THE
HIGH COURT OF SWAZILAND
CIVIL
CASE NO.2723/02
In
the matter between:
PRECISION
(PTY) LIMITED 1st Applicant
HERBERT
VILANE 2nd Applicant
And
MARTIN
AKKER 1st Respondent
AUTOMOTIVE
& GENERAL MACHINE TOOL 2nd Respondent
CORAM: MASUKU
J.
For
Applicant: Mr L.R. Mamba
For
respondents: Mr B. Magagula
JUDGEMENT
25th
October 2002
This
is an application filed as one of urgency and in which the following
relief is sought: -
a. Dispensing
with the ordinary forms and time limits for service and hearing this
matter urgently.
b. Directing
and ordering the first respondent to deliver to the applicant
forthwith a motor described as VW Caravelle 2.5 1992 model, white in
colour registration
No.
NV 2135.
c. Interdicting
and restraining the first respondent from entering the business
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premises
of the first applicant for the purpose of executing any writs or
serving and process not connected with the first applicant or its
employees.
d. Awarding
costs against the first respondent on a scale as between attorney and
own client.
The
matter arises from an attachment of the motor vehicle described
hereinabove by the 1st Respondent in execution of a judgement in
favour of the 2nd Respondent and which judgement had been granted
against an entity called Embalenhle Motor (Pty) Ltd under case
No.2019/02. The 2nd Applicant claims that the vehicle was unlawfully
attached and belongs to him and not to Embalenhle (Pty) Ltd the
judgement debtor. He therefor seeks delivery of the said Motor
vehicle to him.
In
opposition to the relief sought the Respondents raised the following
points in limine and which are the subject of this judgement, namely:
-
(a) The
1st Applicant's Notice of Application is fatally defective in that it
does not comply with Rule 6 (10) of the Rules of Court (as amended);
(b) No
circumstances explicitly rendering the matter urgent have been
averred;
© Applicant
has failed to prove his ownership of the motor vehicle in question;
(d) The
Applicants have failed to file an interpleader notice;
(e) Whereas
the Applicants claim an interdict, their papers are fatally defective
because:
(i) it
has not been shown whether the interdict sought is temporal or final;
(ii) the
Applicant has failed to establish a clear right to the motor vehicle
in order to warrant the issuance of an interdict;
(iii) the
Applicants seek to interdict the 1st Respondent from carrying out his
duties as an officer of the Court to execute judgements of this
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Court.
(f) The
1st Applicant has filed no affidavit in support of its claim.
I
interpolate to state that at the commencement of the hearing, Mr
Magagula wisely decided not to pursue the issue relating to urgency,
appearing as (b) above. It now behoves me to make a ruling on the
above points.
(a) Non-compliance
with Rule 6 (10)
Rule
6(10) reads as follows: -
"In
such notice, the applicant shall appoint an address within five
kilometres of the office of the Registrar at which he will accept
notice and service of all documents in such proceedings and shall set
forth a day not less than five days after service thereof on the
Respondent is required to notify the Applicant in writing whether he
intends to oppose such application, and shall further state that if
no such notification is given, the application will be set down for
hearing on a stated day, not being less than seven days after service
on the Respondent of the Notice. "
The
non-compliance therewith alleged is that whereas the said sub-Rule
peremptorily requires an Applicant to appoint an address within five
kilometres within the seat of Registrar of this Court, no such
address was furnished in respect of the 1st Applicant. The Notice of
motion indicates the address of L.R. Mamba and Associates as being
the address for the 2nd Applicant, there being no mention made of the
1st Applicant therein. In the Certificate of Urgency, Mr Mamba
described himself as the 1st Applicant's attorney, giving the same
address as that in the Notice of Motion.
Mr
Mamba attributed the omission to insert the 1st Applicant to a
typographical error. I accept this explanation as it is clear from
the papers that Mr Mamba represented both and if there was a doubt,
then the papers would have had to be served at the address furnished
and to which Mr Mamba would object if it was his argument that he
does not represent the Applicant concerned. In any event, I am not
persuaded that the Respondents have suffered
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any
prejudice as a result of the omission. The point taken does not
thereby under the 1st Applicant's Notice fatally defective.
It
appears to be highly fastidious and an extremely formalistic point.
By so saying, I do not condone the lack of clarity in Mr Mamba's
papers. Court papers drawn even in the most urgent of circumstances
must be carefully and consciensciously correctly drawn, admitting no
room for such rudimentary issues as the address of service. Such
careless and inelegantly drawn papers will draw criticism from the
Court. Having said so, it is clear that Mr Mamba represents both
Applicants and I will not accede therefor to adjudging the 1st
Applicant's notice fatally defective. This point of law is not
upheld. I should however, in considering the formalistic nature of
this point to adhere to remakes in GEORGE SOPHOCLEOUS VS SAM
SOPHOCLEOUS C.V. APPEAL NO.14/2001 (unreported) where Leon J.P.
stated the following regarding the Rules of Court at page 7:-
"Rules
of Court, important as they are should not be regarded as if they are
the Ten Commandments. Indeed it has been held that Rules of Court
should be Interpreted so as to provide for the expeditious
disposition of litigation."
(b) Failure
to allege ownership of the vehicle in question.
In
paragraph 4 of the founding Affidavit, the 2nd Applicant states the
following; -
"I
am the owner of a certain motor vehicle described as a VW Caravelle
2.5 1992 model, white in colour."
At
paragraph 7, he proceeds to state as follows: -
"The
said vehicle was purchased by me in my personal capacity from a
garage in Vryheid in South Africa during 2001. The registration
documents of the vehicle are presently in the motor vehicle and I am
unable to state the name in which the vehicle is registered."
