Ndlangamandla v Motor Vehicle Accident Fund and Another (1949 of 2005) [2006] SZHC 32 (9 February 2006)

RULING

(On points of law in limine) (9^th February 2006)

[1] This application is similar to the one involving Gelane Ntombizile Gamedze {nee Dlamini) against the Motor Vehicle Accident Fund and Sophie D. Shongwe under Case No. 1948/2005 where 1 heard arguments at the same time. Also in the present case the Applicant is applying for a declaratory order that the following minor children, Nikiwe Ncobile Shongwe, Njabulo Clement Shongwe and Sabelo Khaya Shongwe, being illegitimate minor children of the late Mkwapela Shongwe. Two points of law in limine have been raised by the Respondent. Firstly, that Applicant does not have the necessary locus standi to launch this application. Secondly, that there are disputes of facts in this matter.

[2] On the first issue I held in the other case that Applicant had locus standi to make the application and also in the present case the reasons I gave in this respect apply in the present case. On the second issue that of the dispute of facts the reasons given in Gelane Ntombizile Gamedze (supra) also apply on the facts of the present case. It is trite that, where a declaratory order is sought, if a dispute of fact is foresseable, a declaration should be sought by way of action (see Electrical Contractor's Association of S.A. vs Building Industries Federation S.A. 1980 (2) S.A. 516 (T)). Further, for ease of reference the ruling in Gelane Ntombizile Gamedze (supra) forms part of the present ruling.

[3] In the result, the application is dismissed with costs.

S.B. MAPHALALA

JUDGE