THE
HIGH COURT OF SWAZILAND
CIV.
CASE NO. 557/99
In
the matter between
SWAZILAND
DEVELOPMENT & SAVINGS
BANK APPLICANT
And
ABRAHAM
MUSA MKHALIPHI RESPONDENT
Coram S.B.
MAPHALALA- J
For
the Applicant MR. THWALA
For
the Respondent MR. JELE
RULING
ON POINTS IN LIMINE
(07/03/2002)
Before
me is an application brought with a certificate of urgency for an
order inter alia interdicting the 3rd respondent from proceeding with
the transfer of Farm 324 Mhlosheni to the name of the 1st respondent
alternatively in the event that such transfer has already been
effected, the third respondent be ordered and directed to expunge
from the records in the Deeds registry all entries relating to the
Deed of Transfer. That the first respondent be interdicted from
alienating and/or encumbering the said Farm pending the finalisation
of the application pending before court.
The
application is founded on the affidavit of Abraham Musa Mkhaliphi who
is the executor dative of the estate of the late Stanley Vusumuzi
Dlamini. The first
2
respondent
opposes this application and has filed a preliminary answering
affidavit of one Elias Darlington Masuku who is the Senior Manager
Recoveries of the 1st respondent. A number of points in limine are
raised therein and these are the subject-matter of the present
judgment. Mr. Dlamini from the Attorney General who is representing
the 3rd respondent informed the court that they are not opposing the
application and undertook not to proceed with the transfer until the
present application has been disposed of.
After
due consideration of the facts and the submissions before me, it
would appear to me that in view of the undertaking made by the 3rd
respondent not to proceed with the transfer of this property further
determination of this application is merely an exercise in futility.
This I say because of the main application which is still pending
before court and is properly enrolled. The substantive relief in that
matter is that the sale in execution of Farm 324 be set aside and
this goes to the root of the dispute between the parties.
The
logical thing to do by the applicant in the circumstances is to
withdraw the present application and that the parties proceed with
the main application as the applicant's apprehensions have been
allayed by the undertaking made by the 3rd respondent who is not to
proceed with the transfer until the dispute between the parties has
been finally resolved.
In
the result, for these reasons I hold the view that applicant is to
withdraw the present application and proceed with the main
application for the setting aside of the sale in execution.
That
costs be costs in the main application.
S.B.
MAPHALALA
JUDGE
