Fakudze and Others v Fakudze and Others (900 of 2014) [2016] SZHC 140 (12 August 2016)











IN THE HIGH COURT OF SWAZILAND



JUDGMENT



Civil Case 900/2014

In the matter between:

In the Ex parte Application of:



SISANE FAKUDZE 1st Applicant

LIZZY GUMBI 2nd Applicant

THEMBI NDLOVU 3rd Applicant

GLORY NDLOVU 4th Applicant

ALFRED NDLOVU 5th Applicant

NICHOLUS NDLOVU 6th Applicant

SIMO DLAMINI 7th Applicant

ANNAROSE NGCAMPHALALA 8th Applicant



In re:



SISANE FAKUDZE 1st Applicant

LIZZY GUMBI 2nd Applicant

THEMBI NDLOVU 3rd Applicant

GLORY NDLOVU 4th Applicant

ALFRED NDLOVU 5th Applicant

NICHOLUS NDLOVU 6th Applicant

SIMO DLAMINI 7th Applicant

ANNAROSE NGCAMPHALALA 8th Applicant

And

TIKANE INVESTMENTS (PTY) LTD 1st Respondent

NLOSINATHI TFWALA 2nd Respondent

ROBERT STEENKAMP 3rd Respondent

SISIFO NHLEKO AND TWELVE OTHERS 4th Respondent



Neutral citation: Sisana Fakudze and Seven Others vs Tikane Investments (Pty) Ltd and Fifteen Others (900/2014) [2016] [SZHC] 140 (12th August 2016)



Coram: MAPHALALA PJ

Heard: 27th July, 2016

Delivered: 12th August, 2016



For the Applicants: Mr. B. Xaba

(of Xaba Attorneys)

For the Respondents: Mr. S. Madzinane

(of Madzinane Attorneys)





Summary: Civil Procedure – Respondents filed an Application to anticipate a rule nisi granted ex parte – advancing a number of grounds – the Applicants contends in limine that Respondents has contravened the doctrine of “clean hands” – cited the Supreme Court case of Thomas Investments Corporation vs Greans Investments (Pty) Limited, case no. 31/12 - on the facts this court finds that the objection in limine has substance and dismiss the Application to anticipate the Rule nisi – Respondents to pay costs the matter to then proceed to the merits - the Rule nisi extended accordingly.



JUDGMENT

The issue for decision

(Being a Notice to anticipate a Rule nisi granted ex parte)

[1] On the 8th July, 2016 the Applicants in the present proceedings brought an Urgent and Ex parte Application before this court, seeking, inter alia that the 1st Respondent’s bank accounts as held by the 16th Respondent be frozen pending finalization of these proceedings. The court granted an interim order freezing the 1st Respondent’s bank account. It is such interim court order freezing the 1st Respondent’s bank account that the Respondent have anticipated as they seek such to be discharged.



[2] On the 26th July, 2016 the Respondents filed a Notice of set down to Anticipate the above Rule nisi in terms of the Rules of this court.



[3] The matter then appeared before me on the 27th July, 2016 when I heard arguments on the above Notice to Anticipate.



A brief back ground

[4] The legality of the 2nd to 7th Respondents holding office as office bearers of the 1st Respondents Executive Committee has been central to this protracted litigation which commenced on or before June, 2014. In the main case under case no. 8900/2014 the central issue which the court is called upon to determine was whether or not the 1st Respondent’s constitution was operational. The court is called upon to determine the aforesaid issue since the Applicant’s arguments in that case was not and on the other hand the Respondents’ contended that it was not operational.

[5] The Court (per Hlophe J) in its judgment delivered in open court on the 16th February, 2016 found that the 1st Respondent’s constitution was operational since the 13th November, 2013 the date on which it was adopted by the general memberships of the 1st Respondent. Further facts are outline in paragraphs 3, and 4 of the Applicant’s Heads of Arguments.



The arguments

[6] The attorney of the parties appeared before this court on 27th July, 2016 where I heard arguments of the parties where they filed comprehensive arguments on both sides. The judgment was reserved to the following Friday but then I called the attorneys of the parties to clarity certain issues as to which Heads of Arguments should the court consider in its judgment on the Application to anticipate the rule nisi as stated above.



[7] The Applicant’s attorney has raise a point in limine against the Application to anticipate.



[8] The Applicant therefore commenced arguments as I shall outline the arguments of the parties ad seriatim.



