Inhle Transport (Pty) Ltd v Dorbyl Vehicle Trading & Finance Company (Pty) Ltd (Civil Appeal 15 of 2000) [2000] SZSC 2 (1 January 2000)





IN THE HIGH COURT OF SWAZILAND



CIVIL APPEAL NO.15/2000


In the matter between:


INHLE TRANSPORT (PTY) LTD APPELLANT


VS


DORBYL VEHICLE TRADING &

FINANCE COMPANY (PTY) LTD 1ST RESPONDENT


TED ROWBERRY (In his capacity as

Sheriff for the Hhohho District) 2ND RESPONDENT


CORAM : SAPIRE CJ

: MAPHALALA J

FOR THE APPLICANT : MR. PM SHILUBANE

FOR THE RESPONDENT : MR. J. HLOPHE


TRANSCRIPTION
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INTERPRETER: (first part inaudible) as Sheriff for the District of Hhohho.

APPELLANT’S ATTORNEY (AA): May it please Your Lordships, I appear for the appellant in this matter

RESPONDENT’S ATTORNEY (RA): May it please you My Lords, I appear for the respondent in this matter.

CHIEF JUSTICE (CJ): Before this application is argued, I want to place on record that we are sitting as Judges of Appeal in the Swaziland Court of Appeal.


When this matter was brought to court, the Registrar has contacted the Judge President of the Appeal Court who indicated that it was impossible for Judges of the Appeal Court who are not resident in Swaziland to convene or to be present or even for one of them to hear this matter having regard to the urgency and the time-frame within which a decision has to be given.


The matter was brought before me yesterday in chambers and I indicated that I was reluctant to hear this matter for two reasons: One of them can be dealt with immediately, the first reason was that it is my judgment which is the subject matter of the appeal which forms the basis of this present application and that being so, it would become my duty in this application and partly to consider whether there is any prospect of success of an appeal succeeding against that judgment. It is often been said that it is invidious for a judge to have to decide whether there is a prospect of success against his judgment but on the other hand there is ample authority to say that such difficulty must be overcome when for instance a judge has to deal with an application for leave to appeal or for any other relief which involves consideration of his judgment. The fact that I gave the original judgment is therefore, in law, not a bar to my hearing this application. I have thought it best however, that the application be heard by two judges because of this fact and therefore, this Court is now composed of two judges.


The other factor was that it has come to my knowledge that a complaint has been lodged in certain quarters that I have an interest in the outcome of the litigation involving a person who has purchased buses and the creditors from whom these buses have been purchased on terms. The allegation, I must say, at the outside, is as far as I know is completely without any foundation and; malicious. I don’t intend taking the matter any further at this stage but I cannot say that it is the present applicant who is responsible for this malicious complaint. If it is him, that would not influence me in deciding this application. If, on the other hand, this applicant in this matter does have any reservations about my hearing the matter and wishes me to recuse myself on the basis that I have an interest in the business of Dorbyl who is the respondent. Dorbyl or any combination of creditors then the time is now to make an objection.


Mr. Shilubane, I mentioned this to you yesterday in chambers. I don’t know whether you have consulted with your client and if you want to object or ask me to recuse myself, I will hear what you have to say but I can tell you that any allegation that I have any connection with the creditor or any person who sells buses to people here in Swaziland must be motivated sincerely and with reference to fact. Any general assertion must be, as I say must be made with reference to fact otherwise it must not be made at all.

Have you any objection to my sitting?

AA: My Lord there is an objection. The objection does not arise from what His Lordship has said. The objection arises from the fact that Your Lordship indicated that you thought it was the appellant or the director of the appellant that wrote the letter that you spoke about.

CJ: This is correct.

AA: I think that is the difficulty My Lord not this.

CJ: If you can give me an assurance that it is not the appellant or the applicant in the matter does it arise. Is the applicant in court now?

AA: Yes My Lord. The applicant is the company; the director of the company Mr. Mdlalose is here.

CJ: If you are on his behalf disavow having written any letter or made any complaint, and then the matter ends.

AA: He has not My Lord I took instructions from him.

CJ: Then there is no basis for any.

AA: I don’t know why Your Lordship thought it was him in the first place because I think that is the difficulty.

CJ: No. I don’t think I have to say that if you say it wasn’t him it’s not him.

AA: My Lord that is on record, I have made the point.

CJ: Yes.

(SUBMISSIONS BY THE APPELLANT’S ATTORNEY)

AA: My Lord, in this application I don’t think I have to deal with the jurisdiction point. The jurisdiction of this present Court being constituted as a Court of Appeal, that is provided for in the Repeal Constitution of 68 with savings. It appears in Section 105 of the Constitution which provides that the Chief Justice and any judge of the High Court may act as the Court of Appeal.

My first submission is that Your Lordships have jurisdiction to entertain this matter. The second point is that this matter is urgent, in view of the fact that the sale in execution is scheduled to take place this morning.

CJ: We are hearing because you say it is urgent on that ground.

AA: Yes the urgency is set out in the founding affidavit.

CJ: Where are the papers?

MAPHALALA J (MJ): It’s only one set of papers.

