Court name
High Court of eSwatini
Case number
1421 of 2011

Inyatsi Construction Limited v Sunla Investments (Pty) Limited t/a Save and Smile Supermarket (1421 of 2011) [2011] SZHC 114 (03 May 2011);

Law report citations
Media neutral citation
[2011] SZHC 114













IN
THE HIGH COURT OF SWAZILAND



HOLDEN
AT MBABANE



CIV.
CASE NO. 1421/11







In
the matter between:



INYATSI
CONSTRUCTION LIMITED

.........................................Applicant



And



SUNLA
INVESTMENTS (PTY) LTD t/a



SAVE
AND SMILE SUPERMARKET

…....................................Respondent











Date
of hearing: 29 April, 2011



Date
of judgment: 03 May, 2011











Advocate
M. Van der Walt for the Applicant



Mr.
Attorney M. Nkomondze for the Respondent











RULING
ON POINTS
IN
LIMINE











CASE
SUMMARY







CIVIL
PRACTICE:
Urgent
application for a declarator that a lease agreement between the
parties has been validly cancelled and ejectment of respondent from
leased premises. Provisions of Rule 6 (25) examined. Held that there
was an unexplained and inordinate delay between the notice of
cancellation and the bringing of the application on urgency.
Application for enrolment of matter in terms of Rule 6 (25) refused
with costs.







MASUKU
J.







[1]
This matter comes before this Court on a rebound. It previously
served before me and, .subsequently before the Supreme Court last
year. In issue then and now is the tenancy of a supermarket business,
called Save and Smile, situate in Manzini at Lot 760 Dr. Hynd Street,
owned by the applicant.











[2]
In the present bout of proceedings, as in the previous, the applicant
seeks: a declarator that the lease agreement that was signed
inter
partes
has been
validly cancelled; ejectment of the respondent from the aforesaid
premises and costs of the proceedings, including the costs of Counsel
as certified in terms of the provisions of Rule 68 (2) of this
Court's Rules.







[3]
The respondent opposes the granting of the relief sought and has, as
a prelude, raised points of law
in
limine,
indicating
that it was unable to file papers on the substantive basis for the
reason that its directors, who were to give instructions on the
merits had travelled outside the country and were unavailable when
the application was initially served. For the avoidance of doubt, the
respondent indicated that it had not filed a notice in terms of Rule
6 (12) (c) of the Court's Rules. It specifically indicated that it
wished to plead over on the merits but was hamstrung by the absence
of its directors as aforesaid.







[4]
The respondent has raised two points of law and which are the subject
matter of this Ruling. In the first instance, the respondent claims
that this matter is not urgent or sufficiently urgent to justify the
invocation of the urgency procedures. Second, the respondent contends
that the matter was settled in its favour by this Court and the
Supreme Court, such that the matter was finally determined and that
the
exceptio rei
iudicatae
applies,
which should render it proper for the applicant to be non-suited.







[5]
The major thrust of this Ruling, as indicated, is to decide whether
there is any merit to the two contentions raised above. In order to
come to a view on this matter, it is pertinent that one closely
considers the papers filed by the applicant, together with all the
supporting documents, including the attached judgment of the Supreme
Court, which is relevant to the
exceptio
mentioned above. I
shall commence with the issue of urgency.























Urgency







[6]
The relevant provisions relating to urgency, are to be found in the
provisions of Rule 6 (25) (a) and (b) of the Rules of Court. Sub-Rule
(25) (b) above, bears particular resonance and appears to be the
pivot on which the respondent's contentions in this regard, revolve.
It provides that the applicant should, in its affidavit, state
explicitly the reasons why it contends that the matter is urgent and
also state why it claims it cannot be afforded substantial redress at
a hearing in due course. These twin requirements, it must be stated,
are mandatory and a failure to satisfy either may result in the Court
refusing to enrol the matter as one of urgency. See
Humphrey
H. Henwood v Maloma Colliery and Another
Case
No. 1623/93;
H P
Enterprises (Pty) Ltd v Nedbank (Swaziland) Ltd
Case
No. 788/99;
Megalith
Holdings v RMS Tibiyo (Pty) Ltd
Case
No. 19/ 2000 and
Ben
Zwane v Deputy Prime Minister And Another
Case
No. 624/00.















[7]
In his submissions, Mr. Nkomondze argued that the matter is not
sufficiently urgent to justify the abridgment of the Rules at all. In
particular, he argued that regard being had to the history of the
matter, particularly considering that the lease agreement in question
is alleged to have lapsed in October, 2010, there was no reason for
the applicant to rush to Court at the speed of a deer, to use Mr.
Nkomondze's
exact words,
and ask the Court to deal with the matter on an urgent basis.







