IN
THE HIGH COURT OF SWAZILAND
a:
Intercon
1
M
& F MARKETING (PTY) LTD
vs
INTERCON
CONSTRUCTION (PTY) LTD.
Case
No. 3493/97
Coram
S.W. Sapire
For
Applicant Mr. B. Simelane
For
Respondent Mr. P. Flynn
JUDGMENT
(16/12/97)
The
applicant has come to Court on application as a matter of urgency.
The material relief which it seeks is that it be allowed access to
its goods which are at warehouse no. 1 plot 494, Interpark, Matsapha
Industrial Sites.
The
circumstances giving rise to this application are described by one
Maziya in the finding affidavit.
Before
proceeding to deal with the application itself I again notice that in
te opening paragraph of the finding affidavit the deponent claims
that he is duly authorised to make this affidavit on behalf of the
applicant. I have repeatedly pointed out that no one requires
authority to make an affidavit. The making of an affidavit is a
personal action by the deponent in the same sense as the giving of
oral evidence in the witness box. As far as the applicant is
concerned the authority of its attorney to represent it has not been
charged.
The
applicant was the lessee of certain premises owned by the respondent.
The respondent has sued the applicant in the Magistrate Court at
Manzini for E20 100.00.
It
appears that default judgment was entered against the applicant for
the amount claimed together with an order for ejectment from the
property with costs. This judgment was however rescinded but it is
common course that the amount of arrear rental owing, the lease has
terminated and that the applicant has vacated the premises formerly
leased by it and the respondent as owner has been restored to
possession.
a:Intorcon
2
There
are on the premises a quantity of vehicles comprising raw materials,
sawing machine spare parts and finished products which the applicant
claims are more than two million Emalangeni in value.
I
find it a matter of some surprise that goods to this value would have
been attached in order to secure a claim of some E20 100.00. It is
not for this court on this application to enquire into or to deal
with this matter. I must accept that there is an attachment or
interdict in respect of all valuables in the premises.
The
relief sought by the applicant is access to its goods and property.
In effect the applicant is seeking an order requiring the respondent
to allow the applicant onto its property. It is not quite clear what
is meant by the word "access" but I assume in favour of the
applicant that what it wants to do is to go on to the property with a
potential buyer for the valuables in order to facilitate the
negotiations of a sale of all the goods.
The
fact that the goods are under attachment is not really relevant and
means only that the goods may not be removed from the premises which
were formerly leased until the arrear rentals are paid.
The
only defence the respondent has to this claim for the arrear rentals
is an alleged counterclaims for damages in an amount of E2 000
000.00. It is tried law that an illiquid claim may not be set off
against a liquidated claim. This being so the goods remain subject to
the landlord's hypothec to the extent of the arrear rental.
There
is however no proper valuation and description of the goods which are
under attachment and it does seem to me that if there is truth in
what the respondent says that it may claim release of all the goods
to the extent that the value thereof exceeds the amount of the
respondent's claim.
It
is clear however that the respondent has misconceived remedy in the
situation. In order to be granted an order allowing the respondent or
its representative access to the goods by necessary implication it
would be necessary for the respondent to have some right to go on to
the respondent's premises where the goods now are.
a
: Intercon
3
The
respondent has no right in law to come up to the premises
notwithstanding the fact that some of its goods may be there and the
respondent has no corresponding obligation to allow the applicant or
its representative to come on to the property. This being so the
order sought by the applicant cannot be made and accordingly the
application is dismissed with costs including fees of counsel which
are satisfied as necessary in terms of the rule.
S.W.
SAPIRE
ACTING
CHIEF
JUSTICE
