THE HIGH COURT OF SWAZILAND
THE MATTER BETWEEN:
SABELO SITHEBE 1ST RESPONDENT
ELIJAH DLAMINI 2ND RESPONDENT
DEVELOPMENT AND 3RD RESPONDENT
BANK THE REGISTRAR OF DEEDS 4TH RESPONDENT
ATTORNEY GENERAL N.O. 5TH RESPONDENT
S.B. MAPHALALA - A
APPLICANT: H. FINE
FIRST AND THIRD RESPONDENTS: B. KHUMALO
SECOND RESPONDENT: L. MAZIYA
court is a notice of motion brought by way of motion for an order in
the following terms:
the court dispense with the usual time limits, and provisions of
service as are required in terms of rules of court and that this
matter be heard as one of urgency;
the fourth respondent be ordered and directed to cancel deed of
Transfer No 131/1997 in terms of which the second respondent
transferred to the first respondent certain Lot No. 467 situate in
Ngwane Park Township, District of Manzini, Swaziland.
the fourth respondent be ordered and directed to expunge from the
records in the deeds registry all entries relating to the aforesaid
deed of transfer;
the first respondent be interdicted from alienating and/or
encumbering Lot No. 462 situate in Ngwane Park Township, District of
Manzini, pending the finalisation of this application;
the first, second and third respondents be ordered to pay the costs
of this application
an Attorney and own client scale and that fourth and fifth respondent
be ordered to pay costs only in the event of their opposing the
this court grants such other and/or alternative relief.
events in this matter are a very sorry tale. They involve a complex
set of facts which is not easy to decipher. However, in an effort to
do so I shall proceed to state the applicant's case "in extenso"
which in my view lays a good background of the facts for one to begin
to understand the issues involved. The applicant's founding affidavit
lays such background. The applicant avers that on or about June, 1996
the third respondent who was plaintiff in Case No. 3009/96 caused an
advertisement to be placed in the newspapers advertising a sale by
public auction of immovable property described as certain Lot No. 467
situate in Ngwane Park Township in the District of Manzini.
similar notice was also placed on the High Court Notice Board.
or about the 2nd July, 1996, the date appointed for the sale by
public auction of the aforesaid property, applicant attended the sale
and purchased the property for the sum of E24,000-00. He paid a
deposit of E4,800-00 and received a receipt which is one of the
annexure marked Annexure "C". On or about August 1996
applicant paid the balance of the purchase price being an amount of
El9,200-00. After payment of the purchased price applicant expected
that the property would be transferred into his name as he had fully
complied with the conditions of sale.
or about the 26th November, 1996 he received a letter from Mlangeni
and Company a firm of Attorneys, representing the third respondent,
in terms of which they stated that they had been instructed by the
third respondent to secure cancellation of the bond which the third
respondent held over the property in order to enable registration of
the said property into his name. A copy of the letter is attached
marked Annexure "F".
about the 3rd day of December 1996 he received a letter for the
Acting Deputy Sheriff in which he instructed Attorneys Masina,
Mazibuko and Company to transfer the property into his name. He
attached a copy of the letter marked Annexure "G".
or about February 1997 applicant telephoned Attorney Titus Mlangeni
of Mlangeni and Company and requested the title deed for purpose of
having the said property registered into his name. Mr Mlangeni
informed him that he was waiting for his client, the third
respondent, to cancel a mortgage bond, which they held over the
property and also for the third respondent to hand the title deed in
respect of the property to attorney Thulani Masina, the appointed
conveyancer who was to effect the transfer of the property into his
or about February 1997 Attorney Masina forwarded to him a statement
of transfer costs in which he required payment of El ,318-50 in order
to transfer the property into his name. He duly paid the required
amount. A copy of his cheque is attached marked Annexure "H".
or about November 1996 the Acting Deputy Sheriff paid all the monies
due, owing and payable by him in respect of his purchase of the said
property to the third respondent as appears more fully in a copy of
her letter and cheque to Mlangeni and Company which is attached and
marked Annexure "I".
he avers, notwithstanding full compliance with the conditions of
purchase and sale of the property he was unable to obtain
registration of the property into his name and on about the 9th April
1997 he launched an application under Case No. 992/97 before this
court for an order ordering and directing the third respondent to
transfer the property in his name.
or about the 9th May, 1997 applicant obtained an order from this
court directing the third respondent to transfer the said property
into his name as appears fully in the court order which is attached
marked Annexure "J".
such court order neither the third respondent nor the Registrar of
Deeds were able to effect transfer of the said property.
then conducted a search in the office of the Registrar of Deeds and
discovered that on or about March, 1997 Moses Langwenya, the Siteki
Branch Manager of the third respondent had applied to the fourth
respondent for cancellation of the mortgage bond in respect of Lot
467, situated in Ngwane Park Township in the District of Manzini.
