Mkhonta and Others v Lewis Stores and Another (18 of 2009) [2010] SZHC 42 (10 September 2010)

IN THE HIGH COURT OF SWAZILAND

HELD AT MBABANE CIV. CASE NO. 18/09

In the matter between:

NOMPUMELELO MKHONTA 1^ST APPLICANT

HOLINESS DLAMINI 2^ND APPLICANT

THEMBA GAMA 3^RD APPLICANT

v

LEWIS STORES (PTY) LTD 1^ST RESPONDENT

MELUSI QWABE 2^ND RESPONDENT

CORAM : Q.M. MABUZA –J

FOR THE APPLICANTS : MR. NDLOVU OF MASINA NDLOVU

MZIZI ATTORNEYS

FOR THE RESPONDENTS : MR. D. JELE OF ROBINSON

BERTRAM ATTORNEYS.

JUDGMENT 10/9/10

[1] Serving before me is an application by the Applicants for setting aside of an attachment of certain movable goods listed in schedules attached to the Applicants’ papers and a subsequent restoration of the attached goods to the Applicants as the rightful owners and or possessors.

[2] The 1^st Respondent a furniture dealer who is the Plaintiff in the main case issued summons against one Gcina Cyril Mngomezulu the Defendant for payment of the following amounts in respect of goods sold and delivered to him:

Claim A: E14,098.18; Claim B: E6,893.31; Claim C: E8,543.58; Claim D: E10,557.07.

[3] The aforesaid Gcina Gyril Mngomezulu is married to Nomphumelelo Mkhonta the 1^st Applicant in the present application in community of property. The marriage was solemnized on the 1^st April 2008.

[4] The goods herein were sold and delivered by the 1^st Respondent to Gcina Cyril Mngomezulu during the period October 2007 to August 2008; he failed to pay for them.

[5] After due process a writ of execution was subsequently issued in the cause and the 2^nd Respondent attached goods; some belong to the 1^st Applicant from her previous marriage; others belong to the 2^nd and 3^rd Applicants. None of the three Applicants caused an interpleader to be filed. They have instead moved the present application which is opposed by the Respondents.

[6] The 1^ST Applicant Nomphumelelo Mkhonta used to be married to Nhlanhla Dlamini who died on the 26 December 2000. She became Executrix Dative of their joint estate on the 9^th November 2005.

[7] She subsequently married Gcina Cyril Mngomezulu on the 1^st April 2008 in community of property. Mr. Mngomezulu and the Applicant did not enter into and register an antenuptual contract.

[8] She submitted that she has not yet shared a joint common household with her new husband nor have they amassed any joint estate together.

[9] It is important to note from the outset that no inventory of the goods owned by the deceased and the 1^st Applicant was filed. This inventory should be the same as that filed with the Master of the High Court. This information would assist the Court in removing attached goods from the deputy sheriff’s inventory as these would not form goods belonging to the new marriage.

[10] The law states that when a couple marry in community of property, whatever property they each own forms part of the joint estate; whether it is from a previous marriage or was acquired while the couple were single unless these are excluded from the community by an ante-nuptial contract or a will. There is neither a will in respect of the first marriage nor an ante-nuptial contract in respect of the second marriage.

[11] Goods attached belonging to the 2^nd and 3^rd Applicants are subject to interpleader notice in terms of Rule 58; this being the correct procedure. If the deputy sheriff is not willing to assist; the Applicants are at liberty to report him/her to the sheriff who shall take the required action. See Dlamini Malungisa v Timothy Msibi 1987 – 1995 (2) SLR 121 Bhekizizwe Sibiya v Thomas Hlatshwayo and Another High Court case no. 189/2008 (unreported).

[12] In the circumstances the application is dismissed with costs.

Q.M. MABUZA

JUDGE OF THE HIGH COURT OF SWAZILAND