Court name
High Court of eSwatini
Case number
348 of 2010

Matsebula v Matsebula and Others (348 of 2010) [2011] SZHC 44 (03 June 2011);

Law report citations
Media neutral citation
[2011] SZHC 44
Ota, J





HELD AT MBABANE                                                 CASE NO.  348/2010



In the matter between:






ELIJAH MATSEBULA                                     1ST RESPONDENT


SIBUSISO MATSEBULA                                  2ND RESPONDENT


MASTER OF THE HIGH COURT                            3RD RESPONDENT






Coram                                                        Ota J.


For Applicant                                            Mr. M.Z. Mkhwanazi


For 1st and 2nd Respondents:                    Mr. S. Magongo








This is an application by way of notice of motion in which the Applicant claims the following reliefs:-


  • Ordering and directing the Respondents to restore to the Applicant’s possession certain movable property belonging to the late David Vini Matsebula, forthwith, to wit.
    1. Isuzu KB 280D, 1996, Registration number SD 457 KS.
    2. Nissan, 1996, Registration number SD 630 AG.
    3. Nissan, 1984, Registration number SD 415 HS.
    4. Isuzu KB 280 L.D.V.
    5. Massey Fergusson Tractor yellow in colour.
    6. A herd of 20 cattle.

3)  Costs of application.

4)  Further and alternative relief.


When this matter served before me for argument on the 30th of March 2010, the applicant was represented by M. Z. Mkwanazi and S. Magongo appeared for the 1st and 2nd Respondents.  The 3rd and 4th Respondent’s did not participate in these proceedings.  It is thus apposite  for me from this juncture to refer to the 1st and 2nd Respondents, as Respondents, for ease of reference in this judgment. 


Having carefully considered the totality of this application, the affidavits filed of record, the respective heads of argument, as well as oral submissions of counsel, it appears to me that the only issue raised for determination is whether there exists a disputes of fact in this matter in relation to the ownership of the assets, claimed?


This poser to my mind makes it imperative, that before I take further steps, I must re-state the very familiar, but fundamental propositions, on the question of disputes of fact, for ease of clarity in this judgment.

The position of the law on this subject matter as demonstrated by jurisprudence, both within and without this jurisdiction, is that motion proceedings are inappropriate for the purposes of deciding real and substantial disputes of fact, which properly fall for decision by action.

In honour of this trite principle of law, the learned authors Herbstein and Van Winsen, in the text,  The Civil Practice of the Supreme Court of South Africa (4th edition) page 234 declared as follows:-


‘‘  It is clearly undesirable in cases which facts relied upon are disputed to endeavor to settle the dispute of fact on an affidavit, for the ascertainment of the true facts is effected by the trial Judge on consideration not only of probability, which ought not to arise in motion proceedings but also of credibility of witnesses giving evidence viva voce.  In that event, it is more satisfactory that evidence should be led and that the Court should have the opportunity of seeing and coming to a conclusion’’.


It is worthy of note that this principle of law has been given full Judicial effect in this jurisdiction.  The cases abound.  Some of the cases in which this principle was re stated include but are not limited to Didabantu Khumalo V The Attorney General Civil Appeal No. 31/2010 (unreported), Mntomubi Simelane and Another V Makwata Simelane and Others Case No. 4286/2009 (unreported).  Hlobsile Maseko (Nee Sukati) and Others V Sellinah Maseko (nee Mabuza) and Others, Case No. 3815/2010 (unreported) see also Room Hire Co (Pty) Ltd V Jeppe Street Mansions (Pty) Ltd 1939 (3), SA.  Plascon Evans Paints Ltd V Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A)


It is thus judicially settled that where the material facts upon which the claim between the parties is founded are disputed, then motion proceedings is inappropriate.


The test however, is that the affidavit in opposition must demonstrate a real, genuine and bona fide dispute of fact for the opposer to be availed of this relief.  It is thus incumbent upon the Court to scrutinize the affidavits filed, to see if a real issue of dispute exists, which cannot be resolved without viva voce evidence.  To this end, Case law has evolved certain parameters to aid the Court in coming to a conclusion that real disputes of fact exist.

In the case of Hlobsile Maseko (nee Sukati) and Others V Sellinah Maseko (nee Mabuza) and Other (supra) at pages 10 & 1, 1 I demostrated these parameters as follows:-

‘‘ 1.  When the respondent disputes material allegations made by the deponent on the applicant’s behalf and producespositive evidence to the contrary.  See Room Hire Co (Pty) Ltd V Jeppe Street Mansions (Pty) Ltd (supra).


