1

THE
HIGH COURT OF SWAZILAND

ISRAEL
MFANYANA BHEMBE N.O. Applicant

And

SIBUSANI
FORTUNATE LUSHABA

1st
Respondent

CITY
COUNCIL OF MBABANE

2nd
Respondent

THE
REGISTRAR OF DEEDS.

3rd
Respondent

THE
MASTER OF THE HIGH COURT

4th
Respondent

Civil
Case No. 336/2003

Coram S.B.
MAPHALALA - J

For
the Applicant MR. C. LITTLER

For
the Respondent MR. K. MOTSA

RULING

(on
points of law in limine)

(28/08/2003)

2

Serving
before court is an application brought under a certificate of urgency
for an order as follows:

1. That
the above Honourable Court dispense with normal and usual
requirements of the Rules of the above Honourable Court relating to
service of process and notices and that the matter be heard on an ex
parte
basis as a matter of urgency.

2. That
a rule nisi do hereby issue calling upon the Respondents to show
cause on a date and time to be fixed by the Honourable Court why the
following orders should not be made.

3. That
the registration of the property known as Portion 112 (a portion of
portion 85) of farm No. 1117 situate in the Hhohho district measuring
583 square metres held by Sibusani Fortunate Lushaba by virtue of
Crown Grant No. 69/1994 be set aside and/or declared to be of force
and effect pending the final determination of an action to be
instituted by the Applicant declaring the aforesaid transfer to be
invalid and of no force and effect.

4. That
the first Respondent be interdicted and restrained from evicting the

Applicant
and any member of his family from the property and/or taking any
action or performing any act which will prejudice the Applicants
lawful possession and occupation of the property.

5. Directing
the second and third Respondent to transfer the said
property
to the estate of the late Emmah Bhembe.

6. That
the second, third and fourth. Respondents pay the costs of this
application only in the event that they oppose this application.

7. Further
and/or alternative relief.

8. That
orders 2, 3, 4, 5, 6 and 7 above:operate with immediate effect
as
an interim order pending
the
finalization of the matter.

The
founding affidavit of the Applicant is filed in support of
the
application. Various annexures from "A" to "I"
are filed in support thereto. A confirmatory affidavit of one
Patricia Bhembe (nee Dlamini) is also filed.

The
Respondents have joined issue and the answering affidavits of the 1st
Respondent Sibusani Lushaba and one Meshack Kunene
who
is employed by the 2nd Respondent.

are
filed in opposition. Various pertinent annexures are also filed.
Further, confirmatory affidavits of Roseter Shabangu and Henry
Shabalala are filed of record.

3

The
Respondents have raised points of law in limine found in the 1st
Respondent's answering affidavit as follows:

"4.1.
The Applicant satisfy (sic) the elements of a final interdict hence
the application

should
fail on this basis alone.

4.2. Secondly,
the application is not urgent". Further points of law in limine
were raised in the Heads of Arguments as follows:

"1.1.1. The
notice of motion is defective, in that it requires that the matter be
heard on an ex parte basis. The Applicant however, is not the only
person who is interested in the relief which is being claimed. The
relief claimed, although on a temporary basis, is for imminent harm.
The fear of legal action is not imminent harm;

1.1.2. The
matter
is
one,
which cannot be properly be decided on affidavit.
There
is a real dispute of
fact
which cannot be satisfactory determined without the aid of oral

evidence
as the Respondents' affidavits raise real and bona
fide
disputes of fact and Applicant is, in terms of the general rule,
bound to accept the Respondent's version

of
the facts.

Plascon
- Evans Paints Ltd vs Van Riebeeck Paints (Pty) Ltd 1984 (3) S.A. 623
(A) at
634
H
-
I;
Hudson vs The Master 2002 (1) S.A. 862 (T) at 870 B
-
D.
1.1.3. The court should dismiss the application as the Applicant
should have realised when

launching
his application that a serious disputes of fact, incapable of
resolution on the

papers,
was bound to develop. Room Hire Co. (Pty) Ltd vs Jeppe Street
Mansions

(Pty)
Ltd 1949 (3) S.A. 1153 at 1163".

