Mavuso v Swaziland Development and Savings Bank ("Swazi Bank") and Another, in Re: Swaziland Development and Savings Bank ("Swazi Bank") v Mavuso (2604 of 2008) [2009] SZHC 60 (6 February 2009)

IN THE HIGH COURT OF SWAZILAND

HELD AT MBABANE

CASE NO. 2604/08

In the matter between:

NOMSA PRECIOUS MAVUSO

APPLICANT

and

SWAZILAND DEVELOPMENT AND SAVINGS BANK ("SWAZI BANK")

1^st RESPONDENT

MENZI DLAMINI

2nd RESPONDENT

In re:

SWAZILAND DEVELOPMENT AND SAVINGS BANK ("SWAZI BANK")

APPLICANT

and

NOMSA PRECIOUS MAVUSO

RESPONDENT

CORAM

FOR THE APPLICANT FOR THE RESPONDENT

Q.M. MABUZA-J MR. M. NKOMONDZE MR. SIMELANE

JUDGMENT 6/02/09

Make

Model

Colour

Registration number Chassis number Engine number

ALTERNATIVELY

Kia Picanto 1.1 LX

2006

Black

SD 245 US

KNABA24326T324983 94HG6M822554

2.3 That the appointed Deputy Sheriff be authorized and directed to take possession of the motor vehicle wherever the same may be found and to keep same in safe custody pending finalisation of the matter.

4. The Respondent to deliver/surrender to the Applicant the motor vehicle's registration papers i.e. the Blue Book, failing which, the Central Motor Registry be and is hereby authorised to issue the Applicant with a duplicate Blue Book.

[3] The rule was confirmed on the 25/7/08. The Respondent, Miss Mavuso was not present on this date. She says that the reason for her absence was that she was not served with the rule nisi, Notice of Motion and Application. The deputy sheriff denies this. He states that he served her.

[4] The second application was moved by the Swazi Bank for inter alia the arrest of Miss Mavuso. It was moved and granted on the 1/08/08. The Respondent was never served with this application. She was subsequently arrested.

[5] The third application was moved by the Respondent, Miss Mavuso. It sought inter alia the following orders:

3. Pending finalisation of these proceedings, staying execution of the warrant of arrest as against the Applicant issued under the hand of the Registrar of this Honourable Court on the 1^st August 2008;

4. Discharging the warrant of arrest issued against the Applicant on the 1^st August 2008;

5. Rescinding and or setting aside the final order granted in favour of the 1^st Respondent on the 25^th July 2008 in

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the main application and ordering the Respondents to restore possession to the Applicant of the vehicle to wit: Kia Picanto 1.1 registered SD 245 US;

6. That a Rule nisi hereby issue returnable on a date to be determined by this Court in terms of prayers 1 to 6 and 8;

7. That prayer 3 hereto operate with immediate effect.

[6] By agreement between the parties an order in terms of prayers 3, 6 and 7 and a rule returnable on the 26/9/08 was granted. The rule was extended until I heard arguments on the 21/11/08. The rule was extended sine die until judgment was delivered

[7] Having listened to submissions from both parties it is my considered view that the procedure used by the Plaintiff in the first application is wrong. The procedure for termination of the lease agreement between the Lessor and the lessee is set out in clauses 4.1, 5.1 and 6 of the Lease agreement. There are three methods namely by mutual consent, by effluxion of time and on total loss. The Lessor who is the Swazi Bank did not follow any of these procedures. There is no need for me to go into the details of the submissions presented to me.

[8] In the event it is ordered as follows:

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