IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE Civil Case No. 521/2008
BHEKANI MKHABELA Applicant
And
SWAZILAND MEAT WHOLESALERS
(PTY) LIMITED 1st Respondent
SIBONISO DLAMINI 2nd Respondent
Coram S.B. MAPHALALA - J
For the Applicant MR. B. SIMELANE
For the Respondent MR. S.C. DLAMINI
________________________________________________________________________
JUDGMENT
19th February 2009
_____________________________________________________________
[1] Before court is an application in the long form for an order directing Respondents jointly and severally one paying the other to be absolved to pay E38, 158 – 83 to Applicant. In prayer (b) thereof that Respondents jointly and severally, one paying the other to be absolved pay costs of the application.
[2] The Founding Affidavit of the Applicant is filed being supported by an affidavit of one Muzi Manana. An annexure is filed thereto being a Slaughter Sheet from Swaziland Meat Wholesalers.
[3] The Respondent has filed a Notice of Intention to Oppose and later an Answering Affidavit. In the said affidavit three points in limine have been raised. Firstly, that the application is fatally defective because there has been a mis-joinder of the 2nd Respondent who acted herein throughout as the attorney for one Thoko Ivy Mkhabela (nee Magagula).
[4] The second point in limine is that there has been a non-joinder of Thoko Ivy Mkhabela at whose instance the cattle were seized. The third point in limine is that there has been a non-joinder of the Deputy Sheriff who attached the cattle.
[5] The fourth point in limine was raised from the Bar when the matter came for arguments that there are serious disputes of fact.
[6] In my assessment of the arguments of the parties I have come to the considered view that the first three points in limine should be dismissed. On the first point Applicant was told that it is the 2nd Respondent who took the money, or that someone was sent by the 2nd Respondent to get the cheque.
[7] On the second point that what was taken from the 1st Respondent is the cheque in the amount of E38, 158-83 and not the cattle as was the alleged instruction from Thoko Ivy Mkhabela. Thirdly, Applicant could not have joined a Deputy Sheriff he does not know as he was not told about him. Therefore the arguments of mis-joinder and non-joinder are misconceived.
[8] The only point in limine that has some merit is that of the disputes of fact. However, after considering the arguments of the parties I have come to the considered view that these disputes of fact regarding the ownership of the cattle and denial by the 2nd Respondent that he collected the cheque or that it is with him can be resolved through oral evidence. (see Room Hire Co. (Pty) Limted vs Jeppe Street Mansion 1949 (3) S.A. 1155).
[9] In the result, for the afore-going reasons I order that oral evidence be led on issues specified above in paragraph [8] of this judgment.
S.B. MAPHALALA
PRINCIPAL JUDGE