IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 2500/2010
In the matter between:
MAXWELL MONDLI DLAMINI APPLICANT
WANDILE WALTER NXUMALO RESPONDENT
Coram OTA J.
For the Applicant
For the Respondent
4th FEBRUARY, 2011
In this application which is commenced by way of Notice of Motion, the applicant prays for the following reliefs;
- Directing the respondent to vacate the premises Lot No. 1513 Msunduza Township, Extension 4 situate in Hhohho District.
- Authorizing and directing the Deputy Sheriff to engage where necessary members of Swaziland Police Force to eject Respondent from the said premises.
- Granting costs hereof.
The application is founded on a 12 paragraphs affidavit to which is exhibited annexures B1, B2, B3 and B4 respectively.
When this matter served before me for argument on the 8th of December 2010, Mr B. Zwane appeared for the applicant. The Respondent however was absent and unrepresented. Mr B. Zwane informed the Court that they received a copy of withdrawal by counsel for the Respondent in the case. As a result of this, the court postponed the matter to the 15th of December, 2010 for hearing at 2pm and ordered notice of set down to be served personally on the Respondent.
On the return date and time, B. Zwane again appeared for the applicant. The respondent was however absent inspite of the fact that notice of service and affidavit of service evidencing the fact that notice of set down was duly served on him personally on the 9th day of December 2010, was tendered in Court.
Mr B. Zwaneapplied for judgment in terms of applicants prayers after tendering oral argument in support thereof.
Now inspite of the fact that the Respondent failed to attend court, he however filed a 10 paragraphs, answering affidavit to which is exhibited annexure A. In the circumstances, this judgement is not one in default of defence but one in default of appearance, which must of necessity be one reached on consideration of the merits of the case, pursuant to Rule 39 (1), of the Rules of this Court, which provides as follows:-
‘’ If when a trial is called, the plaintiff appears and the defendant does not appear, the plaintiff may prove his claim so far as the burden of proof lies upon him and judgment shall be given accordingly, in so far as he has discharged such burden, but where the claim is for a debt or liquidated demand no evidence shall be necessary unless the Court otherwise orders’’.
In the circumstances, I find a need to consider the totality of the evidence placed before me as per the book of pleadings, to determine if the applicant is entitled to the reliefs sought.
Applicants case as per his founding affidavit is as follows:- On or about April 2010, the applicant and Respondent entered into a Deed of cession agreement in terms of which the Respondent ceded all his rights to a certain immovable property to wit, a certain Lot No. 1513 Extension 4, Msunduza Township, Hhohho District, to the applicant. The Deed of cession is annexed as B1. The cession agreement was submitted to the Ministry of Housing where the Respondent’s rights were ceded and the rights were registered in applicants name as evidenced by annexure B2. That the applicant duly paid the purchase price of E50,000-00 to the Respondent pursuant to the agreement, as is clearly shown by the acknowledgement of receipt of same by the Respondent, annexure B3. That the Respondent failed to comply with the terms of the agreement to vacate the premises after the payment was made. That on the 8th of May 2010, the applicant’s attorneys gave notice to the Respondent to vacate the premises, as is shown in annexure B4. That Respondent has however failed to vacate the premises, clearly showing an unwillingness to comply with the terms of the agreement. Therefore, the applicant prays for the orders herein Mr B. Zwane further prayed for the orders to be couched to include those that hold title under the Respondent.
Now, I have hereinbefore demonstrated that the Respondent filed opposing papers to this application. These appear on pages 32 to 41 of the book of pleadings. In opposing this application, the Respondent raised two points of law seeking to defeat same in limine namely:-
- Dispute of facts
He also dealt with the merits of the application. It is convenient for me to state briefly the facts that form the substractum of Respondent’s opposition, as they are fundamental to the points raised in limine, as well as the merits of this application, if necessary.
It is the Respondent’s position that the cession agreement was subject to the applicant making payment in the sum of E50,000-00 and further surrendering to the Respondent a Corsa Van which was further to go towards payment of the purchase price. That applicant upon signing of the cession agreement made a payment of E10,000-00 as a deposit but subsequently failed to effect payment of the outstanding balance of E40,000-00. That as a result of the applicant’s failure to pay the outstanding balance of E40,000-00, the Respondent wrote a letter, annexure A, to the Swaziland National Housing Board, the registered owners of the premises canceling the sale agreement . That the registration of the rights to the premises by the applicant was fraudulently done by the applicant as the deed of sale was cancelled pursuant to applicants failure to pay the outstanding balance of the purchase price. That at no time did he receive the sum of E50,000-00. That Mzamo Mamba whose signature appears on annexure B3 as a witness never witnessed the said transaction.
