful litigant may seek a stay


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of execution pending appeal.


I very much doubt that this Court also has an inherent jurisdiction to grant an interdict staying execution, where the Court of Appeal's own rules regulate such a matter. I can see no need for such an alternative remedy. No authority has been cited for the proposition, and it seems to me wrong in principle because, apart from anything else, it appears to me that it would derogate from the procedure that the Court of Appeal has by its rules laid down.


Subject to considering the arguments that have been advanced in respect of the suretyships and the deeds of hypothecation, I agree with Mr. Burman that I have already ruled upon the other matters that are raised on the present applicant, and that on a proper view I am functus officio in that respect.


Clause 8 of the agreement of July 1990, which agreement was at the root of this case, provided that each of the shareholders of Swazi Forest Products "by its signature" of the agreement, bound himself jointly and severally as surety and coprincipal debtor with the company in favour of the other parties for the due and punctual performance by the company of all of its obligations under the agreement. The attestation clause contained a section "We bind ourselves to the provisions of clause 8", which provided space for the names and signatures of the shareholders. Mr. Ramkolowan and Mr. Minett signed, but beneath their signatures were two blank lines. What Mr. Ramkolowan is now saying is that there were two other shareholders who did not sign, and that their omission to do so rendered the suretyship of himself and Mr. Minett invalid.


On the merits, this contention is put in issue in the opposing affidavit. For present purposes however, the matter in my view falls to be determined on a consideration as to whether or not the second and third respondents may obtain the leave of the Court of Appeal to adduce new evidence on appeal, in support of their original case, under rule 33 of the Court of Appeal Rules 1971.


At all. Although Mr. Du Toit sought to rely on clause 12.1 of the


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defendants' plea to maintain otherwise, it is very clear (as Mr. Burman has pointed out) that the invalidity of the suretyships -because of the failure of the other shareholders to sign as sureties -was not in issue at the trial. I can see no reason at all why it could not have been put in issue and evidence tendered on it at the trial, and no explanation at all has been preferred as to why this was not done.


As to the deeds of hypothecation, the applicants' contention is that the property to which the deeds relate has been validly pledged, notwithstanding the fact that the pledges were unaccompanied by delivery, to another creditor. Accordingly, so it is said, they are "immune" from execution.


Strictly, in my view, this present head does not involve any issue of the staying of execution pending an appeal as such. It is an attempt - by the applicants as judgment debtors - to have excluded from the scope of execution property held by a secured creditor. But, accepting for the argument that the pledges are valid notwithstanding non-delivery, the applicants in my view have no locus standi to seek an interdict.


The pledges exist for the benefit of the bond-holder. It is for that creditor, as a secured creditor, to seek to restrain any attempt by another creditor to levy execution against such property. If it were not pledged, there would be no question but that it was available in execution for the benefit of Hartwood.

The application, for these reasons, is dismissed.


Mr. Burman asks for costs on attorney and own client basis. He does so on the basis that the application has been an abuse of the process of this Court. I am constrained to agree. There will accordingly be an order for costs in favour of Hartwood against the applicants on an attorney and own client basis, including an order under Rule 68 of the High Court Rules that the Taxing Master be


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authorised to tax a higher amount for counsel than that provided for in the rules .


DAVID HULL


CHIEF JUSTICE