Applicant attached the mortgage bond in question and the application
marked Annexure "K".
further discovered that the second respondent had transferred Lot 467
to the first respondent on the 27th March, 1997. A copy of the deed
of transfer is attached in applicant's papers marked Annexure "L".
avers that the aforesaid transfer was effected notwithstanding the
fact that the said property was under attachment and had been sold to
him at a public auction sale conducted on the 2nd July, 1996.
the 18th June, 1997 he wrote to the third respondent's attorneys
requesting information concerning the deed of transfer and mortgage
bond in respect of the property, he also requested copies of the file
relating to correspondence between Lindiwe Khumalo - Matse and the
aforesaid attorneys as he believed that a fraud had occurred in this
matter. Applicant attached the said letter in his papers marked
duly received a letter dated the 26th February 1997 from attorneys
Mlangeni and Company to attorneys Lindiwe Khumalo - Matse and Company
wherein Mr Mlangeni pointed out that the property in question had
been sold and that on the 8th November, 1996 they had received a
cheque from the Deputy Sheriff in full settlement of the purchase
price. A copy of the letter is attached in his papers marked Annexure
or about the 3rd March, 1997 attorneys Lindiwe Khumalo - Matse
replied to Mlangeni and Company letter dated 26th February, 1997 and
pointed out that neither the second respondent nor the Manager of the
third respondent had disclosed that the property in question had been
subject to an attachment. A copy of the letter is attached to the
applicant's papers marked Annexure
applicant further submitted in his affidavit that notwithstanding the
fact that on the 26th February, 1997 the first respondent's attorneys
were appraised of the fact that the property in question had been
under attachment and had been sold, the attorneys with full knowledge
thereof nonetheless allowed the property in question to be
transferred to their client, the first respondent. The second
respondent had no legal right or title to the property in question
when he purported to sell same to the first respondent and as he had
already purchased and paid for the property, applicants stated
further that the third respondent had no legal right to cancel the
bond over the property in order to give effect to the sale between
the first and second respondents. He avers that the first respondent
acted malafides in securing transfer of the property into his name
because his legal representative were fully appraised of the position
regarding the second respondent's lack of capacity to transfer the
said property. That a substantial injustice has occurred and that the
transfer of the said property into the name of the first respondent
cannot be allowed to stand.
applicant argued that this is a matter of urgency because there is
real likehood that the first respondent may at any time encumber or
dispose of the property to an innocent third party.
of record are a number of affidavits by the respective respondents
save for the fourth (Registrar of Deeds) and the fifth respondent
(The Attorney General N.O.). It appears from the look of things they
are not opposing this application.
will start with the opposing affidavit of Titus Mlangeni who
represented the third respondent at the material time. His affidavit
to a great extent supports most of the material averments made by the
applicant in his Founding affidavit. Their only point of departure
being that the third respondent should not be dragged into the fray
as at all material times his client, the third respondent has been
prepared to transfer ownership to applicant, has been perturbed by
the manner in which events later unfolded, and would have liked to
comply with the court order in favour of the applicant but at that
stage it was impossible to either comply or facilitate compliance.
Letters from the bank throw useful light in this respect, Annexure
marked "3r5", "3r6" and "3r8". Mr
Mlangeni's affidavit as I have said earlier is in tandem with most
what the applicant has averred. Mr Mlangeni stated in his affidavit
informed the court the third respondent, who is judgement creditor in
Case No. 3009/95 caused a sale in execution of the property in issue.
Third respondent proceeded to do all that was necessary to enable the
applicant to take transfer of the property. Annexure "F"
and "G" to applicant's affidavit are confirmation of this.
