the matter between:
TIMBER PRODUCTS LTD 1st Applicant
RAMKOLOWAN 2nd Applicant
S MINETT 3rd Applicant
INDUSTRIES (PTY) LTD 1st Respondent
DEPUTY SHERIFF DISTRICT OF MANZINI 2nd Respondent
INDUSTRIES (PTY) LTD Plaintiff
TIMBER PRODUCTS LTD 1st Defendant
RAMKOLOWAN 2nd Defendant
S MINETT 3rd Defendant
LINDSAY SABATTA 4th Defendant
ANTHONY ZAMMIT 5th Defendant
EDWARD ALEXANDER 6th Defendant
application of the First Second and Third Defendants (now
APPLICANTS Mr. Dutoit S.C.
Fine FOR SECOND RESPONDENT Mr. Burman S.C. and Mr.Dunseith
this application the applicants ("Swazi Timber Producer",
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.
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
filed an answering affidavit on 12th July. This stands. The
applicants on Friday filed an affidavit in reply by Mr. Ramkolowan,
which also stands.
is in my judgment no merit in this latest application.
paragraph 4 of his founding affidavit Mr. Ramkolowan, referring to
the decision on 5th July, said:
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).
having taken issue with this in its answering affidavit, Mr.
Ramkolowan then said in paragraph 7 of his affidavit in reply:
readily concede that my understanding of the judgment may be wrong.
However, as indicated by the Chief Justice, the judgment
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.
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.
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.
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.
first observation is that the Court of Appeal Rules 1971 expressly
deal with the manner in which an unsuccessful litigant may seek a
execution pending appeal.
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.
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.
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.
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.
all. Although Mr. Du Toit sought to rely on clause 12.1 of the
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.
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.
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.
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.
application, for these reasons, is dismissed.
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
to tax a higher amount for counsel than that provided for in the