(i) The applicant’s arguments

[9] The attorney for the applicants promised his argument on the doctrine of “clean hand” on the dictum of Supreme Court in the case of Thomas Investments Corporation vs Greans Investments (Pty) Limited case no. 31/12 where at page 9, the court made reference to the case of Mulligar vs Mulligar 1925 WLD 164 at 167 where De Waal J dealt with the doctrine of unclean hands in the following manner:

Before a person seeks to establish his rights in a court of law, he must approach the court with clean hands; where he himself through his own conduct makes it impossible for the process of the court (whether criminal or civil) to be given affect to he cannot ask the court to set its machinery in motion to protect his civil rights and interest ---- were the court to entertain a suit at the instance of such a litigant, it would be stultifying its own processes, and it would, moreover, be conniving at an condoning the conduct of a person who through his flight from justice, set law and orders in defiance.”



[10] The gravamen of the arguments of the Applicants is captured in paragraphs 10 to 12 of the Heads of Arguments. I shall revert to pertinent arguments as I proceed with my analysis and conclusions.



[11] In conclusion at paragraph 28 thereof it is contended for the Applicant that the reasons placed before court to have the matter heard of ex parte basis were good and competent in law and that the interim interdict should not be discharged in order to safeguard the interests of the Applicants, the 1st Respondent together with the general membership of the 1st Respondent.



(ii) The Respondents arguments

[12] The attorney for the Respondent Mr. Madzinane advanced arguments for his clients where in this written submissions he dealt with the merits of the case. The said arguments he had addressed on a number of topics those being a topic of the incompetency of grounds for ex parte nature of the Application in paragraphs 3.1 (a), (b); a topic on full disclosures /good faith in paragraph 3.2 (a), (b), (c), (d) and (e); the requirements of an interdict in paragraph 4.1, 4.2 and in paragraph 4.3 the balance of convenience.



[13] I have searched high and low in the Respondents Answering Affidavit and the arguments by Mr. Madzinane on the issue for determination that of the doctrine of “clean hands” but nothing was said by Mr. Madzinane in court where matter came for arguments. Therefore, I ought to consider the arguments of the Applicants as there was “no contest” by the Respondents on this issue that is foundational to the Respondents status before this court.



[14] The final argument for the Respondents is that the Rule nisi ought to be discharged forwith.



The Court’s analysis and conclusions thereon

[15] Having considered the affidavits of the parties and the arguments of the attorneys it is without question that the first port of call is a determination of the point in limine raised by the Applicant against the discharge on the Rule nisi that of the doctrine of “clean hands”. If I find against the point in limine to proceed with the determination of the merits of the case. However, If I find in favour of the point in limine to dismiss the Application without any further ado.



[16] On this point in limine the Applicant contends that the Respondents cannot be heard by this court as they should first purge themselves of their “dirty hands”. That the Respondents have failed to comply with the court order which was served upon their attorney in the main matter on the 18 February, 2016.

[17] The Respondents are silent on this point but have only addressed the merits of the Application.



[18] I have assessed the argument of the parties to and fro I have come to the conclusion that the Applicants’ arguments are correct. As contended in paragraphs 11 to 12 of the Heads of Arguments of the attorney for the Applicant I find what is submitted in paragraph 11 thereof compelling where he state the following:

Despite the allegation by the 2nd Respondent that the said court order was impugned due to the appeal, an argument that was fortified by the Respondents’ legal representative during his oral address to the court, it is however, a glaring fact that the 1st Respondents did not challenge the court’s finding that the 1st Respondent’s Executive Committee was unlawfully elected into office. The notice of appeal further attached to the applicant’s founding papers is further clear that the aforesaid aspect of the judgment remains unchallenged to date yet the 2nd to 7th Respondents are still in office as the office bearers of the 1st Respondent’s Executive Committee despite the judgment giving them thirty (30) days in office upon service upon them of the court order. The court order was served upon the said Respondent’s attorneys on the 19th February, 2016 but to date there has been no compliance with it.



[19] Finally, I find that the dictum in the Supreme Court case of Thomas Investments Corporation vs Greans (supra) outlined at paragraph [9] apposite. The Respondents ought to purge themselves on the facts of this case.



[20] In the result, for the aforegoing reasons the point in limine on the doctrine of “clean hands” succeeds and the Application to discharge the Rule nisi is dismissed with costs. In exercise of my discretion on the costs order costs in the ordinary scale. Furthermore, the Application to proceed to the merits of the case within the ambit of the Rule nisi that is in operation.







STANLEY B. MAPHALALA

PRINCIPAL JUDGE







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