Zikalala v Kirk and Another, in Re: Kirk v Zikalala and Others (405 of 2009) [2009] SZHC 217 (15 September 2009)

[1] The first. Respondent. Mr. Kirk obtained default judgment against the applicant on the 27/2/09 for the Applicant's eviction from certain immovable property described as Portion 62 (a portion of portion 49) ox Farm no. 1270 situate in the District of Manzini.

[2] The Applicant upon hearing about her imminent eviction launched the present application in terms of rule 31 (3) (b) on the basis of urgency. She seeks an order in the following terms:

1. Dispensing with the rules of this Honourable Court with regards time, manner and form of service and to hear this application as one of urgency.

2. Staying execution of the Order granted by this honourable court granted on this 27^th February, 2009 against the Defendants’ in the main action.

3. Rescinding and/or setting aside the Judgment granted
by this Honourable Court on the 27^th February, 2009 against the Defendants^’ in the main action.

4. Ordering and directing that a Rule Nisi do hereby issue
returnable on a date to be determined by this
Honourable Court, calling upon the Respondents to show cause why;

1. an Order in terms of prayers 2, and 3 should not fee made final.

2. the 1^st Respondent should not pay the cost of this application.

5. Granting Applicant such further and/or alternative relief as to this Honourable Court may seem meet.

[3] On the 7^th March 2009 the Applicant was granted a stay of execution pending the finalisation of this application.

[4] In her founding affidavit the Applicant states that on the 2^nd March 2009 she received a copy of an eviction order from one of her daughters. She was unaware that there were proceedings against her as she was not served with any summons.

[5] She further states that it was only after she had instructed her attorneys that she was advised that indeed a summons had been issued against her and others. She has stated that had she been aware of the issuance of summons against her, she would have defended the matter.

[6] She farther contends that she has a good defence to the main action which prima facie carries good prospects of success. She has set out her defence at paragraph 10 of her founding affidavit as follows;

“10.1 It is my submission that the landed property from which the said Order seeks to have myself evicted, has served as my home since time predating my birth.

2. The said piece of land previously had concessionary title which in the late 1980's was returned to Swazi Nation Land. To further illustrate this, the area is a Chieftaincy and presently headed by the Chief of Ekufinyeni.

3. I also wish to state that there is still the underlying issue for trial, on not only how Plaintiffs predecessor in title managed to procure … transfer to Plaintiff itself. I am advised and believe that the Trustee to the Seller just so happens to be the Plaintiffs own biological son.

10.4 I also submit that yet another question for ventilation at trial would have been the issue of
how … puportedly obtained in 2007 by the
Plaintiff would not have been brought to the
attention of the second generation occupants of
the said land,"

[7] The 1^st Respondent in his answering affidavit H, denies that the Applicant was unaware of legal procedures against her. He contends that the Applicant was aware of the summons which had been served on her daughter, Sithembile Msimango. He further states that the day after the service of summons she approached certain of his employees namely Kenneth Masilela and Siyabonga Ndlangamandla. She requested these employees to arrange an appointment with the 1^st Respondent with whom she wished to discuss the issue of compensation if indeed she did vacate the premises.

[8] In support of the 1^st Respondent's averments, the deputy sheriff of Manzini, Melusi Qwabe filed a confirmatory affidavit. In it he states that he served summons on the Applicant's daughter, Sithembile Msimango on the 5*" February, 2009. When he effected service of the summons he was accompanied by an employee of the 1^st Respondent, Simon Maziya. Mr. Maziya has also filed a confirmatory affidavit confirming trie service of the summons on the Applicant's daughter. Mr. Kenneth Masilela and Siyabonga Ndlangamandla filed confirmatory affidavit confirming averments by the 1^st-Respondent and that the Applicant admitted that; she had been served with the summons.

[9] Sithembile, the Applicant's daughter did not file an affidavit explaining what she did with the summons. But that is water under in-:- budge now.

[10] Of critical importance in my opinion is whether or not good or sufficient cause has been shown for rescission to avail. It is an accepted legal principle that a reasonable and acceptable explanation for the default must be shown as well as a bona fide defence on the merits which prima facie carries prospects of success.

[11] The Applicant has stated that she did not receive the summons and has raised a good defence to the action which prima facie carries the prospects of success. I accept her explanation tie--one dh not receive the summons. I further accept the defence that ehe hac raised. The issue of Concession Land being converted to Freehold Land needs to be addressed by all stakeholders including the Government; so that the matter is put to rest once and. for all.

[12] In response to the Applicants defence the 1^st Respondent has stated that the land in question is Title Deed Land. Thai; he served a copy of the Tieh Deed, with the summons. The Title Deed has not been attached to these proceedings. I requested a copy from Mr. Fakudze and to date it has; not been forthcoming, Inste⁰^ Tyf^-" * deeds of lease were attached to the 1^st Respondent- iffidavit. These leases with respect do not assist the Court. It is not clear on the papers before me whether the 1^st Respondent has title or not to the land in question. The Applicant may very well be correct that the land was initially concession land. She may well be correct in questioning how concession land was converted to freehold land and if this was done legally.

[13] In the event, the application is granted. Costs to be in the cause.

Q.M. MABUZA J