There is no doubt that the court can entertain proceedings on motion application. Therefore, where the dispute between the parties is predicated on a question of law, the accepted judicial practice is to pursue the matter via motion proceedings, as such is not only expeditious but is also manifestly less expensive. See Herbstein and Van Winsen, Civil Practice of the Supreme Court of South Africa (4th edition) Van Rensberg V Van Rensberg ed adare 1963 (1) SA 505 (A) 23 to 24.
On the other hand, it is the judicial consensus, that motion proceedings is not appropriate for the purpose of deciding real and substantial disputes of fact, which properly fall for decision by action. See Room Hire Co (Pty) Ltd V Jeppe Street Mansions (Pty) Ltd 1939 (3) SA 1131 (T), Mntomubi Simelane and another V Makwata Simelane and others Case No. 4286/09 (unreported )
In casu, it is my considered opinion after a very careful consideration of the totality of affidavit evidence tendered, that there is no real or substantial disputes of fact that attend this application, contrary to the Respondent’s assertions. The only dispute I see is as it relates to payment of the purchase price pursuant to the Deed of Cession. This is a dispute which to my mind can easilybe resolved on the papers that attend this application. The point taken in limine on dispute of fact, thus fails and is accordingly dismissed.
Furthermore, the point taken on non-joinder of Swaziland National Housing Board, must also fail. I say this because this is a case in which the applicant seeks to enforce his rights against the Respondent. I see no necessity whatsoever or convenience in citing Swaziland, National Housing Board as a party to these proceedings. See Rule 10 (1) and (3) of the Rules of this Court. This point therefore fails and is accordingly dismissed.
The foregoing said and done, let us consider the substantiality and efficacy of the applicants prayers. In casu, it is not disputed that pursuant to annexure B1, Deed of cession, the Respondent ceded all his rights, title and interest in Certain Lot No. 1513 Extension 4, Msunduza Township, Hhohho District, to the applicant. It is not controverted that in consequence of the Deed of Cession, that the rights of the said property were registered in the name of the applicant as is evidenced by annexure B2. The Respondent contends however, that the said registration was done fraudulently. His main and central ground for this allegation as is borne out of paragraph 9 of his answering affidavit, is that he had cancelled the deed of sale via annexure A, prior to the said registration. The question is, is there any substance in the respondent’s allegation in this regard? I think not. There is no doubt that in annexure A which is dated 7th May 2010, and can be found on page 37 of the book of pleadings, that the respondent had written to Swaziland National Housing Board canceling the agreement to hand over the said property to the applicant. However, the record demonstrates that by a subsequent letter, annexure B4, dated 12th May 2010, exhibited to the replying affidavit of the applicant, also addressed to Swaziland National Housing Board, that the Respondent withdrew his letter dated 7th May 2010, and once more gave the board the authority to continue transfer of the said property to the applicant. For avoidance of doubts, I find a need to set out the contents of annexure B4 in full hereunder, as it appears on page 47 book of pleadings. B4 states as follows:-
Wandile Walter Nxumalo
P. O. Box 1545
12 May 2010
The Managing Director
Swaziland National Housing Board
P.O. Box 798
RE: PROPER TRANSFER/HANDOVER
I hereby allow your office to continue transferring my Plot No. 1513 at extension 4 Msunduza location in the district of Hhohho to Maxwell Mondli Dlamini. I personally withdraw my letter dated 7th May 2010 where I was stopping your office to make the transfer.
I am sorry for any inconvenience caused.
Wandile W. Nxumalo
The foregoing letter which speaks for itself has not been discredited or challenged throughout the tenure of this application. It must thus be taken as establishing the facts alleged therein. It would thus appear to me from the totality of the foregoing, that the applicant was well within his rights to have registered the rights to the premises in dispute in his name. The allegation of fraud by the Respondent falls flat on its face in the circumstances, and is accordingly dismissed.
Furthermore, it is also Respondents position that the applicant breached the agreement by failing to pay the E50,000-00 purchase price for the said property. Even though the respondent suggested in paragraph 4 of his answering affidavit, that the applicant was also to surrender a corsa van which was further to go towards payment of the purchase price, he however seems to subsequently abandon this line of defence. I say this because there is no where it is suggested in the answering affidavit, that Respondent’s refusal to fulfill his side of the obligation under the agreement, was premised on non delivery of the alleged corsa van. Rather, Respondent’s defence as borne out by paragraphs 4,6,7,9 and 10 of the Answering Affidavit is that the Respondent cancelled the agreement and refused to fulfill his obligation there under because the applicant defaulted in payment of the E50,000-00 purchase price. This state of affairs therefore lends weight to the applicants contention in paragraph 4 of the Replying Affidavit, that there is no agreement under which he was to surrender a corsa van to Respondent as part of the purchase price.
