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COURT HALTS E5.2M EEC PROPERTY ATTACHMENT

17/06/2022 08:19:00 Kwanele Dlamini

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MBABANE – Armed with a writ, a deputy sheriff proceeded to attach but did not remove movable property belonging to EEC.

However, the Eswatini Electricity Company (EEC) yesterday approached the court on an urgent basis where it obtained an order to stay the execution of the order. The order for the stay of execution was issued by Judge Cyril Maphanga by consent of both parties.

The order to attach movable goods belonging to EEC was issued after the power utility company allegedly failed to comply with an order of the Supreme Court, directing it to compensate a Mahwalala resident, Gideon Gwebu, who erected buildings within the vicinity of an electricity transmission line.

Compensate

The Supreme Court confirmed a judgment of the High Court, which ordered EEC to compensate Gwebu after the company approved a building plan without carrying out an inspection of the area. As a result, Gwebu erected buildings within the vicinity of the transmission line. The building plan, which EEC approved, had been received from the Municipal Council of Mbabane.

In its judgment, the Supreme Court had ordered EEC to pay costs of relocating the transmission line, which amounted to E1 466 482.63. EEC was also ordered to compensate Gwebu for loss of income occasioned by the non-use of his premises, calculated at the rate of E5 400 per month from April 2013 to the date of relocating the transmission line and connection of electricity to the premises.

The company was further ordered to compensate Gwebu an amount of E1 200 per month from April 13, 2013 to the date of connecting electricity to his premises. This is the amount that Gwebu paid monthly towards the provision of security at the premises.Alternatively, the court ordered EEC to pay Gwebu for damages in the sum of E3 150 000 for loss of land, loss of building and loss of income at the rate of nine per cent interest per annum. EEC allegedly did not comply with the order of the Supreme Court, which proceeded to issue a writ of execution, which is dated June 9, 2022.

A writ of execution is a judicial order that a judgment be enforced. The writ directed the sheriff, or her deputy, and any other authorised person in the Hhohho Region, to attach EEC’s movable property to realise the amount of E5 276 250, which was to be paid to Gwebu as compensation. In the urgent application, EEC Managing Director (MD) Ernest Mkhonta stated that the application was to set aside a writ of execution that was issued under the hand of the registrar of the Supreme Court at the instance of Gwebu.

Sheriff

Deputy Sheriff Melusi Qwabe, who went to execute the order, has been cited as the second respondent in the matter while the registrar of the Supreme Court is the third respondent. The MD informed the court that the application also sought to stay the execution of the alternative order of the High Court. He submitted that since the dismissal of the applicant’s (EEC) appeal, the applicant duly informed Gwebu of its election of the first part of the order.

He averred that by then, EEC had embarked on a process of relocating the power transmission line but encountered logistical challenges, some of which were set out in the January 13, 2022 letter to the Municipal Council of Mbabane. Mkhonta submitted that Gwebu’s motive for resisting the primary order of the High Court was that the alternative order was more lucrative to him. It was further his argument that the writ was unlawful for a number of reasons. He submitted that the Supreme Court did no more than dismiss the EEC’s appeal and the writ was not issuable in the Supreme Court, which merely endorsed the orders of the High Court.

The MD also contended that the registrar of the Supreme Court was allegedly deceived by Gwebu or his legal team, that EEC had not made any election from the alternatives available to choose from. “The delay in executing the primary order of the High Court, which was elected by the applicant, is now wilful on the part of the applicant. The logistics involved the relocation of Mahwalala KV transmission,” he argued,

According to Mkhonta, the general plan for the affected location (Mahwalala Zone 6) required a review. He alleged that in this regard there had been a tripartite engagement between the applicant, Municipal Council of Mbabane, and the surveyor general. He told the court that there was a need to inquire into the environmental impact assessment issues.

Mkhonta further submitted that there was no legal basis ‘for the persistence of the first respondent (Gwebu) in this patently unlawful process of execution which is designed to apply pressure on the applicant (EEC) to accept the more onerous alternative order of this honourable court’. “I submit that this is reprehensible and deserves censure in the form of a costs order at attorney-and-client scale. I submit that of this court does not intervene as solicited by the applicant, the deputy sheriff (Melusi Qwabe) will proceed to advertise the sae of the applicant’s movable properties on the basis of an unlawfully issued wit of execution and cause the applicant massive damage,” submitted Mkhonta.

Damage

He said the massive damage allegedly caused to EEC was not just in the context of the threat to its assets which are essential for the discharge of the company’s statutory mandate, ‘but also because of the negative publicity that the applicant has been subjected to as a result of the unlawful execution of the disputed writ’.

Mkhonta also alleged that the publication of the execution could only have been at the instance of Gwebu as part of his stratagem. “It is clear that the second respondent is part of a nefarious course or the activities of the first respondent because he ignored calls of the applicant’s senior officers and messages to his cellphone setting out the unlawfulness of his execution of on June 13, 2022 but returned to the applicant’s premises on June 14, 2022 on the same exercise.

“The second respondent’s self-serving conduct is despicable in that he is supposed to be an impartial public officer who acts only within the confines of the law,” the MD submitted. He further informed the court that the registrar of the Supreme Court was liable for costs only if she opposed the relief sought because that would mean that she supported the allegedly unlawful execution of a writ.

Gwebu’s attorney, Thembeka Magagula of Mlangeni and Company, raised a point of law contending that the High Court does not have jurisdiction to hear the matter. He submitted that the application was highly irregular as the writ, which is alleged to be impugned, was issued on the strength of a Supreme Court judgment.

Magagula also submitted that the court could not determine any application brought before it determined issues on jurisdiction, which it lacks. He also stated that the application should have been made to the Supreme Court, which issued the judgment. EEC is represented by Sabela Dlamini of Magagula and Hlophe Attorneys in the matter. The parties are to file submissions and Judge Maphanga will issue a judgment on the matter in due course.