IN THE SUPREME COURT OF SWAZILAND
HELD AT MBABANE APPEAL NO. 27/08
In the matter between:
MARIA MAVIMBELA N.O. APPELLANT
SEDCOM SWAZI 1ST RESPONDENT
ESTATE LATE DARRINGTON
MAVIMBELA 2ND RESPONDENT
THE MASTER OF THE HIGH COURT 3RD RESPONDENT
THE REGISTRAR OF DEEDS 4TH RESPONDENT
THE ATTORNEY GENERAL 5TH RESPONDENT
APPEAL NO. 43/08
In the matter between:
SAVELA INVESTMENTS (PTY) LTD APPELLANT
SEDCOM SWAZI 1ST RESPONDENT
MARIA MAVIMBELA 2ND RESPONDENT
ESTATE LATE DARRINGTON MAVIMBELA 3RD RESPONDENT
THE MASTER OF THE HIGH COURT 4TH RESPONDENT
THE REGISTRAR OF DEEDS 5TH RESPONDENT
THE ATTORNEY GENERAL 6TH RESPONDENT
CORAM : ZIETSMAN JA
 On 29 February 2008 Maria Mavimbela (also known as Maria Matsenjwa (“the First Appellant”) in her capacity as the Executrix Dative of the Estate of the late DARRINGTON DINGIZULU MAVIMBELA (“the deceased”) caused transfer of the property described as Lot 780 situate in Ngwane Park Township Extension 1, Manzini District, Swaziland (“the property”) into the name of Savela Investments (Proprietary) Limited (“Savela”).
 That transfer was registered in terms of a Power of Attorney duly executed by the First Appellant on 12 November 2007 and pursuant to a deed of sale concluded between the First Appellant and Savela dated 16 October 2007.
 By written agreement dated 5 April 2007, the First Appellant purported to sell the property to Sedcom Swazi (“the Respondent”). I say “purported to sell” because I observe from the Deed of Transfer of the property in favour of Savela that the First Appellant was appointed as Executrix Dative of the Estate of the Deceased only on 16 November 2007. I express no view as to whether, and if so how, this fact affects the rights of the parties, because it is of no relevance to the issues in this appeal.
 By Notice of Motion under case No. 18/08 which was filed with the Registrar of the High Court on 11 January 2008, the Respondent claimed against the First Appellant (as first respondent), Estate Late Darrington Mavimbela (as second respondent), the Master of the High Court (as third respondent), the Registrar of Deeds (as fourth respondent), and the Attorney General (as fifth respondent) the following relief:
“1. (a) That 1st and 2nd respondents be ordered to give
transfer to the applicant of immovable property described as:
Certain : Lot No. 780, Situate in the Ngwane Park Extension No. 1 Township, Manzini District, Swaziland.
Measuring: 2088 (two zero eight eight) square metres
Within seven (7) days of the granting of the order;
The Registrar of the High Court of Swaziland or his deputy be authorised and directed to sign all necessary court papers and to do all deeds necessary in order to give applicant transfer of the immovable property described in clause (a) above;
2. That 3rd and 4th respondents be restrained from effecting transfer, from the name of the 2nd respondent, of the immovable property described in clause 1 (a) above and further be restrained from conducting any transaction regarding the said property pending finalization of this application.
3. That a rule nisi do hereby issue with interim relief on prayers 1 (a), 1 (b) and 2, calling upon the 1st and 2nd respondents to show cause on a date determinable by the above Honourable Court why such orders should not be made final.
Costs of suit against 1st and 2nd respondents.
Costs of suit against the 3rd, 4th and 5th respondents only in the
event of opposition hereto.
Further and/or alternative relief.”
 The First Appellant opposed that application and raised certain defences, all of which were rejected in the court a quo. I mention, however, for it is relevant to a major issue in this appeal, that in paragraph 6 of her opposing affidavit she said that she had informed one Sabelo Nxumalo that she “had since sold the property to a third party”. In paragraph 2.2 of his affidavit in support of the founding affidavit, Nxumalo stated:
“She” (i.e. the First Appellant) “further went on to state that she had actually even already sold the property to someone else.”
