Court name
High Court of eSwatini
Case number
Civil Case 2932 of 2002

Swaziland Development and Savings Bank v George Hotel Properties (Pty) Ltd and Others (Civil Case 2932 of 2002) [2003] SZHC 87 (04 September 2003);

Law report citations
Media neutral citation
[2003] SZHC 87
Coram
Maphalala, J









1


THE
HIGH COURT OF SWAZILAND


SWAZILAND
DEVELOPMENT AND SAVINGS BANK


Applicant


And


GEORGE
HOTEL PROPERTIES (PTY) LTD


1st
Respondent


THE
SHERIFF OF THE

HIGH
COURT


2nd
Respondent


THE
REGISTRAR OF DEEDS


3rd
Respondent


Civil
Case No. 2932/2002


Coram S
.B. MAPHALALA - J


For
the Applicant Advocate P. Flynn (Instructed by


Robinson
Bertram)


For
the Respondent Mr. L. Mamba


JUDGEMENT


(04/09/2003)


Serving
before the court is an application brought

under
a certificate of urgency for an order as follows:


2


1. Dispensing
with the normal provisions of the rules of this Honourable Court as
relate to form, service and time limits and hearing this matter as an
urgent one at Common Law.


2. That
the execution of the judgment as given by His Lordship the Honourable
Mr. Justice Maphalala on the 18th of May 2003, temporarily be
suspended pending the outcome of the application for condonation and
appeal launched in the High Court of Appeal in Swaziland.


3. Interdicting
and restraining the second respondent temporarily from executing the
order issued in accordance with the judgement as given on the 18th
day of March 2003, pending the outcome of the application for
condonation and appeal launched in the High Court of Appeal of
Swaziland.


4. Interdicting
and restraining the third Respondent temporarily from cancelling the
mortgage bonds nos. 133/1980, 485/1987 and 447/1987 registered over
lots 152, 159 and 370 in the township of Manzini, district of
Manzini, held under Deed of Transfer No. 99/1980 pending the outcome
of the application for condonation and appeal launched in the High
Court of Appeal of Swaziland.


5. Further
and/or alternative relief.


The
founding affidavit of Bonginkosi W. Magagula is filed in support
thereto. Mr. Magagula is an attorney under the employ of Robinson
Bertram.

Various
annexures
are also filed viz annexure

"A"
being

a
judgment by this court

delivered
on
the 18th March 2003, annexure "B" being a Notice of Appeal
against that judgment; and annexure "C" being a notice of
motion for condonation for the failure to lodge the record within the
time periods as prescribed in terms of Rule 30 (1) of the rules of
the Court of Appeal.


Per
contra the 1st Respondent opposes the application and the founding
affidavit of its

attorney
Lindifa Ronald Mamba is filed thereto. Various annexures are filed
being "LM1 - 3" mortgage bonds in respect of the properties
in issue; "LM4" being a deed of transfer in respect of the
1st Respondent. A confirmatory affidavit of the Registrar of Deeds
Juba Samuel Dlamini.


The
facts of this matter as. gleaned from

the
founding affidavit of

the
Applicant is that a judgment

was
given

in
this matter

on
the
18th
March
2003
by
this
court.
The
Applicant was

dissatisfied
with the judgment of the court and

appealed
against the judgment given.


3


On
the 28th March 2003, a Notice of Appeal was served on the attorneys
for the 1st Respondent. The Notice of Appeal was lodged with the
Registrar of this court on the 31st March 2003. According to Mr.
Magagula due to circumstances set out more clearly in the notice of
motion for condonation for the late filing of the record, an
application has been brought to condone the late filing of the
record, which was due to an error in their offices and not as a
result of any action taken by the Applicant in this matter.


He
further deposes that he is firmly of the belief that should the
matter be heard by the Court of Appeal, it will come to a different
finding to which was found in the court a quo. The late filing of the
record was a bona

fide
error on his side and that there was no intention to abandon the
appeal, but that the appellant is till interested in continuing with
the appeal. Furthermore, it has however come to his attention that
the 1st Respondent intends to enforce the judgement given on.the.18th

March
2003. In fact, he has recently had a telephone conversation with Mr.
Mamba for the 1st Respondent who has said he has already executed the
order.

However
his search at the Registrar of Deeds shows that the

bonds
have
not
been cancelled yet. It is imperative that the court grants the relief
they seek in the notice of motion before the 3rd Respondent cancels
the bonds.


He
avers at paragraph 13 that should the Respondent be allowed to
execute on the judgment unnecessary hardship will be caused

to
the Applicant should it be successful in its appeal. It would be
impossible for the status quo ante to be restored subsequently to the
properties having been executed upon the

mortgage
bonds cancelled without the Applicant suffering irreparable damages
both monetary and otherwise. At paragraph 15 he avers that there
would, be no prejudice to the Respondent if the mortgage bonds over
the properties

are
not

cancelled
immediately but that the writ of execution is stayed temporarily the
same however cannot be said for the Applicant.

