THE
HIGH COURT OF SWAZILAND
SHISELWENI
INVESTMENTS (PTY) LTD
VS
SWAZILAND
DEVELOPMENT & SAVINGS BANK
Cm
Trial No. 2391/96
Coram
SAPIRE, CJ
FOR
APPLICANT P.
M.
SHILUBANE
FOR
RESPONDENT MR. L. KHUMALO
JUDGMENT
(29/10/99)
The
applicant in this matter originally approached the court on notice of
motion to seek relief against respondent as follows:-
That
the judgment obtained by respondent against the applicant dated 24
January 1997 be rescinded alternatively varied as follows: "Payment
of the sum of E150 000.00"
That
the respondent render a detailed statement of the applicant's
account it has with respondent at its Nhlangano Branch from 5
February 1990 to date within 21 days.
Debatement
of the said account.
Payment
to applicant of whatever amount appears to be due to applicant upon
debatement of the account.
Costs
of suit in the event the respondent opposes this application.
Alternative
relief.
The
application was commenced by Notice of motion on the 12th July, 1999.
It was argued,and points in limine were raised. These points related
only to prayer 1 for rescission of judgment. Two of the points in
limine were upheld thus disposing of the relief claimed. But the
relief claimed under prayers 2 - 6 of the notice of motion were
however unaffected by this decision.
The
applicant then set the matter down again and in effect it now seeks
debatement of its account with the respondent.
It
appears that the applicant was formerly the owner of the property
which was sold through the joint efforts of the applicant and the
respondent to satisfy the debt owing by the applicant to the
respondent.
In
its replying affidavit the respondent has in fact purported to
account for the monies presently standing in the applicant's account
and claims that it has already accounted to the applicant's
attorneys. The account which is itemized in paragraph 19 of the
respondent's affidavit appearing at page 25 of the record reflects
that the respondent received E368 304.69 of which it appropriated
E320 466.16 extinguishing the applicant's indebtedness. Thereafter it
has charged a further amount of interest of E10 484.65 and yet a
further amount of E9 233.26 in respect of legal costs. After
deducting these two amounts a balance owing to the applicant of E28
120.62 remains.
In
the following paragraph the respondent states that it therefore
tenders to the applicant the amount of E28 120.62. Although the word
"tender" is used no cheque or cash has been offered to the
applicant. The tender is not complete in this respect. In fact it is
not a tender at all. The amount of E28 120.62 is clearly owing and
unpaid. There is however a no agreement in regard to the amount of
interest and legal costs to which I referred earlier. Debatement of
these two items is necessary.
I
therefore order.-
that
respondent pay the amount of E28 120.62 together with interest at
the same rate that it charged the applicant tempera mora to date of
payment.
that
the balance of the account be debated in the following manner:-
each
of the parties is to file an affidavit setting forth its
contentions in regard to the disputed items and
that
the matter will thereafter be set down for argument to determine
whether these amounts have been correctly debited to the
applicant's account.
Respondent
is to pay the costs up to this point, save as otherwise previously
ordered.
S.
W. SAPIRE,
CJ
