Court name
High Court of eSwatini

Dlamini v Swaziland Development and Savings Bank and Others () [2000] SZHC 39 (05 April 2000);

Law report citations
Media neutral citation
[2000] SZHC 39
Coram
Maphalala, J









IN
THE HIGH COURT OF

SWAZILAND


CIV.
CASE NO. 1360/97 (B)


In
the matter between


HAMILTON
MFUNWA DLAMINI APPLICANT


Vs


SWAZILAND
DEVELOPMENT AND


SAVINGS
BANK 1st RESPONDENT


THE
DEPUTY SHERIFF - SHISELWENI 2nd RESPONDENT


ELIJAH
DINGANE SIMELANE 3rd RESPONDENT


THE
REGISTRAR OF DEEDS 4th RESPONDENT


THE
ATTORNEY GENERAL 5th RESPONDENT


Coram
S.B. MAPHALALA - J


For
Applicant MR. S. MDLADLA


For
Respondents MR. S. DLAMINI


JUDGMENT


(05/04/2000)


Maphalala
J:


This
is an application to set aside the sale of the applicant property or
alternately the applicant's seeks an order for damages as restitution
in intergrum.


The
brief history of the matter is that applicant had bought the said
property being a Farm extent of Portion F, of the Farm Mantambi
number 470 situate in the District of Shiselweni, Swaziland from the
1st respondent with the usual terms and condition common to such
arrangements. At some point the applicant fell into arrears and as a
result of which 1st respondent approached the court for relief and
obtained a judgment in its favour and the said property was attached
by the 2nd respondent who is the Deputy Sheriff - Shiselweni. The
property was subsequently sold by public auction in terms of Rule 46
of the High Court Rules and was duly sold on the 20th November 1998,
at the Regional Administration at Shiselweni to the 3rd respondent
one Elijah Dingane Simelane who was the highest bidder in that
auction. Subsequently the said property was transferred into the name
of the 3 rd respondent and registered with the 4th respondent the
Registrar of Deeds. All these happenings started in 1997 up to the
present suit.


2


The
applicant has filed his founding affidavit with pertinent documents.
The matter is opposed by the respondent who in turn filed an opposing
affidavit and thus joining issue with the applicant.


Applicant's
case is that the sale was to take place on the 30th July 1998 when
the 1st respondent was represented by Mr. Dunseith and later
appointed the firm of Bheki G. Simelane and Company and he was
represented by attorneys, Shilubane, Ntiwane and Partners.


During
the second week of June 1998, he noticed a notice of sale which had
been published in the Swazi Observer, which indicated that his
property would be sold by public auction on the 30th July 1998. He
then informed his attorney Bheki G. Simelane and Company who
investigated on the regularity of the sale and advised that the rules
of court in particular Rule 46 had not been complied with by the 2nd
respondent. To this end his attorneys then wrote a letter to the 1st
respondent's attorneys advising that the sale had been cancelled. On
the 4th August 1998, he then saw another advertisement of sale of the
property which was set for the 11th September 1998. He was advised by
certain individuals who attended the sale that indeed it did take
place.


On
the 9th October 1998, at 9.30am he moved an urgent application. The
other side opposed the urgent application and it appeared before
Sapire CJ nonetheless it was postponed to allow the 1st respondent to
file an affidavit.


Subsequent
to the postponement, an advert of sale re-appeared on one of the
daily newspapers. This notice also had the same defect as the first
one.


The
gravamen of the applicant's case is that 1st respondents never
followed the rules. The 2nd respondent did not comply with Rule 46 of
the High Court Rules in the following ways:


17.1
In publishing the notice as aforesaid in the Government Gazette and
in the Times of Swaziland 1st and 2nd respondent failed to comply
with their obligation in terms of Rule 46 (8) in that:


i) He
only gave a deeds description of the property whereas, the said
property has a three-bedroom house, which is situate on the property
described in the Gazette.


ii) No
mention is made of the small shop which is built on the property.


iii) No
indication is given that the property may be used for both
residential and farming purposes.


