THE
HIGH COURT OF SWAZILAND
CIVIL
CASE NO. 1768/02
In
the matter between:
ELMON
MASILELA Applicant
AND
WRENNING
INVESTMENT (PTY) LTD 1st Respondent
THOMAS
MOORE CARL KIRK 2nd Respondent
CORAM: MASUKU
J.
For
Applicant: Mr W.E. Mkhatshwa
For
Respondents: Advocate P.E. Flynn (Instructed by
Robinson
Bertram)
JUDGEMENT
5th
August 2002
This
is an application which was initially filed as one of urgency in
which the following relief was sought: -
1. Dispensing
with the usual forms and procedures relating to the institution of
proceedings and permitting this application to be heard as one of
urgency.
2. Directing
and authorising the Deputy Sheriff for the District of Lubombo to
forthwith eject the First and/or Second Respondents from the butchery
business premises situate at Lomahasha in the District of Lubombo,
and all such persons
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holding
title thereunder, and to restore to the Applicant, vacant occupation
of the said premises.
3. Directing
and authorising the Deputy Sheriff for the District of Lubombo to
employ all lawful means in the performance of his duties in giving
effect to an order in terms of 2 herein before.
4. Directing
the Respondents to pay the costs of this application, jointly and
severally, the one paying the other to be absolved.
5. Granting
the Applicant such further and/or alternative relief as to this
Honourable Court may seem meet.
I
need only mention that in proceedings where ejectment is sought, the
premises must be fully described in the Notice of Motion with such
particularity that the Deputy Sheriff will know the exact location.
If it is situate in Swazi Nation Land, the place where it is situate,
together with the style of the business should be included. Deficient
descriptions like those in prayer 2 will not do.
The
Applicant claims in his Founding Affidavit that he is the landlord
through ownership by Khonta rights under Swazi law and custom of the
undescribed premises in Lomahasha. He let these premises to Yulnick
(Pty) Ltd and has attached the copy of a lease agreement marked "A"
in that regard. He contends further that the tenancy of the said
premises was later ceded to the 1st Respondent by operation of a sale
of business agreement, a copy of which was annexed to the papers and
marked "B". The Applicant alleges further that he
thereafter did not enter into any lease agreement with the 1st
Respondent save and except to allow it to remain in occupation of the
premises as a monthly tenant in or about March 2001. In terms of this
tenancy, the 1st Respondent was to pay rental in the sum of El,
000.00 monthly.
The
Applicant alleges further that 1st Respondent remained in occupation
on the aforesaid terms until January 2002, when it ceased to conduct
any business on the premises, but remained in occupation. In February
2002, Mr Magalela Maphalala, representing the 1st Respondent,
introduced the Applicant to Mr Ray Douglas Fanourakis as a potential
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purchaser
of the butchery business in question. This arrangement culminated in
the drawing up and signature of annexure "C" being the copy
of a lease agreement between the Applicant and Fanourakis. The
Applicant contends that he is now unable to deliver the premises to
Fanourakis because the 1st Respondent has refused to restore the keys
of the premises to the Applicant. Furthermore, he is prejudiced in
that he derives no benefit from the 1st Respondent's continued
occupation of the premises since January 2002.
It
would appear that at some stage, the Applicant in a bid to eject the
1st Respondent, removed the 1st Respondent's locks and replaced them
with his own. This led to an application for a mandement van spolie
by the 2nd Respondent, who claims that he had purchased the business
as a going concern from the 1st Respondent and was therefor entitled
to remain in occupation of the premises.
The
Respondents, in opposition filed comprehensive affidavits, which in
part raised a point in limine, namely that the Applicant has adopted
a wrong procedure in seeking relief by motion proceedings when, to
his knowledge, there are serious and substantial disputes of fact.
The
question whether there are real and substantial disputes of fact is
the subject of this Ruling, together with a directive as to the
course the proceedings should assume henceforth.
Mr
Flynn argued that the following constituted serious disputes of fact
and which would require the aid of oral evidence for resolution:-
(i) that
it is clear on a reading of the Applicant's papers that there is a
dispute regarding the Applicant's entitlement to have access to the
premises in view of the allegations by the 2nd Respondent which saw
the Court granting the latter relief in terms of the mandament van
spolie when the Applicant resorted to self-help in order to remove
the 2nd Respondent from the premises;
(ii) there
is a dispute regarding the Applicant's allegation that the 2nd
Respondent has no lease agreement with the 2nd Respondent.
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(iii) whether
the Applicant cancelled the agreement entered into with the 1st and
now 2nd Respondent. If so, whether that cancellation was lawful.