When was the notice of sale of this execution was first publicized?

AA: It looks like the 21st, there is one notice that we have annexed.

MJ: There is one that you have annexed but it does not indicate on what date it was publicized.

AA: I think it is 21st March.

MJ: Was that the first time?

AA: It was published on the 17th and 21st March although My Lord it does not appear on the papers. What happened, initially, the respondents attached the vehicle which appears in annexure “IN8” which is a discovery.

RA: I am sorry My Lord, I don’t want to object to what my learned friend is saying in so far as it does not appear in his papers but if he wants to go into that then My Lord I would request that I also address the court fully on that and I hope you will not object in the face that we have not yet filed any papers in that regard, so, he may go ahead.

AA: What I am saying is that the notice of sale in execution first appeared on the 16th, 17th and the 21st March. It was published. The one that gave rise to this application.

CJ: But it goes back, the urgency arises because I refuse to stay. When was that?

RA: It must be the 17th September 1999 that is when the judgment was delivered.

AA: The judgment was delivered on the 17th September My Lord.

CJ: That is six months ago.

AA: Yes. That application My Lord was an application for leave to file the record and Your Lordship held that you had no power condone the late filing of the record. Thereafter My Lord, as the appellant explains in the papers, it became necessary to decide what further steps to take. Whether an appeal should be filed against Your Lordship’s judgment or whether the Court of Appeal should be approached and My Lord in that regard the appellant sought the advice of counsel and counsel advised that the way to deal with the matter was to approach the Court of Appeal. And also My Lord during that time the appellant thought it wise to find out what the fate of the earlier buses which the respondents had attached and to that extent My Lord the appellant discovered that in fact the first respondent had transferred the one bus to a company called Bonisons Trans Serve which is in Durban.

CJ: Where is this? Where do I find this in the papers?

AA: It is at page 3 of the notice of application paragraphs 12, 13 and 17. I think Your Lordships should bear in mind, this case is a very complicated matter in the sense that there are various judgments which had been delivered and various judges have dealt with it. This appears from the papers My Lord. Your Lordship, the Chief Justice made a finding that in fact the record had not been filed timeously and as the papers will show the matter also came before Justice Dunn who referred the matter to oral evidence on the same issue which Your Lordship found that in fact the record had not been filed.

MJ: You have not annexed Mr. Shilubane the entries by the (inaudible). You talk about a certain annexure “IN4”.

AA: I think it fell off My Lord. I am sorry My Lord that but there is that allegation, perhaps if Your Lordships could bear with me to hand these annexures from the bar. In my copy it shows that some annexures have fallen off but the matter was referred to oral evidence at some stage.

CJ: What do you say the value of the buses is? You say here assets valued at E630,000.00. In the next paragraph you say E730,000.00.

MJ: It’s in paragraphs 15 and 17 of the founding affidavit.

AA: My Lord we saying at 15 that the value of the assets that have been attached now is E630.000.00 but before that the respondents took three buses. The Honourable Court authorized them to attach three buses whose value is E730,000.00 and the one bus alone which they have sold in Durban is worth E180,000.00. What is happening with the attachment is to put the appellant out of business.

MJ: So what is the amount of the judgment debt?

AA: The judgment is E179,000.00, the respondents in order of Your Lordship the Chief Justice ordered that they should take the three buses which they have taken.

CJ: Against that there is no appeal.

AA: No My Lord, we are appealing against the whole judgment.

CJ: No you are not, because the appeal was not against that. How can it happen that the buses were transferred or the buses were seized or handed over or attached by the Sheriff if you appealed against the judgment. You didn’t. In fact it was only the money judgment which is the matter of the appeal.

AA: With respect My Lord, you made the order that they can remove the buses, that’s why they took them. The appeal is against the whole judgment. You can look at the notice of appeal.

CJ: You will recall Mr. Shilubane that when that order was made, the attachment had already been taken and they had gone, they had already left your client. That is what happened.

AA: When the what happened?

CJ: When there was an application for stay or for leave to appeal or whatever it was. I remember there was an application and it only applied to the money judgment.


Where is your notice of appeal in which you relied at that time?

AA: It’s annexure “IN2”.

CJ: No, this is a draft notice of appeal.

AA: No, the original one is “IN2”. The one that was filed by Mr. Mamba. It says, “take notice of the appellant who was the respondent at the High Court being dissatisfied with the written judgment of the said court delivered on the 19th June 1998, does hereby appeal on the following grounds.”


So My Lord, there is nowhere in the notice of appeal that a distinction is made, they are appealing against the whole judgment.


My Lord what we are saying at this stage is that the sale which is supposed to take place this morning, in terms of the prejudice, the respondents will suffer less prejudice because: (1) they are already in possession of the three buses.

CJ: Those buses belong to them.

AA: We are contesting that.

CJ: How can you say that?

AA: We are My Lord, the question is whether you should have ordered that the buses should be returned to them. That was not an application of vindicatio but it was an application in terms of the agreements and we are saying that you should have applied one of the laws that you should have applied, the Contractual Penalties Act because Your Lordship’s attitude, as always, in various cases, is that you cannot apply South African law, you cannot apply the credit agreements act, you couldn’t have applied it because it’s foreign law. We are saying that even in terms of the Contractual Penalties Act you shouldn’t have allowed the buses to be removed. It doesn’t belong to them because they have paid for them. One bus, our point is that it was paid for. So the people have the buses and they have more money.