He
went further to state that 2nd respondent failed to comply with his
obligation in terms of Section 46 (3), in that he never sent the
notice of attachment to applicant the trustee of the trust which owns
the property and there was no occupier of the property which the 2nd
respondent may claim to have served. 2nd respondent also failed to
serve the notice of attachment on the Registrar of Deeds as required
by the rules. It is apparent from the manner in which the sale was
handled, it is apparent that 2nd respondent never bothered himself to
re-serve the applicant with the documents as he


3


was
labouring under the misapprehension that he was not required to
prepare new documents concerning the new sale.


The
applicant at paragraph 19 of the founding affidavit avers that he is
advised by the 3rd respondent himself that when the property was
sold, there were no bidders. He bought the property after having been
persuaded by the 2nd respondent and 1st respondent attorneys Mr. S.C.
Dlamini.


The
applicant prays in his papers that in the event that the property has
been transferred and the court cannot reverse the transfer, in the
alternative he prays that the respondent be ordered to pay the
applicant damages.


Applicant
also asks for an order for costs. This is the factual basis
supporting the applicant's case.


The
1st respondent's case as gleaned from his answering affidavit is that
it would serve no purpose to set aside the sale as the property has
been transferred to the purchaser as can be seen from annexures "SCD1
(A)" and "SCD1 (B)" hereto being copies of the cover
of the deed of transfer and the last page thereof.


The
1st respondent denies paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11
of the applicant's founding affidavit. The 1st respondent denies that
the sale is defective. The notice of sale appeared in the Gazette and
it described the property as a good rural farm.


The
respondent denies paragraphs 15, 16, 17.1 (a) (i), 17.1 (a) (iii),
17.2, 18, 19, 20 and 21.

In
the main therefore the 1st respondent contests all the essential
averments constituting the applicant's case.


In
arguments before court the applicant contends that Rule 46 is
peremptory and non-compliance of same in executing a sale of
immovable property is fatal and it renders the sale a nullity.
(Rossiter and another vs Rand Natal Trust Company Ltd and others 1984
(1) S.A. 388).


The
statements as to whether or not there are any improvements or
buildings on the land in question and the type of building have to be
in the notice of sale. Non-cornpliance with rules, effect of no
attachment taking place - no valid sale in execution thus taking
place. For this proposition I was referred to the case of Juosub vs
J1 S.A. (Pty) Ltd 1992 (2) SA. 665. Mr Mdladla further argued that an
owner is entitled in certain circumstances to recover property sold
at sales sub hasta may be rei vindicatio or restitution in iniergrum.


On
the other hand it is argued by the 1st respondent as represented by
Mr. S. Dlamini that the relief sought is wholly inappropriate in that
the property has already been transferred and there is no prayer that
the deed of transfer be cancelled. I was referred to Section 7 of the
Deeds Registry Act 37 of 1968.


4


The
property having been transferred to a third party, the application is
fatally defective in that it does not allege that such third party
was mala fide or that he had notice of any defect in the sale at the
time of the sale. (see Sookdeyi and others Vs Sahaded and others 1952
(4) S.A. 568 (A). It was submitted that where the debtor had notice
of sale, same is not void (see Sookdeyi's case (supra)). A sale will
not be void if there has only been non-compliance with a slight
formality, which does not go to the root of the matter. For this
proposition the court was referred to a Roman-Dutch authorities
Antonius Matthwes "De Actionbus quoted with approval in Joosub
vs J1 S.A. (Pty) Limited and others 1992 (2) S.A. 658.


Mr.
Dlamini on behalf of the 1st respondent further contended that in
modern custom property sold by public auction under judges' order
without protest is not vindicable. To support this view he cited Voet
6.1.13 quoted with approval in Joosub (supra).


A
judgement debtor is not entitled to rely on a defective notice in
challenging a sale (Impendle Properties CC v Comfie 1993 (3) S.A.
706), where the execution process has been completed, the court can
then only interfere if there was a reviewable irregularity in the
process which prejudiced the debtor. The court was referred to the
case of Brummer vs Gorfil Brothers Investments (Pty) Ltd En Andere
1997 (2) S.A. 411 to support this proposition.