[8]
Ms. Van der Walt argued to the contrary. She submitted that this was
not a case of the respondent having been ambushed in the proverbial
"knee-jerk reaction". In this case, the respondent had been
served with the application on 20 April and expected to file a notice
to oppose by 21 April; and answering papers, if any, by 27 April,
2011. It was further submitted on the applicant's behalf that the
papers, though appearing bulky, do not consist of new matter as the
issue involves old matters for the main part. She finally argued that
the applicant had complied with the provisions of Rule 6 (25) and
that the urgency alleged was commensurate to the extent of relaxation
of the Rules prayed for.







[9]
What is clear is that the lease agreement, which was held to obtain
between the parties by the Supreme Court, was based on the doctrine
of tacit relocation. The applicant, in its depositions, states that
it served a 6 months' notice in April, 2010 to the respondent and
which expired on 27 April, 2010. The applicant further alleges that
at the expiry of the notice period, the respondent was in arrears
with its rentals in the amount of E42, 258.00, which remains unpaid.
It further claims that after 27 April, aforesaid, it refused to
accept any further rental from the respondent, contending, it would
seem, that the lease agreement
inter
partes
had come to an
end.







[10]
It is clear in my view that according to the applicant's own
depositions, it became entitled to evict the respondent after 27
October, 2010. The question then becomes whether the applicant is
entitled, almost some six months later, to come to Court on an urgent
basis to claim a declarator and immediate ejectment of the
respondent. I am of the firm view that there is no sound basis, in
view of the history of this matter, and its antecedents, for the
applicant to rush to Court, even to the relaxed extent to which the
time limits have been abridged.







[11]
The applicant does say that there were some settlement negotiations,
presumably after the expiry of the notice period referred to earlier.
It is not clear from the papers when the negotiations fell through in
relation to the bringing of this application. The applicant was
bound, in this regard, to give a detailed account of the events so as
to convince this Court that it was not tardy in bringing this
application when it did. The applicant can only become chary in this
regard, to its own detriment.







[12]
The bases upon which the applicant claims the three-fold relief, is
that the notice period has expired; that the applicant is in arrears
in its rentals and lastly that it has, contrary to the provisions of
the lease agreement denied the applicant access to the premises to
enable the latter to carry out necessary works to enable it to
deliver the premises to its new tenant in good time and in good
working order.







[13]
Since the applicant was entitled to have sought the declarator and
the ejectment from the end of October, 2010, there is in my
considered view, no reason for it not to have done so in the previous
months and to then resort to an urgent application after such a long
time. There is, in view of the antecedents of the matter, no or
sufficient grounds to bring the matter on urgency. The applicant
should have brought this application in the normal course and not
subject the applicant to the abridged time limits.











[14]
I notice that the issue of access to the premises for purposes of
carrying out certain works, is not one in respect of which an Order
is sought from this Court. Depending on compelling and relevant
allegations being made in the founding papers, this could conceivably
have been one matter that could have been properly brought on urgency
as it does not appear to bear directly on the expiry of the notice
period and could have been one that manifested itself well after the
notice period had elapsed but one which it is imperative for the
applicant to have sorted out in the interregnum while the battle for
possession of the premises rages on.











[15]
In view of the foregoing, I come to the conclusion that the applicant
has failed to demonstrate that this is one matter, regard had to its
antecedents that ought to have been brought on urgency. I therefore
find that a sufficient case for urgency has not been made out and I
accordingly refuse to have the matter enrolled as one of urgency as
prayed for in prayer 1 of the notice of motion.



















[16]
In view of my findings above, I find it unnecessary to make any
Ruling on the issue of the plea
exceptio
rei iudicatae.
I
should mention, as I indicated to Mr. Nkomondze during the hearing,
that he appeared to be skating on very thin ice regarding this
particular legal issue. I need not say more at this stage.























[17]
In the premises, I grant the following Order:







(l)The
application for this matter to be enrolled as one of urgency be and
is hereby refused.



(2)The
applicant be and is hereby ordered to pay the costs of this
application.







DELIVERED
IN OPEN COURT IN MBABANE ON THIS THE 3
rd
DAY OF MAY, 2011.











T.
S. MASUKU



JUSTICE
OF HIGH COURT







Messrs.
Currie & Sibandze Associates for the Applicant



Messrs.
Nkomondze Attorneys for the Respondent