My Lord we are submitting that the whole turner of the judgment is unfair.

CJ: Where is the original judgment?

AA: It is annexure “IN1”.

Coming back to the argument, you yourself My Lord have at some point when this matter came before you, you decided that the appellant had prospect of success on appeal. The only difference now is that a lot of water has gone under the bridge but there are new factors now My Lord which has arisen.

CJ: When did I decide that there was prospect of success on appeal?

AA: When My Lord the matter came before you, when the application to stay execution you ordered that the buses should be returned to South Africa and that the monetary judgment should be stayed.

CJ: And the execution be stayed?

AA: Yes, of the monetary judgment. So, my submission is that you could have only come to that conclusion if you thought there was some merit in the appeal. What the appellant is trying to do, is finally trying to put this matter before the correct forum, it was not the fault of the appellant that the matter did not come before the Court of Appeal earlier and the matter can be disposed of finally in a months’ time.

MJ: Wait a minute, what do you mean when you say in a months’ time. What would happen then?

AA: My Lord, if this application succeeds, the matter will be finally heard of by the Court of Appeal in May which is one month, today is the last day of April.

MJ: Is it amongst the least of the cases that are going to come before Their Lordships in court.

AA: No it is not My Lord, we need your leave to put the record before the Court of Appeal.

CJ: Have you prepared the record?

AA: Yes, it is ready My Lord. The record was ready when we made the application before Your Lordship. The record was ready then, in fact that was one of the reasons we came before Your Lordship because the record that had been prepared by Mr. Mamba was inadequate and that was the whole crust of the argument at that stage.


My Lord, the annexure which Your Lordship could not find in your papers does appear in this court My Lord. I don’t how it fell off but if I may hand it out so that the court has the annexure that we are talking about.


The point I am making My Lord is that the appellant always wanted the matter to be determined by the Court of Appeal. That shows that even at that stage the question of the record was not an easy one.

CJ: Where are the vehicles at the moment?

AA: The three are in South Africa, but the ones that are the subject of this hearing….

CJ: The ones that have gone back to the owners have gone back to the owners.

AA: Pardon me Your Lordship.

CJ: We are talking about the ones that had been attached to satisfy the judgment, how many are those?

AA: My Lord, three were taken to South Africa but they have taken three more.

UNIDENTIFIED VOICE: They have taken four now.

MJ: Where is that reflected?

AA: In “IN8” My Lord. There is a M.A.N. Bus bearing registration SD886OH, Mercedes Benz Passenger Bus bearing registration SD174XH, Mercedes Benz Passenger Bus bearing registration SD060PH, Land Rover Discovery V8 bearing registration SD077CG. We are submitting that they cannot take all these goods simple to satisfy a debt of some E200,000.00. What they have attached is way above that.

CJ: She must exclude from the attachment the buses which were taken back on the basis.

AA: It’s relevant to the prejudice that that can be said to be they are suffering because they have got those buses - they sold one and one alone is E180.000.00 and we are saying in respect of one of those buses was paid for.

CJ: You say it was paid for. Is there evidence that it was paid for because I recall the original application, I think it was argued by Mr. Cades or someone. We went into this.

AA: It was Mr. Mamba My Lord.

CJ: Mr. Mamba? I don’t remember, the original application is not before us with all the papers. Accounts were placed before the Court indicating that the applicant was in arrear in respect of each of those three agreements.

AA: One of my submissions My Lord is that there was a dispute on the facts and so far as this is concerned and that aspect should have been referred to trial.

CJ: But why, there was an account. But nobody asked that the matter go to trial.

AA: I know that My Lord. There is a dispute about that My Lord.

CJ: Nobody asked for it. Why didn’t the present applicant ask for that?

AA: Most of the amounts My Lord included what is called “penalty interest” and part of the arrears were what is called “penalty interest” and we are arguing Your Lordship that if you had applied the Contractual Penalties Act.

CJ: Was it ever raised?

AA: It wasn’t raised My Lord.

CJ: If it had been raised, it required other investigation.

Mr. Shilubane there are lot of criticisms you are now making. These criticisms must be made in the light of the original application. The original application was a simple one which said hereof three buses which are the subject matter of three agreements. In respect of each of those agreements, the applicant is far in arrear with the instalments, each of them. That allegation was never contested because there is no evidence was ever put before the court either on affidavit or any other way that in fact those contracts have been paid or that were up to date. And there is clearly a forfeiture clause in each of those agreements which says that if you don’t pay you are entitled to cancellation and that’s it. The point that was raised, as you will see from the judgment was that before you are entitled to enforce the forfeiture clause you have to give notice in terms of some South African statute which were never proved and it is important because there are certain, as we know or we don’t know but the fact is you would have to show that those statutes were applicable to these transactions. There have been cases in this Court where the South African statutes have been proved and it is clear where the vehicles of certain capacity or intended for public transport, it doesn’t apply to their statutes. There was nothing on the papers to show that in this case those statutes applied. This is the problem.

