Court name
High Court of eSwatini
Case number
2199 of 2010

Hashraf and Another v Gigatec (Pty) Ltd (2199 of 2010) [2011] SZHC 117 (01 June 2011);

Law report citations
Media neutral citation
[2011] SZHC 117












IN
THE HIGH COURT OF SWAZILAND








HELD
AT MBABANE CASE NO. 2199/2010





In
the matter between:





KAREEM
ASHRAF 1
ST
PLAINTIFF





MONA
ASHRAF 2
ND
PLAINTIFF








VS








GIGATEH
(PROPRIETARY) LIMITED DEFENDANT








Coram
Ota J.





For
Applicant: Mr. L.R. Mamba





For
Defendant: Mr. B. Mndzebele













JUDGMENT


















OTA
J,









The Plaintiffs
took out combined summons against the defendant claiming inter alia
the following reliefs








  1. An order ejecting
    the defendant and all claiming title under it from the premises.



  2. Interest thereon
    at the rate of 9% per annum calculated from the date of issue of
    summons to date of final payment.



  3. Costs of suit.








The claim is
founded on the plaintiffs particulars of claim as is found on pages
3 to 5 of the book, to which is exhibited annexures A and B
respectively.







After the
defendant delivered a notice of intention to defend, the plaintiffs
commenced a summary judgment application for the reliefs claimed. In
it’s affidavit resisting summary judgment, the defendant raised
the special plea of
lis
alibi

pendens,
seeking to defeat the claim in limine. The defendant contends that
on the 21
st
of April 2009, the plaintiffs instituted proceedings before the High
Court of Swaziland, seeking inter alia for an order ejecting the
Defendant from premises situate at portion, 23 Farm 300, District of
Manzini. That these proceedings which are registered under Case No.
1405/2009, are still pending and have not been finalized. That in
the claim instant, the Plaintiffs also claim ejectment of the
defendant from the same premises. Therefore, there are two actions
pending between the same parties, founded on the same cause of
action, in respect of the same subject matter. The defendant thus
prayed the Court to stay the present claim pending the outcome of the
claim instituted under 1405/2009. What then is the law on this
subject matter?







The learned
authors
Herbstein
and Van Winsen

in the text The Civil Practice of the Supreme Court of South Africa
(4
th
edition), 249 – 250, elucidated the requisites for a successful
plea of
lis
pendens

,in the following language.







‘‘ The
requisites of a plea of lis pendens are the same with regard to the
person, cause of action and subject matter as those of a plea of res
judicata, which, in turn, are that the two actions must have been
between the same parties, or their successors in title, concerning
the same subject matter and founded upon the same cause of complaint.
For a plea of res judicata to succeed, however, it is not necessary
that the ‘‘ cause of action’’ in the narrow
sense in which the term is sometimes used as a term of pleading
should be the same in the latter case as is in the earlier case. If
the earlier case necessarily involved a judicial determination of
some question of law or issue of fact in the sense that the decision
could not have been legitimately or rationally pronounced without at
the same time determining that question or issue, then that
determination though not declared on the face of the recorded
decision, is deemed to constitute an integral part of it, and will be
res judicata in any subsequent action between the same parties in
respect of the same subject matter. The same principle will
generally apply when the plea is one of lis pendens. -----In order to
decide what matter is in issue, one should consult the pleadings, not
the evidence led’’







It follows from
the foregoing exposition, that three ingredients must be evident in
both claims to sustain a successful plea of lis pendens, namely:-








  1. The parties must
    be the same.



  2. The subject
    matter of the claims must be the same.



  3. The cause of
    action must be the same.








The question that
naturally arises at this juncture to my mind, is, whether the facts
sated herein, when juxtaposed with the three requirement ante,
vindicate the special defence urged?



It is apposite for
me at this juncture to first consider the meaning of the term ‘‘
cause
of action’’

as demonstrated by case law, before taking and further steps.







In the case of The
Minister
of Natural Resources and Energy V Johannes Nkwanyana Civil Case No.
3952/05, Annandale J,

defined cause of action as follows:-







‘‘
Every fact which it would be necessary for the Plaintiff to prove,
if traversed, in order to support his right to the judgment of the
Court. It does not comprise every piece of evidence which is
necessary to prove each fact---, but every fact which is necessary to
be proved----’’







Similarly, in
Evins
V Shield Insurance Co. 1980 (2) SA 814

at
838, Corbett JA,

stated as follows:-







‘‘
The proper legal meaning of the expression ‘‘ cause of
action’’ is the entire set of facts which give rise to an
enforceable claim and includes every fact which is material to be
proved to entitle a Plaintiff to succeed in his claim-----’’







Now, in the
previous claim under Case Number 1405/2009 the Plaintiffs claimed the
following reliefs against the Defendant:-








  1. Cancellation of
    the agreement of lease.



  2. Ejecting the
    Defendant and all claiming title under it from the premises.



  3. Payment of the
    sum of E22,000-00.



  4. Interest thereon
    at the rate of 9% per annum calculated from the date of issue of
    summons to date of final payment.



  5. Costs of suit.



  6. Further and
    alternative relief.








I have
hereinbefore set out the claim instant. There is no doubt that the
ejectment of the Defendant from the premises in issue was subject
matter in both claims. However, the cause of action which is
decipherable from the pleadings filed of record in both claims
clearly differ. Whilst in 1405/2009, the Plaintiffs claim for
ejectment of the Defendant was premised on the allegation of default
on the part of the defendant to pay rentals, in the case instant,
the prayer for ejectment is clearly founded on the allegation of
expiration of the lease agreement between the parties by exffluxion
of time. The question of the termination of the lease agreement,
which by the facts stated, allegedly took effect on the 30
th
April 2010, is not a question that would have been determined in the
earlier Case 1405/09, since at the time of instituting the claim, the
fact of the expiration of the lease agreement was non existent, or
was not in issue, thus the prayer for cancellation of the lease
agreement in 1405/09.







It is common cause
that in Case Number 1405/09, that the Defendant raised a counter
claim to the Plaintiffs claim and the parties were referred to trial.
By reason of this fact, defence counsel
Mr
Mndzebele
contends in oral submission, that it will not be just or equitable
for the Court to permit the claim instant to proceed along side the
former, as to do so will render the counter claim raised in the
former hallow, an academic exercise. What the defence is obviously
contending by
Mr
Mndzebele
’s
line of argument is that the claim instant is an abuse of the process
of the Court, in that the Plaintiffs are trying to use it to
overreach the former action. The Defendant was in these
circumstances required to put the counter claim in the former case
before the Court to enable the Court guage the effect of the said
counter claim on the prayer for ejectment. The Defendant failed to
do this. In as much as I agree that the Court will uphold a plea of
lis
pendens

even where all the requisites of such a plea are not evident,
provided it is just and equitable to do so, it is also trite that a
Court cannot speculate on the contents of a document not before it.
In the absence of the Defendant’s counter claim in 1405/09, any
forage into same is tantamount to a voyage in the realm of
conjecture, an enterprise that is forbidden for a Court.







In the light of
the totality of the foregoing, the Defendant’s plea of
lis
pendens

thus fails and is accordingly dismissed with costs.











DELIVERED IN
OPEN COURT IN MBABANE ON THIS



THE…………………01…………
DAY OF ……June…………2011











OTA J.



JUDGE OF THE
HIGH COURT









9