Barbosa v Miranda and Others (2837/23) [2024] SZHC 1 (8 January 2024)

Case summary

Civil Practice-Application and motion proceedings-Doctrine of ‘unclean hands’ when applicable-doctrine applies as a general equitable doctrine-in a fitting case applicant can be prevented from obtaining relief for the protection of his rights under this doctrine. Present matter is for mandament van spolie-The High court has unlimited jurisdiction to grant mandament van spolie-spoliation remedy is not a matter of Swazi law and custom. Points in limine-failure to make allegations on jurisdiction in founding affidavit-such allegations must appear in the affidavit and the court must not be left to deduce that it has jurisdiction-averment that applicant has approached this court with ‘dirty hands’-applicant was interdicted and restrained by the Magistrate court from locking out the first respondent from the homestead at Mpholonjeni-applicant was subsequently found to be in contempt of court by the Magistrate court-applicant states he filed an application for review of the orders of the Magistrate court-There is, however no application for a stay of the orders of the Magistrate court while the review application is being pursued in the High Court-where a court has authority to decide an issue or to make an order and errs, such an order must be treated as binding and effective unless overturned in the correct process. Points in limine that applicant failed to make allegation of the court’s jurisdiction in founding affidavit; and that applicant has approached this court with dirty hands are upheld and therefore dispositive of the matter. The application is dismissed with costs.

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