IN
THE HIGH COURT OF SWAZILAND
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Simon
Musa Matsebula Applicant
v
Swaziland
Building Society Respondent
and
Others
Case
No 2693/97
JUDGMENT
(5/11/97)
The
applicant seeks an order setting aside a sale in execution of his
immovable property, being Lot No 1578 Mbabane Extension No 12. The
sale took place on the 22nd of August 1997. The Respondent is the
judgment creditor and the bondholder.
The
Applicant rests his case on a number of alleged irregularities in the
execution process. The sale which it is sought to set aside is
apparently the Respondents second attempt to carry out the execution
process. On an earlier occasion when the Applicant's attorney
informed the Respondent of several aspects in which the then proposed
execution did not comply with the rules, that sale was not proceeded
with. One of the complaints then made was the writ had not been
served on the respondent Without apparently reserving the writ the
sale was readvertised purportedly in accordance with the provisions
of the rules.
Non
service of the writ and failure to give notice of attachment would of
course be fatal to the validity if the sale.
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In
this connection Applicant says in the founding affidavit that he saw
a notice in the Times of Swaziland on the 1st August 1997 advertising
the intended sale in execution of Applicant's's property for the 22nd
day of August 1997. He immediately consulted his attorney and through
him ascertained that the Respondent had not yet complied with the
provisions of court in the respects previously brought to respondents
attention. Again the Respondent's were informed that applicant
objected to the sale taking place in these circumstances.
The
applicant draws attention to the failure of the Respondent to have
complied with the provisions of rule 46(b) in that no notice of
attachment was served on him, timeously or at all. In answer to this
the Respondent has filed an affidavit attested to by Mr Long, a
Deputy Sheriff in which he says that.
"To
the best of my recollection, on 2nd August 1996 and at Mbabane
District of Hhohho, I attached the undermentioned property in
accordance with the provisions of Rule 46(3) of the rules of this
Honourable Court;"
A
Notice of attachment is annexed to the affidavit.
This
in itself is not proof of service as no facts are stated from which
it can be concluded that service indeed took place in accordance with
the provisions of the Rules of court. Respondent's counsel referred
me to the court file of the proceedings which gave rise to the
judgment and the issue of the writ. There is in that file a return of
service in which it is reported that service took place on a Mr
Matsebula a son of the Defendant. I believe there is some difficulty,
in motion proceedings in having regard to documents in court files
other than that relating to the application before the court unless
the document is incorporated by reference and confirmed in the
affidavits before the court. This difficulty aside there is no
evidence whatsoever as to which of the Applicant's four sons it is
said received the documents on behalf of the Applicant. Moreover the
Applicant has attached affidavits from two of his four sons that
neither of them was so served. The other two son are scholars in the
Republic of South Africa
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and
neither could have been the person referred to by the Deputy Sheriff.
Faced with this crucial dispute of fact which could not be resolved
on the affidavits alone, I may, had this been the only ground of
invalidity relied upon, have been persuaded to refer the application
for the hearing of oral evidence on this issue. I have however
considered the other points raised by the applicant. In view of my
conclusion thereon there is no point in adapting this course.
There
are other grounds relied on by the Applicant. In the first place he
states in paragraph 9 a) that the notice of sale was published in the
Times of Swaziland on the first of August 1997. As the sale was to
take place on the 22nd August the period of notice was thirteen days
and not fourteen days as required by the rules Reference to the
calendar reveals that there is no merit in this submission.
There
is more substance in the other of Applicant's objections.. In
paragraph 9 b) of the founding affidavit it is alleged that there was
non compliance with the rules in that.
"The
notice in the Government Gazette was published on the 8th of August
1997, 10 days before the date of the sale. I submit that this was
highly irregular as the rule states that the notice should be 14 days
before the sale " (sic)
To
which the Respondent replied that
"..the
allegations contained herein are based on the assumption that the
reference to "days" in Rule 46(8)(c) a reference to court
days, whereas it will be submitted that in the context of this rule
the days are calender days. "
In
making these submissions, Mr Flynn on behalf of the Respondent
referred me to two conflicting decisions South African Courts.
In
the first of these
FIRST
CONSOLIDATED LEASING CORPORATION LTD v THERON AND
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OTHERS
1974 (4) SA 244 (T)
Eloff
J held
The
word "days" in the context in which it is used in Rule 46
(7) (d ) of the Uniform Rules of Court means calendar days and not
court days.
