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3 HOTELS UNDER SUN INTERNATIONAL SOLD TO OVERSEAS BUYER

21/06/2022 09:09:00 Mbongiseni Ndzimandze

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MBABANE - All the three hotels which were under the management of Sun International Limited have been sold to an overseas buyer.

The sale of the hotels, SwaziSpa Hotel and Casino, Lugogo Sun and the Ezulwini Sun, was disclosed by Assistant Attorney General (AG) Mbuso Simelane in court yesterday. Simelane further informed the court that a deed of sale has been signed by both liquidators, Marisa Boxshall Smith and Paul Mulindwa. “The purchase price will be paid anytime,” submitted the assistant AG. He also brought it to the attention of the court that the deed of sale has been approved by the creditors. In his submissions, the assistant AG did not disclose the name of the purchaser and the purchase price. Simelane made these submissions yesterday after Judge Khontaphi Manzini had dismissed the points of law raised by the master of the High Court in the matter where Sun International and other creditors want Mulindwa to be removed as co- liquidator in the liquidation of the three hotels.

Remove

The assistant AG argued that the application to remove Mulindwa as co-liquidator was now academic or overtaken by events as the liquidation process was also complete and the deed of sale had been signed. He then requested to file a full-blown application to demonstrate to the court why the Master of the High Court was of the view that the application for the removal of Mulindawa as co-liquidator was now academic. The latest development will bring a glimmer of hope to the over 200 emaSwati who were rendered jobless after the closure of the hotels, as they would be paid their terminal benefits.

It was previously reported that Eswatini National Provident Fund (ENPF) was among the companies which had made offers to purchase the hotels. The list of the companies which had shown an interest in purchasing the hotels under SwaziSpa Holdings, which is currently under liquidation, was provided to the master of the High Court by lawyers representing the liquidator of the companies under Sun International Management Limited. In total, there were four companies which had made offers to purchase the hotels situated in Ezulwini. However, the amounts put forth by each bidder had not been included in the court documents. Some of the companies which had reportedly made offers as per the list were; Africa Orbit Holding (PTY) Limited, Africa Harvest (PTY) Limited and VZN Investment Limited.

In June 2021; the High Court of Eswatini issued a final order for the liquidation of five companies under Sun International Management Limited. The affected companies include SwaziSpa Holdings, which was operating SwaziSpa Hotel and Casino, Lugogo Sun and the Ezulwini Sun. It was recently disclosed that there was a bid of E1 billion which was, however, being doubted by the master of the High Court. Sun International Management Limited, would, on the other hand, informed the court that the identity of the bidder for the amount of E1 billion was currently confidential. In her answering papers, Deputy Master of the High Court, Lindelwa Magagula, averred that the story of the E1 billion in bids for the purchase of SwaziSpa Holdings, was one that was colourful without any meat. The contention by the deputy master is contained in an affidavit she deposed to, in the matter where the appointment of Mulindwa as co-liquidator was being challenged. Mulindwa, who is the second respondent in the matter, was appointed by the master to work together with Smith, the third respondent.

Appointment

The Sun International Management Limited, which is the first applicant in the matter, is challenging the appointment, together with four other applicants which are Nedbank Swaziland Limited, former Employees of Swazi Spa, Eswatini National Provident Fund (ENPF) and Chick-Fil-A Swaziland (Pty) Limited. In the affidavit, Magagula submitted that the liquidator had claimed that she had received financing for E1 billion, and the same was deposited into a bank account and that the deposit was to be verified by the creditors committee. The deputy master said upon further investigation and enquiry, the story changed to the effect that the interested bidders only showed their bank statement, but had either refused and or failed to file bank guarantees.

Meanwhile, the High Court has dismissed the points of law raised by the master of the High Court in the matter where she has been taken to court by Sun International Management Limited and three creditors. Sun International Management Limited and the other applicants (Nedbank Swaziland Limited, Eswatini National Provident Fund) want Mulindwa to be removed as co-liquidator.

Dismissed

In the dismissed points of law, the master had submitted that the applicants who also doubled as members of the creditors committee, were estoppel from moving the application for the removal of Mulindwa, as they embraced him and were working with him. They further contended that the matter was now academic. Estoppel is the principle which precludes a person from asserting something contrary to what is implied by a previous action or statement of that person or by a pertinent judicial determination. In her judgment, Judge Manzini said it was the finding of the court that estoppel was in the matter at hand, and could not be raised in a successful manner by the attorney of the respondents (master of the High Court and three others).

The court highlighted that the applicants in the matter were applying to have the decision of the master of the High Court set aside and also decried the manner in which the decision was made. Their cause of complaint was based on the constitutional right that they had in Section 33. “It would, in my view, be folly to deem their action of seeing to it that the bidding process and the securing of purchasers for the disposal of the assets of the company continued, despite their application to court, to amount to a waiver of this constitutionally protected right,” said Judge Manzini. It was further the court’s observation that the applicants were seeking to challenge the manner in which the master of the High Court appointed Mulindwa as co- liquidator.

“They are not in my opinion, abandoning their right to fair administrative justice by so doing,” reads part of the judgment. The court also noted that there had been no application to have the liquidation process put on hold, pending the finalisation of the matter hence the process was still in progress and the meeting on March 25, 2022 was well in order. Judge Manzini said, had the applicants sought such an order and yet still continued to hold meetings with Mulindwa, then a call to declare their action as signifying pre-emption.

Peremption

“The point of law relating to peremption is also dismissed in light of these findings. In the present case, it cannot be said that the conduct of the applicant is ‘unequivocal’,” said the court.
The court further mentioned that there was another conclusion that could be drawn from the act of the applicant in working with the second respondent (Mulindwa). Judge Manzini said the conclusion was that the applicants did not want to or wished to stop the liquidation process because if they lost out on securing buyers for the company assets, this would ultimately cost them.

“It would be tantamount to shooting themselves in the foot. The points of law are hereby dismissed and the application will proceed to be heard on the merits,” said the court. The applicants were represented by Advocate Van Zyl, who had been instructed by Senior Lawyer Zweli Jele of Robinson Bertram. The master of the High Court and the other respondents were represented by Assistant Attorney General Mbuso Simelane. Applicants in the matter were Sun International Management Limited, Nedbank Swaziland Limited, Eswatini National Provident Fund and Chick- Fil- A Swaziland PTY Limited.