Case No:
3809/09
Media Neutral Citation:
[2011] SZHC 62
Judgment Date:
11 March 2011
IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CASE NO.3809/09
In the matter between:
Sandile Zwane Applicant
And
Celiwe Nxumalo 1st Respondent
Phindile Nxumalo 2nd Respondent
Coram:
Ota, J
Mr. S.K. Dlamini For Applicant
Mr. O. Nzima For Respondents
JUDGMENT
[1] The application before court is for the release of a motor vehicle, namely, a Toyota Sedan, 2002, registration number SD 162 NS, Engine number 5AG812738, Chassis number AE110-5172147. The said motor vehicle was attached by the messenger of court for the District of Manzini, 2nd Respondent, in fulfillment of the obligations of one Alex Nyawo to the 1st Respondent. The said vehicle was advertised for sale by public auction in the Times of Swaziland edition of 27th October 2009, as evidenced by Annexure SZ2. It is the foregoing facts that engendered the cries of the Applicant (hereinafter called Claimant), who commenced this application claiming ownership of the said vehicle, and contending that he loaned the vehicle to the said Alex Nyawo in 2009. That the registration book of same, Annexure SZ1, clearly demonstrates that the vehicle belongs to the Claimant. Therefore, the court should grant the reliefs sought.
[2] Now, it is common cause that the said vehicle is registered in the name of the Claimant Sandile Zwane. This is clearly demonstrated by Annexure SZ1, to be found on page 14 of the book of pleadings. This state of affairs raises a prima facie presumption of continuation of ownership in favour of the Claimant, which presumption is rebuttable by the Respondents.
[3] In a venture to rebut the prima facie presumption of continuation of ownership, the Respondents filed an Answering Affidavit sworn to by 1st Respondent, Celiwe Nxumalo. This was supported by the affidavits of 2nd Respondent, Phindile Nxumalo, and Duma Sibandze, a Private Investigator employed by MN Power Point Investments Ltd.
[4] I have carefully considered the totality of the opposing papers filed. Suffice it to say that a summary of the allegations of fact with which the Respondents contend this issue, is as depicted in paragraphs 2.1 and 2.2 of the Respondents heads of argument, in the following terms,
“2.1 The Respondents on the other hand submits (sic) and alleges (sic) that the motor vehicle in question belongs to Alex Nyawo from whom it was attached by the second Respondent. The allegation goes further to indicate that the motor vehicle was actually bought by the said Alex Nyawo from the Applicant sometime in the year 2007. The said Alex Nyawo has been having this motor vehicle since that date. Even after the issuance of the interim order by this Honourable Court, the motor vehicle was taken by the Deputy Sheriff and returned straight to the said Alex Nyawo and yet the order stated that it should be returned to the Applicant. This on its own, shows that the Applicant is not candid with this Honourable Court. Applicant admits in the Replying Affidavit that the motor vehicle is still in the possession of Alex Nyawo.
2.2 The Respondents further allege that it was known to them that the motor vehicle is still in the name of the Applicant but that Applicant sold it sometime in the year 2007. Respondents allege that the Applicant is known to them and that he disclosed to them that he sold the motor vehicle in 2007. Moreover, investigations were conducted by Duma Sibandze of MN Power Point Investments Ltd, trading as MN Power Point Private Investigators to the effect that the said motor vehicle, registered SD 162 NS belongs to Alex Nyawo but is still registered in the name of the Applicant, Sandile Zwane.”
[5] It is on record that the claimant swore to a Replying Affidavit to be found on pages 31 to 37 of the book of pleadings, in which he denied all the material allegations of fact contained in the Respondents opposing papers and alleged new ones, contending that the vehicle belongs to him and that same is in the possession of Alex Nyawo because he loaned it to the said Alex Nyawo.