AA: The case now My Lord is not that the credit sale agreement applies, that’s not what we are saying.

CJ: That was the argument and that is what I dealt with in the judgment.

AA: So in appeal we can raise a new point?

CJ: Of course, but there must be some basis for it.

AA: That is the basis on which this matter should be looked at whether on appeal this point is raised if Your Lordship’s attention was not drawn to an important statute which was relevant.

CJ: To the local statutes you mean?

AA: Yes, the Contractual Penalties Act.

CJ: How does this affect it?

AA: It affects the question of whether one of the buses had been paid for. We are saying the amounts related to penalty interest and if that statute had been applied you wouldn’t found that this amount which you found he owes is owing.

CJ: What does the Act say?

AA: I don’t have the actual statute with me but it provides that in any contract My Lord, if there is a penalty the court has jurisdiction to ameliorate the effect of that penalty.

CJ: But it was never raised. How could I have ever ameliorated the effect of the penalty if this question was not raised?

AA: I have just answered that My Lord by saying that this point is being raised in the notice of appeal. Even when that application was made this point had not been raised Your Lordship, was prepared to stay execution pending the appeal. I don’t believe that the facts have changed now except that now there is an execution of much more than what the court had initially ordered. Those are my submissions My Lord.

CJ: No sorry. Please explain to me why you say there is an execution beyond what the judgment deed is for. There is a judgment deed for E160,000.00.

AA: It is E179,000.00 My Lord. We are saying that if you look at the assets that have been attached they would far exceed the ….

RA: The judgment My Lord is for a sum of E194,716.00 plus interest and costs.

CJ: The problem is that the three buses which went back those I found to be the property of the applicant. They went back because the agreements were cancelled for non-payment and because those buses in terms of the agreement had to be returned. The fact is that your client, the applicant had the use of those buses, I don’t know for how long for which he didn’t pay. That is the basis of why they go back to him. He isn’t asked to pay the balance, he is only asked to pay the arrear instalments which he didn’t do. That was the basis of those three agreements. When those vehicles went back there is now an amount still outstanding which hasn’t been paid and in regard thereto execution was levied.

AA: Yes, I understand My Lord but your argument presupposes that your finding cannot be challenged.

CJ: I must be shown that on questions of fact the Appeal Court doesn’t readily upset different emotion proceedings where everything is on affidavit. There is no evidence here.

AA: All we need to show My Lord is that the matter there was a dispute and that dispute should have been referred to…

CJ: No, you have to look and the papers and see whether on those facts there is any reasonable prospect of success on the points which you raise.

AA: I understand the difficulty My Lord. That is the difficulty which you alluded to that you made the finding and I would be surprised if you would readily consider that you could be wrong.

CJ: Mr. Shilubane I have never maintained that I could never be wrong.

AA: You are saying you are correct, you don’t think you would have made a mistake, that’s what I am trying to say.

CJ: No. I am not even going to argue about this but the point of the matter is that I must consider it and consider whether I think it is, despite my views whether another court may come to a different view.

AA: Initially My Lord you found that the matter should go on appeal. On what basis did you make that finding, with respect?

CJ: I don’t remember. There is no judgment, all I have been referred to…

AA: Your Lordship can I be given leave to produce that judgment because it is now a stumbling block in my case. I will produce a judgment in which you Your Lordship found that leave should be granted, the execution should be stayed pending appeal, on the same facts. I will ask for the court’s indulgence to uplift that judgment which is in the file for Your Lordship’s perusal.

CJ: Yes but different considerations now apply. The considerations now are that when this was made the appeal hadn’t lapsed. The appeal has lapsed now because the record wasn’t filed.

AA: I have addressed His Lordship on that. You found that the record had not been filed. We are not complaining about that. I am merely saying that there was a complication. One judge in fact found that the question of the record should be referred to oral evidence. Why should one judge feel, on the same facts, that the matter should be referred to oral evidence?

CJ: Nobody asked to lead oral evidence.

AA: In which matter?

CJ: In this matter.

AA: On the record meant on the issue of the record, oral evidence was ordered to be heard.

CJ: Yes but nobody produced oral evidence.

AA: Perhaps My Lord I could produce the record.

CJ: No, it’s here. What happened about that?

AA: Which?

CJ: About the oral evidence?

AA: It couldn’t go before Justice Dunn because he passed away.

CJ: Yes. And then what happened? It came before me and on the next occasion – I see that the execution is stayed pending the outcome of this application. That was the application for stay.

AA: Yes which you then dismissed.

CJ: Pending this application for stay?

AA: And one of the issues that you considered is whether there were prospects of success and you thought there were then.

CJ: Is there a judgment to that?

AA: Yes.

CJ: Let me see.

MJ: Is that the one that is annexed to the papers?

AA: It’s one of them. That is the last one. At that stage we were asking that we be given a leave to re-lodge the record before the Registrar.

CJ: I am looking at my words here and I am by no means convinced that there are real prospects of success on appeal. Where did I find that there were?