In
the later decision
RONTGEN
v REICHENBERG 1984 (2) SA 181 (W)
Coetzee
J took a different view and held
"There
is no contextual basis for departing from the ordinary meaning of
"days" in Rule 46 (7) (c ) as definedin the Uniform Rules
of Court. Accordingly, "days" in Rule 46 (7) (c) means
"Court days" "
In
coming to this conclusion he observed.
"The
second point has caused me more difficulty. If calendar days are
counted, the notice in The Star was probably published more than five
days before the date appointed for the sale, but less than five days
if the intervening Saturday and Sunday are not counted.
Mr
Morris, for the applicant, relies on the judgment in the First
Consolidated Leasing case supra for contending that "days"
in Rule 46 (7) (c) are calendar days. On behalf of the respondent it
is contended that the days should in any event be counted by
excluding the first and last days, that is 20 May and 26 May, in
which case it was published five days before the date of the sale in
execution, that is not more than five days as provided for in the
Rule. Alternatively it is argued that the judgment in the First
Consolidated Leasing case is clearly wrong and that not more than
five Court days elapsed after the publication of the notice and that
is a compliance with the Rule.
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In
the First Consolidated Leasing case ELOFF J said the following at 246
- 247:
"Now
it is true that in Rule 1 which defines 'Court days' it is said that
only Court days shall be included in the compilation of a number of
days for which the Rules make provision, but that definition is
subject to the context in which the word 'days' is used. I think that
in the context of Rule 46 (7) (d) calendar days were intended and not
Court days. Rule 46 has nothing to do with procedural steps connected
with a law-suit, and the consideration which prompted the draftsman
of the Rules to exclude Saturdays, Sundays and Public Holidays in
computing the number of days allowed for procedural steps in
litigation, could not have applied to the steps required to be taken
when property is sold in execution. I think the second point also
fails."
Rule
1 of the Rules of Court defines "days" as follows:
"In
these Rules and attached forms, unless the context F otherwise
indicates - 'Court day' shall mean any day other than a Saturday,
Sunday or Public Holiday, and only Court days shall be included in
the computation of any time expressed in days prescribed by these
Rules or fixed by any order of Court;"
I
think it is desirable to advert to the true meaning of the word
"context" as used in the definition clause. "Context",
according to the Oxford English Dictionary, means:
"Connection,
structure of a writing or composition" and it describes it as
follows:
"The
whole structure of connected passages regarded in its bearing upon
any of the parts which constitute it; the parts which immediately
precede or follow any particular passage or 'text'
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and
determine its meaning".
In
my view this time-honoured phrase which appears in the definition
sections of legislation ("unless the context otherwise
indicates") means that another meaning is to be given to the
particular word or phrase so defined only if the parts which precede
or follow that particular word or phrase indicate that it is used in
a different sense or with a different meaning. One therefore has to
examine the language used in the particular section to determine
whether the defined word is used clearly in a different sense in any
related passage which precedes or follows the one that falls to be
interpreted and, if so, whether contextually the same meaning is
intended in the passage in question.
In
the result the Dictum in First Consolidated Leasing Corporation Ltd v
Theron and Others 1974 (4) SA 244 (T) at 246-247 not approved and not
followed.
The
wording of the Rules of the South African Court and the Rules of the
High Court are (or were) materially the same. And I am satisfied that
it is the latter judgment which should be adopted here.
As
observed by Nathan C
J
in this court in SMALL ENTERPRISES DEVELOPMENT CO LTD V SILDERHUIS
AND ANOTHER 1970-1976 SLR 444 the provision for notice of sales in
execution is for the benefit of all parties, and is aimed at
achieving maximum reasonable publicity so that as many bidders as
possible should be attracted to the sale. To allow the prescribed
periods of notice to be reduced is not in the interests of justice.
Not
only was the procedure in this respect, but the Respondent has not
even answered the allegation that a copy of the Notice of Sale had
not been posted on the Notice Board of the Subordinate Court for the
District of
Hhohho
nor yet at the offices of the Regional Administrator as required by
the Rules, save to say that the Applicant was not prejudiced thereby.
This does not
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begin
to address the absence of the required publicity.
For
these reasons the Respondent must fail in its opposition to the
granting of the relief It is ordered as follows
The
sale in execution of Lot No. 1578 Mbabane Extension No 12 situate in
the urban area of Mbabane, District of Hhhohho which took place on
22nd of August 1997, is hereby set aside, and declared to be of no
effect
The
Respondent is to pay the costs of this application.
S.W.
SAPIRE
ACTING
CHIEF JUSTICE
