IN THE HIGH COURT OF SWAZILAND
JUDGMENT
Civil Case 1349/2015
In the matter between:
JACOBUS JONANNES VAN SCHALKWYK Applicant
And
DUMISA ERIC NKOMONYE 1st Respondent
THE DEPUTY SHERIFF – HHOHHO DISTRICT 2nd Respondent
THE NATIONAL COMMOSSIONER OF ROYAL
SWAZILAND POLICE 3rd Respondent
ATTORENY GENERAL 4th Respondent
Neutral citation: Jacobus Hohannes Van Schalkwyk vs Dumisa Eric Nkomonye (1349/2015) [SZHC 45] 4th March, 2016)
Coram: MAPHALALA PJ
Heard: 11th September, 2015
Delivered: 4th March, 2016
For Applicant: Mr Mdladla
(of S.V. Mdladla and Associates)
For Respondents: Mr. Nkomondze
(of Nkomondze Attorneys)
Summary: Civil Procedure – Application for ejecting and evicting 1st Respondent – Respondent contends that the Application is pending before this court under case no. 1320/15 – in the result, 1st Respondent point of lis pendens fails - this court then determined the merits of the case in terms of Rule 6 (12) of the High Court Rules – grants the Application in terms of he Notice of Motion.
JUDGMENT
The Application
[1] The Applicant instituted Motion proceedings under a Certificate of Urgency for an order in the following terms against the 1st Respondent one Dumisa Eric Nkomonye:
“1. That dispensing with the usual forms and procedures relating to the institution of these proceedings and allowing the matter to be heard and enrolled as one of urgency.
2. Condoning applicant’ non-compliance with the rules of Court.
3. Ejecting and evicting the First Respondent form:
Certain: Portion 1 of Lot No. 395 situate in Stewart Street, in the town of Mbabane, District Hhohho, Swaziland;
Measuring: 1032 (One Zero Three Two) square metres;
Extending: As crown Grant No. 3/1946 made in favour of Johannes Balthus Kok dated the 22nd day of May, 1946 and several subsequent Deeds the last of which is Deed of Transfer N. 109/2005 made in favour of Dumisa Eric Nkomonye date 21st day of February, 2005 will more fully point out.
4. Authorising the Second Respondent to effect this Order forthwith.
5. Authorising and directing the Third Respondent to lend such assistance as may in the Second Respondent’s opinion be necessary.
6. That a rule Nisi do hereby issue calling upon the First Respondent to show cause why Prayers 1, 2, 3, 4, 5, 6, and 7 should not be made final on a date to be determined by the above Honourable Court.
7. Costs of suit.
8. Any further and / or alternative relief.”
[2] The Application is founded on the affidavit of the Applicant one Jacobus Johannes Van Schalkwyk outlining the material facts in the dispute between the parties and in the said affidavit he has also filed pertinent annexures in this case.
The opposition
[3] The 1st Respondent has filed a Notice to raise a point of law and has not canvassed a defence on the merits of the dispute. I must also mention that the attorney for the 1st Respondent Mr. Nkomondze further added other points in limine from the initial point of lis pendens in the notice I have just mentioned.
[4] In the 1st Respondent’s Heads of Arguments at paragraph 2 thereof the issues that lie for determination by this court are the following:
2.1 Lis Pendis
2.2 Whether Applicant has clear right in the property?
2.3 Whether the Applicant’s application is defective for non-joinder?
2.4 Whether there is dispute of facts?
2.5 Whether the matter is urgent?
[5] The Applicant had not filed a Replying affidavit when the matter appeared before this court on the 11th September, 2015 for arguments of the attorneys of the parties. I shall in brief outline the salient features of each parties arguments in the following paragraphs commencing with the Respondent’s arguments on account of the point in limine mentioned above.
(i) 1st Respondent’s arguments
[6] The attorney for the 1st Respondent advanced arguments for his client and dealt with the point in limine outlined in paragraph [4] of this judgment. On the point of law of lis pendens contended that whilst the Applicant has been served with the Summons by the 1st Respondent, the Applicant instituted the current Application for eviction. The Summons are to seek an order cancelling the registration of title of the property in question in the name of the Applicant as such the Applicant’s title to the property is not unassailable, has no right to eject the 1st Respondent from the property. In the premise the 1st Respondent pleads that the issue of title between the Applicant and himself is now subject to determination in the action he instituted. In this regard a return of serve and the Summons as annexures “JJ1” and “JJ2”, respectively.