In
the course of reading the full set of papers, I also discovered
certain disputes of fact as follows:-
(a) whether
the 1st and/or 2nd Respondents were in breach of the lease agreement,
in view of their assertion in paragraph 12 of the Answering Affidavit
that they were up to date with the rentals of the premises, and
whether the 1st Respondent continued paying rental after ceasing to
conduct business;
(b) whether
there was an oral agreement between the 1st Respondent and the
Applicant after the business was purchased by the former from Yulnick
(Pty) Ltd. If so, what the status of the agreement is at present;
© whether
the Applicant sold the business operation, including the lease
agreement with its option to the 2nd Respondent in terms of a deed of
sale marked "MP1". If so, the effect thereof.
All
these in my view constitute disputes of fact and law, which clearly
cannot be resolved without recourse to oral evidence.
In
ROOMHIRE CO. (PTY) LTD VS JEPPE STREET MANSIONS (PTY) LTD 1949 (3) SA
1155 (T.P.D) at 1162, Murrary A.J.P. stated the following:-
"It
is obvious that a claimant who elects to proceed by motion runs the
risk that a dispute of fact may be shown to exist. In that event (as
indicated infra) the Court has a discretion as to the future course
of the proceedings. If it does not consider the case such that the
dispute of fact can properly be determined by calling viva voce
evidence under Rule 9, the parties may be sent to trial in the
ordinary way, either on the affidavits as constituting the pleadings,
or with a direction that pleadings be filed. Or the application may
even be dismissed with costs, particularly when the applicant should
have realised when launching his
5
application
that a serious dispute of fact was bound to develop. It is certainly
not proper that an applicant should commence proceedings by motion
with knowledge of the probability of a protracted enquiry into
disputed facts not capable of easy ascertainment, but in the hope of
inducing the Court to apply Rule 9 to what is essentially the subject
of an ordinary trial action."
The
above excerpt is accurately reflective of the provisions of Rule 6
(17) and (18) of Rules of Court as amended. Contrary to Mr
Mkhatshwa's contentions, it is my view that there are serious
disputes of fact in casu. I may mention that Mr Mkhatshwa informed
the Court that the other proceedings referred to in the papers have
been finalised in his client's favour by the Chief Justice. That may
be so but the copy of the relevant judgement was not placed before me
to consider the effect, if any, that it has on the disputes of fact
presently before me. Whatever its scope and effect, it is my view
that it does not serve to resolve the numerous disputes of fact
outlined above. Practitioners who make reference to judgement or
orders of Court must place them before Court for consideration. It is
not the duty of the Judge to run helter - skelter searching for
orders or judgements referred to in Court and whose effect, identity
and location is not easily ascertainable.
The
only question is how the discretion of the Court ought to be
exercised in the premises. Mr Flynn urged this Court to dismiss the
application with costs. My view is that it would be proper to adopt
the course urged by Mr Flynn where it is shown that notwithstanding
knowledge or a realisation that a dispute was bound to arise, the
Applicant persisted in motion proceedings.
It
is my view that this is a proper case for the dismissal of the
Application as from the previous relationship and dealings between
the parties, as evidenced in part by previous litigation and disputed
oral, written agreements of sale and lease, it was evident that any
attempt to eject the Respondents would inevitably be opposed, raising
serious disputes of fact and questions of law in the process. I note
adversely to the Applicant that notwithstanding the realisation that
serious disputes would inevitably arise, he chose to launch these
proceedings, not only on motion but under a certificate of urgency,
in which case the time limits afforded Respondents to fully place
their case before Court is greatly curtailed.
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In
GARMENT WORKERS UNION VS DE VRIES AND OTHERS 1949 (1) SA 1110
(W)
at 1133, Price J. made lapidary observations which practitioners in
this Court would do well to consider and strictly adhere to. The
learned Judge stated the following:-
"It
is becoming a habit to bring applications to Court on controversial
issues and then to endeavour to turn them into trial actions.
Applicants thereby obtain a great advantage over litigants who have
proceeded by way of action and who may have to wait for many months
to get their cases before the Court. Such applications -cum-trials
interpose themselves, occupying the time of Judges and still further
delaying the hearing of legitimate trials. Applications for the
hearing of viva voce evidence in motion proceedings should be granted
only where it is essential in the interests of justice."
See
also SELOABI AND OTHERS VS SUN INTERNATIONAL (BOPHUTHATSWANA) LTD
1993 (2) SA 174 (BGD) and MAGAGULA VS TOWN COUNCIL OF MANZINI AND
OTHERS 1979 - 81 SLR 291 at 293 (per Nathan C.J.).
In
view of the foregoing, the proper order would be that the application
be and is hereby dismissed with costs.
T.S.
MASUKU
JUDGE