In the circumstances, the only question that to my mind is left to be answered is, did the applicant pay the purchase price of E50,000-00? The Respondent alleges that the applicant paid E10,000-00 and failed to pay the outstanding balance of E40,000-00. The applicant on the other hand is unrelenting in his position that he paid the sum of E50,000-00. He relies heavily on annexure B3 in proof of this fact. Now annexure B3 which appears on page 26 of the book of pleadings is an acknowledgement of payment. In it the Respondent acknowledged that the applicant has paid in full the sum of E50,000-00 purchase price for the said premises.
The respondent sought to discredit annexure B3 in these proceedings . He alleges that he never received the sum of E50,000-00 and that one Mzamo Mamba, whom he alleges is indicated as a witness on annexure B3 never witnessed said payment. The said Mzamo Mamba swore to a confirmatory affidavit to these facts.
Now, it is not disputed that the Respondent signed annexure B3. I say this because respondents contention which can be seen in paragraph 6 of his answering affidavit, which paragraph is in denial of the contents of paragraph 6 of the founding affidavit, is that he never received the said sum of E50,000-00 and not that he never signed annexure B3. In fact there is no where throughout the tenure of this application, where the respondent even remotely denied signing annexure B3 or where he suggested that his signature as it appears in that document was fraudulently obtained. The Respondent appears not to be disputing the fact of his signature on annexure B3. He is rather contending the signature of one of the alleged witnesses Mzamo Mamba. I find that this line of defence cannot aid the respondent in any way. This is because as rightly pointed out by the applicant, there is no where throughout this application, where applicant suggested that Mzamo Mamba witnessed annexure B3. Let me also point out categorically that the name of Mzamo Mamba does not also appear on annexure B3 as a witness. The Respondent is thus in my views, chasing shadows by this line of defence. The fact remains that his signature as it appears on annexure B3 is not disputed. This state of affairs is not surprising to me. I say this because I have taken the liberty of comparing the Respondent’s signature as it appears in annexure B3, with his signature as it appears on other annexures namely B1 – The Deed of cession, annexure A – cancellation of property hand over (page 37) annexure B4 – Proper Transfer / Handover (page 47), I find that all the signatures are the same. It is thus obvious to me that the respondent signed annexure B3. The fact of his signature there is established beyond disputation. In the circumstances, the Respondent is thus estopped from denying the fact that he acknowledged full payment of the purchase price of the said property via annexure B3.
What the applicant seeks in this application is specific performance of the Deed of Cession between the parties. In general an aggrieved party has a right to an order of specific performance. The classic statement of this rule is by Innes JA in farmers Cooperative Society V Berry (1912) AD 343 at 350, where he declared thus:
‘’ Prima facie every party to a binding agreement who is ready to carry out his own obligation under it has a right to demand from the other party, as far as is possible, a performance of his undertaking in terms of the contract’’
Case law has demonstrated that to be entitled to this remedy the applicant must establish the following:-
- Allege and prove the terms of the contract.
- Allege and prove that he has complied with his antecedent or reciprocal obligation.
- Allege non performance by the Respondent of his obligation.
- Claim for specific performance.
See Sibongiseni Fundzile Xaba V Lindiwe Bridget Dlamini N.O. and others Case No. 1080/2009. (unreported) SA Cooling Services (Pty) Ltd V Church Counsel of the Full Gospel Tabernacle 1955 (3) SA 541 (1).
In casu, the fact of the Deed of Cession is not disputed. Not disputed is that it is one of the terms of the Deed of cession that the Respondent delivers up possession of the said premises to the applicant, upon payment of the full purchase price of E50,000-00 I have established it beyond disputation, that the applicant has paid the full purchase price of E50,000-00 to the Respondent. This fact was acknowledged by the Respondent via annexure B3.
It is established beyond disputation that inspite of payment of the full purchase price by the applicant, that the Respondent has failed, or refused or neglected to deliver possession of the said premises to the applicant, despite the fact that notice to vacate was duly given to the Respondent by applicant’s attorneys see annexure B4 (page 27). It is the foregoing that led to the present action by the applicant for specific performance. It would thus appear to me from the totality of the foregoing, that the applicant has satisfied all the requirements to be entitled to the orders sought. Applicants application succeeds in the circumstances.
I hereby make the following orders
- The Respondent, his successors in the title and assigns, do and are hereby ordered to vacate the premises Lot No. 1513 Msunduza Township, Extension 4 situate in Hhohho District forthwith.
- The Deputy Sheriff do and is hereby authorized to engage where necessary members of the Swaziland Police Force to eject the Respondent from the said premises.
- Costs to follow the event.
JUDGE OF THE HIGH COURT