[7] The attorney for the 1st Respondent further made submissions in respect of the other points being a “clear right” in paragraphs 3.1 to 4.2; “non-joinder in paragraphs 8.1, 5.2 and 5.3.1 “disputes of facts” in paragraph 6.1, 5.6.2; lastly, “urgency” in paragraphs 7.1, 7.2 and 7.3 of the said Heads of Arguments.
[8] Finally, the attorney for the 1st Respondent applied that this Application be dismissed with costs on the punitive scale.
(ii) Applicant’s arguments
[9] The attorney for the Applicant advanced arguments for his client and filed comprehensive Heads of Arguments and framed the issues for a decision by this court at paragraph 2 of his Heads of Arguments to be the following:
2.1 Whether or not the Applicant entitled for an eviction order through vindication as the lawful property owner?
2.2 Does Applicant satisfy the grounds for vindication to eject?
2.3 Whether or not the action under case number 1320/2015 meets the requirements of lis pendens to defeat the grant of an eviction order?
[10] That the 1st Respondent has opposed the Application and has only raised a point of law, namely, of lis pendens and the Notice is raised in terms of Rule 6 (12) (c) of the High Court Rules of Swaziland. Therefore, the 1st Respondent’s defence stands or falls on whether lis pendens is established or not.
[11] The attorney for the Applicant contends that the plea of lis pendens is not applicable in casu as the issue for determination is whether or not the Applicant is entitled to eject the 1st Respondent as a registered owner of the property through vindication.
[12] That the Applicant’s case is further that lis pendens is not applicable as the issue is not whether the sale was invalid or not but whether Applicant is entitled to eject 1st Respondent from his property as the registered owner.
[13] In this regard the attorney for the Applicant has advanced in paragraph 4.3 of his Heads of Arguments the following arguments:
4.3 The First Respondent has failed to institute any application to interdict the transfer and registration of the property in favour of the Applicant since 24th April 2015, being the date of auction. Nothing has been done. Further, on the 24th June 2015, First Respondent was advised Applicant had title. First Respondent still elected not to approach the Honourable Court for redress in expunging the Applicant’s title as clearly the property was sold lawfully. It is Eternal Stores (Pty) Ltd that purports to challenge the sale on the 24th April 2015, as a purported successful bidder. Therefore, the parties cannot be the same in casu and the issues herein are completely distinct. The Applicant in casu is exercising his right to ownership and vindicating his property against the First Respondent.
[14] The attorney for the Applicant contends that to establish a defence of lis pendens, the party must prove that the action is between the same parties, the same cause of action exists and the subject matter is the same.
[15] That on the facts of the present case the suit under case no. 1320/2015 is not between the same parties as appeared ex facie the Summons. There is Eternal Stores (Pty) Ltd and Swaziland Development and Savings Bank respectively, further that the Summons are issued in respect of a suit between Swaziland Development and Savings Bank vs Eric Nkomonye under Case No. 811/2014 (as reflected in annexure “JJ2”.
[16] In support of the above argument the attorney for the Applicant cited what is stated by the learned authors, Herbstein and Van Winsen, Civil Practice of the Supreme Court of South Africa, 4th Edition at page 9 to the following:
“If an action is already pending between the parties and the Plaintiff beings another action against the same Defendant on the same cause of action and in respect of the same subject matter---”
[17] The attorney for the Applicant then dealt with the issue of vindication in paragraph 7.1 to 16 of his Heads of Arguments citing decided cases to support his arguments. I must mention that the 1st Respondent has not answered on the matter on the merits being the Application for vindication.
[18] Finally the attorney for the Applicant prayed that the point of law be dismissed with costs and further prayers be granted in terms of the Notice of Motion.
The Court’s analysis and conclusions thereof
[19] Having considered the affidavits of the parties and the arguments of the attorneys of the parties this court is called upon to determine the points in limine raised by the 1st Respondent outline at paragraph [4] of this judgment to the following effect:
(i) Lis Pendis
(ii) Whether Applicant has clear right in the property?
(iii) Whether the Applicant’s application is defective for non-joinder?
(iv) Whether there is dispute of facts?
(v) Whether the matter is urgent?
[20] I must, however point out that when this matter was argued on 11th September, 2015 only the first point in limine was addressed by the attorneys of the parties. Furthermore, it was also clear that the 1st Respondent relied on this point and has not answered to the main matter concerning the issue of vindication.
[21] On this point in limine it is contended for the 1st Respondent that whilst the Applicant has been served with the Summons by the 1st Respondent, the Applicant instituted the current Application for eviction. That the Summons are to seek an order cancelling registration of title of the property in question in the move of the Application. As such the Applicant’s title to the property is not unassailable, has no right to eject the 1st Respondent from the property. In the premise the 1st Respondent pleads that the issue of title between the Applicant and himself is subject to determination in the action he has instituted. In this regard has attached a copy of the Summons and the return of service being annexure “JJ1” and “JJ2” respectively. Therefore 1st Respondent pleads that the matter is lis pendens.
