THE HIGH COURT OF SWAZILAND
Case No. 240/95
the matter between:
THE APPLICANT Mr. Dunseith
THE RESPONDENT Mr. Zwane
the basis of his founding affidavit, the applicant Mr. Weinand
obtained from me ex parte on Thursday 9th February orders that his
application be heard urgently and for the issue of a rule nisi,
returnable on Friday 17th February, calling on the respondent Mr.
Heaney to show cause why he should not be restrained -
using the style Jobane Glassworks or any other style except that of
Mbabane Glassworks (Proprietary) Limited ("Mbabane Glassworks")
in respect of the business of Mbabane Glassworks;
managing or dealing with the property of Mbabane Glassworks pending
the determination of a petition to be brought by Mr. Weinand to wind
it up; and
entering Mbabane Glassworks' rented premises at Sidvwashini pending
the hearing of the petition.
also obtained an order that, pending the return of the rule nisi, the
orders in (a) - (c) (above) were to operate with interim effect.
making these orders I reserved expressly to Mr. Heaney liberty to
anticipate the return date on 48 hours' notice.
essence, Mr. Weinand's grounds for seeking these orders (including
urgency and interim relief) were that he and Mr. Heaney were partners
in business (i.e. the business of Mbabane Glassworks, being an
incorporated company in which they held equal shares), that Mr.
Heaney also runs a business called Jobane Glassworks, and that Mr.
Weinand came to learn on 6th and 7th February 1995 that his partner
had arbitrarily and unlawfully taken over Mbabane Glassworks for his
own purposes and to Mr. Weinand's prejudice, using the enterprise for
the benefit of Jobane Glassworks.
Heaney anticipated the return date on 14th February, seeking to set
aside the interim order, and seeking also an order directing Mr.
Heaney to file replying affidavits to his own answering affidavits no
later than 4.30 p.m. on Wednesday 15th February, and an order that
the matter be heard on the contested roll today.
gravamen of the answering affidavits is that Mbabane Glassworks is
the vehicle for a joint venture between Mr. Heaney and Mr. Weinand,
who to the former's knowledge hold equal shares in it through their
own other companies Jobane Investments (Proprietary) Limited
("Jobane") and H.W. Glassworks (Pty) Limited ("H.W.
Glassworks") respectively. Mr. Heaney has produced as an
annexure the memorandum of association of Mbabane Glassworks showing
two nominees as the subscribers for 50 each of the 100 shares. He has
filed affidavits from the two initial subscribers, who are employees
in Mr. Dunseith's law firm and who have deposed that they later
transferred their shares to Jobane and H.W. Glassworks respectively.
documents were produced with Mr. Weinand's founding affidavit to
support his statement that he and Mr. Heaney are the shareholders in
his answering affidavit, Mr. Heaney has also deposed that, by an
exchange of letters on 30th January 1995 and 31st January 1995 (of
which he has annexed copies), Mr. Weinand and he agreed that Mr.
Heaney would take over the business of Mbabane Glassworks from 1st
February, but that Mr. Weinand subsequently resiled.
exchange of letters is admitted. Counsel for Mr. Weinand conceded at
the hearing on 14th February that they were material. They were not
disclosed by Mr. Weinand on his ex parte application.
for Mr. Heaney also contended, on the basis of Mr. Keaney's
affidavit, that on the ex parte application Mr. Weinand misled the
court (inter alia) as to the nature of the shareholdings in Mbabane
Glassworks and as to the lease of the premises at which it carried on
merits of the case (including the resolution of any disputes of fact)
fall to be decided today, i.e. on the return date for the
confirmation or discharge of the rule nisi.
a person who obtains an ex parte order has an obligation to the court
to make full and frank disclosure of every fact that might be
material. The reason for that, as I explained recently in Makhowe
Investment (Pty) Limited v. Usutu Pulp Company Limited (Civil Case
No. 1961/94) is that in those circumstances the court makes its order
without hearing the other party at that stage. Accordingly it must
rely on the complete candour of the applicant. Moreover it is for the
court end not the applicant to determine whether facts are material
-hence the duty to disclose anything that might be material.
an applicant, fraudulently or negligently, fails to make full and
frank disclosure of all material facts, that is in itself a
sufficient reason for the court, in its discretion, to set aside the
order obtained ex parte. (Power, N. O. V. Beiber and Others, 1955 SA
at p. 503.)
my view, Mr. Weinand ought to have disclosed in his founding
affidavit the existence of the exchange of letters. By - not doing
so, he obtained ex parte an order for urgency which the court may not
have made on that basis and an. order for interim relief which the
court would not have granted ex parte if it had been aware of the
exchange of letters at the end of January. It was obviously - and in
the event admittedly - relevant to the issues both of urgency and
interim relief. In failing to disclose it, he was at least negligent.
those reasons I granted on 14th February the orders requested in
paragraphs (a), (b), (c), (d) and (e) of Mr. Heaney's application, it
being agreed between counsel however that Mr. Weinand should have
until 4.30 p.m. on Thursday 16th February to file any replying
affidavits, and the order "costs in the cause" in paragraph
(e) of Mr. Heaney's application being the order he sought in that
respect at that stage.
principal effect of the order of 19th February was to discharge that
part of the rule nisi that had interim effect pending the return date
for confirmation or discharge of the rule itself.