IN
THE HIGH COURT OF SWAZILAND
a
gardini
1
Case
No 251/97
In
the matter between:
GARDINI
AND SONS PLAINTIFF
VS
SAXON
(PTY) LIMITED DEFENDANT
CORAM:
S.B. MAPHALALA - A
J
FOR
APPLICANT: P. FLYNN
FOR
DEFENDANT: P. DUNSEITH
JUDGEMENT
(05/12/97)
This
is an application in terms of rule 45(13)(1) which provides as
follows:
"(i)
whenever a return has been made to a writ of execution, that the
officer charged with the execution has been unable to find sufficient
property subject to attachment to satisfy the amount of the writ or
whenever a judgement debt remains wholly or in part unsatified after
the expiration of twenty-one days from the date of the judgement, the
judgement creditor may by notice call upon the judgement debtor,
where the judgement debtor is a body corporate, any Director,
Manager,Secretary or other similar officer thereof or any person
purporting to act in any such capacity, to appear before the court on
day fixed by such notice, and to produce such documents as may
reasonably been necessary, in order that the court may investigate
the financial position of the judgement debtor ".
The
debt which is sought to be secured from the defendant is a sum of
E383,262-71 plus interest at the rate of 9% per annum as from the
26th September, 1996. The history which brought about the said debt
can be capsuled as follows: The plaintiff and the defendant entered
into a contract on the 4th August 1995, in terms of which the
plaintiff undertook to alter and add to the existing
a:
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2
premises
on stands 97,98 and 99, Mbabane for Saxon (PTY) LTD in accordance
with drawings and specifications prepared by Portal Partnership
Incorporated, architects. The defendant in consideration thereof,
undertook to pay the plaintiff the sum of one million four hundred
and twenty nine thousand, eight hundred and fourty four emalangeni
and fifty nine cents (El,429,844-59).Certain disputes arose between
the parties that were submitted to the architect for his decision in
terms of the building contract. The architect gave his decisions on
these disputes and these were not accepted by the plaintiff and
subsequently the dispute was referred to arbitration in terms of
clause 26 of the conditions of contract. A certain John Resting was
approached to act as the arbitrator and he duly filed his arbitrator'
award (with Arithmetic Corrections) and this document was marked MM3
for these proceedings.
On
the 16th October, 1997 the arbitrator's award (MM3) was made an order
of this court. The arbitrator awarded a sum of E383,262-71 which is
the subject matter of this enquiry.
On
the 28th November, 1997 the matter came before me whereby Mrs
Weissing who is a Co-Director with her husband Mr Weissing of the
defendant was examined under oath by Mr Flynn for the plaintiff as to
the financial position of the judgement debtor. She gave a lenghtly
account on the financial affairs of the defendant and provided the
court with pertinent documents which I must say were very helpful to
the court in the final determination of this matter. She told the
court that the company owns lots 97, 98, and 99, Allister Miller
Street, Mbabane. That this property was purchased for a sum of
El,200,000 which was largely financed by the Swaziland Building
Society. The company then raised funds to make alterations to the
buildings. The complex has 8 shops which are leased to other small
business people for a variety of enterprises. She went further to
outline to the court how much each of these shops pay as rentals per
month. She gave a breakdown of the company's monthly income and
expenses and it emerged from this exercise that the company's debt
exceeds its income.
Mrs
Weissing further told the court that an offer was made to the
plaintiffs company for the liquidation of this debt, however, the
offer was rejected. The company was offering to pay upfront a sum of
E100,000 and thereafter a sum of E5,000 per month until the debt was
finally paid up.
The
court was to make an appropriate order in the circumstances. Firstly,
I agree with Mr Dunseith for the defendant on perusal of the
arbitrator's award which is now an order of this court that no award
as to the interest of 9% sought by the plaintiff was made by the
arbitrator. I am therefore not going to order for the payment of
interest on the capital sum.
Now
reverting to the merits of the matter, I have heard the evidence of
the defendant, perused various documents tendered in evidence and
considered the arguments by the parties.
It
is clear to me that the defendant's expenses exceeds its income and
it would be worthless to
a:gardini
3
order
defendant to pay more than it can afford. It is my considered view
that the offer by the defendant is fair in the circumstances and thus
make an order in the following terms:
The
defendant is to pay forthwith a sum of E100,000 and thereafter a sum
of E5,000 per month until the capital sum is finally liquidated.
S.
B.
MAPHALALA
ACTING
JUDGE