In the meantime, and unknown to the third respondent, the judgement
debtor has sold the property to
third party, the first respondent, despite the fact that the property
was already under attachment and unable to be executed in terms of
revealed in his affidavit that the applicant having paid the purchase
price in full, on the 2nd December, 1996 he issued a cheque to the
third respondent's Siteki Branch. This cheque was rejected and advice
given, for the first time, that the balance on the judgement debtor's
loan account had been settled direct at Siteki branch of third
respondent. He immediately wrote a letter to the first respondent's
attorney, on the 26th February 1997, and requested that the matter be
discussed with a view to resolving it. He believed that at that stage
the process of transfer was not complete. First respondent's attorney
responded by a letter dated 3rd March 1997 (Annexure "3xr").
On the 7th April, 1997 he again wrote to first respondent's attorney
to sound urgency (see letter marked "3r4"). He states in
his affidavit nothing was achieved. As we now know, the property was
eventually transferred to the name of the first respondent. Mr
Mlangeni's real gripe is on the question of costs. He avers that in
view of the facts as he has outlined it would be extremely harsh and
improper to hold the third respondent liable for legal costs, let
alone at the scale of attorney and own client. It is clear that the
cause of all these problems is the second respondent.
I come to the opposing affidavit of the first respondent to
applicant's founding affidavit. His story in short is as follows:
avers that at the time applicant launched the application under Case
No. 992/97 he was aware that he (First Respondent) was an interested
party in the proceedings but neither cited him as a party nor did he
serve him with the process in this matter. He was never served with
the order of the court.
became aware of the order from his attorneys on/or about the 28th
May, 1997 after they had received copy thereof undercover
correspondence from Mlangeni and Company date the 26th May, 1997. At
that point transfer of the property into his name had already been
affected. Attorneys Mthembu, Simelane, Zwane and Kubheka handed the
transfer. He received no documentation or order of court or on his
attorneys regarding the allegation that the property had already been
sold. He had no reason to believe it was true, in any, case because
the third respondent continued to assist him in obtaining transfer of
the property and accepted payment from him in this regard. That it
was most misleading and dismiss of the third respondent or its
attorneys to continue in this fashion. He believes that this whole
confusion would have been averted, if the applicant had made him a
party to the proceedings by which he sought to seek transfer. He
maintains that he was a bona fide purchaser and did not act in bad
faith when neither the second respondent nor the third respondent
disclosed to him at the time that the properly was sold.
was only at a later stage that correspondence advising of a purported
sale of the property at an auction sale was sent to his attorneys.
Already the sale had been concluded and transfer was under way. In
any case the correspondence of Mlangeni and Company was not
consistent with that of the third respondent who maintained to him in
word and in conduct that he was entitled
the transfer of the property. What he finds strange is that the third
respondents attorneys did not advise the third respondent to
discontinue their involvement in the transfer of the property if
indeed, to their knowledge had already been sold to the applicant.
What is even stranger is that applicant did not find it necessary to
interdict him from proceeding with the transfer in his proceedings
under Case No. 992/97 when it was known to him at the time that he
was procuring a transfer of the property.
to the second respondent. In his opposing papers he averred that at
the time of the sale he was unaware of these events as outlined by
the applicant. He admits that at a later stage the first respondent
approached him advising that his attorneys Lindiwe Khumalo-Matse and
Company had been informed by Mlangeni and Company that the property
had been sold by public auction to someone else. He then took it upon
himself to seek confirmation of this information from the third
respondent as he had hitherto been unware. The third respondent
advised him that they had no knowledge that the property had been
sold at an auction sale although they were aware that it had been
advertised. He was told that he had nothing to fear and that he
should proceed with the transfer to first respondent name. He
obtained this assurance from the legal advisor of the third
respondent stationed at the third respondent's head Office in
Mbabane, Mr V.T. Simelane.
further submitted that applicant did not become the owner of the
property upon sale to him at the auction. If the third respondent
breached the sale between itself and the applicant, the applicant is
entitled to claim damages from the third respondent for the breach.
denies any malafides on his part of the first respondent in securing
transfer. He avers furthermore, that substantial injustice will occur
to the first respondent as he has dissipated the proceeds of the sale
to settle various of his personal debts and to set up a burglar
applicant then filed a replying affidavits in response to the
opposing affidavits by the respondents in this matter.
