Times Of Swaziland: COURT DISMISSES JABUSISA INVESTMENTS’ APPEAL

COURT DISMISSES JABUSISA INVESTMENTS’ APPEAL
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Mhlengi Magongo on 27/07/2022 07:34:00


MBABANE – The Supreme Court of Eswatini has dismissed Jabusisa Investments
(Pty) Ltd’s appeal application for judgement in their case against Eswatini
Development and Savings Bank. The judgement was passed by the Supreme Court of
Eswatini acting Judge of Appeals Mndeni Vilakati, who dismissed the application
with cost.
Respondent
Jabusisa Investments (Pty) Ltd were the appellant’s in the matter while
Eswatini Development and Savings Bank was the first respondent. Also cited in
the matter was the Sherriff of the High Court of Eswatini as the second
respondent. Vilakati said, On May 28, 2021 the High Court dismissed with cost,
in favour of the bank, at attorney and client scale. Jabusisa Investments (Pty)
then appealed against the order of the High Court. On January 6, 2020, the bank
sued the appellant for failing to pay back the loan amount with interest.
Owed
It was indicated that Jabusisa Investments (Pty) Ltd owed Eswatini Development
and Savings Bank monies amounting to over E3 453 471.90. After being sued, the
appellant did not file an intention to defend the action.
Vilakati said what happened instead was that on or about January 27, 2020,
Jabusisa Investments (Pty) Ltd and the bank concluded a contract which they
named ‘consent to judgement and agreement to pay’. “Jabusisa Investments
(Pty) Ltd acknowledged its indebtedness to the bank for claims, interest, costs
and collection commission,” he said.
Costs
The acting Judge of appeals said Jabusisa Investments (Pty) Ltd undertook to pay
the amount of the claims, interest and costs in full by May 30, 2020 and the
collection commission by January 31, 2020. Costs were fixed in the amount of E4
250. “In the event Jabusisa Investments (Pty) did not pay the bank by the due
date, the full balance would become due and payable, the bank would be entitled
to enforce the agreement by issuing a writ of attachment over the mortgaged
properties,” said Vilakati. He added that the bank would make the agreement an
order of court.
Vilakati alluded that the ‘consent to judgement and agreement to pay’ was
made an order of court January 31, 2020.
Payment
He said on February 14, 2020 Jabusisa Investments (Pty) Ltd partially performed
the agreement by paying costs in the amount of E4 000 and made no other payment.
Subsequently on July 24, 2020, the bank issued a writ attaching and taking into
execution the two landed properties which were used to secure the repayment of
the loans. The acting judge said a notice of sale by public auction of the two
immovable properties was published in the print media on August 15 and September
19, 2020. He said the notice set the reserve price at E2 600 000.
Auction
Vilakati added that the notice published on September 19, advertised the sale by
public auction for September 25.
“It was this notice which prompted Jabusisa Investments (Pty) Ltd to approach
the High Court on an urgent basis seeking an order setting aside the ‘consent
to judgement and agreement to pay contract’, rescission of the order of
January 31, 2020 and reviewing and setting aside the decision of the sheriff to
set the reserve price at E2 600 000,” he mentioned.