AA: When you granted the interdict initially.

MJ: “IN1”

CJ: It’s “IN6” this is the one I gave in September. Which one are you talking about? Which one must I look at?

AA: My Lord there is an earlier one.

CJ: Where, can I see it? I must say, this matter, as you say, has a convoluted history that it is difficult to make out what exactly happened.


Incidentally, I see that I dealt with this question of the Conventional Penalties Act. I deal with it, “furthermore, claim does not fall within the provisions of the Act preferred to.” I considered it and it is a question of law.

AA: Which Act is that My Lord?

CJ: It is the Conventional Penalties Act.

AA: It wasn’t raised in the court a quo earlier on.

CJ: Look at page 85. On my judgment “IN1”:- “Lastly, it argued that it would be unconscionable for the applicant to be granted relief involving not only retention of the amounts paid, the payment of the instalments in arrear at the time of the cancellation and the return of the vehicles. There is nothing unconscionable in this at all. The relief claimed by the applicant is that provided in most if not all agreements of those with which were are here concerned. Applicant is not claiming payment of the full purchase price and simultaneous cancellation. All amounts claimed by applicant were due before termination of the agreement and do not constitute a penalty or damages.”

AA: My Lord we were not referred to that specific Act. That argument was made but we were not referred to Act.

CJ: Look at the next paragraph.

Reference was made to a Swaziland Statute the Conventional Penalties Act the provisions of which were said to afford the respondent a defence to the applicant’s claim, or which would at least require some adjustment thereof by the court. The agreements however provide that it is South African Law, which is to govern, the provisions of a Swaziland statute are inapplicable. Furthermore, the relief claimed does not fall within the provisions of the Act referred to. Again, the point was completely devoid of merit.”

AA: So you were saying My Lord that the Swaziland statute is not applicable? In the earlier judgment you said the South African law is not applicable. I agree that you are referring the Conventional Penalties Act.

CJ: What I said was this in so far as South African law is to apply, it has to be proved in this court whether it is a statute. It is no use coming and saying - but you have to prove that is the law and why these particular buses in terms of that law fall within the provisions of that Act. That is what has to happen and that is what I have said in previous judgments that the difficulty is that, I know there is an Act which provides that deposits have to be paid and all sorts of provisions have to be made and that before you can enforce a penalty provision or something like that you have to give notice even in certain cases. But part of the law is that it only applies or certain classes of merchandise are excluded and that has never been put before the court to show that these buses were included in the provisions of that Act. That is the problem.


On the other hand because the agreement says that South African law is to apply then the provisions of the Conventional Penalties Act of Swaziland don’t apply. But even if they did apply as I say here, this is not a case where the provisions of the Act apply. That is what my judgment was.

AA: I was putting to Your Lordship the earlier order which His Lordship made that you did find that there were some prospects of success in the matter. I don’t think I can take it any further My Lord.

(SUBMISSIONS BY THE RESPONDENT’S ATTORNEY)

RA: May it please the court My Lord.

My Lord I must state from the onset that we have been placed under extreme pressure to try and prepare for this matter. Be that as it may My Lord, we were not in a position therefore, to prepare papers addressing the points, in fact the facts to counter the facts that are raised in this application.

CJ: When were these papers served?

RA: My Lord the papers, His Lordship shall note there are served on the 27th March and their nature; we then wrote to the client informing them to come down for purposes of preparing the said papers.

CJ: I hope you didn’t write to them because if you write to people in Johannesburg or Gauteng from Swaziland it takes two weeks to get there.

RA: In fact we faxed the papers My Lord. But be as it may My Lord, what I am saying is that the application as it came it didn’t say when it would be heard and what we should do. In fact, more than anything, it was addressed to the Court of Appeal and we knowing that the Court of Appeal would be sitting in May, in fact we were at a loss what to do that’s why we had to call the Registrar and find out. It was only then My Lord we learnt that on Thursday, that is when I precisely picked up the phone and called the Registrar and that is when I learnt that moves were being made to secure the Judge President to come down. My learned friend didn’t even have the courtesy to inform us so that we could prepare for this. But My Lord be that as it may, what I am going to address at this stage are issues My Lord that arise from the papers which we can address as the points of law.

CJ: There is another difficulty I have about this application that I should have addressed to Mr. Shilubane. What opportunity have we got to consider these points which are raised? How can we decide these points with the sale pending and about to take place?

RA: In fact Your Lordship has on numerous occasions and I am one of such people who brought an urgent application in the morning of the sale when it was supposed to take off and simple His Lordship’s view has always been you can’t wait all the time, what did you do, why didn’t you move at the earliest available opportunity.


My Lord with this particular matter the issues are even different. There is not even an attempt in the papers to address what was being done when the applicant becomes aware of the attachment and what he does about it. He simply sits My Lord and waits until the eleventh hour and there he comes in. My Lord my humble submission in this regard is that there isn’t anything to achieve other than My Lord delaying the sale. The judgment in question is granted in September and the Court of Appeal sits in November. An urgent application could have been moved at that stage seeking the relief that are now being sought before this Honourable Court and then there wouldn’t been the problems that this Court is now faced with but nothing is done.


