IN
THE HIGH COURT OF SWAZILAND
CIVIL
CASE NO.259/98
In
the matter between:
LEO
WILSON MCABANGO MAZIYA PLAINTIFF
and
RHINO
HOLDINGS (PTY) LTD RESPONDENT
CORAM: MATSEBULA
J
FOR
THE PLAINTIFF: MR MANZINI
FOR
THE RESPONDENT: MR VBLAKAZI
JUDGMENT
ON APPLICATION FOR SUMMARY JUDGEMENT
The
Applicant moved a notice of motion on 4th February 1998 under a
certificate of urgency for the following prayers:
1. That
a rule nisi does hereby issue calling upon the Respondent to show
cause on a date
to
be fixed by the court, why:-
1.1 the
Sheriff of Swaziland or his lawful deputy for the Manzini Region or
any other authorised person should not be directed and authorised to
attach any movable goods found on Lots 217 and 218, Matsapha Town
pending the finalisation of an
action
to be instituted By the Applicant against the Respondent for:-
(a) Cancellation
of the lease agreement between Applicant and the Respondent.
(b) Ejectment
of the Respondent from Lots 217 and 218 Matsapha Town.
© Costs
of suit.
The
court ordered the Applicant on 6th February 1998 to file the papers
for the intended action and on 9th February 1998 the Applicant issued
summons with prayers similar to the ones in the application under the
certificate of urgency of the 6th February 1998. The Plaintiff in the
particulars of claim also annexed to the summons a copy of a written
lease of agreement marked 'A'.
1
The
Defendant filed a notice of intention to defend on 8th April 1998. On
the 8th May 1998 the Plaintiff moved for a summary judgement which
was resisted by the Defendant in his affidavits filed by the
respective parties and arguments were heard by this court on 19th
June 1998 and I reserved judgement on the matter.
Mr.
Manzini on behalf of the Applicant based his argument mainly on the
contents of annexure 'A' the memorandum of agreement of the lease.
Mr. Manzini referred the court to Clause 15 of the lease agreement
which provides in a part that if the tenant (Defendant) shall commit
a breach of any stipulation or condition of the lease, the landlord
(Plaintiff) shall be entitled, notwithstanding any previous or
existing waiver of any right of entry forthwith to declare this lease
cancelled and terminated. Mr. Manzini asked the court to grant the
prayers sought by the Plaintiff based on this provision. The
difficulty I have encountered with this contention is that Plaintiff
entered into this lease agreement which has many flaws, for instance
clause 16. This clause deals with procedure to be followed in the
event notices to the respective parties are given but fails to give
the necessary address in respect of clause 17 as to where the
landlord is to be traced.
Clause
two is worded in such a way that there
ought
to have been some written instruments indicating the people to whom
payment by the Defendant may be made. Indeed the Defendant made
payments to various persons as mentioned in paragraphs 8 and 9 of its
affidavit and states that the Liquor Distributors are keeping with
them an amount of E20,000.00 which should be accounted for. If this
is the true then the total amount paid by Defendant to date is far in
excess of the E55,000.00 claimed by the Plaintiff.
The
summary judgement being an extra-ordinary remedy at the disposal of
the Plaintiff the Plaintiff should present an unanswerable and
unarguable case before the court can grant summary judgement. Summary
judgement is refused with costs.
J.M.
MATSEBULA
JUDGE
2
