Court name
High Court of eSwatini
Case number
Civil Case 1908 of 2003

Esiyalwini (Pty) Ltd v Thamsanqa Hubert Lukhele t/a Esiyalwini Bottle Tore (Civil Case 1908 of 2003) [2003] SZHC 112 (05 December 2003);

Law report citations
Media neutral citation
[2003] SZHC 112
Coram
Maphalala, J









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THE
HIGH COURT OF SWAZILAND


ESIYALWINI
(PTY) LTD


Applicant


And


THAMSANQA
HUBERT LUKHELE T/A


ESIYALWINI
BOTTLE STORE


Respondent


Civil
Case No. 1908/2003


Coram S.B.
MAPHALALA - J


For
the Applicant MISS L.S. MASANGO


For
the Respondent MR. D. MAZIBUKO


JUDGMENT


(05/12/2003)


Before
court is an application for ejectment of the Respondent forthwith
from the premises described as Certain ERF 95 situate in Ngwane
Street, Manzini, district of Manzini.


Founding
the application is an affidavit of one Sarah Jane Thomson who is
described as an adult female attorney conducting business as such
with the firm of attorneys Kemp Thompson Inc. based at New Mall,
Mbabane, district of Hhohho.


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Various
affidavits are filed in support thereto. A general power of attorney
is filed as annexure "EPL1". A Deed of Lease establishing
the causa in this matter is also filed of record.


The
Respondent opposes the application and has filed an answering
affidavit of the Respondent himself.


In
turn the Applicant has filed a replying affidavit of the deponent in
the founding affidavit in reply to the Respondent's answering
affidavit.


The
Respondent in his answering affidavit has raised a point of law in
limine which is the subject matter of this judgment. The point is
worded in this way:


"The
application by Esiyalwini (Pty) Ltd (Applicant) is fatally defective
in that the affidavit supporting it is deposed by the legal
representative instead of Director of Member of the Applicant. The
evidence of the legal representative is hearsay and therefore it
(sic) inadmissible in this matter".


Three
points were advanced in support of the point of law in limine raised
by the Respondent. The first point is that the mandate given to Kemp
Thompson Inc. by

Meyer
Diamond applies only to Meyer Diamond and not the Plaintiff.
Secondly, it was argued for the Respondent that if the court finds
that the mandate aforementioned applies to the Plaintiff as well as
the Respondent states that the mandate given to Kemp Thompson or
Sarah Jane Thompson is that only of an agent or attorney. Sarah Jane
Thompson therefore has no authority to depose to an affidavit or give
evidence which should be deposed to by Plaintiffs Director. In this
regard the! court was referred to the authorities of Herb stein and
Van Winsen, The Civil Practice of the Supreme Court of South Africa,
4th ED (1997) at page 368 and also that of Gibson, South African
Merchantile and Company Law, 7th ED at page 208.


The
third argument is that Sarah Jane Thompson in her capacity as
attorney for

Plaintiff
and therefore relying on instructions given by Plaintiff cannot
depose on oath

the
contents of that instruction. The contents of that instruction is
hearsay. An affidavit based on hearsay is defective and therefore
inadmissible.


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The
arguments in defence of this attack by the Respondent in limine are;
firstly, that the deponent signed the affidavit as an agent of her
principal who is ah artificial person. The argument here is that an
artificial person act through their duly appointed agents. Secondly,
the Applicant countered that the deponent is authorised to deal in
any manner in the matter before court by virtue of a Power of
Attorney granted to her by Applicant company's director. A verifying
affidavit by one who

has
knowledge of the facts in respect of which the deponent does not have
first knowledge has been annexed to the founding affidavit.


Thirdly,
it is contended even if the statements of information i and belief by
the deponent are disregarded, there is still sufficient material on
the basis of

which
the order sought could be granted. In this regard the court was
referred to the authority of


Raulstone
No. vs Radebe 1955 (4) S.A. 418 (N).


I
must state that the Applicant's attorney seemed to concede the point
that the contents of the instruction might be hearsay, however argued
in her

Heads
of Argument that the Director of the Applicant company could take the
witness stand and testify - if called upon to do so.


It
appears to me that Mr. Mazibuko for the Respondent is correction all
fronts. The mandate in the Power of Attorney annexed marked "EPL1"
is given i to Kemp Thompson Inc by Meyer Diamond and it applies only
to Meyer Diamond and not the Plaintiff. This fact appears ex facie
annexure "EPL1". The mandate given to Kemp Thompson or
Sarah Jane Thompson is that only of an agent or attorney. Sarah Jane
Thompson therefore has no authority to depose to an affidavit or give
evidence which affidavit should be deposed to by the Plaintiff's
Director.


Further
the affidavit itself is peppered with hearsay evidence. Examples of
this are

found
in paragraphs 8, 21, 22 of the founding affidavit. It is trite law
that an affidavit based on hearsay evidence is defective and
therefore inadmissible.


The
suggestion by the Applicant that it be allowed to give viva

voce
evidence is

unacceptable.
According to the authors Herbstein (supra) at page 366 an Applicant


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must
stand or fall by his founding affidavit and the facts alleged in it,
and that although sometimes it is permissible to supplement the
allegations contained in that affidavit, still the main foundation of
the application is the allegation of facts stated there, because
those are the facts that the Respondent is called upon either to
affirm or deny. (see also Pountas' Trustee vs Lahanas 1924 WLD 67 at
68).


For
the afore-going reasons I find that the point of law in limine is
good in law and as a result the application is dismissed with costs.


S.B.
MA
PHALALA


JUDGE