  1. When the Respondent admits the applicant’s affidavit evidence but alleges other facts which the applicant disputes.
  2. When the respondent concedes that he has no knowledge of the main facts stated by the Applicant but denies them, putting the Applicant to proof and himself gives or proposes to give evidence to show that the Applicant and his deponents are biased and untruthful or otherwise unreliable and that certain facts upon which the Applicant relies to prove the matter are untrue see Erasmus H. Jetal ‘‘ Seperior Court Practice, Juta Publishing 2004, page 61.  Herbstein and Van Winsen (supra) pages 238-240.  See also Plascon Evens Paints Ltd V Van Riebeeck Paints (Pty) Ltd 1984 SA 623 (A)’’


The question to be asked at this juncture, is, do the facts stated in this application, when juxtaposed with the principles ante, vindicate the allegation of disputes of fact raised?


Let us now look at the totality of the facts stated in the affidavits filed of record in a bid to resolve this poser.

The facts upon which this application is contended by the applicant are as follows:-


That the applicant was married to one David Vini Matsebula in terms of Swazi Law and Customs, on or about May 2007.  That the said David Vini Matsebula (hereinafter called the deceased) passed away on the 27th of September 2007.  That the 1st and 2nd Respondents are the biological father and brother respectively, of the deceased.

That the Applicant and the deceased had no children from their marriage,  That the Applicant is the sole heir and beneficiary of the deceased’s estate.  That after the demise of the deceased, his Estate was reported to the Master of the High Court on the 18th of December 2007.  That at the time of his death, the deceased owned the property claimed in this Application.  That at the meeting of next of kin at the Master’s Office, the Applicant was appointed Executrix in the estate of the deceased as is evidence by annexure C.

That soon after the demise of the deceased, the 1st and 2nd Respondents disposed the Applicant of the property of the deceased as claimed in the application.  That the Applicant reported this matter to the 3rd Respondent, the Master of the High Court.  That on the 10th of July 2008, the Master authorized that the Motor Vehicles be registered in the Applicant’s name as is shown in annexure D and E respectively.  That as the executor of the decease’s estate, Applicant is authorized by the Administration of Estates Act to take into possession and control all estate’s assets of the deceased.

That Applicant was unable to cite full and further particulars of the Isuzu Van and the tractor, mentioned in prayers 2.1 (d) and (e) of the application respectively, because the 1st Respondent has in his possession the blue and registration documents of these vehicles.  That at the time of the death of the deceased, he owned 15 cows which have since multiplied to 20.


It is on record that the Respondents filed an Answering Affidavit sworn to by 1st Respondent Elijah Matsebula, which is supported by the Confirmatory Affidavit of 2nd Respondent, Sibusiso Matsebula.


In these affidavits, the Respondents whilst not denying that the Applicant was married to the deceased in terms of Swazi Law and Customs, however contend that the Applicant deserted the matrimonial homestead after the desmise of the deceased, thereby making the requisite cleansing rituals impossible. Whilst not denying that the vehicles claimed were bought by the deceased, the Respondents however contend that the said vehicles were bought for the use and benefit of the whole Matsebula family long before the Applicant joined the Matsebula family.  That at all material times, the vehicles were kept at the Matsebula family homestead, even before the Applicant joined the family.  Therefore, the Applicant was never dispossessed of the vehicles by the Respondents, as the Applicant never had possession of them.  That Applicant never had possession of the herd of cattle as same had been kept at a Mbhamali homestead at Lukhetseni area Lubombo region under a sisa agreement and that the deceased was never the owner of the cattle.  The Respondents also contended that they never received any of the amount paid to the Applicant as the deceased’s gratuity from the Illovo Sugar Company even though the 1st Respondent and his wife also stand to benefit from the deceased estate, from which estate they are entitled to maintenance for the rest of their lives.  The Respondents contend that the Applicant is motivated by greed and a desire to take the family assets for her own use and to the detriment of the Respondents, since the assets are the Respondents only means of livehood.


Having carefully considered the totality of the facts stated, I must say straightaway, that I  see no real or substantial disputes of fact on the question of ownership of the assets herein, to require viva voce evidence.


