Xaba v Dlamini NO and Others (2/11) [2011] SZSC 2 (31 May 2011);

 

 

IN THE SUPREME COURT OF SWAZILAND

 

 

HELD AT MBABANE       CIVIL APPEAL CASE NO: 02/2011

 

In the matter between:

Sibongiseni Fundzile Xaba                                  APPELLANT

 

And

 

Lindiwe Bridget Dlamini N.O.                             1^st RESPONDENT

Municipal Council of Manzini                            2^nd RESPONDENT

Registrar of Deeds                                               3^rd RESPONDENT

The Master of the High Court                             4^th RESPONDENT

The Attorney General                                         5^th RESPONDENT

 

 

CORAM:                                                               RAMODIBEDI, CJ

                                                                             TWUM, JA

                                                                             FARLAM, JA

 

                   

Counsel for Appellant                                           Mr. P.M. Shilubane

Counsel for Respondent                                      Mr. L. Mzizi

 

Summary

Civil law and procedure; divorce of marriage in Community of Property by Magistrates Court; Deed of Settlement entered into by couple before divorce; Deed of Settlement made an order of court; farm described in settlement registered in name of the wife; farm agreed to be transferred to husband upon husband paying E20 000.00 to wife. Money duly paid; subsequent death of former husband; application by divorced wife to claim ownership of said farm; application dismissed by High Court; appeal to Supreme Court of Appeal dismissed; costs to Respondent (executrix dative).

 

 

JUDGMENT

 

 

DR. S. TWUM  J.A.

 

[1]    This is an appeal from the judgment of Ota J. sitting at the High Court Mbabane, on 28^th January 2011.  It was a judgment in respect of two applications which were consolidated for hearing.

 

[2]    The first of these applications to be considered in this judgment was launched by the Respondent Bridget Dlamini, N.O., (Case No. 884/2010.)  It was directed substantially against Sibongiseni Fundzile Xaba, the Appellant; the Respondent prayed for an order in the following terms, among others:

 

1. That  the 1^st Respondent  (the Appellant  herein), be and is hereby ordered to take all necessary steps to pass transfer to the estate of the late Amos Mgcwembe Dlamini (EM108/98) the immovable property whose particulars are:

 

“Portion 22 of Farm  “The Peebles” Block (North) No. 9 situate in the Manzini District, Swaziland, held under Deed of Transfer 162/88, measuring 8, 2755 (Eight comma Two Seven Five five hectares”

 

1. “That if the 1^st Respondent fails within seven days of the Court order to take the necessary steps, the Sheriff be and is hereby authorised to take such steps on 1^st Respondent’s behalf”.

 

[3]    The 1^st Respondent resisted the application on the main ground that she was the registered owner of the aforesaid property.

 

[4]    On or about 15^th June 2010, the Appellant herein, (Xaba), filed an application in the High Court (Case No. 1080/09) in which Lindiwe Bridget Dlamini, N.O. was the 1^st Respondent.  She prayed for an order in the following terms among others:

 

1. Rescinding and /or setting aside the court order dated 25^th day of March 2009 and confirmed on 17^th April 2009 and varied by the court dated 12^th June 2009.

 

1. Payment of the sum of E228,000.00 to be paid by the first respondent, second and fifth respondents jointly and severally the one paying the other to be absolved;

 

1. A declaration that the applicant is entitled to half of the value of the properties held under DT 162/88 being portion 22 of Farm “The Peebles Block” North No. 9 measuring 82755 hectares and Portion 30 of Farm “The Peebles Block” North No. 9 measuring 12, 7195 hectares;

 

(iv)   Interdicting the first and seventh respondents from withdrawing and or paying out any monies which may be in account No. 0140063883501 held at seventh respondent, Mbabane Branch.

 

[5]    The substratum of the Appellant’s application was that the judgment of the Court in the “main application” should be set aside under Rule 42 of the High Court Rules, or at Common Law, on the ground that she had substantial interest in the subject–matter of that application but she was not joined or served with the processes to enable her defend her said interest.  The first Respondent denied that the applicant had any such interest to defend.

