Swaziland National Provident Fund v Falla Investment (Pty) Ltd (1948/2018) [2019] SZHC 58 (29 March 2019);

 

 

IN THE HIGH COURT OF ESWATINI

                 JUDGMENT

Case No. 1948/18

In the matter between:

SWAZILAND NATIONAL PROVIDENT FUND               APPLICANT

V      

FALLA INVESTMENT (PTY) LTD                                    RESPONDENT

Neutral citation:  Swaziland National Provident Fund vs Falla Investment (Pty) Ltd   [1948/18] [2019] SZHC 58 (29^th March, 2019)

Coram:                FAKUDZE, J

Heard:                 26^th March, 2019

Delivered:            29^th March, 2019

Summary:           Civil procedure – Applicant filed an application for an Order                              for the cancellation of the lease agreement between the Applicant                         and the Respondent – Applicant further sought an Order for                                payment by the Respondent of all arear rentals in respect of the                           premises leased to the Respondent – the Applicant finally sought                          for an Order ejecting the Respondent from the leased premises –                      Respondent raised a point of law that the Applicant took the                                law into its own hands by locking out the Respondent before                                       approaching the court – Papers filed of record reveal that                                    Respondent was never locked out.  The Return of Service bears                                  testimony to this truth.  It proves that the Interim Order was                                       served on the Respondent at No. G10 Estel House on the 1^st                                 February, 2018.  Sheriff also took an inventory of all the things                                 that were in the rented premises – This would not have                                       happened if rented premises had been locked – Respondent’s                              point of law that Applicant approached court with dirty hands                                      in that it had locked the premises is therefore dismissed.

 

JUDGMENT

[1]     On the 17^th December, 2018, the Applicant filed an Application based on the           following:-

          1.       That the usual forms and service relating to the institution of                                       proceedings be dispensed with and that this matter be heard as one of                         urgency.

          2.       Condoning Applicant’s non-compliance with the Rules of the above                           Honourable Court relating to service and hearing the matter on an                     exparte basis.

          3.       Pending payment of the arrear rentals and other charges in the amount              of  E47,005.59 claimed by the Applicant from the Respondent in                       respect of the offices No. G10 Estel House, Manzini, District of                          Manzini, Eswatini:-

                   3.1     The removal of any movables from the said premises be and is                                    hereby interdicted;

                   3.2     That the Deputy Sheriff for the District of Manzini be and is                              hereby authorised and directed to;

                             (a)     Forthwith serve the Notice of Motion and the Order                                           upon the Respondents and to explain the full nature and                                              exigency thereof to it;

                             (b)     Attach all movables on the premises;

                             (c)      Make an inventory thereof; and

                             (d)     Make a return to the Applicant’s Attorneys and the                                            Registrar of what he has done in execution of this Order.

                   3.3     That the Rule Nisi referred to above operate with immediate and                        interim effect pending the determination of this Application;

          4.       The Respondent is called upon to show cause why the Orders below                           should not be made final:

                   4.1     Confirming the cancellation of the lease agreement between the                          Applicant and the Respondent.

                   4.2     Payment of the arrear rentals and other charges in the amount of                       E47,005.99.

                   4.3     Ejecting the 1^st Respondent from the premises owned by the                              Applicant at offices No. G10, Estel House, Manzini, District of                                   Manzini, Eswatini.

                   4.4     Interest on the sum of E47,005.99 at the rate of 9% per annum a                       temporae morae.

                   4.5     Costs of suit at Attorney and own client scale including                                               collection commission; and

          5.       Such further and/or alternative relief as the above Honourable Court                           may deem fit.

 

[2]     The Respondent has filed a Notice of Intention to Oppose the confirmation       of the Interim Order.  It has raised a point law that the Applicant closed and         locked out the Respondent from the leased premises on the 27^th December,      2018.  The Interim Order was obtained on the 17^th December, 2018.  The premises were allegedly locked without a court Order.  The serving of the Order before the Return date was to legitimise the Applicant’s self-help         tactics and to force the Respondent under duress to submit to Applicant’s      demands of paying the arrear rentals.  The point of law should be upheld and    the entire Application be dismissed.

 

[3]     The Applicant contends that the Application should be not dismissed because it has approached the court with clean hands.  At the time of the filing of the           Application, the Respondent was continuing with its business        notwithstanding that it owes the rent.  The same applied when the interim      order was served.  At no point in time did the Applicant lock out the        Respondent.  The point of law should           therefore be dismissed.

[4]     The court’s view is that the point of law should be dismissed and the parties           should argue the merits.  This view arises from the fact that the letter       informing the Respondent of the lock out is dated 28^th December, 2018.  It     was written after a few days the Interim Order had been obtained by the          Applicant.  On the 1^st February, 2019, the Deputy Sheriff served on the      Respondent the Application and the Interim Order.  This took place at the Respondent’s place of business as shown in the Return of Service.  The        Deputy Sheriff went further to prepare an inventory of all the goods that           were in the Respondent’s premises.  He would not have done that if the   premises were locked.  It stands to reason that the Respondent was never     locked out.           The point of law raised by the Respondent is therefore dismissed          and the parties are ordered to go into the merits of the Application.

 

 

______________________

M.R. FAKUDZE

JUDGE OF THE HIGH COURT

 

Applicant:            W. Maseko

Respondent:                   N. Mabuza