 After argument, but before the judgment in the application was handed down, a copy of the Deed of Transfer of the property in the name of the Second Appellant was handed to Annandale J who dealt with this issue in his Judgment as follows:-
“(66) On the 29th February 2008, the property was transferred to Savela Investments (Pty) Ltd, having been sold by the Estate (the second respondent) for the sum of E100 000 on the 16th October 2007. The conveyancer was authorised by a power of attorney dated the 12th November 2007, given to him by the executrix herein (the First Respondent), then known as Maria Matsenjwa instead of Maria Mavimbela.
(67)Both attorneys who appeared at the hearing of the matter were called to chambers and given an opportunity to address this further development, either in open court or by way of written submissions. Both decided to rather leave it in the hands of the court to deal with the additional complication.
(68) Clearly, the executrix or First Respondent, in full knowledge of the pending matter and in total disregard of the legal challenge against her purported cancellation of the deed of sale, proceeded to have the property transferred to a third party. In so doing, she distinctly chose to ignore the litigation against her prior conduct with the Applicant, which application she opposed.
(69)It is unknown whether she did receive a cash deposit this time around but from the deed of transfer it transpires that she sold the property for E100 000 to the new purchaser whereas the agreed price with the Applicant was E90 000. By so doing, she attempted to gain an extra E10 000 but ultimately, it shall prove to be an expensive “gain”.
(70)Despite her knowledge of the matter at hand and a further party that became involved in relation to the property concerned, Savela Investments (Pty) Ltd, at least from as early as the 16th October 2007, she chose to refrain from disclosing this further transaction in her affidavit and obviously she did not disclose this matter to the new purchaser either. Had she done so, Savela Investments (Pty) Ltd obviously would have been able to join the present matter as an interested and affected party.
(71)At the time when the matter was heard in court and when this judgment was first drafted, I addressed the issue. The position remains the same as set out in paragraph 72 below.
(72)During the course of hearing the matter, because of the specific nature of the order that is sought and being mindful of the consequences that could befall an innocent third party, the unknown “second purchaser”, especially so if the property had already been transferred to him, her or it, I enquired from counsel as to the current status of the land. Although not conclusive, it seemed that the land was still registered to the Second Respondent, the estate of the late Harrington (sic) Mavimbela. Now that it transpires that a third party entered into an agreement of sale with the First Respondent concerning the same property, that entity would have to seek advise (sic) about a remedy if it so chooses, since the effect of this matter might well affect it through indirect application.”
 The learned Judge proceeded to make the following order:
“(74) In the event and for the aforesaid reasons, it is ordered the First and Second Respondents forthwith give transfer to the Applicant of the immovable property described as a certain Lot 780, situate at Ngwane Park Extension No. 1 Township, Manzini, in accordance with the terms as are set out in the Deed of Sale between the Applicant and the First Respondent, within a period of 21 (twenty-one) days hereof, failing which the Registrar of the High Court or her deputy be authorised and directed to sign all necessary documents and to do all deeds that are necessary to effect transfer of the aforesaid property to the Applicant. The deed of sale pertaining to the aforesaid property and subsequent transfer to Savela Investments (Pty) Ltd, recorded in Deed of Transfer No. 122 of 2008, executed on the 29th February 2008, is declared null and void and ordered to be set aside. The Applicant is ordered to serve a copy of this order on the Registrar of Deeds, as a caveat against the title deed.
(75) Costs of the application are ordered against the First and Second Respondents, jointly and severally, the one to pay the other absolved.”
 The First Appellant appeals under case No. 27/08 against that order inter alia, on the ground that:
“The Court a quo erred in fact and in law in granting a final order for specific performance in as much as the court was aware that same was impossible and would affect adversely innocent parties”.
 Savela itself brought an urgent application for an order staying the execution of the judgment and order which had been made by Annandale J, and for the rescission of that judgment.
 The application for rescission was based on Rule 42 (1) (a) of the Rules of Court which provides that “the Court may … mero motu, or on the application of any party affected, rescind or vary … an order or judgment erroneously granted in the absence of any party affected thereby.”
 Maphalala J refused the application for rescission and Savela appeals to this Court against such refusal under Case No. 43/2008. For convenience, the two appeals have been heard together as substantially the same issues arise in each.
 It will be convenient to refer first, as happened in argument, to Savela’s appeal i.e. that against the refusal of Savela’s application for the rescission of Annandale J’s Judgment.