are the facts of the case as per the various affidavits by the
matter came before me on the 22nd August, 1997 for arguments. In this
case Advocate Mr Fine appeared for the applicant, Mr Khumalo appeared
for the first and the third respondents. Mr Maziya appeared for the
Fine contended on behalf of the applicant that from the facts before
court there is no doubt that the first and the second respondents
were informed of the applicant's purchase of the property at an
auction sale prior to the transfer of the property. He argued
therefore that the second respondent at the time of the transfer to
the first respondent had no right in law to effect such transfer. To
this end he referred the court to the writings of
and Schoeman in the
titled Law of Property (3rED) at page 76. "(No body gives what
he does not have)". He further referred the court to the deeds
Registry Act and the Land Act No 37 of 1968 in particular Section 96
of the latter enactment which gives provision for a setting aside of
a wrong registration. The main thrust of Mr Fine's argument is that
the original transferor (first respondent) had no right to transfer
the property to the transferee (first respondent). That it would be
argued by the first respondent that he was a bona fide purchaser. Mr
Fine argued that cannot wash because the first respondent had been
advised as to the position as regards the property prior to him
taking transfer. The first respondent acted malafides in securing
transfer of the property into his name because his legal
representatives were fully appraised of the position regarding the
second respondent's lack of capacity to transfer the said property.
Mr Fine argued that there has been a substantial injustice to the
applicant because the manner in which the first and the second
respondent conducted themselves amounts to fraud.
Khumalo for the first and third respondents. The position adopted by
Mr Khumalo is that the sale in execution by the Deputy Sheriff to the
applicant was not in conformity with Section 46 (2) of the High Court
Rules which govern sales in execution. In this instant case the
Deputy Sheriff who conducted the auction sale is that of Manzini as
evidenced by the return of service filed of record at page 64 of the
book of pleadings. That the said Deputy Sheriff who effected the
attachment is one Mrs Antonio Herpes and according to law she had no
power to effect the attachment let alone to conduct a sale in
execution. He argued further that it appears that the said Deputy
Sheriff was also appointed for the Lubombo Region. The attachment
must be treated as a nullity as the Deputy Sheriff acted ultre vires
her powers in contravention of the provisions of the Sheriffs Act.
Khumalo referred the court to the case of Joosua vs JHK (S.A.) (PTY)
Ltd Construction 1992 (2\ S.A. 658 at page 679 (para-b-c) and that of
Bank and others 1996 (3)S.A. 814 at page 821 to the proposition that
Rule 46 (3) was not compiled with in the present case and thus making
the resultant auction sale to the applicant a nullity. Because there
was failure in complying with Rule 46 of the High Court Rules. The
applicant did not acquire any personal right pursuant to the sale.
The second respondent was perfectly entitled to transfer the property
as an owner of the property.
concluding his arguments he argued the court to dismiss this
application with costs.
Maziya for the second respondent aligned himself with the arguments
advanced by Mr Khumalo.
second respondent in fact had filed a notice to raise a point of law.
In his notice he alleges as follows:
application before court is fatally flawed and misconceived in that:
attachment of the subject property ex facie, the papers was not in
Rule 46 (2) of the rules of this court.
auction sale ex facie, the papers was not conducted by a Deputy
Sheriff as envisaged by section 4 (1) of the Sheriffs Act No. 17 of
1902 as read with Rule 46 (4) and 11 of the Rules of the court in as
much as there is nothing to show that the Acting Deputy Sheriff had
been authorised to conduct an auction sale in the Manzini District.
reply on points of law Mr Fine pointed out that the respondent who is
represented by Mr Khumalo in an affidavit by Titus Mlangeni who was
the third respondent in this transaction stated under oath at
paragraph 6 of page 61 of the book of pleadings as follows:
attachment of the property was lawful by virtue of the fact that it
was in terms of clause 9 of the mortgage bond (page 38 of the
applicant's affidavit). I annex the Deputy Sheriff's return on
attachment marked "3rI".
Fine's point is that Mr Khumalo for the third respondent cannot now
blow hot and cold and attack the attachment in the face of his
clients clear admission under oath. He urged the court to throw out
this argument. Mr Fine further argued vigorously that both Mr Khumalo
and Mr Maziya introduced new matters a day before the matter came for
arguments. The court has observed that the notice to raise a point of
law has the Registrar's stamp dated the 21st August 1997 and the
matter was urged in court on the 22nd August, 1997.