When
the matter came for arguments counsel filed Heads of Argument for and
against the points of law raised.
Before
delving
on
the
issues
I
find
it
imperative
to briefly sketch the history of the matter. The facts of the matter
are as follows. The Applicant is the executor dative in the estate of
the late Emmah Bhembe"andresides
at
portion 112 (a portion of portion
85)
of Farm No. 1117 Sandla Township. This property is the subject matter
of this dispute. During or about October 1985 the late Emmah Bhembe
purchased and was allocated the said property by the City Council
cited as the 2nd Respondent. The 1st Respondent claims although this
fact is hotly contested by the Applicant to have purchased this piece
of land from
the
deceased Emmah

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Bhembe.
The Applicant claims the property and all rights accruing thereon to
be the property of the deceased estate of Emmah Bhembe. On the other
hand the 1st Respondent claims the property as a purchaser of the
land from the deceased in her lifetime. There is a tit for tat around
this property. The arguments advanced on behalf of the Respondents on
the first point raised in limine is that the notice of motion is
defective, in that it requires that the matter be heard on an ex
parte basis. The Applicant however is not the only person who is
interested in the relief which is being claimed. The relief claimed,
although on a temporary basis, is for imminent harm. The fear of
legal action is not imminent harm.

At
paragraph 1.1.2 it is contended that the matter is one which cannot
be properly be decided on affidavit. There is a real dispute of fact
which cannot be satisfactorily determined without the aid of oral
evidence as the Respondent's affidavits raise real and bona
fide
disputes of fact and the Applicant is, in terms
of
the general rule bound to accept the Respondent's version of facts
(see Plascon -
Evans
Paints Ltd vs Van Riebeeck Paints (Pty) Ltd 1984 (3) S.A. 623 (A) at
634 H
-
I
and Hudson, vs Master 2002 (1) S.A.
862
(T) at 870 B - D). It is contended that: the court should
dismiss
the application as the Applicant should have realised when launching
his application that a serious dispute of fact, incapable of
resolution on the papers,
was
bound to develop (see Room Hire Co. (Pty) Ltd vs Jeppe Street
Mansions
(Pty) Ltd 1949 (3) S.A. 1153 at 1162).

The
second point raised in limine is that of urgency. In this regard it
is contended that the Applicant does not set out explicitly the
circumstances
which render the matter urgent.
An
order has not yet been sought for the eviction of the Applicant,
although the 1st Respondent has requested that the Applicant vacate
the property. This application is therefore premature, as an eviction
order has not yet been sought.

There
is no imminent harm to the Applicant, other than a fear of legal
action instituted for
his
eviction.
The Applicant makes no. allegations that the first, Respondent has
attempted to take the law into her own hands in order to evict: the
Applicant from the property which first Respondent legally owns.

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Further,
on this point it is contended on behalf of the Respondent that the
Applicant has created his own urgency, in that he has been aware of
the factual situation, on his own version, during October 2002, which
is approximately eight (8) months ago, but chose not to take any
legal action at that stage. Only upon being faced with possible
eviction does the Applicant now bring the application.

On
the third point taken in limine it is contended for the Respondents
that the Applicant has not satisfied the requirements for a final
interdict. No discretion vests in a court to grant an interdict for
the protection of an alleged right which it found does not exist (see
Plettenberg Say Entertainment (Pty) Ltd vs Minister Van Wet's Orde
1993 (2) S.A. 396 (c).) If the relief sought is interim in form but
final in substance, the Applicant must prove the requirements for the
grant of a final interdict and questions such as balance of
convenience do not arise (Masuku vs Minister Van Justisie (supra):
Alum
-Phos (Pty) Ltd vs Spatz 1997 (1).ALL
S.A.
616 (w) 621). The court was further referred to the cases of
Setlogelo vs Setlogelo
1914
A.D. 221 -227; Eriksen Motors (Welkom) Ltd vs Protea Motors
Warrengton 1973,(3) S.A. 685 (A); Webster vs Mitchell 1948 (1) S.A.
1186(w)
at
1189;
Beecham
Group
Ltd
vs
B
-M
Group (Pty) Ltd 1977 (1) S.A. 50 (T) at 54; and Knox D'Arct Ltd vs
Jameson 1996 (4) S.A. 348 at 361. In casu the application brought by
the Applicant clearly does not comply with the requisites to enable
him to successfully
apply
for an interdict to restrain the first Respondent from protecting her
rights with regards
to
the property
of
which she is the registered owner.

