Elite Motors v Fakudze and Another, in Re: Fakudze v Live Motors (437/07) [2007] SZIC 128 (21 December 2007);

IN THE INDUSTRIAL COURT OF SWAZILAND

HELD AT MBABANE

CASE NO. 437/07

In the matter between:

ELITE MOTORS ….................................................................................................Applicant

and

MHLELI FAKUDZE …....................................................................................1^st Respondent

THE DEPUTY SHERIFF FOR MANZINI …..................................................2^nd Respondent

In re:

MHLELI FAKUDZE …............................................................................................Applicant

and

LIVE MOTORS …...............................................................................................Respondent

CORAM:

P. R. DUNSEITH : PRESIDENT

JOSIAH YENDE : MEMBER

NICHOLAS MANANA: MEMBER

FOR APPLICANT : NGCAM PHALALA

FOR RESPONDENT: MKOKO

JUDGEMENT-21/12/07

1. At commencement of arguments in this matter, the court struck certain hearsay evidence from paragraphs 7, 9 and 12 of the Respondent's answering affidavit. This left very little substantive content in the answering affidavit apart from bald admissions and denials.

2. The Applicant Elite Motors (Pty) Ltd has applied for an interdict restraining the Respondent from attaching property belonging to the Applicant in execution of a judgement obtained against a different company called Live Motors (Pty) Ltd.

3. It requires no argument that in law execution may only be levied on the assets of the judgement debtor. Since the judgement debtor is Live Motors (Pty) Ltd, it follows that execution may not be levied on the Applicant's assets.

4. It appears from the founding affidavit that the judgement creditor and the Deputy Sheriff attempted to attach a vehicle in the possession of the Applicant in the belief that this vehicle belonged to Live Motors (Pty) Ltd. This belief was not unreasonable, as may be seen from the following chronology of events:

4.1. The 1^st Respondent obtained an award by default against Live Motors after his dispute was referred to arbitration on 2 August 2007. The default award required Live Motors to pay the Applicant a sum of E5580-00. This award was served on the director of Live Motors, a certain Chodhurry Wariach, on 24 August 2007 and made an order of the Industrial Court on the 5^th November 2007.

4.2. Elite Motors (Pty) Ltd was incorporated on the 6^th August 2007. Chodhurry Wariach is a director of this company.

4.3. A new lease in respect of the very same premises occupied by Live Motors was signed by Elite Motors. The lease purports to commence on 1^st July 2007, a date prior to Elite Motors coming into existence.

4.4. A trading licence permitting Elite Motors to operate the same business as that previously carried on by Live Motors at the same premises was issued on 25^th September 2007.

4.5. A Toyota Corolla SD 235 SN registered in the name of Live Motors was transferred to the name of Elite Motors on some date not legible from the registration document but apparently around the time that Elite Motors took over the trading premises of Live Motors.

5. There is no evidence before court that the business of Live Motors was sold or transferred to the Applicant, yet the Applicant purports to have somehow acquired the trading premises and assets of Live Motors at the very time that Live Motors was required to pay its judgement debt to the 1^st Respondent. It is not surprising in the circumstances that the 1^st Respondent regards the sudden appearance of the Applicant at the business premises and the registration of SD 235 SN in the name of the Applicant as a collusive ruse calculated to avoid payment of Live Motors' creditors, including the 1^st Respondent.