Swaziland Development Finance Corporation (Fincorp) v Ntshangase t/a Phumelele Hairdressing Salon and Others (622 of 2008) [2008] SZHC 185 (2 October 2008)

RULING 3/10/08

[1] The 3^rd Defendant is an adult woman who stood surety for the 1^st Defendant for a loan that 1^st Defendant had obtained from the Plaintiff on or about the 23/5/06. She is now being sued jointly and severally one paying the other to be absolved with the 1^st and 2^nd Defendant for payment of the loan.

[3] She resisted an application for summary judgement and raised certain points in limine to bolster her case namely:

i. She argues that the Plaintiff has approached the court with dirty hands in that it placed a garnishee order against 3^rd Defendant's salary without a court order or any valid legal instrument.

• She was unable to place such a garnishee order before court. Mr. Mdladla correctly took issue on the point of unclean hands. Counsel should desist from using this unsalutary label against another litigant unless they have full proof evidence if they do not wish to risk costs de bonis propriis should they fail to prove such.

ii. The 2^nd point she raises is that there is no legal
document on which the 3^rd Defendant may be said to be legally liable towards the Plaintiff.

[4] In terms of the Deed of Suretyship the loan was granted on the 23/5/06 she signed on the same date as surety therefore.

[5] On the same date she completed an authorisation for Fincorp to deduct monthly loan repayments from her monthly salary in the amount of E2,000.00. She must have discussed this aspect of the loan how else would the staff at Fincorp have known what figure to write there in. There is handwritten information at the left top of the authorisation letter detailing repayment within 42 months. I do not believe that she was unaware of what she was getting into especially as I am informed that she is a lecturer at a teacher training institution at Nhlangano.

[6] Mr. Dlamini has also informed the court that a female cannot enter into such agreements. That is not true. He is taking the womens movement for equality a step back. Even the Constitution refers to equality before the law for all genders. If such an authority exists then it must fall flat in the face of the Constitutional provisions.

[7] She further states that nobody explained the consequences of her signing as a surety. I do not believe this. The authorisation form is quite detailed. The questions and her responses should have alerted her of treading on troubled waters. I am aware that when people desperately need money they tend to overlook what is important and what may come back to bite them later on. This is what has happened to the 3^rd Defendant.

[8] She also states that what disturbs her is that there has been no attempt to recover the money from the 1^st and 2^nd Defendants. In my view the Plaintiffs do not have to do this. The summons which has been issued is the Plaintiffs way of recovery of its money from the 1^st and 2^nd Defendant but the 3^rd Defendant is delaying this process. There is nothing wrong with a Plaintiff in arming itself with a judgment while deducting the money on the basis of the authorisation. It can always suspend execution of the writ against the 3^rd Defendant. The execution of a writ against the 1^st and 2^nd Defendant may even accelerate relief for the 3^rd Defendant.

[9] She may also sue the 1^st and 2^nd Defendants for the moneys that have been deducted from her and compete with the Plaintiff when execution of the writs is being effected.

[10] I agree that courts are reluctant to close a door on a Defendant who has a good defence in summary judgement applications. This case clearly is not one of those. The points in limine are dismissed and the application for summary judgment is granted with costs.

Q.M. MABUZA-J

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