(my emphasis)
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In
response to paragraph 4, the 2nd Respondents Director, who deposed to
the Answering Affidavit records that the contents of that paragraph,
amongst others is not in dispute. In response to paragraph 7, quoted
above, the following appears:-
"I
do not know the history of how the motor vehicle was purchased and
came to be owned by Mr Vilane, what I know is that he tendered it to
be attached by the Deputy Sheriff to satisfy a judgement obtained
under Case No.2019/2002. The rest of the contents of this paragraph
are unknown to me. "
The
1st Respondent did not respond to paragraph 4 but could neither
confirm nor deny the contents of paragraph 7 because they were
unknown to him. He however denied that the registration papers of the
motor vehicle are inside it as alleged by the 2nd Applicant.
According to the 1st Respondent, the 2nd Applicant took those
documents away from the vehicle.
The
main point of contention in this matter revolves around whether the
motor vehicle was properly attached or surrendered as alleged. The
question is not whether or not the 2nd Applicant is the owner. From
the papers filed by the Respondents, there is an admission that the
2nd Applicant is the owner and this I have shown above. In any case,
it is clear from the evidence that the Applicants claim of ownership
is not contested and there is no other person, asserting ownership to
the motor vehicle. It is in any event clear that Vilane was in
possession of the vehicle before attachment. Registration of a motor
vehicle in a person's name must not always be equated with ownership
and is not synonymous therewith. A registered person may not be an
owner of a motor vehicle. This point must in my view fail.
© Failure
to file an Interpleader Notice
Interpleader
Notices are governed by the provisions of Rule 58, the contents of
which I do not propose to quote. Erasmus, in his work entitled
"Superior Court Practice," Juta 1995 had this to say about
the Interpleader at B1-399: -
"Interpleader
is a form of procedure whereby a person in possession of property not
his own (e.g. stakeholder or other custodian of property to which he
lays no
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claim
in his own right which is claimed from him by two or more other
persons, is enabled to call upon the rival claimants to such property
to appear before Court in order that the right to such property, as
between the rival claimants, may be determined without putting the
holder of the property to the trouble and expense of an action or
actions.
In
our Rule 58, to which the foregoing fully applies, reference is made
to persons with "adverse claims". In casu, there are no
persons other than the 1st Applicant who claim ownership of the
property in question. It is clear that the person who issues the said
Notice is the one in possession of the disputed property and in
respect of which adverse claims are or likely to be made. In casu,
the property is with the 1st Respondent and if it was necessary or
prudent to issue the Notice (i.e. if there were persons with rival
claims) then the 1st Respondent would, if appropriate issue the
Notice. This, neither of the Applicants can do because firstly, they
are not in possession of the vehicle and secondly, there are no
adverse claims in respect of that motor vehicle. This point was
raised as a result of a misunderstanding of the nature and purpose of
an interpleader. This point is liable to fail therefor.
(d) Failure
to make relevant allegation is support of interdict.
As
will be seen from the Notice of Motion quoted earlier above, prayer C
is for the grant of an interdict restraining the 1st Respondent from
entering the 1st Applicant's premises for the purpose of executing
any writs or serving process connected to the 1st Applicant or its
employees.
The
point taken by Mr Magagula is that in the application for an
interdict, the Applicant is enjoined to indicate whether the
interdict is interim or final. In this regard, he referred the Court
to page 43 of Prest, "Interlocutory Interdicts", 1st
Edition Juta CO. 1993. On perusal of the book, I was unable to find
anything in support of Mr Magagula's contention.
What
is however significant is that there is no affidavit filed by either
Applicant and on the basis of which the Court can grant an interdict.
The 1st Applicant, in whose favour it would appear this prayer was
made has filed no affidavit at all. The 2nd Applicant has also not
made sufficiently relevant allegations in this regard. It is in any
event doubtful whether 2nd
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Applicant
could lawfully file an affidavit on behalf of the 1st Applicant, a
legal persona in the absence of a resolution authorising the 1st
Applicant to move the application end the 2nd Applicant to depose to
the affidavit.
An
Applicant for an interdict, whether interlocutory or final must
satisfy the Court of certain relevant requirements. The basis upon
which the Court can do so is papers filed and facts alleged therein
and from which the Court can after argument by the Applicant's
counsel consider. This however does not mean that Counsel's argument
can take the place of affidavits. The necessary allegations in
support of an interdict must appear in the affidavits in the first
place. Where no such allegations are made in an affidavit, the Court
should not allow an attorney's eloquent and forceful submissions to
carry the day. This is what the Court is being requested to do and it
is a course that I am disinclined to follow.
There
is also a hidden pitfall in this prayer i.e. interdicting execution
in the 1st Applicant's premises connected to this matter. It would be
improper and unadvisable for this Court to grant this Order as it is
difficult to fully contemplate at present what may happen in the
future regarding this matter. This is moreso in view of the
Respondents' allegations that the machinery which formed the basis
for the judgement is in the 1st Applicant's premises and is being
used there. It would be hazardous for this Court to be seduced into
granting the Order as prayed in this regard. It is my view, regard
had to the foregoing that this point is to be upheld albeit for
different reasons from those raised by Mr Magagula.
I
have, in dealing with the question of interdict also addressed the
issue relating to the failure to file an affidavit by the 1st
Applicant.
I
order, in view of the foregoing that the matter proceeds to the
merits, save and except the issue of the interdict. Costs are
reserved for determination by the Court to hear the matter on the
merits.
T.S.MASUKU
JUDGE