 

[6]    This application came before His Lordship, M.C.B. Maphalala J. on the 28^th of June, 2010.  He ordered that the First and Seventh respondents be interdicted from withdrawing or paying out any monies which may be in account No. 0140063883501 held at Standard Bank of Swaziland Limited, Mbabane Branch, pending the final determination of the application.  He then postponed the matter to 8^th July 2010 for argument before the duty judge.

[7]    In time the two Motions (Case No. 1080/09 and Case No. 884/2010) were consolidated and put before Her Ladyship, Ota J., for hearing.  After a very thorough analysis of the proceedings in the Manzini Magistrates Court and the affidavit evidence placed before her, Ota J. dismissed the application for rescission in case No. 1080/2009 and upheld the application in Case No. 884/2010 and made the orders prayed for; i.e.

 

“(1)   That the 1^st Respondent be and is hereby ordered to take all necessary steps to pass transfer to the estate of the late Amos Mgcwembe Dlamini (EM 108/98) the immovable property whose particulars are:

 

CERTAIN  Portion 22 of  Farm  “the Peebles”

Block (North No. 9 situate in the Manzini District, Swaziland

 

HELD       under Deed of Transfer 162/88

 

MEASURING  82755  (Eight  Comma  Two

             Seven Five Five) hectares.

 

1. That if 1^st Respondent fails within seven days of the Court order to take the necessary steps, the sheriff be and is hereby authorised to take such steps, on 1^st Respondent’s behalf.”

 

 [8]   The 1^st Respondent, (Sibongiseni Fundzile Xaba) was aggrieved and dissatisfied with the two judgments aforesaid and appealed against both of them.  Ad Case No. 1080/2009, these grounds were filed.

 

1. The Court a quo erred in law and in fact in holding that the appellant’s application is for the setting aside of the judgment of the Magistrates Court dated 23 January 1995.

 

1. The Court a quo erred in fact and in law in holding that the property in question belongs to the estate of the late Amos Mgcwembe Dlamini.

 

1. The Court a quo erred in law and in fact in holding that the late Mr. Ntiwane who acted for the appellant in the divorce proceedings had the authority to sign the deed of settlement which was made an order of Court in as much as onus to prove that he had such authority lay with the first respondent.

 

1. The Court a quo erred in failing to consider whether the late Mr. Ntiwane when he purported to sign the deed of settlement on behalf of the appellant was not acting against the interests of the appellant.

 

1. The Court a quo erred in law and in fact in holding that the appellant has no direct and substantial interest in the application for rescission.

 

1. The Court a quo erred in law and in fact in holding that the appellant was not entitled to be paid the sum of E228, 000.00 by the respondents.

 

Case No. 884/2010 attracted these grounds.

 

1.     The Court a quo erred in law and in fact in ordering that the only property to be transferred by the appellant to the estate of the late Amos Mgcwembe Dlamini is Portion 22 of Farm “The Peebles” Block North No. 9 situate in the Manzini District, measuring 8, 2755 hectares and not also portion 30 of the farm “The Peebles” Block North situate in Manzini District measuring 12, 7195 hectares which is also held under Deed of Transfer No. 162/1988 dated 15^th March 1988.

 

2.     The Court a quo erred in law and in fact in holding that the E20, 000.00 was paid to the then attorney for the appellant in as much as the first respondent stated in her founding affidavit that her father paid the said amount on 15^th December 1994 and in the reply thereto she alleges that payment was made by her on 24^th January 1995 which evidence is inadmissible and constitutes hearsay evidence.

 

[9]    Even though the two motions were consolidated for hearing, the learned Judge, correctly, in my opinion, delivered the two separate judgments.  In this appeal, I notice that the issues in the two motions dovetail into each other.  Further, apart from ground 6 in respect of the appeal in Case No. 1080/2009, all the other grounds for both cases deal with matters that were substantially ventilated in no small measure in the divorce proceedings held before the Manzini Magistrates Court.  In the circumstances I will also write two judgments in one.

