IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE CASE NO. 208/2001
In
the matter between:
INSIKA
TRADING (PTY) LIMITED APPLICANT
and
PHINDZA
DLAMINI RESPONDENT
In
re the ex parte Application
PHINDZA
DLAMINI APPLICANT
and
INSIKA
TRADING (PTY) LIMITED RESPONDENT
CORAM
KENNETH
NKAMBULE : JUDGE
DAN
MANGO : MEMBER
GILBERT
NDZINISA : MEMBER
MR.
P.R. DUNSEITH : FOR APPLICANT
MR.
SICELO DLAMINI : FOR RESPONDENT
RULING
15/10/01
Applicant
seeks an order setting aside an order issued by this court on 6th
August 2001. The application was brought exparte and the court
granted an order for the attachment of goods pending finatisation of
the main application brought by the respondent/applicant before
court.
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In
his submission Mr. Dunseith for the applicant told the court that the
applicant is an incola registered in Swaziland. A certificate of
incorporation has been attached as Annexure 'A'. He therefore states
that the application is totally defective.
In
his submission Mr. Dlamini for respondent stated that though the
company is registered in Swaziland the directors are of South African
Origin and if they close down the applicant would suffer prejudice as
there would be no property to satisfy the judgement of the court.
According
to Hebstein and Van Vinsen the civil practice of the superior courts
in South Africa third edd at page 782, an attachment ad fundadem
jurisdiction is an attachment of the person or property of one who is
domiciled and resident in a foreign country in order to make him
amenable to the jurisdiction of the court. The effect of the
attachment is either to confirm the jurisdiction which the court
already has in the suit between the parties, or, in certain cases to
afford it a jurisdiction in the matter which it would not otherwise
have had.
In
this instance I agree with Mr. Dunseith that this applicant was
incompetent in the instant case because Insika Trading (Pty) Ltd is a
company registered in Swaziland in terms of the Company Act. It is
therefore an incola of Swaziland.
Under
circumstances the exparte order granted by this court on 8th August
2001 under Case No. 208/2001 is hereby discharged.
No
order as to costs.
Members
concur.
KENNETH
P. NKAMBULE
JUDGE
(INDUSTRIAL COURT)
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