COURT DISMISSES JABUSISA INVESTMENTS’ APPEAL

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.

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