My Lord, I am going to allude this one because my learned friend in his submissions did refer to it. The issue of the discovery of the motor vehicle that is one of the items that is to be sold. My Lord that particular vehicle was given over that is was handed over by the applicant himself, personally in acknowledgement of the judgment and he said in fact instead of attaching these buses for now could you please hold on to this and sell it. It was only when that motor vehicle would not be sold and he fails to come up with a settlement that the respondent moves in and attaches the bus in order for it to realize whatever is being owed My Lord in terms of the judgment.


Now My Lord it is being made to look like the respondent has come from nowhere and attached all these things. No, by December the respondent did acknowledge this and raised no questions about this, it actually handed over the motor vehicle in question.


My Lord the main issue that this Honourable Court ought to consider at this stage is the issue of condonation. I can see from the application paragraphs (b) and (c) in fact they are praying for condonation. Firstly condoning the applicant’s failure to file the record for the appeal timeously in Civil Case No.945/98. Secondly, condoning the applicant’s failure to amend its notice of appeal dated 1st June 1998 in Case No.945/98.


My Lord this Honourable Court sitting as the Court of Appeal has dealt with the issue of condonation at length and one such matter is the case of UNITRANS SWD (LTD) VS INYATSI CONSTRUCTION, a written judgment is available in this point.

CJ: I am well aware of that judgment.

RA: As the court pleases. His Lordship shall note that in fact the major point that is being stressed by Their Lordships in that judgment is that the applicant ought to move at the earliest time he becomes aware of the need to pray for that condonation. My Lord, this is a case where way before September 1999 the applicant is aware that he ought to apply for condonation and he actually does. But the court rules against him, the court rules against the application as it were. Having done so, the Court of Appeal comes in November, nobody comes and moves an application, if anything, he complies with the judgment in question. It is only now that he moves by way of urgency and putting everybody under extreme pressure and in fact inconvenience at the eleventh hour. His Lordship shall note that in the judgment in question page 2 thereof, that is the judgment of the UNITRANS SWD (LTD) VS INYATSI CONSTRUCTION. It was stated that, “in considering whether to grant condonation the court in the exercise of its discretion (because the court has a discretion in this regard) of course have a regard to all the facts. Among those facts are the extent of the non-compliance, the explanation therefore and respondent’s interest in the finality.”


My Lord my humble submission in this regard will be if His Lordship looks at the extent of the non-compliance with the rules and the explanation for the failure. The respondent becomes aware of this way back in September, he does nothing about it and in his papers he does not explain at all My Lord as to what he was doing, save to simple content himself with saying that at paragraph 12 that:- “thereafter the applicant decided to seek advice from counsel before taking the matter further as to whether to appeal against the judgment referred in paragraph 11 hereof or approach the above Honourable Court for the relief set out in the notice of application herewith.”


My Lord, there is no allegation whatsoever as to when this opinion from counsel was sought, as to when that opinion, if at all it did come when it did come and what was done by that. In fact His Lordship shall note from the very judgment that this one Your Lordship was a different case because the applicant therein had actually stated as to when he had become aware, what he had done, when counsel had responded and all that. But the Court of Appeal simple found that it would be unfair at this stage because it had not exercised the earliest opportunity available to it because the court has said on previous occasions and nothing had been done. My Lord, on the same score this is exactly what has happened in this matter. The Court has sat before, no such application has been moved, the attachments are done in February, no move is being done. The first notice of sale is done on the 16th March, no application is forthcoming but then the sale is set for the 31st March. In fact that advert of the 16th bears that out that the sale will proceed on the 31st at 10am and it is only My Lord on the 27th that an application is brought and that application when brought does not state what would have to be done and when would the court have to hear it, it just leaves everybody in the dark My Lord.


My humble submission Your Lordship is that the applicant has no interest in seeing the finality of this matter. His Lordship had been addressed at length by my learned friend as concerns the issue of the buses that had been attached and my humble submission Your Lordship is that the issues are being confused and I don’t know whether deliberately or otherwise. The issue of those buses as His Lordship has rightly pointed out – there was an agreement which agreement reserved ownership with the respondent and which agreement stated that in the case of arrears then there will be cancellation and repossession. That is exactly what was done. The repossession of those buses has been done and it is only the issue of the monetary judgment that has led to the attachment of these three buses that are being the subject of these proceedings Your Lordship.

CJ: I have one question. The Court of Appeal or the Judge President has repealed one part of the rules which provides that the judgment was to be stayed. The judgment was to continue. That means that the ordinary law applies that where an appeal is noted, where there is an appeal before the Court, is automatically stayed. But here the argument is that there is no appeal before the Court at the moment.

RA: That is the point My Lord I was going to address Their Lordships on that in fact in this matter there is no appeal before the Court. And if His Lordship notes, the application that is being moved, is being moved in terms of a non-existent rule because it is being moved in terms of Rule 40 of the Appeal Court Rules which rule had been repealed.