Mr.
Littler advanced arguments per contra He opened his submissions by
directing the court's attention to
prayer
3 of
the
Applicant's notice of motion where the court is asked to declare the
registration of
the
said property to the name of the 1s.
Respondent
to be
of
no force and effect pending the final determination of an
action
to be instituted by the Applicant declaring the transfer to be
invalid
and
of
no
force and effect.
The
argument here is that this is an application pendente lite
to
secure the status quo ante pending
an
action to be instituted. That in casu
the
Applicant
is in possession of the property presently and therefore a clear
right has been, established for purposes
of
an interdict. A right of possession is a clear right. Mr.
Littler
further went on to demonstrate the other requisites
viz
the
Applicant has
no
other remedy; a

6

well
grounded apprehension or fear; and that the balance of convenience
favours the granting of the relief sought.

On
the dispute of fact Mr. Littler urged the court to adopt a common
sense and robust approach that in the
final
analysis there are no major disputes of fact/

These
are the issues for determination. There are three points raised viz
i) urgency; ii) whether there are disputes of facts; and iii) whether
the Applicant has satisfied the requirements for an final interdict.

I
shall determine the issues sequentially, thus:

i) The
issue of urgency

The
issue
of urgency
is
governed
by Rule 6 (25) (a) and (b) which states as follows cited ipsissima
verba:

a) In
urgent applications, the court or a Judge may dispense with the forms
and service provided for in these rules and may dispose of such
matter at such time and place in such a manner and in accordance with
such procedure (which of these rules) as to the

court
or Judge, as the case may be, seems fit.

b) In
every
affidavit
or petition filed in support of an application under paragraphs (b)
of this sub-rule, the Applicant shall set forth explicitly the
circumstances which he avers render the matter urgent and the reasons
why he claims he could not be afforded substantial redress at a
hearing in due course".

In
the often-cited case of Humphrey H. Henwood vs Maloma Colliery and
another Civil Case No. 1623/94, Dunn J (as he then was) held that the
provisions of the above cited rule is mandatory. The provisions of
(b) above exact two obligations on any Applicant in an urgent matter.
Firstly, that the Applicant shall, in the affidavit or petition set
forth explicitly the circumstances which he avers render the matter
urgent. Secondly, the Applicant is enjoined, in the same affidavit
or
petition
to
state the reasons why he claims
he
could
not be afforded substantial
redress
at the hearing in

7

due
course. These must appear ex facie the papers and may not be gleaned
from surrounding circumstances brought to the court's attention from
the bar.

In
casu page 16 seeks to establish urgency and reads as follows:

-16-

"Urgency

i) It
is submitted on my behalf at the hearing that this matter has become
one of

extreme
urgency in as much as the first Respondent instead of negotiating a
settlement of the dispute, has began threatening the Applicant with
eviction from the property. The last and most serious of these
threats is contained in a letter addressed to my attorney by Robinson
Bertram the attorneys for the first Respondent. I annex hereto a copy
of the letter marked" 1".

ii) In
the event of my failure to obtain the order sought in this
application I will clearly suffer irreparable loss in as much as I
have nowhere else to go with my children. Clearly therefore a hearing
in due course will hardly be of any assistance to me".

The
letter annexed as "I" is dated the 5th February 2003, and
reads in part as follows:

"...Our
intention are to request you to inform your client to vacate her
property by the 14 day of February 2003, failing which our
instructions are to institute eviction proceedings. The costs of the
issue of the eviction proceedings will be for the account of tour
client. We trust that this will not be necessary..."

It
should be noted that the Applicant then launched this urgent
application on the 21st February 2003; about 7 days after the
deadline of the 14th February 2003 set by the Applicant. I agree in
toto with Mr. Motsa 's submissions in this regard that an order has
not yet been sought for the eviction of the Applicant, although the
1st Respondent has requested that the Applicant vacate the property.
There is
no
imminent harm to the Applicant, other than a fear of legal action
being instituted for his eviction. The Applicant makes no allegations
that the first Respondent has attempted to take the law into her own
hands in order to evict Applicant from the property.

It
would appear from the facts before me that the Applicant has
created
his own urgency, in that he has been aware of the factual situation,
on his own version, during October 2002, but chose not to take any
legal action at that stage.

8

It
is my considered view, that on the facts presented before me the
Applicant has not proved urgency within the ambit of Rule 6 as cited
above.