[22] On the other hand it contended for the Applicant that lis pendens is not applicable in casu as the issue is not whether the sale was valid or not but whether Applicant is entitled to eject 1st Respondent from the property as the registered owner.
[23] In my assessment of the competing arguments on this point I am in agreement with the Applicant on the contentions advanced at paragraph 4.3 of Applicant’s Heads of Arguments. The 1st Respondent has failed to institute application to interdict the transfer and no registration of the property in favour of the Applicant since the 24 April, 2013 being the date of action. Nothing has been done.
[24] Further, on the 24 April 2015 1st Respondent was advised that Applicant had title. The 1st Respondent still elected not to approach this court for redress in expunging the Applicant’s title as clearly the property was sold properly. It is Eternal Stores (Pty) Ltd that purports to challenge on the 24 April, 2015 as a purported successful bidder. Therefore, the parties cannot be the same in casu and the issue herein are completely distinct. The Applicant on the facts of this case is exercising his right to ownership and vindicating his property against the 1st Respondent.
[25] On the above facts as outline in the paragraph [24] supra the fact that the sale in execution being challenged by Eternal Stores (Pty) Ltd does not amount to lis pendens. There is a new party altogether. The 1st Respondent is the judgment debtor under case number 1320/2005 yet the property was declared executable under case no. 811/2014 where the Swaziland Development and Saving Bank as the judgment creditor.
[26] In this regard I find the legal authorities in the cases of Nelisiwe Ndlangamandla vs Robert Samkelo Hadebe, Sifiso Khumalo High Court Case No. 2148/2012, the case of Swaziland Revenue Authority vs Pimenta KFC (Pty) Ltd High Court Case No. 394/2013 and the legal text book by Herbstein and Van Winsen, Civil Practice of the Supreme Court of South African, 4th Edition at page 249 apposite.
[27] Since the 1st Respondent has raised a point in limine in terms of Rule 6 (12) of the High Court Rules of Swaziland, therefore the 1st Respondent’s defence stands on fails on whether lis pendens is established or not. This therefore means the Application by the Applicant for vindication of his rights stand unopposed and ought to be granted without any further ado on these facts.
[28] In this regard I find the dictum in the case of Grace Ntombane Dludlu vs Philemon Ngulube Sifundza High Court Case No. 1952/2003 apposite where the facts in that case are similar as the case in casu.
[29] I find it important to outline the facts of that case as extracted from paragraph 11 of the Applicant’s Heads of Arguments, at page 13 from the judgment of my brother Annandale J at page 2 to the following:
“Thus the property which used to belong to the present Respondent, was sold after attachment on an order of Court to the Building Society, which in turn sold it to the present Applicant.
It is the former ownership of the property by Sifundza that is said to be the fly in the chemist’s ointment in a dispute with the Swaziland Building Society relating to the property and in light of this he simply refuses to vacate the property....
Historically, the property again acquired new ownership on ht 17th September 2002 when it was transferred by the Building Society to Grace Ntombane Dludlu, following the selling of it to her on the 16th May 2002. She acquired full ownership finance through a bond in favour of the Building Society from which she brought it at the execution sale, following a judgment against Sifundza.
The conditions of sale in execution contained in paragraph 8 thereof a provision that the property may be taken possession of immediately after the sale, pending payment of a deposit in cash and furnishing security from the bank....
Clearly, the Building society is not the owner of the property as it was at the time it instituted the action against the Defendant Sifundza .... Dludlu was the same person for the same cause, but based on the present ownership, just as the Building Society did. She is the registered owner and cannot take occupation of her land and house...
To succeed on a plea of is pendens, it has to be shown that the same suit is pending elsewhere, between the same parties. Elsewhere or not, the parties are simply not the same, nor can it be found that the Applicant derives title to sue from the Plaintiff society. She obtains title to sue by virtue of being the registered owner of the property, which the Respondent prevents her from occupying.
Accordingly, the plea that there is a pending suit between the same parties concerning that same thing and founded on the same cause of action stands to be dismissed.”
[30] In the totality of the facts of the matter no issue of fact have been raised to the ejectment by the 1st Respondent. Therefore the point in limine raised is dismissed and further an order is granted in terms of the Notice of Motion.
STANLEY B. MAPHALALA
PRINCIPAL JUDGE
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