THE COURT OF APPEAL OF SWAZILAND
the matter between:
RECOVERIES (PTY) LTD RESPONDENT
THE APPELLANT : MR. SMITH. S.C.
THE RESPONDENT : MR. FLYNN
most unusual litigation was initiated in the High Court by way of a
combined summons. In his particulars of claim, the appellant,
(Plaintiff in the court a quo) sought an order sitting aside two
final liquidation orders granted by the High Court on the 30th June
1981 in respect of two companies; viz Powerforce Construction (Pty)
Ltd and Cemco (Pty) Ltd.
exception was taken to the appellant's particulars of claim on the
ground that it did not disclose a cause of action. In its exception
the first respondent (the respondent) relied on the following
The Plaintiff's claim is for a rescission of final liquidation orders
granted on the 30th June 1981.
Plaintiff alleges that the Court was induced to grant the said orders
by a fraudulent representation made by the first defendant.
Plaintiff seeks no relief in the action other than the rescission of
the said orders. The Plaintiff seeks no relief against the First
Plaintiff has no interest in the action instituted and accordingly
lacks locus standi in
to sue for the relief sought in the action."
exception was argued before Sapire CJ who, without giving any
reasons, upheld the exception. It is against this order that the
appellant has appealed to this court. In its notice of appeal the
appellant, because no reasons for judgment were given, was obliged to
allege general grounds upon which his appeal was based. One of these
grounds was that the appellant has no locus standi, in as much as he
was executor dative in the estate of one Tyrer who died in 1955. It
was alleged that Tyrer in his personal capacity had in his lifetime
had sufficient interest in the matter. He had been granted leave in
his personal capacity to intervene in the liquidation proceedings and
had in fact done so.
was also alleged in the grounds of appeal that the court a quo should
have held as a matter of public policy that it is contrary to the
administration of justice to permit a judgment obtained by fraud to
stand. The facts alleged in the particulars of claim, it is averred,
justified a rescission of the relevant judgment mero motu.
following matters are relevant for the purposes of the decision of
appellant has claimed no relief against the Respondent, or indeed any
relief against anyone.
is no allegation made that anyone has sustained any prejudice or
suffered any loss or damage as a consequence of the liquidation
is clear that there are other parties (the liquidator, the creditors
and those against whom the allegations of fraud are made) who would
have a real and substantial interest in the matter and who have not
It is clear from the judgment of the High Court in the liquidation,
that the Judge held that there was no sufficient reason "even
seriously to suspect" that
parties cited as conspirators, had conspired against Tyrer to bring
about a malicious winding up. Indeed the court held that the
probabilities overwhelmingly favoured the bank (the respondent) and
declined to accede to an application by Tyrer to hear oral evidence
on the issue.
The ratio decidendi which underpinned the High Court's decision to
grant the liquidation orders was that there was a deadlock between
the directors and that it was just and equitable that the companies
should be wound up.
are no factual averments made which could, if proved, establish any
interest on the part of the deceased estate represented by the
appellant. Neither, as indicated above, does the appellant claim any
relief against the Respondent.
There are no allegations made in the pleadings as to what the
benefits are for the appellant should it succeed in having the
liquidation orders set aside.
the matter was argued the Court raised with counsel for the appellant
the question as to whether as a matter of overwhelming probability
there were not several parties who would have an interest in whether
the liquidation orders were or were not to be set aside. Counsel's
response was that this point had not been taken and that the Court
should not do so mero motu.
this regard it should be noted that in both COLLIN V. TOFFEE 1944
A.D. 456 and in HOME SITES (PTY) LTD V. SENEKAL 1948(3) SA514 (A) the
Court of Appeal in South Africa mero motu took the point of
non-joinder of parties who would have "a direct and substantial
interest" in the matter. (See also AARON V JOHANNESBURG
MUNICIPALITY 1904 T.S. 696). The right, indeed the obligation of the
court to do so is spelt out by Fagan A
in the well-known case of AMALGAMATED ENGINEERING UNION VS MINISTER
OF LABOUR 1949(3) 637 at 655-6600.
the latter page the court says:
Court will not, for instance, issue a decree, which will be a brutum
fulmen because some person who will have to co-operate in carrying it
into effect, will not be bound by it."
in this regard also HERBSTEIN AND VAN WINSEN, THE CIVIL PRACTICE FO
THE SUPREME COURT OF SOUTH AFRICA at page 165-166 The learned authors
say (op cit):
a party who should have been joined in the proceedings has not been
joined the defendant may raise the defence of non-joinder. The issue
of nonjoinder may also be raised by the court mero motu, even on
appeal." (own emphasis)
is abundantly clear that the liquidator would have a direct and
substantial interest in any order setting aside the decree in terms
of which the companies were wound up. It is clear from the papers
that certain assets of the companies were sold for substantial sums
of money to third parties. A liquidation and distribution account was
submitted to the Master and presumably approved. Those who received
dividends pursuant to this account would also, so it would seem to
me, have a direct interest in the event of the orders of liquidation
being set aside.
failure to cite the liquidator appears clearly to be a barrier to
appellant succeeding in obtaining the relief he seeks.
even more substantively I am of the view that the executor dative has
failed to establish that Tyrer's estate has any direct or substantial
interest in the relief claimed. No allegation has been made that the
late Tyrer suffered loss or damage as a result of the alleged fraud.
In any event, if Tyrer did, the appropriate action to take would be
to sue for such damage and not to seek to set the liquidation orders
litigation in casu is misconceived. No cause of action can be founded
on the factual allegations made by the appellant. The exception was
accordingly correctly upheld.
must record however that both the parties, particularly the appellant
as well as this Court are seriously disadvantaged by the fact that no
reasons for judgment were given.
litigant needs to know why judgment has been given against him. The
Court of Appeal similarly requires the presiding judicial officer to
furnish reasons for judgment. This would enable an appellant to
comply with the provisions of the Rules of Court and to set out on
which grounds it challenges the correctness of the judgment appealed
against. The present is not the only case that has come before us
where no reasons have been given for the decision made. It is an
unacceptable practice and cannot be tolerated.
on this 13th
of December 2000.