[6] In the light of the totality of the foregoing, I agree intoto with Mr. Nzima for the Respondents, that the facts stated herein reveal disputes in the material facts of this case, relating to the question of the ownership of the vehicle in issue. These disputes arise from the fact that the material allegations of fact deposed to by the Respondents in rebutting the presumption of continuation of ownership of the said vehicle, pursuant to annexure SZ1, are all denied by the Claimant in his Replying Affidavit, wherein he denied knowledge of 2nd Respondent or ever telling her that he sold the said vehicle to Alex Nyawo, he denied that he sold the said vehicle to Alex in 2007, he stated that the motor vehicle is not in Alex’s name because he loaned it to Alex. He denied the activities of the private eye Duma Sibandze, putting him to strict proof thereof.
[7] I hold the view that the foregoing disputes of fact are such that they cannot be resolved on the papers serving before court. Mr. S.K. Dlamini calls upon the court to determine this application on the balance of probabilities. I want to say this here, but with respect to counsel, that this argument is not maintainable in the face of the principles immortalized by case law, to the effect that the question of probabilities ought not to arise in motion proceedings. This is because motion proceedings is for the straight forward and simple, not for crafty cases fraught with disputes of fact, that require a weighing on the scale of justice, to determine the balance of probabilities. Such cases will require the issues to be ventilated via viva voce evidence, thus enabling the court come to a decision on a balance of probabilities, after a consideration of the evidence and credibility of the witnesses. As the Learned authors Herbstein and Van Winsen, put it in the text, Civil Practice of the Supreme Court of South Africa, 4th edition, page 234:-
‘‘ It is clearly undesirable in cases in which the facts relied upon are disputed to endevour to settle the dispute of fact on affidavit, for the ascertainment of the true facts is effected by the trial judge on consideration not only of probability, which ought not to arise in motion proceedings, but also of credibility of witnesses, giving evidence viva voce. In that event, it is more satisfactory that evidence should be led and that the court should have the opportunity of seeing and coming to a conclusion.”
[8] Furthermore, speaking about this self same position of the law in relation to Summary Judgment applications, which are also application proceedings in the main, Corbett CJ declared thus in the case of Maharaj vs Barclays Bank Ltd 1976 (1) SA 418, AD 236,
“Accordingly, one of the ways in which a Defendant may successfully oppose a claim for Summary Judgment is by satisfying the court by affidavit that he has a bona fide defence to the claim. Where the defence is based upon facts, in the sense that material facts alleged by the Plaintiff in his summons, or combined summons, are disputed or new facts are alleged consisting a defence the court does not attempt to decide the issues or to determine whether or not there is a balance of probabilities in favour of one party or the other…”
[9] See Room Hire Co. (PTY) Ltd vs Jeppe Street Mansions (PTY) Ltd 1939 (3) SA 1131 (7), Mntomubi Simelane & Another vs Makwata Simelane & Others Case No.4286/09.
[10] I am therefore firmly convinced, that Mr. Dlamini’s contention that this matter be resolved on the balance of probabilities, is in itself a recognition, that there are disputes of the material facts of this case that can only be resolved after viva voce evidence.
[11] In the light of the totality of the foregoing, the justice of this matter demands that I refer same to trial. I have statutory empowerment to do this pursuant to Rule 6 (17) and (18) of the Rules of this Court, which provide,
“17. where an application cannot properly be decided on affidavit, the court may dismiss the application or make such order as to it seems fit with a view to ensuring a just and expeditious decision.
18. Without prejudice to the generality of sub-rule (17), the court may direct that oral evidence be heard on specified issues with a view to resolving any dispute of fact and to that end may order any deponent to appear personally or grant leave for him or any other person to be subpoenaed to appear and be examined and cross-examined as a witness or it may refer the matter to trial with appropriate directions as to pleadings or definition of issues or otherwise”
[12] On these premises I order as follows:
- The parties herein do and are hereby ordered to trial, to determine the question of ownership of motor vehicle registration number SD 162 NS.
- The affidavits filed herein do and are hereby ordered to stand as pleadings at the trial.
- The matter shall take its normal course in terms of the Rules.
- Costs to be in the cause.
DELIVERED IN OPEN COURT IN MBABANE ON THIS
THE……………..DAY ………………………2011
OTA J.
JUDGE OF THE HIGH COURT