 

[10]  Now, what was the evidence given in the Magistrates Court which was accepted by that Court?  It was common cause that the Appellant was once married to Amos Mgcwembe Dlamini who died on 16^th May 1997.  It was also common cause that before his death the marriage was dissolved primarily at the instance of the Appellant on or about the 23^rd of January 1995.  Again, it was common cause that prior to the dissolution of the marriage the couple entered into a Deed of Settlement whereby, in consideration of the deceased  paying  to  the  Appellant  the  sum   of  E20, 000.00 through her nominated attorneys she would cause to be transferred to the deceased the property described in the Deed of Settlement and registered in her name.  That property has been more fully described in paragraph 7 above.  The Deed of Settlement was made an order of Court by consent of the couple.  The Court held that the deceased paid the sum of E20 000.00 through her nominated attorneys to the Appellant as she had earlier agreed; notwithstanding her unconvincing denials in the Court.  The record of proceedings in the Magistrates Court also showed that the late attorney who signed the Deed of Settlement acted upon a power of attorney signed by the Appellant herself.

 

[11]  In the application for rescission before Her Ladyship Ota J. she emphasized that the order of the Magistrates Court dated 23^rd January 1995 was not appealed against, reviewed or rescinded.   Therefore it remained a valid and subsisting judgment of a court of competent jurisdiction which she was bound to follow.  I agree entirely with that finding. It constituted an impenetrable wall against which the Appellant could not exit from her solemn pledge to pass transfer to the estate of Amos Mgcwembe Dlamini (EM 108/98) the immovable property more fully described in paragraphs 7 hereof.  That undertaking was necessary because it was registered in her sole name.  The quid pro quo for that solemn pledge to pass transfer was the payment of the sum of E20 000.00 by the deceased to the Appellant.  That payment was duly made.

 

[12]  In my view, there can be no valid reason for the Appellant to be excused the due performance of the said transfer.  She was being disingenuous when she protested that there was no agreement binding her to pass transfer of that immovable property to the estate of the deceased.  The Court a quo correctly found that the Deed of Transfer was validly executed by her nominated attorneys and she was bound by it.  The appeal in respect of Case 884/2010 is therefore dismissed as unmeritorious.

 

[13]  With respect to Case No. 1080/2009 the Appellant’s position was that the Court granted the order to the main application erroneously.  In sum, she argued that even though she had a direct and substantial interest in the administration of the deceased’s estate she was not made a party; nor was she served with copies of the application.  She reiterated her view that because the property DT 162/88 was registered in her name, she was the owner.  She said she was married to the deceased in community of property and so she was entitled to 50% of the compensation payable in respect of the property which was registered in her name.  Once again, she denied the validity of the Deed of Settlement saying that it was null and void because her attorney (Collin Ntiwane), deceased, did not have her authority to sign the Deed of Settlement on her behalf.

 

[14]  Her Ladyship considered Rule 42 (1) (a) of the High Court Rules and the circumstances under which a court may order rescission of a judgment in an application brought under that rule.  She had no difficulty in holding that the conditions precedent for rescission in such applications were not satisfied by the Appellant.  In my opinion the learned Judge a quo correctly dismissed the Appellant’s application for rescission.  For the avoidance of doubt I further hold that  the  Appellant was not entitled to the sum of E228 000.00 or at all.  She completely and effectively gave up any property or money that would otherwise have been given or paid to her on account of her marriage in community of the deceased.       In the result the judgment of this court is that the appeals in the two consolidated cases are dismissed with costs.

 

 

DELIVERED IN OPEN COURT AT MBABANE THIS 31^ST DAY OF MAY 2011.

 

 

                                                        DR. SETH TWUM

                                                        JUSTICE OF APPEAL

 

 

 

I agree:                                             M.M. RAMODIBEDI

                                                        CHIEF JUSTICE

 

 

 

I agree:                                             I.G. FARLAM

                                                                JUSTICE OF APPEAL