THE
HIGH COURT OF SWAZILAND
CIVIL
CASE # 2309/01
In
the matter between:
MPHEZENI
VILAKATI Applicant
And
CYPRIAN
GULE 1st Respondent
DEPUTY
SHERIFF, LUBOMBO DISTRICT 2nd Respondent
In
re:
CYPRIAN
GULE Plaintiff
And
MPHEZENI
VILAKATI Defendant
CORAM: MASUKU
J.
For
the Applicant: Mr S. Bhembe
For
the 1st Respondent: Mr L. Howe
For
the 2nd Respondent: No appearance
JUDGEMENT
10th
May 2002
In
this application, which was initially filed under a Certificate of
Urgency, the Applicant prays for an Order in the following terms:-
(a) Dispensing
with the normal forms of service and normal time limits as provided
by the Rules of this Honourable Court and having this matter heard as
one of urgency.
2
(b) Directing
the 1st Respondent and 2nd Respondent to release back to Applicant
the fourteen (14) herd of cattle attached by the 2nd Respondent on
the 6th December 2001, forthwith on being served with an Order of
Court.
© Directing
1st Respondent and 2nd Respondent to pay costs on the Attorney-Client
scale jointly and severally one paying the other to be absolved.
(d) Granting
Applicant any further and/or alternative relief.
The
Respondents oppose the grant of the above relief and have in that
regard, filed their papers. The history of this matter may be
summarised as follows:- The 1st Respondent sued out a Combined
Summons against the Applicant, claiming the delivery of three (3)
herd of cattle, failing which, the payment of an amount of E 8
850.00, interests and costs. Judgement by default was entered against
the Applicant on the 12th October 2001, whereafter the process of
execution was initiated, culminating in the 2nd Respondent attaching
the fourteen (14) herd of cattle referred to in the Notice of Motion
above.
The
Applicant thereafter filed an urgent application dated 12th December,
2001 in which it sought an Order rescinding the default judgement
referred to above, interdicting the 2nd Respondent from disposing the
aforesaid herd of cattle which by this time had been laid under
attachment, pending finalisation of the matter; granting leave to the
Applicant to defend the main claim. The matter was postponed on a few
occasions thereafter.
The
matter then served before the learned Chief Justice, who on the 22nd
February 2002 endorsed and granted a consent Order in the following
terms; -
(a) The
order of the 12th October, 2001 entered in favour of 1st Respondent
which was judgement by default be rescinded.
(b) The
Second Respondent is interdicted and restrained from selling or
disposing of the fourteen (14) herd of cattle attached on the 6th day
of December 2001, pending finalisation of this matter.
3
The
Applicant in his papers alleges that after this consent Order, there
was "another understanding between my Attorney and that of the
1st Respondent that the fourteen (14) herd of cattle would revert
back to me pending finalisation of the main action". He further
deposes to the fact that his present attorney further told him, and
this is confirmed by the Attorney's affidavit, that the 2nd
Respondent had "given" the aforesaid cattle to the 1st
Respondent. The Applicant reasons that the cattle belong to him and
that he is, in view of the consent order, entitled to keep the same
and harbours reasonable fears that the 1st Respondent is likely to
dispose of the same to the Applicant's prejudice. He further alleges
that it is unlawful for the 1st Respondent to hand over the cattle to
an interested party in the proceedings.
The
1st Respondent's case is as follows - that there was no other
understanding between the parties save the consent Order dated 22nd
February, 2002 and in view of that fact, the cattle should remain
with the 1st Respondent pending the finalisation of the main action.
It is now common cause between the parties that after the attachment
of the cattle by the 2nd Respondent, she kept the same under
attachment in the 1st Respondent's farm. This is also confirmed by
the Notice of Attachment filed by the 2nd Respondent dated 6th
December 2001. It is accompanied by a full report of the events
surrounding the said attachment.
It
would appear to me that the full answer to the Applicant's claim is
to be found in the Order dated 22nd February, 2002 in terms of which
both parties agreed that the initial Order for default judgement be
rescinded and that the 2nd Respondent be interdicted from disposing
of alienating the said property whilst the action remained pending.
That being the case, the Applicant cannot now demand the release of
the cattle as the action is still pending and the said cattle remain
under attachment by Order of Court made pursuant to an agreement of
the parties.
If
the Applicant is for any reason unhappy with the aforesaid consent
Order, he should apply to Court for the same to varied and also
advance cogent reasons therefor. I will add that the Applicant's
papers are misleading in the sense that they create a misapprehension
that the 2nd Respondent decided, after the setting aside rescission
of the default judgement, to "give" the cattle the 1st
Respondent, whereas it is common cause that the 2nd Respondent
immediately after attaching the aforesaid cattle, caused the same to
be removed and kept at some convenient place of security, namely, the
1st Respondent's farm.
4
By
so doing, it does not mean that ownership of the cattle has been
passed by the 2nd Respondent to the 1st Respondent as prayer (b) of
the consent Order still obtains. Mr Bhembe has failed to refer the
Court to any authority which precludes the Deputy Sheriff from
keeping the attached property with an interested party. I say this
cognisant that in terms of Rule 45 (6), the property, after being
laid under attachment, may be left by the Deputy Sheriff in the
premises where it was attached and inventoried and this may include
the Judgement Debtor's premises. It is clear that a Judgement Debtor
is an interested party in proceedings. Mr Bhembe's contention cannot
in view of the foregoing stand.
There
is nothing to indicate that the property is no longer under
attachment and keeping the property at 2nd Respondent's farm does not
per se demonstrate that the attachment has been lifted. The Applicant
may justifiably find it unfair or even unjust for the cattle to be
left in the 1st Respondent's farm but he should understand that the
attachment still obtains and that there is not a whit to suggest
impropriety on the 2nd Respondent's part in keeping the cattle in the
said farm nor can abuse of the 2nd Respondent's discretion be
inferred therefrom.
The
Applicant's remedy is to apply for a variation of the said Order, in
order to formally record the "understanding" or to furnish
sufficient security for the amount claimed as will satisfy the 2nd
Respondent. It is however clear from the papers that the first avenue
will be strongly opposed by the 1st Respondent. After the success of
one of the above variables may the attachment be lifted and custody
of the cattle be granted to him. Nothing short of the foregoing will
suffice. The parties entered a consent Order which remains effective
and its terms or effect may not be altered or negated by an
unrecorded and disputed "understanding" which runs contrary
to the consent Order endorsed by this Court.
In
view of the foregoing, the application be and is hereby dismissed
with costs on the ordinary scale.
T.S.
MASUKU
JUDGE