Fine argued that these points were only advanced after the close of
pleadings and thus putting his client at a disadvantage in that he
was not given time to prepare and respond to these new matters.
argued the court to decide the case on the papers before it and
should be loathe to go outside the perimeters of the pleadings,
moreso pleadings had been closed. The parties had ample time to
canvas these issues in their opposing affidavits.
are the issues before me as I have mentioned earlier on in this
judgement this case is characterised by a maze of complex facts which
tend to cloud the real issues involved.
is clear from the arguments by the legal representatives of the
first, second and third respondent they did not challenge the able
arguments by Mr Fine as to the sequence of events in this case. Their
only problem is that the attachment was not in accordance with
Section 46 of the High Court Rules and thus the purported sale to the
applicant was a nullity. With respect to Mr Khumalo, it is my view,
that this cannot be the case when one looks at the damaging admission
which was unsolicited by Titus Mlangeni who was at the material time
was representing the third respondent in this very transaction. He
stated clearly at paragraph 6 of his affidavit which I have referred
to earlier that the attachment was in law proper. Mr Khumalo cannot
stand before this court and contradict his own client on a material
point made under oath during the flow of pleadings. He waits until
the close of the pleadings to bring a surprise on the applicant. This
cannot allow such double dealing, surely one version has to stand.
The court is inclined to accept the version which was made under oath
by the self-same respondent represented by Mr Khumalo. I do not see
why these points were not fully canvased during pleadings and only
spring up as a surprise after the pleadings were closed. For this
reason I throw out this argument by Mr Khumalo and I am not going to
bother myself in looking at the issue further. As for the second
respondent represented by Mr Maziya the same applies. I will also go
further in his case and refer to page 22 of the book of pleadings
which is an answer to their second point that "....there is
nothing to show that the Acting Deputy Sheriff had been authorised by
the Sheriff to conduct the auction sale in the Manzini District".
The Sheriff of Swaziland at that time a certain Mr J.P. Annadale
caused a notice to be published in one of the local newspapers and in
the Government Gazette in terms of the law a notice of sale of the
subject property. In that notice he states inter alia as follows.
is hereby given that pursuant to a writ of execution issued in the
above matter, the undermentioned property will be sold by public
Auction by the Acting Deputy Sheriff for the District of
is not disputed that the said Acting Deputy Sheriff of Manzini
mentioned in this notice is Mrs Antonio Herpes who subsequently
conducted the sale pursuant to this notice. The second respondent
point of law raised falls on its face in view of this notice by the
Sheriff of Swaziland.
the reasons I have advanced above I rule that the applicant has made
a case and he is entitled to the order he seeks. I grant the order in
terms of prayers 1,2,3 and 4 and will address the 5th prayer for
AS TO COSTS
applicant had applied that the first, second and third respondents be
ordered to pay his costs on an attorney and own client scale and the
fourth and fifth respondent be ordered to pay costs only in the event
of their opposing the application.
will then deal with the fourth and fifth respondents and make no
order for costs in respect of them as they have not opposed the
will then proceed to the third respondent to me it appears from the
facts of the case that the third respondent represented my Mr Titus
Mlangeni tried all means to avoid this rather unpleasant suit by
writing a barrage of letters to the parties involved to come to an
amicable solution to this problem. I am not going to order costs in
respect of the third respondent in view of what I have just outlined.
I will jump to the first respondent and will give him the benefit of
the doubt that at the
time he did not know of the sale execution. I am not going to order
for costs in respect of him.
I come to the second respondent who presented a different problem.
From the facts before me his actions borders on fraud as Mr Fine
rightly pointed out. In our law grounds upon which the court may
order a party to pay his opponent's attorney and client costs include
the following: He has been guilty of dishonestly of fraud or that his
motives have been vexations, reckless and malicious or frivorous or
that he has misconducted himself gravely either in the transaction
under inquiry or in the conduct of the case (see Herbtein and Van
Winsen 'The Civil Practice of the Superior Courts in South Africa"
(3rd) at page 487 and also the case of Van Dyk Vs Conradie 1963 (2)
South Africa 413 (c)).
in the present case the second respondent misconducted himself
gravely in the transaction under inquiry. For this reason I rule that
he pays costs at attorney and client's scale.