This is because, it is the consensus of the parties here, that the assets i.e the motor vehicles were bought by the deceased.  Even though the Respondents allege that the vehicles were bought by the deceased for the use of the Matsebula family, this fact to my mind, does not remove the assets from being part of the estate of the deceased, nor does this fact make the said assets the property of the Matsebula family.  To my mind what this allegation simply connotes is that the deceased bought and owned the assets though they were at his family’s disposal to use.  This fact surely does not remove the said assets from the estate of the deceased, as the respondents want us to conclude.  This is because the determinate factor here is the title to the property not its usage.  Since there is no allegation that the deceased bought the property in the name of the Matsebula family,  or that there was ever a transfer of the vehicles into the name of the Matsebula family, it follows therefore that  title to the vehicles resided with the deceased prior to his demise.  Furthermore, I find that the denial in general terms by the Respondents to the effect that the deceased did not own the herd of cattle claimed   cannot also avail them in these circumstances.  This is because the Respondants were required to allege positive facts to the contrary in the wake of this denial, which they failed to do.  As the Court put it in the case of Reed V Wittrup SA 1962 (4) at page 443


“ If by a mere denial in general terms a Respondent can defeat or delay an applicant who comes to Court on motion, then motion proceedings are worthless, for a Respondent can always defeat or delay a petition by such a device.  It is necessary to make a robust, common sense approach to a dispute on motion as otherwise the effective functioning of the Court can be hamstrung and circumvented by the most simple and blatant stratagem.  The Court must not hesitate to decide on issues of fact on affidavit merely because it may be difficult to do so.  Justice can be defeated or seriously impeded and delayed by an over fastidious approach to dispute raised on affidavit’’.


I also hold the view that the fact that the vehicles in question were kept at the Matsebula family homestead at all material times, is of no moment to this case.  This is more so as there is uncontroverted evidence that the deceased had not yet built himself a homestead, but was living at his parental homestead, at the material time of his demise

In the light of the totality of the foregoing, I find that the assets in dispute form a part and parcel of the deceased’s estate.


Now, the parties are ad idem that the Applicant was appointed Executrix Dative of the deceased’s Estate, by the Master of the High Court.  This fact is clearly demonstrated by annexure C, Letters of Administration No ES 238/2007, dated the 16th day of March 2009.  The appointment of the Applicant as  Executrix Dative to the Estate of the deceased, it is on record was done with the approval of the entire Matsebula family including the Respondents.  It is the position of the law that by reason of this appointment as Executrix Dative, that all property or assets of the deceased’s Estate automatically vest on the Applicant.


It is by reason of this fact that Section 41 of the Administration of Estates Act Number 28/1902, requires all persons in possession of any assets belonging to the Estate of the deceased to deliver up same, to the Executor or the Master of the High Court in the absence of an executor.  That legislation is couched in the following language


“41  Every person who is not the executor of the estate  of a deceased person duly appointed in Swaziland who  ------ has or comes into possession or custody of any property or asset belonging to such estate, shall forthwith either deliver such property or asset to the duly appointed executor (if any) ------,or report the particulars thereof to the Master, and if such first mentioned person shall fail to do so or shall part with any such property or asset to any person not authorized by the Master by letters of administration or other direction to receive it he shall, apart from any other liability he may incur thereby, be liable for all dues payable to the Government in respect of such property or asset’’.


It is therefore beyond dispute that the Respondents are obligated under the law, to deliver up the said assets to the Applicant as the legally appointed custodian of said assets,  to be administered according to law.   There is uncontroverted evidence, that in the wake of this saga, the Master of the High Court tried to intervene to ensure that the Respondents comply with the law, by delivering the said assets to the Applicant, but the Respondents failed to heed the Masters orders.


In the light of the totality of the foregoing, I find that this application has merits.  It succeeds.  In consequence I make the following orders:-


  1. The Respondents do and are hereby ordered to deliver up to the Applicant, the following movable assets belonging to the Estate of the deceased David Vini Matsebula, forthwith, namely
  2. Isuzu KB 280 D, 1996 Registration Number SD 457 KS
  3. Nissan, 1996 Registration Number SD 630 AG
  4. Nissan, 1984, Registration Number SD 415 HS
  5. Isuzu KD 280 L.D.V.
  6. Massey Fergusson Tractor yellow in colour
  7. A herd of 20 cattle


  1. Respondents are to pay the costs of this application.



THE ………………………. DAY OF ………………..2011