 Mr. Simelane, who appeared for the Respondent in each appeal, very properly conceded that the Judgment had affected Savela and had been made in its absence but he disputed that it had been erroneously made within the meaning of Rule 42 (1) (a). He argued that as the learned Judge who granted the order was aware of all the relevant facts, it could not be said that the judgment and order had been made erroneously. That, indeed, appears to be the ratio of Maphalala J’s judgment, for the learned Judge said:-
“(13) It is trite law on such matters that a judgment may be set aside in terms of Rule 42 (1) (a) on the ground that it was erroneously granted only if the court has made a “mistake in a matter of law appearing on the proceedings of a court of record” (see Bakoven Ltd (supra). On the facts of the present case I cannot say that the learned Judge in the main matter made a mistake in view of what he stated at paragraph  of his judgment.”
The reference is to Bakoven Ltd v. G.J. Howes (Pty) Ltd 1992 (2) SA 466 (ECD)
 In Stander and Another v Absa Bank 1997 (4) SA 873 (ECD) Nepgen J held that the statement in Bakoven (supra) that in considering an application for rescission under Rule 42 (1) (a) the Court is limited to the record of the hearing is clearly wrong. I respectfully agree. The law reports are replete with cases in which it was held that if there were facts which were unknown to the Court which granted an order, but which, if known, would have induced the court not to grant the order, that order would have been made erroneously. (See e.g. Theron NO v United Democratic Front (Western Cape Region) and Others 1984 (2) SA 532 (c): Nyingwa v. Moolman N.O. 1993 (2) SA 508 (T.K.); Topol and Others v LS Group Management Services (Pty) Ltd 1988 (1) SA 639 (W)). The converse, (namely, that if the trial judge knew all the facts, the judgment or order could not be said to have been made erroneously) is not necessarily true. Certainly it cannot be true if the trial judge, while knowing all the facts wrongly ignores a clear non-joinder.
 Paragraph  of the Judgment of Annandale J which is quoted in paragraph 6, supra, reveals quite clearly that the learned Judge knew, before he delivered judgment, that Savela had now been identified as what the learned Judge called “the unknown ‘second purchaser’” who had in fact taken transfer of the property.
 In the absence of any evidence of fraud or collusion on the part of the First Appellant and Savela, Annandale J ought, with respect, to have further delayed his judgment until Savela had been joined in the application under case No. 18/08. That this is so appears clearly from the locus classicus on joinder of parties, Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) in which the Appellate Division mero motu declined to deliver a judgment on appeal until a party,
considered by the Court to have a direct and substantial interest in the matter, had either been joined in the proceedings or had indicated in writing that it agreed to be bound by the judgment of the Appeal Court. This order was made notwithstanding that the party in question had actually been served with the application papers and had indicated that it had no intention of intervening in the application.
 The headnote of the Amalgamated Engineering case, supra, contains the following passage which correctly reflects the gist of the judgment:
“If a party has a direct and substantial interest in any order the Court might make in proceedings or if such order could not be sustained or carried into effect without prejudicing that party, he is a necessary party and should be joined in the proceedings, unless the Court is satisfied that he has waived his right to be joined.”
 Annandale J knew that Savela was the registered owner of the property in respect of which he (the learned Judge) was requested to make an order. Clearly, therefore, it had “a direct and substantial interest” in the order he contemplated making and his “order could not be sustained or carried into effect without prejudicing” Savela. Moreover the learned Judge chose to make an order (which was not sought in the Notice of Motion) declaring null and void the deed of sale concluded between the First Appellant and Savela without joining or hearing from Savela. In my view, the mere fact that an “unknown purchaser” was mentioned in the affidavits would have called for an appropriate joinder before final, as distinct from interim, relief was granted; even more so where, as here, transfer had already been effected.
 I am therefore satisfied that the order made by Annandale J without the joinder of Savela was wrong. Moreover, it was, for the same reason, made erroneously within the meaning of that word as used in Rule 42 (1) (a). It follows that each of the appeals before us must succeed.
 There is in my opinion, another reason for arriving at this conclusion. This is based on the fact that in case No. 18/2008 the Respondent sought an order for specific performance of its agreement to purchase the property from the First Appellant. It is true that a contracting party has a right to hold the other contracting party to his contract and to claim performance of what he had bound himself to do (Haynes v. King Williams Town Municipality 1951 (2) SA 371 (A) at 378) and the other contracting party cannot claim to be allowed to pay damages to prevent an order for specific performance being entered against him (Farmers Co-operative Society v Berry 1912 AD 343, 350).
