Court rules in favour of Asikhutulisane
MBABANE – Golide Lesikhova (Pty) Ltd’s movable property has been attached as security for its debt to Asikhutulisane Properties (Pty) Ltd despite their dispute.
In this case, Asikhutulisane was the applicant and Golide was the respondent.
Golide’s property will be attached to their debt, according to a decision made by the High Court of Eswatini through Judge Justice Mavuso, and they will also be required to pay the litigation costs.
The respondent had previously been prohibited from removing any movables from the property by a judgment issued by the High Court in February, which also ordered the deputy sheriff to attach the property sufficient to cover the debt and further create an inventory of the attached goods.
This was after Asikhutulisane Properties (Pty) Ltd approached the High Court of Eswatini after Golide had accumulated rent arrears amounting to E46 223.76.
Regulation
The case was set to return to court on February 10, 2023, after the ruling was granted on February 2, 2023, with immediate interim effect. The regulation was extended on the return day to February 15, 2023, the day the issue was debated.
Around March 2022, the applicant and respondent entered into a memorandum of understanding (MoU) of lease for a certain property situated at Bhunya.
The lease commenced on April 1, 2022, and was to continue for a period of three years up to March 31, 2025.
For the first year, beginning on April 1, 2022, and ending on March 31, 2023, the rental was set at E3 500. For the months of April 1, 2023, through March 31, 2024, it was set at E3 300 inclusive of 15 per cent VAT for the second year and at E3 630 for the third.
It was stated that the rent was payable before the 7th day of each month.
It was further agreed that in addition to the first month’s rental, lessee (Golide) shall, upon signing the lease agreement, pay a deposit to Asikhutulisane Properties in the sum of E5 000, which shall be retained by Asikhutulisane Properties until the termination of the lease agreement between the parties.
Terms
“Should the lessee fail to make any payment due in terms of this lease, or should the lessee commit a breach of any of the other terms thereof, the lessor shall be entitled to give the lessee not less than seven days written notice to make such payment or remedy such breach, and in the event that the lessee fails to comply with such notice, the lessor shall be entitled, at his option, either to cancel this lease and to retake possession of the premises and to sue the lessee for any arrear rent and/or any other amount due by the lessee and/or any damages sustained by the lessor, including all legal fees, deputy sheriff’s fees, and collection charges,” reads Clause 14 of the lease agreement.
In his judgement, Mavuso said there was absolutely no reason why the principle of ‘pacta sunt servanda’ should not be applicable.
He said there was no reason in law upon which the respondent could be allowed to escape its obligations, as expressed in the lease agreement.
Pacta sunt servanda states that obligations created in terms of an agreement must be honoured; therefore, parties who enter into contractual agreements with the relevant intention are obliged to respect the agreement.
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