IN THE SUPREME COURT OF SWAZILAND
HELD AT MBABANE CASE NO.06/2011
In the matter between
ALFRED SAMBO APPELLANT
ALFRED MABANGA RESPONDENT
M.M. RAMODIBEDI C.J
A.M. EBRAHIM J.A
I.G FARLAM J.A
Heard : 15 May 2011
Delivered : 31 May 2011
For the appellant Mr S.K. Dlamini
For the respondent Mr L. Howe
Summary: Matter remitted to High Court for rehearing for determination of the improvements effected by respondent on appellant’s land - Parties unable to agree on form of order - order formulated by court.
I.G. FARLAM J A:
 This is an appeal from a judgment delivered in the High Court by S.B. Maphalala P.J in which the learned judge determined the value of improvements effected by the respondent on land held by the appellant viz Lot No.9, Mathendele Township, Nhlangano, District of Shiselweni
 At the hearing of the appeal the parties were in agreement that the judgment of the Court a quo should be set aside and the matter remitted to the High Court for the hearing of oral evidence on the question as to the amount in respect of which the respondent enjoyed a lien over the said property by reason of the necessary and useful improvements he had effected thereon. The case was postponed to enable the parties to agree on the form of order to be made.
 The parties are unable to agree and it is accordingly necessary for this court to formulate the order itself.
 The following order is made:
1. The appeal is allowed with costs.
2. (a) The order made in the court below, which is contained in paragraph 8 of the judgment dated the 29th October 2010, is set aside and the matter is remitted to the High Court for the hearing of oral evidence on the following issue: what is the amount in respect of which the respondent enjoys a lien over Lot no. 9, Mathendele Township by reason of the necessary and useful improvements effected by him on the said property ?
In determining the said amount the court shall determine the amount by which the value of the said property has been enhanced by reason of the said improvements and the amounts of the actual expenditure incurred in effecting such improvements, the amount in respect of which the lien is enjoyed being the lesser of the two amounts.
(b) The evidence shall be that of any witnesses whom the parties or either of them may elect to call, subject, however, to what is provided in paragraph (c) hereof.
(c) Save in the case of witnesses who deposed to affidavits filed in the application neither party shall be entitled to call any witness unless -
he has served on the other party at least fifteen court days before the date appointed for the hearing (in the case of a witness to be called by the appellant) and at least ten days before such date (in the case of a witness to be called by the respondent) a statement signed by the person to be called wherein the evidence to be given in chief by such person is set out ; or
the court, at the hearing, permits such person to be called despite the fact that no such statement has been so served in respect of his or her evidence.
Either party may subpoena any person to give evidence at the hearing, whether such person has consented to furnish a statement or not.
The fact that a party has served a statement in terms of paragraph (c) (i) hereof or has subpoenaed a witness shall not oblige such party to call the witness concerned.
Within thirty court days of the making of this order each of the parties shall make discovery, on oath, of all documents relating to the issue referred to in paragraph (a) hereof, which are or have at any time been in the possession or under the control of such party.
Such discovery shall be made in accordance with High Court Rule 35 and the provisions of that Rule with regard to the inspection and production of documents discovered shall be operative.
The incidence of the costs incurred in case 1765/08 after the 16th July 2010 shall be determined after the hearing of oral evidence.
At least ten days before the hearing commences the expert witnesses to be called by the parties are to have a meeting at which they are to endeavour to reach agreement on some or all of the matters in respect of which they are to give evidence and minutes of such meeting are to be filed at least two days before the hearing commences.
JUSTICE OF APPEAL
JUSTICE OF APPEAL