I must emphasize on the question of urgency which is what this Honourable Court is now being asked to uphold. My Lord I will simple state there are no facts whatsoever or allegations that would enable this Court to exercise its discretion in fact in the favour of the applicant. No explanation is being given as to what was done since September 1999 to the 31st March, six months later and not only that, no explanation is being given what was done after the goods were attached in February or even after the notice of sale had been published in the newspapers up until the 31st March. There is nothing forthcoming in that front but now we are seized with an application which purports to be urgent.


The applicant My Lord has put so much into this and in fact the sale must go on. My humble submission would be in that regard that the sale must go on. There hasn’t been any case that has been stated to warrant a stay of the sale. In fact the urgency is of the applicant’s own making and we cannot rely on that. The Court cannot condone such My Lord. That would be my humble submission.

CJ: There is one difficulty which crosses my mind about this. The applicant is a peregrine company and assuming these vehicles which the applicant says are worth some E700.000.00, no, it’s not correct. What is the value of the vehicles that are on sale today?

RA: We can’t even talk of the value of those items, there is nothing done next to the papers to show that this is value, it has been evaluated by so and so who have these qualifications in evaluation.

CJ: Because I was considering that there is sometimes a provision that execution proceeds subject to security.

RA: My Lord that could be the case but in cases of this nature ought to be distinguished.

CJ: The problem is that, I don’t know what assets Dorbyl has in Swaziland.


Assuming that there is prospect of success and assuming that the whole judgment was overturned, first of all, Dorbyl would have to return the three vehicles which have been repossessed and perhaps sold. If he were not possible to do that he would be liable in damages. May be, I don’t know. Secondly, if the monetary debt is set aside and it’s found that there is nothing he is owing and his vehicles had been sold is not enough to return the money which was raised because the applicant would have lost the value of those buses and any amount which may be owed. Because you take buses whatever they are worth and you sell in execution, may be you are going to get something far below their value. This is the problem.

RA: My Lord what the rules state is that the Sheriff or the Deputy Sheriff can realize or can attach assets which in his opinion are going to satisfy the debt, at least for this particular application if only there had been annexed or at least a valuation report to show what the value of those assets are My Lord. Because I am willing to submit My Lord that the buses in question are worth far less than the E630,000.00 that is being alleged in these papers.

CJ: I cannot make any ordering in regard to this but whatever happens the parties…

RA: The point of the matter My Lord is that why did the applicant had to wait up until the eleventh hour.

CJ: This is the big problem.

RA: Not only that My Lord we take into account I pray the fact that he had complied with part of that very same judgment by voluntarily handing over one of those assets.

CJ: You are saying that amounts to preemption?

RA: What I am saying Your Lordship is that I also beg you take into account the fact that …

CJ: Mr. Hlophe those facts aren’t before the court.

RA: In fact I am praying Your Lordship, I am sorry to use that term. I am praying that Their Lordships also take into account the fact that His Lordship having been addressed on that point did find that there are no prospects of success in the appeal. That is in the judgment Your Lordship of September. He was properly addressed on that one, in fact the papers before Court today simple make a bold assertion that there are prospects of success without even alleging why it is being alleged that there are prospects of success in this matter.

CJ: What time is this sale taking place?

RA: It is supposed to take place at 10am.

CJ: It is not 9:45am. What must I do?

RA: Your Lordship, it is simple, to dismiss the application.

CJ: I think we will have to consider it.

(RE-SUBMISSIONS BY APPELLANT’S ATTORNEY)

AA: Can I reply to some of the facts that my learned friend has told His Lordship. My Lord this application is not brought under Rule 40, it is Rule 17, that is on the papers. I think Your Lordships you have noted that there are no facts to what my learned friend is saying so I won’t waste time on that. He said the application didn’t state when it would be heard. It was filed on Tuesday and the reason why we couldn’t say when it would be heard was because it was before the Court of Appeal.

CJ: What is an applicant or respondent supposed to do when it gets such?

AA: My Lord that is the fault of the situation in Swaziland that we don’t have judges of the Court of Appeal who are resident here.

CJ: Here we are.

AA: Very reluctantly. Your Lordship was very reluctant to hear the matter.

CJ: It is not usual for us to (inaudible).

AA: Yes.

CJ: But that does not answer the question as to what a respondent or applicant must do when it gets this notice?

AA: He must prepare himself for when the matter would be called. But in any event it has been argued My Lord that the urgency has arisen because of the attachment of these assets.

CJ: The urgency arose when my judgment was given in October that is when the applicant should have started moving. All he said was that he consulted counsel and to do that, you can do it in 24 hours.

AA: It couldn’t be done in 24 hours My Lord, the papers are bulky. The papers had to be taken to Johannesburg. It’s a complex matter. We couldn’t do it in 24 hours as Your Lordship states.

CJ: Capable counsel could advise you in a very short time not six months.

AA: My Lord there was a question of whether we should appeal against your judgment or approach the Court of Appeal.

CJ: But that decision could be made within a considerably less time than six months. The point is, you have delayed until the last minute and I call Monday the last minute. When you serve notice on the other side, you don’t even tell them what they must do.

AA: In terms of what My Lord?

CJ: Your application, you don’t say here is a notice of application. What must they do when they get this application?