 But it is trite that the Court has a discretion to grant or refuse an order for specific performance which discretion must be exercised judicially and not “capriciously nor upon a wrong principle” (Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A) at 783 C per Hefer JA who went on to say at 783 D-E:
“It is aimed at preventing an injustice – for cases do arise where justice demands that a plaintiff be denied his right to performance – and the basic principle thus is that the order which the Court makes should not produce an unjust result which will be the case, eg. if, in the particular circumstances, the order will operate unduly harshly on the defendant. Another principle is that the remedy of specific performance should always be granted or withheld in accordance with legal and public policy (cf De Wet and Yeats Kontraktereg en Handelsreg 4th ed at 189). Furthermore, the Court will not decree specific performance where performance has become impossible.”
See, too, Tamarillo (Pty) Ltd v B.N. Aitken(Pty) Ltd 1982 (1) SA 398 (A) at 443 C-E where Miller JA said:
“In a case in which the defendant requires the consent of a third party to enable him to perform effectively, and at the end of the case, the defence of impossibility having been raised and canvassed, the probabilities in regard to that issue appear to be evenly balanced, the Court, it appears to me, might justifiably take the view that refusal of specific performance was preferable to the grant of an order which as likely as not would prove to be ineffectual. A rule that a defendant pleading impossibility as answer to a claim for specific performance must necessarily discharge the onus of proving it if he is to avoid such a decree might hamper and inhibit the Court in the exercise of its discretion.”
 In the present case, so far from considering the matter of impossibility of performance, or even enquiring into the question whether the First Appellant and Savela had acted in collusion to defraud the Respondent of its right to the property, Annandale J with respect paid no heed to Savela’s right to be heard in making the order he did. It is, after all, clearly impossible for the First Appellant to give transfer of the property to the Respondent without the concurrence and, indeed, the assistance of the Second Appellant. Accordingly, it was not a proper exercise of a judicial discretion by the learned Judge to grant the order which he did.
 Having concluded that each appeal must succeed one would normally order:
in relation to the judgment of Annandale J that judgment on that application be adjourned pending the joinder of Savela;
in relation to the judgment of Maphalala J that the judgment and order of Annandale J be rescinded;
in each case with an appropriate order for costs. Neither appropriate order would however, deal practically with the fact of the non-joinder of Savela for no relief in that regard was sought by any party to the appeals. It seems to me that the most practical solution to the problem is to direct that the application before Annandale J be dismissed with costs. Lest it be suggested that this judgment renders the rights of the First Appellant and Savela res judicata, which is neither the intention nor the consequence of this judgment appropriate leave must be granted to the Respondent to launch such proceedings for such relief as it may be advised. In any event, if the Respondent wishes to proceed against the First Appellant and Savela, that claim would be based on a different cause of action from that advanced in the application in the court a quo. This would involve the filing of further affidavits by the respondent, on the assumption that no dispute of fact was anticipated with consequent procedural difficulties.
 The orders we make are the following:
A, Case No. 27/08
1. The appeal is upheld with costs.
2. The application brought by SEDCOM SWAZI under case no. 18/08 is dismissed with costs, with leave to SEDCOM SWAZI to institute such legal proceedings as it may be advised for appropriate relief against MARIA MAVIMBELA in her capacity as Executrix Dative of the estate of the late DARRINGTON DINGIZULU MAVIMBELA and/or SAVELA INVESTMENTS (PROPRIETARY) LIMITED in relation to the property described as Lot 780 situate in Ngwane Park Township Extension 1, Manzini District, Swaziland.
B. Case No. 43/2008
1. The appeal is upheld with costs.
2. In view of the order made in Appeal case No. 27/08, SEDCOM SWAZI is directed to pay the costs of SAVELA INVESTMENTS (PROPRIETARY) LIMITED in relation to the application for rescission of the judgment of Annandale J.
ACTING JUSTICE OF APPEAL
I agree N.W. ZIETSMAN
JUSTICE OF APPEAL
JUSTICE OF APPEAL
Delivered this day of November 2008