Dlamini v Lomafa Investments (Pty) Ltd v Dlamini (2265 of 2007) [2007] SZHC 98 (8 August 2007)

[1]The Applicant has raised a point of law to the effect that the 1ST

th

Respondent's application for amendment of the judgment dated the 20 July 2007, as well as the addiction of an addendum to the judgment be stayed on the basis that the 1^st and 2^nd Respondents have failed notwithstanding the

th

service of the order to comply with the judgment of court dated the 20 July 2007.

[2] In arguments before me last Friday Mr. Jele for the Applicant premised the arguments of the Applicant on the dictum in the local judgment in the matter of Photo Agencies (Pty) Ltd vs Commissioner of the Swaziland Police 1970 - 76 S.L.R. 398 where the following statement of the law was said by the learned Chief Justice Nathan:

"The nearest analogy I have been able to find is that of the fugitive offender who in the cases of Mulligan vs Mulligan 1925 WLD 164 and S v Nkosi 1963 (4) SA 87 (T) was held to have forfeited the right to seek assistance in court. Before a person seeks to establish his rights in a court of law he must approach the court with clean hands: where he himself through his own account makes it impossible for the processes of the court (whether criminal/civil to be given effect to, he cannot ask the court to set its machinery in motion to protect his civil rights and interests ... were the court to entertain a suit at the instance of such a litigant it would be stultifying its own processes and it would, moreover, be conniving at and condoning the conduct of a person who through his flight from justice sets law and order in defiance".

[3] Counsel for the Applicant contended that since the cattle have not been delivered to the Applicant as directed by the court order of the 20^th July 2007 both the 1^st and 2^nd Respondent cannot be heard by this court until they have purged their contempt.

[4] Counsel for the 1^st Respondent agreed with the statement of law as stated by Mr. Jele when he cited the case of Photo Agencies but said his client the 1^st Respondent Lomafa Investments (Pty) Ltd is not in contempt of the order of court dated 20^th July 2007 as it is the 2^nd Respondent as the Deputy Sheriff of this court who should execute the orders of court.

[5] Mr. Jele for the Applicant in reply cited the case of Butchart vs Butchart 1997 (4) S.A. 108 where it was held that the Plaintiff remains liable for the consequences of the writ of execution being set aside. In his supplementary Heads of Arguments which I received yesterday the 7^th August 2007, Mr. Jele referred the court to the provisions of Rule 45 (1) of the High Court Rules which provides that "the party in whose favour any judgment of the court has been pronounced may at his own risk, sue out the office of the Registrar one or more writs for execution thereof as near as may be in accordance with form 20 of the First Schedule".

[6] It appears to me that Mr. Jele is correct that where the Plaintiff issues the writ at his own risk, it has been held that if the attachment causes damage to the judgment debtor or third party, the judgment creditor, and not the sheriff is liable therefore. I further agree with the Respondent's contention that the operative words for purposes of this matter are that, the Applicant may at his own risk sue out.... Furthermore, it appears that the judgment creditor is not liable, if the sheriff has acted outside the scope of his authority.

[7] The writ was issued and an interim order set aside the writ directing the return of the attached goods. The order has been served on the attorney, who is responsible for issuing out the writ at his own risk out of the office of the Registrar. I further agree with Mr Jele that the attorney cannot ignore the order of court nor can they distance themselves and contend that this is now an issue for the Deputy Sheriff only.

[8] In the result, for the afore-going reasons the point of law by the Applicant succeeds and the 1^st Respondent's application for amendment of the judgment dated the 20^th July 2007 is stayed as well as the addition of an addendum. Costs reserved to the merits of the case.