IN
THE HIGH COURT OF SWAZILAND
Civ.
Case No. 2578/95
In
the matter between:
GAINES
ESTATES (PTY) LIMITED Applicant
and
THOMAS
MOORE KIRK N.O: TRUSTEE FOR THE
TIME
BEING OF THE J R TRUSTEE 1st Respondent
ROBERT
RICHARD JAMES KIRK N.O.: TRUSTEE
FOR
THE TIME BEING OF THE J R TRUSTEE 2nd Respondent
THOMAS
MOORE KIRK N.O.: TRUSTEE FOR
THE
TIME BEING OF THE BERT'S TRUST 3rd Respondent
BERTHA
ELIZABETH KIRK N.O. : TRUSTEE
FOR
THE TIME BEING OF THE BERT'S TRUST 4th Respondent
CORAM: S.W.
Sapire A.J.,
FOR
APPLICANT Mrs. L. Matse
FOR
THE DEFENDANTS Mr. Fine
Judgment
(22/11/95)
In
this matter the applicant Gaines Estates (Pty) Limited seeks an
interdict against the respondents from in the first place operating a
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restaurant
or motel business upon former portion 36 (a portion of portion 28) of
Farm No. 234, Manzini District, or from utilising or developing
former portion 36 (a portion of portion 22) of Farm No. 234, in any
matter that may be detrimental to the restaurant upon the remaining
extent of Portion 22 of Farm 234, Manzini District pending
finalisation of an action in which the validity of restrictive
condition embodied in a Declaration signed by the 3rd and 4th
respondent in respect of Portion 37 of Farm No. 234, Manzini District
is to be confirmed and declaring that the restrictive condition over
portion 37 of Farm No. 234, Manzini District is registerable and
enforceable against the 1st and 2nd respondent.
The
granting of such an interdict requires that the applicant should have
a prima facie case for the relief it intends claiming in the proposed
action. The applicant in a founding affidavit attested to by one
Alfreda - Mary Boyder states that the applicant sold certain property
on the farm to the respondents. I refer to the respondents conjointly
because although two trusts are involved, the one is clearly the
successor of the other. In succeeding to title to the property, the
first and second respondents must have known all the facts as Mr.
Tommy Kirk is a trustee common to both Trusts.
The
applicant says that it was verbally agreed between the applicant and
Bert's Trust represented by the third and fourth respondents, that
the said piece of land had been sold on condition that it was not
used for the purposes of trading in a motel restaurant or bottle
store business as the applicant was running a restaurant and bar with
a combination on the remaining stand of Farm No. 234 in the Manzini
District known as the Paradise Caravan Park. This allegation in the
founding affidavit makes it quite clear that applicant seeks to rely
on a contemporaneous oral agreement at variance with the written deed
of sale. This provision was not contained in the sale. As all
contracts for the sale of immovable property have to be in writing
and as the parol evidence rule does not allow evidence to be led of
such contemporaneous or collactoral oral agreements, this condition
cannot be relied on.
The
applicant also refers to a declaration which was signed by the
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respondents.
This declaration, Annexure B to the founding affidavit reads:
We,
THOMAS MOORE KIRK and BERTHA ELIZABETH KIRK (BORN HAROLD) in our
capacity as Trustees of the BERT'S TRUST, do hereby agree and
undertake that, in consideration of the transfer of Portion 37 (a
portion of Portion 22) of Farm 234, Manzini District, Swaziland to
the BERT'S TRUST by GAINES ESTATES (PTY) LIMITED, the Trustees of the
Bert's Trust shall ensure, procure and vouchsafe that no restaurant
or motel business shall be constructed or operated on the portion
that is being described".
This
declaration is signed only by THOMAS MOORE KIRK and BERTHA ELIZABETH
KIRK. As it is signed only by one party it cannot be said to be
intended as a contractual document nor can be said to be binding
contractually on the declarants. Furthermore as the declaration
itself proclaims the undertaking given therein is part of the
consideration for the transfer of the property in question. This
confirms that the term on which the applicant seeks to rely, was a
verbal undertaking given collaterally to the agreement of sale of the
properties. There is no prima facie case for the relief claimed and
there is no reason to interdict the respondents in terms of paragraph
2 of the Notice of Motion.
A
further interdict is sought in paragraph 3 of the Notice of Motion,
restraining and preventing the first and second respondents from
building or constructing further structures upon the portion marked
"Z" on Annexure "E" to the applicant's affidavit.
The difficulty in this regard is that the portion "Z" is
not defined. The evidence for the applicant is that before the
property was subdivided prior to sale, Mr. Kirk is said to have
persuaded the surveyor to move one of the points marked "D"
some distance from the position in which the applicant had seen it
and where she intended point "D" to be. But the extent of
the movement is not indicated and one does not know from the papers
where the original point was. Therefore it is impossible to determine
the area and extent of the portion "Z".
On
this ground alone the applicant would have to fail on the claim to
interdict the respondents pending the action to reclaim the portion
marked "Z".
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On
this ground alone the applicant would have to fail on the claim to
interdict or for the relief in the action which he proposes
instituting. This difficulty with defining the area makes it
impossible for an order ever to be made for the respondent to restore
any portion of the property. If as the applicant says, Mr. Kirk acted
fraudulently in persuading the surveyor to move the point, the remedy
would either to cancel the sale as whole or to claim damages from Mr.
Kirk personally for his action. As no election has been made in this
regard, there is no basis for the granting of an interdict.
The
same considerations apply to the interdict sought in paragraph 4.
Once again the area marked "Z" which is vital to the relief
claimed cannot be defined properly and the same consideration
regarding the proper relief which may be available in the case of
fraud apply here.
In
the event, the applicant has not succeeded in showing that it has a
prima facie case and the application must be dismissed with costs.
S.W.
SAPIRE
ACTING
JUDGE