Furthermore,
Mr Dlamini submitted that there are material disputes of fact in this
matter which cannot be resolved on affidavits.


Lastly,
he argued that if the notice is served on the domicilim citandi et
executandi chosen by the debtor this will be sufficient compliance
with the sub-rule (Rule 46 (3)). He buttressed his submission by
citing the case of Gerber vs Stolfze 1951 (2) S.A. 166.


These
are issues before court. I agree entirely with the submissions by Mr.
Dlamini that this application is ill-conceived.


Firstly,
there has been no service on the 2nd to 5th respondents; especially
the 3rd respondent who has a direct and substantial interest in this
matter.


Secondly,
the property has already been transferred to the purchaser. The
applicant should have applied for a cancellation of the deed of
transfer. In terms of Section 7 (1) of The Deeds Registry Act No. 37
of 1968 which reads ipsissima verba as follows:


"Save
as otherwise provided in this Act or in any other law no registered
deed of grant, deed of transfer, certificate of title or other title
or other deed conferring or conveying title than a mortgage bond, and
no cession of any registered bond not made as security, shall be
cancelled by the Registrar except upon an order of court" (my
emphasis).


There
is no specific prayer in applicant's notice of motion addressing this
issue.


Thirdly,
the property having been transferred to a third party, the
application is fatally defective in that it does not allege that such
third party was mala fide or that he had notice of any defect in the
sale at the time of the sale. (see Soukdeyi and others (supra). It is
also clear from the facts presented before court that applicant was
aware


5


of
the notice of sale. In law as propounded in the case of Sookdeyi
(supra) where the debtor had notice of sale, same is not void. In the
case in casu the applicant in his affidavit keeps on saying that he
saw the notice of sale and he did nothing to set it aside.


Fourthly,
I am in agreement with Mr. Dlamini on the authority of Antonius
Matthews "De Actionbus" (Roman-Dutch authority) quoted with
approval in Joosub (supra) that a sale will not be void if there has
only been non-compliance with a slight formality which does not go to
the root of the matter. The case of Rossiter and another (supra)
cited by the applicant on the requirement of Rule 46 does not lay
down fixed rule. It was on the particular facts of that sale that the
rule applied. In the Rossister case the applicant was not aware of
the summons. He never owed the other party. In the present case it is
common cause that the applicant owed the 1st respondent.


Fifthly,
I also agree that in modern custom property sold by public auction
under judges order without protests is not vindicable (see Voet
6.1.13 quoted with approval in Joosub's case (supra)).


On
sixth ground where the execution process has been completed the court
can then only interfere if there was a reviewable irregularity in the
process which prejudiced the debtor. (see Brummer (supra).


On
the seventh point, it is clear in this case that there is a material
dispute of fact which cannot be resolved on affidavits. The applicant
states that there is a house in the premises and this has been
strenuously denied by the 1st respondent such that when the matter
appeared before Sapire CJ the learned Chief Justice suggested that
applicant take pictures of the house to assist the court in deciding
this matter. On the authority of the case of Room Hire Co. (Pty) Ltd
vs Jeppe Street Mansions (Pty) Ltd 1949 (3) S.A. 1155 (T), the case
in casu cannot be decided on the papers as they stand. It also
appears that the Rossiter case (supra) is relevant to urban property
not land used for agricultural purposes. Therefore, it cannot be said
that 1st respondent when posting the notice of sale did not give
proper description in conformity with Rule 46 of the High Court
Rules.


Lastly,
it appears to be the law that if the notice is addressed to a
domicilin citandi et executandi chosen by the debtor this will be
sufficient compliance with Rule 46 (3) (per Gerber vs Stoltze 1951
(2) S.A. 166). This appears to be the case in the present case.


In
the totality of things it would appear that applicant had manifold
hurdles to overcome in this case and has not done much to overcome
them.


I
thus dismiss the application with costs.


S
.B.

MAPHALALA


JUDGE