Sambo v Mabanga (06/11) [2011] SZSC 26 (31 May 2011);

 

IN THE SUPREME COURT OF SWAZILAND

 

HELD AT MBABANE                               CASE NO.06/2011

 

In the matter between

 

ALFRED SAMBO                                                           APPELLANT

                                                 

AND

 

ALFRED MABANGA                                            RESPONDENT

 

CORAM                                                              

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                             

JUDGMENT

 

I.G. FARLAM J A:

 

 

[1]    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

 

[2]    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.

 

[3]    The parties are unable to agree and it is accordingly necessary for this court to formulate the order itself.

 

 

 

 

 

 

[4]    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  29^th 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 -

 

1. 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

 

1. 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.

 

1. Either party may subpoena any person to give evidence at the hearing, whether such person has consented to furnish a statement or not.

 

 

1. 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.

 

1. 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.

 

1. The incidence of the costs incurred in case 1765/08  after the 16^th July 2010 shall be determined  after the  hearing of oral evidence.

 

 

 

 

1. 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.

 

 

 

 

                                        ______________________

                                        I.G. FARLAM

                                        JUSTICE OF APPEAL

 

 

I agree

                                        ______________________

M.M. RAMODIBEBI

                                        CHIEF JUSTICE

 

I agree

                                        ______________________

A.M. EBRAHIM

                                        JUSTICE OF APPEAL