SWAZILAND
HIGH COURT
SWAZILAND
GOVERNMENT
Plaintiff
MAZIYA
Leo
1st
Defendant
LEO
INVESTMENT (PTY) LIMITED
2nd
Defendant
Civ.
Trial No. 550/2002
Coram Sapire,
CJ
For
Plaintiff
For
Defendant Mr. P.M. Shilubane
JUDGMENT
(19/07/2002)
The
plaintiff is the Government of Swaziland and claims payment from both
defendants jointly and severally of an amount of E86 983.68 which is
said to be the sum total of rental overpayments made by the Plaintiff
to the Defendants who are alleged to have wrongfully collected these
amounts from the plaintiff.
The
particulars of claim attached to plaintiff's summons must first be
examined. Paragraph 1 is the citation of the Plaintiff and does not
require comment. Paragraph 2 is the citation of the 1st Defendant who
is an individual; alleged to be
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"carrying
on business as Leo Investments (Pty) Ltd". This is inaccurate.
In so far as it may be proper or necessary to describe him by
reference to his relationship to the 2nd Defendant he may be said to
be a shareholder and/or a director of that company
as
the case may be.
It
is also inaccurate when describing the 2nd Defendant to allege that
the 1st Defendant owns it. The 1st Defendant may own some or all of
the shares in the 2nd Defendant, but this fact is not relevant to the
citation.
The
allegation in paragraph 14 that the "defendants" at all
material times owned the property identified as Portion 7 of Farm 180
Lubombo District is confusing unless it is intended to allege that
the property was owned by them jointly in co-ownership. This would
not appear to be the case. Again it is inaccurate and confusing to
allege that the defendants were the lessors in terms of the three
agreements that are annexed AG1, AG2 and AG3. In each case as can be
seen on perusing the documents, the lessor is 1st Defendant alone.
From this it follows that it is only the 1st Defendant who would have
received any rentals from the plaintiff and it is difficult to see on
these basis how the plaintiff can claim any money from the 2nd
defendant which is the owner of the property. The plaintiff's
persistent failure to recognise the 1st and 2nd defendants as
separate and distinct legal personae, apart from each other, gives
rise to further inaccuracies and confusion.
Not
of inconsiderable importance is the claim that both defendants
jointly cannot be supported by the allegations in the particulars of
claim.
The
difficulties with the particulars of claim does not end there.
The
essence of plaintiff's claim is that it paid rentals, presumably to
the first respondent who was the lessor, after the plaintiff had
become owner of the properties to which the leases relate. It would
seem from the summons and the particulars which had been attached
thereto that the plaintiff claims to have become owner of the
property by virtue of an expropriation. In support of this allegation
certain annexures have been attached and it is quite clear that
annexures attached do not relate to an expropriation at all. The
notification, which was given to the defendants or either of them,
was of the intention of the Government to use a portion of the
properties for road making purposes. This in itself is not an
expropriation. An expropriation does not take place under that act
which deals with roads and an expropriation under the
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expropriation
act has to be alleged and proved before the ownership can be said to
have been transferred. This in essence is the exception that has been
taken and in considering it in relation to the summons as a whole the
exception must be upheld. Accordingly the exception is upheld with
costs and the plaintiff is given a period of 14 days from today
within which to amend its summons otherwise the case will be
dismissed.
SAPIRE,
CJ