The
Applicant would be severely prejudiced; if the mortgage bonds are
cancelled. At paragraph 16 the Applicant avers that it has a
reasonable prospect of success in the appeal. Real and substantial
justice requires that the cancellation of the mortgage bonds and any
subsequent sale in execution be stayed as an injustice will otherwise
be done as the underlying causa of the judgment is being disputed.


4


The
opposition to the application is found in the affidavit of 1st
Respondent's attorney Mr. Mamba. It is contended that the Applicant
has failed to inform the court that the application for condonation
is being opposed. Furthermore, the intended application is bound to
fail in that nowhere is it even alluded in the affidavit of the
Applicant what the nature of the defence to the claim is. According
to Mr. Mamba it is clear, if one considers the attitude of the
present Applicant both in the main action in this court and in the
Court of Appeal and in this application that there is no defence to
the main action.


Mr.
Mamba avers that he is prepared to concede that the error in filing
the record timeoulsy by the Applicant's attorney is understandable
and excusable, however it would have to show prospects of success in
the main action. They have failed to do so.


Further,
Mr. Mamba admits that he informed Mr. Magagula that

the
order had been executed. He denies, however that

Mr.
Magagula did any search at the Deeds office because if he had done so
that search would have revealed that the bonds were cancelled on the,
5th June 2003. The court is now. not

in
position
to
assist the Applicant because what the Applicant seeks to interdict
has already taken place. Had Mr. Magagula done a search it would have
revealed that an attachment was subsequently placed on the said title
deed pursuant to an order of court under Case No. 1449/2003 in which
the present Applicant is not a party.


Lastly,
Mr. Mamba commented on the manner in which

this
application
has been brought. Mr. Magagula conveniently does not state the date
of their conversation which was over three weeks ago. He does not
state the date he conducted his search. He now seeks to bring the
application giving the Respondent half an hour to file opposing
papers and three hours to file; affidavits.

He
does not

explain
the delay. According to 1st Respondent this is essentially an

attempt
to. have an opposed matter heard ex parte without giving the other
side a hearing and is an abuse of the process of the court. This is
an appropriate matter where punitive costs on an attorney and own
client basis ought to be awarded.


5


When
the matter came for arguments Mr. Flynn for the Applicant contended
that in view of the fact that the bonds have been cancelled they are
now seeking a remedy under further and/or alternative relief for an
order interdicting the Registrar of Deeds from transferring the
properties in question. He argued that it would seem that the
cancellation of the bonds in view of the notice of appeal having been
filed was too hasty on the part of the Respondent. The Respondent
acted with undue haste in proceeding to the Registrar 5 days after. I
must say that this argument has no merit because the 1st Respondent
was perfectly entitled to assume that the appeal had been abandoned
in terms of the rules of court. In my view this critism directed at
the 1st Respondent is unwarranted and is of no consequence.


Mr.
Mamba advanced contrary submissions in line with his averments in the
opposing affidavit.


It
would appear to me that the Applicant concedes that the court cannot
grant the orders prayed for in the notice of motion. It is now common
cause that the bonds were cancelled on the 5th June 2003. This is
reflected in the

bonds
themselves marked annexures "LM1" and "LM3" and a
copy of the holding title marked "LM4" as well as an
affidavit by the Registrar of Deeds marked "LM5". It is
trite law that the court will not grant an interdict restraining an
act already committed for the object of an interdict is the
protection of an existing right (see Conde Nast Publications Ltd vs
Taffe 1951 (1) S.A. 81 (c) and Greyhound Racing International. (Pty)
Ltd vs Game Supermarket (Pty) Ltd Civil Case No. 2714/96
(unreported)).


Clearly
in the present case the court cannot grant the order sought in the
notice of motion. However, Mr. Flynn urged the court to grant an
order under further and/or alternative relief restraining the
Registrar of Deeds from transferring the properties.


It
would appear to me that the Applicant's papers do not support such a

prayer
and further the rights of a third party are now involved in this

dispute.
In
this regard the Registrar of Deeds deposes as follows in his
confirmatory affidavit:


6


"Furthermore
pursuant to a judgment under Case No. 1449/2003 a writ of attachment
was placed on the properties and no further transactions can now take
place on the title without uplifting the said attachment".


The
general rule which has been laid down repeatedly is that an Applicant
must stand or fall by his founding affidavit and the facts alleged in
it, the main foundation of the application is the allegations of
facts stated there, because those are the facts that the Respondent
is called upon to affirm or deny (see Pountas' Trustee vs Lahanas
1924 WLD

67
at
68).


In
the result, the application is dismissed with costs.


S.B.
MAPHALALA


JUDGE