AA: I couldn’t say when it would be heard My Lord because the judges are not resident here.

CJ: Isn’t it your duty to ascertain when it would be heard and then give them notice.

AA: No My Lord, I couldn’t contact the judges directly in Petermaritzburg, wherever they are. I had to go through the Registrar and it is only when we got a response from the Registrar that we knew when the matter could be heard. So that is the answer to that question Your Lordship.

CJ: I am not sure it is the answer. What really concerns me is the delay between my last judgment and this particular application. My last judgment was given, as you have seen, in September 1999 and the stay of execution was then dismissed. Then the execution was going to proceed.

AA: That was the different application My Lord.

CJ: But it was for the same execution.

AA: The application was different.

CJ: But it was for the same relief you wanted.

AA: We wanted to re-lodge the record.

CJ: “This is an application brought as a matter of urgency for the Inhle Transport. The relief sought was the staying of execution applicant’s property in terms of the writ of execution dated November 1998 and rescinding the order granted against the applicant on the 30th November in terms of which….” This was dealt with the execution, the same execution.

AA: They had not attached the assets that you are talking about. What they have done now is to put the man out of business. That is where the urgency comes in.

CJ: When did they attach the assets? What vehicles were under attachment at that time?

AA: When My Lord, for this stay?

CJ: No, in September last year. What was going to be sold?

AA: They had attached one of the buses that the appellant was using to conduct his business, that is when the question of the discovery came in. But now what they have done, they have taken everything.

CJ: Discovery, what discovery?

AA: The landrover which is mentioned in the notice My Lord.

What they have done, they have attached that and that was not urgent in the sense that that vehicle is not used by the appellant to conduct business. What has created the urgency is the attachment of all the vehicles which the appellant is using to do business.

CJ: When did the attachment take place?

RA: In February My Lord.

CJ: You knew in February that there was an attachment?

AA: (inaudible)

CJ: When did the attachment take place, do you have the notice of attachment.

AA: I don’t have the notice of attachment My Lord.

CJ: But when? Mr. Hlophe says it was in February. What date in February?

AA: What happened My Lord was that the second respondent came and remove the buses and take them away. There was no service of attachment at all.

CJ: When did it happen that the vehicles were taken away?

AA: During February.

CJ: Can you give me a date in February?

AA: I think it was within the first two weeks of February and then the sale was advertised, as I have told Their Lordships, as it appears in the notice, on the 16th, 17th and 21st March. Those are my submissions My Lord.

CJ: We will take a few minutes to consider.

(SHORT ADJOURNMENT)

CJ: (first part not recorded) brought before the Court of Appeal by the applicant who seeks relief in relation to a sale which is about to take place. The application was brought as a matter of urgency. We were referred to no rule in the Court of Appeal relating to urgent applications and the application was entertained by this bench which comprises of local judges and notice of the application was given on Monday.


The notice of the application itself is, as was pointed out by the respondent’s counsel defective in that it really doesn’t say when the matter is set down and what the respondents must do. They have had no opportunity in fact of replying to this application and the answer has therefore been considerably abbreviated.


It is therefore not possible to consider the relief setforth requested in paragraph (b) or (c) of the notice of application. These matters of condonation will have to be considered at a later date by other judges of the Appeal Court.


We really only concerned this morning with the stay of execution and it has been brought as a matter of urgency. Mr. Shilubane who appears for the applicant has not been able to point to any circumstances of urgency which would justify this Court or any court in entertaining an application without proper notice. There may be urgent circumstances where such a cause would require special hearing but in this matter this application is one of a series that has taken place in regard to litigation which originally commenced at least two years ago. I myself have given at least two judgments in connection with the main relief sought and in regard to certain interlocutory matters relating to execution which have arisen since then.


The applicant in this matter has known probably since September last year but certainly from as late as February this year that execution on the judgment in respect of the movables now up for sale was to take place. The excuse for not approaching this so or any another court earlier is quite insufficient.


The applicant says the first applications which were made before the late Justice Dunn and as a matter of record the learned Judge passed away two years ago thereafter the applicant lodged an application to file a fresh record for the appeal but I dismissed this application with costs in September. The applicant says that thereafter he decided to see advice from counsel before taking the matter further as to whether to appeal against the judgment referred to in paragraph 11 or to approach the above Honourable Court that is the Appeal Court for the relief set up in the notice of application filed herewith.


There is no earthly reason why this decision has taken six months. There is no explanation.


For these reasons we find that there is no urgency in this matter and no basis for us dealing over this matter and making an order staying the execution pending the application for the condonation sought in (b) and (c) of the notice.


Accordingly, the application in so far as it relates to the stay of execution is refused and the application for the other relief may be placed before the Appeal Court at its next sitting.

(His Lordship Maphalala J agrees)

What do you say?

AA: My Lord I am applying for an order for costs as well. I don’t see why the costs should not be the costs in the course just for today’s hearing.

CJ: Which costs?

RA: Costs of the application My Lord. There is no reason why they shouldn’t follow course My Lord we have been put under extreme pressure by the application.

CJ: There seems to be no reason why the usual costs following the call should not be made accordingly you are entitled to today’s costs.


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