Therefore,
the point of law in limine raised in this regard is good in law and I
would thus sustain it.

ii) Whether
there are disputes of fact.

The
matter is one which cannot be properly be decided on affidavit. There
are numerous disputes of fact which cannot be satisfactorily
determined without the aid of oral evidence as the Respondents'
affidavits raise real and bona
fide
disputes of fact and the Applicant is, in terms of the general rule
bound to accept the Respondents' version of the facts.

One
example
of
such
dispute
of
fact is found at paragraph 5 of the 1st Respondent's affidavit where
the 1st Respondent avers as follows:

"5
Background i) ACQUITTANCE WITH THE APPLICANT

5.1. I
had met the Applicant sometime in 1991 outside the Swazi Bank
Building,

Mbabane
selling avocados.

5.1.1. I
had asked Applicant where he got the avocados, as I wanted to

buy
them and sell them at the Umhlanga Reed Dance.

5.1.2. The
Applicant had advised me that
there
were
plenty avocados at his homestead based
at
Sidvwashini, Mbabane and
invited
me to

come
to his homestead as he was going to sell them to me. 5.1.3 I had
later visited the Applicant at his homestead. Whilst he was
collecting the avocados he asked me if he was interested in a certain
portion based at Sandla Township, Mbabane.

5.1.4. I
had advised him that if the price was good I was prepared to consider
the offer
to
purchase. He then informed me that he was going to speak to his
mother, one Emmah Bhembe (hereinafter as Emmah or mother) about
selling the said property.

9

5.1.5. After
a few days the Applicant
visited
me
at
my
home
Lobamba and advised me that his mother had agreed to sell the
property for a
sum
of E8, 500-00.

5.1.6. He
then further advised me that since the
2nd
Respondent officials

were
not going to accept the transfer of the property into my name, he was
going to advise her mother to approach the 2 Respondent and advise
them that I was Emmah's daughter".

To
this the Applicant in his replying affidavit answered as follows:

"AD
Paragraph 5 (1) to 5.1.6.

Save
to admit that the 1st Respondent visited the deceased's homestead
during or about 1991 on the pretext of buying avocado pears. The rest
of the allegations contained in this paragraph are denied.

In
particular I deny most emphatically
the
following:

a) That
I advised 1st Respondent that my mother was selling the property at

Sandla
Township......

b) That
my mother agreed to sell at a price of E8,500-00 or at any price.

c) That
I colluded with 1st Respondent
in
deceiving
Meshack
Kunene into believing that she was
deceased's
daughter."

The
above clearly shows a dispute of fact
in
this matter.
A
further dispute of fact is in relation to whether the deceased Emmah
Bhembe was illiterate and both deaf and blind. Following the decision
in Plascon - Evans Paints Ltd vs Van Riebeeck Paints (Pty Ltd (supra)
I have come to the conclusion that there are disputes of fact in this
matter which cannot be satisfactorily determined without the aid of
oral evidence. The Respondents' affidavits raise real and bona
fide
disputes of fact and the Applicant is, in terms of the general rule,
bound to accept the Respondents' version of the facts.

In
the circumstances the
points
of law in limine raised in this regard is good in law.

iii) Whether
the Applicant has satisfied the requirements of a final

interdict.

10

It
is trite law that if the relief sought is interim in form but final
in substance, the Applicant must prove the requirements for the grant
of a final interdict and questions such as balance of convenience do
not arise. (see Masuku vs Minister Van Justisie (supra). It would
appear to me on the facts presented to the court that the Applicant
has not proved a clear right or prima facie right. The 1st Respondent
has a better right than the Applicant in casu. Applicant's mother
(the deceased) would have been in a better position than the
Applicant. Even in her position she was merely an allocatee not the
owner of the property.

In
the circumstances I have come to the conclusion that the Applicant
has not proved the requirements as enunciated in the celebrated case
of Setlogelo vs Setlogelo (supra) and therefore the point of law in
limine is upheld.

iv) Miscellaneous

It
would also appear to me that the notice of motion is defective,
in
that it requires that the matter be heard
on
an
ex
parte
basis.
Clearly,
the Applicant
is
not the
only
person who is interested in the relief which is being claimed. :

In
the result, the application is dismissed
with
costs.

S.B.
MAPHALALA

JUDGE