TOTAL SWAZILAND TAKEN TO COURT

MBABANE – Total Swaziland (PTY) Limited has been taken to court by the executors in the estate of the late astute businessman Mafika Ndzimandze.

This is after Total Swaziland reportedly issued a notice of termination of a lease agreement for the operation of KaFolishi Filling Station. The filling station, which is situated at Lot No. 367, Nkhoseluhlaza Street, opposite Manzini Municipal Council was operated by the businessman during his lifetime. The respondent, Total Swaziland, is said to be having its principal place of business along the Police Academy (formerly Police College) in Matsapha.

agreement

In his founding affidavits, one of the applicants Velebandla Hezron Dlamini alleged that on March 13, 2001, Total represented by its duly authorised representative and the late businessman Mafika Ndzimandze entered into an operating lease agreement in terms of which Total let to the late Ndzimandze who hired the public motor garage, filling and service station. It was reportedly to be operated as a Total Filling Station at Lot No. 367, Nkhoseluhlaza Street, and Manzini.

According to court papers, in terms of the operating lease, the late Ndzimandze was appointed as Total dealer to operate the filling and service filling station. He is said to have operated as a Total dealer under the name and style KaFolishi Service Station.
“The material terms of the aforesaid agreement were inter alia that the lease agreement would commence on February 1, 2001 and endure for a period of one year (“the initial period”);

“Should the lease not be terminated by either party at the end of the initial period, the lease shall continue thereafter for an indefinite period, terminable by either party giving to the other at least three calendar months written notice of termination,” alleged Dlamini.

provided

Part of the agreement, according to the court papers, was that the dealer shall operate and conduct the business of the filling station as provided in the lease which includes the purchase from TOTAL a minimum average monthly quantity of petroleum fuel.

“Pursuant to the aforesaid agreement, the dealer operated the business of the Total Filling Station from 2001 to the time of his demise in 2016.
“From 2005 when Mr Ndzimandze engaged me as a manager for his businesses, I was responsible for the management of the filling station. I received training from TOTAL on the operation and management of a TOTAL Service Station,” alleged Dlamini.

Dlamini asserted that he had been responsible for the management and operation of the filling station from 2005 to present. Through its attorney from L.R Mamba, Total Swaziland (PTY) Limited is opposing the application.  The matter is pending before Judge John Magagula.

“On a going concern basis, I estimate the goodwill of the business to be more than E3 500 000 net of cash reserves. This was its cash value in 2017.
“The Estate continued operating the business from 2016 after the demise of Ndzimandze and I oversaw the day-to-day operations and reported to the Executors,” alleged Dlamini.

concurrence

Dlamini alleged that this year (2020) and with the concurrence of Total, the trading licence for the filling station was transferred from the late Ndzimandze’s name into the second applicant who has been identified as Nelile Ndzimandze. The Estate’s main shareholders, according to Dlamini, are the deceased’s surviving spouse and children, who are also his beneficiaries. The Executors of his Estate reportedly exercise control of 47 per cent of second applicant (Nelile) on behalf of two minor children of the late Ndzimandze.

“On March 26, 2020, the applicants received a Notice of termination of the operating lease. The notice is dated March 23, 2020. It was received the day before the country went on a lockdown.
The attached notice suggested the agreement was coming to an end on June 30 this year following a three-month notice and the dealer was supposed to have vacated the designated premises by the last day of the past month.

Dlamini claimed that due to the lockdown, he was unable to consult with owners as well as lawyers of the business. “I only managed to engage in consultations in May 2020 after the easing of the lockdown.

cancellation

“On May 12, 2020, some few days after the easing of the lockdown on May 8, 2020, I addressed the letter to TOTAL in which I requested them to indicate the reasons behind the cancellation of the operating lease,” claimed Dlamini. Dlamini, in the court papers, alleged that attempt had been made to engage TOTAL to reverse the decision, but on June 23 the latter reportedly addressed a letter to the applicant’s attorneys advising that the request to continue the business was not acceptable. “The enforcement of cancellation without compensation is so unfair and the Court should refuse to enforce it,” Dlamini appealed. Also attached to the papers is a supporting affidavit by Daniel Dumisani Ntshalintshali, who is the third applicant. Other applicants cited in the matter are Edmund Mazibuko and Carlos Maphandzeni.

These are allegations contained in an affidavit whose veracity will be tested in court.   The matter was filed under a certificate of urgency and senior attorney Mangaliso Magagula of Magagula and Hlophe Attorneys is representing the applicants.

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