Dlamini No v Swaziland Development & Savings Bank And Another (23 of 2007) [2007] SZSC 44 (16 November 2007)

SUPREME COURT OF SWAZILAND

APPEAL CASE NO.23/07

In the matter between:

DAISY DLAMINI N.O. APPELLANT

VS

SWAZILAND DEVELOPMENT & SAVINGS BANK 1^st respondent

DEPUTY SHERIFF -SfflSELWENI DISTRICT 2^nd RESPONDENT

CORAM BROWDEJA

TEBBUTTJA

RAMODIBEDIJA

FOR THE APPELLANT MR. S.C. DLAMINI

FOR THE RESPONDENTS MR. Z.B.JELE

Browde JA

JUDGMENT

This appeal arises from an application in the High Court in which the present appellant's predecessor, as Executor dative of the Estate of the late Stanley Vusumuzi Dlamini, sought an order setting aside a sale in execution which was conducted by the second respondent on the instructions of the first respondent. The sale in execution related to the Farm No.324 Mhlosheni South over which there had been registered, during the lifetime of the deceased, a mortgage bond in favour of the first respondent (the "bank") as security for a loan from the bank to the deceased. The estate of the deceased was unable to service the debt and the bank issued summons to have the farm declared executable. This order was duly granted and pursuant thereto the bank attempted to sell the property by public auction, after advertising the sale, by giving notice in terms of Rule 46(8Kb) of the High Court Rules.

The rule reads as follows:

"The execution creditor shall, after consultation with the sheriff, prepare a notice of sale containing a short description of the property, its situation and street number, if any, the time and place for the holding of the sale and the fact that the conditions may be inspected at the office of the Sheriff, and he shall furnish the sheriff with as many copies of the notice as the latter may require".

The notice given by the respondents of the sale of the farm which gave rise to the present case reads as follows:-

"NOTICE OF SALE

NOTICE is hereby given that pursuant to a writ of execution issued in the above matter, the undermentioned property will be sold by public auction by the Deputy Sheriff for the District of Shiselweni outside the Magistrates Building, Nhlangano at 11.30am on Friday 4^th May2001.

CERTAIN: FARMNO.324 at Mhlosheni, Swaziland; MEASURING: 584, 8729 (five eight four comma eight seven

two nine) hectares; HELD: By the late Stanley Vusumuzi Dlamini under Deed of

Transfer No.668/1987; RESERVE PRICE: El95,000.00 (one hundred and ninety five

thousand Emalangeni)

The conditions of sale are available for inspection at the office of the Sheriff in the High Court Building, in Mbabane and at the offices of Robinson Bertram. Further particulars may be obtained from the undersigned.

Dated at Mbabane on this 30^th day of March 2001. T.S.MAZIYA

SHERIFF OF SWAZILAND"

In the founding affidavit to the application in the High Court the applicant alleged that the notice was defective in that-

(i) It failed to mention that there were improvements on the property comprising the main farmhouse and other erections;

(ii) The venue for the sale was incorrectly stated;

(iii) The documents (which probably meant the Notice) were never served on the applicant.

It is now common cause that on the advertised date i.e. 4^th May 2001 the auction was held at the venue mentioned in the notice (the complaint in (ii) above was denied by the respondents and the appellant then accepted that the complaint was without foundation). It is further common cause that the bank purchased the properties for the reserve price of El95 000­00 at the auction.

In stating that the sale was "a sham" because of the "shortcomings" set out above the appellant averred that "the attendance of the judgment creditor only at the venue is not what is contemplated by the Rules, and therefore any sale resulting therefrom is not a sale and cannot be allowed to stand". On that basis the appellant sought an order setting aside the sale.

The application was argued in the High Court before the learned Chief Justice who came to the conclusion that the application was devoid of any merit and therefore dismissed it with costs. It was against that order that this appeal was argued before us by Mr. S.C. Dlamini on behalf of the appellant. He submitted that on the authority of ROSSITER AND ANOTHER v RAND NATAL TRUST COMPANY LIMITED AND OTHERS 1984(1) SA 381 (N) what must be inserted in the advertisement of the sale in describing the property are the main characteristics of the property to be sold which might reasonably be expected to attract the interest of potential buyers. These include, so the submission went, an express statement as to whether or not there are any improvements or buildings on the land in question.

In the application it was not contested that such buildings as there were on the farm were vandalized and dilapidated to such an extent that "they do not constitute improvements and cannot be said to enhance the property". That being so the submission that the structures might have attracted buyers and that they should have been mentioned in the notice is without foundation. It was pointed out by Mr. Jele, who appeared before us for the respondents, that under Rule 46(9)(b) the appellant had the right to apply for modification of the conditions of sale which, in terms of Rule 46(8) (e) are required to be published and to be exhibited in the Magistrates Court of the District, and which were so published and exhibited. This is clearly an answer to the argument advanced by Mr. S.C. Dlamini that the respondents had no right to fix the reserve price. This reserve price, on the appellant's own showing, was known and accepted as a valid condition of sale, from as far back as 1^st December 2000 when, according to the appellant's founding affidavit, the following occurred, namely,

"On that day the highest bid received was for El95 000-00 being the reserve price for which the farm was sold to one Bernard Nxumalo in his capacity as Chairman Senabelo Paradise Farmers Association".

The appellant then went on to state in his affidavit-

"Unfortunately the Association later failed to comply with the conditions of sale, and as such 1^st respondent moved an application in terms of Rule 46(12) [and] having obtained an order for cancellation of the sale, a new notice of sale by public auction was issued scheduled for 4^th May 2001 in Nhlangano outside the Magistrates Court Building".

I have underlined "unfortunately" because it demonstrates not only that the appellant knew about the reserve price in the conditions of sale but that it was regarded as unfortunate that the farm was not sold at that price to the bidder in December 2000.