2 WOMEN ORDERED TO REFUND PASTOR E800 000

MBABANE – The High Court has ordered two women to refund Pastor Thulani Dlamini E800 000, which he paid as a trustee of WMT Trust for land at Thubungu to construct a church.

Dlamini, of Tree of Life Healing Church, cited, among other things, that the land was not subdivided and that Baphetsile Mamba and Cebisile Mamba were in breach of the Deed of Sale for failure to give him possession and occupation of two portions of land after paying the deposit. As a result, he decided to stop making payments. The purchase price for one of the portions of land was E2 250 000, which was to be payable on signature to Baphetsile. Dlamini was supposed to pay a deposit of E500 000 and the balance of E1 750 000 was to be paid in instalments of E40 000 per month, beginning on or before March 31, 2014. The pastor demanded E1 060 000 in respect of this claim.

Dlamini, who was represented by Sanele Mabila of S. Mabila in Association with TL Dlamini and Company, told the court that he paid the E500 000 deposit to Baphetsile on signature of the Deed of Sale. He also submitted that he paid monthly instalments of E40 000, totalling E560 000 to C.J. Littler and Company.

Purchase

The purchase price of the other portion of land, according to Dlamini, was E400 000. He said it was payable by a deposit of E300 000 and the balance of E100 000 in monthly instalments of E5 000. The first payment, according to Dlamini, was to be made on or before March 31, 2014 until the full amount was settled. The pastor submitted that he paid the deposit of E300 000 on signature of the Deed of Sale and the instalments of E5 000, totalling E70 000 to CJ Littler and Company. He demanded E370 000 in respect of this claim. The matter was heard by Principal Judge Qinisile Mabuza.

However, he informed the court that he stopped making payments after realising that Baphetsile and Cebisile failed to subdivide the property. He submitted that they failed to transfer the property to the purchaser in terms of the Deed of Sale. Dlamini argued that the women were in breach of the Deed of Sale and he issued summons against them jointly for the cancellation of the agreements and refund of the monies he had already paid at nine per cent interest per annum.

Defend

Baphetsile and Cebisile filed a notice of intention to defend the matter and Dlamini, as a result, filed an application for summary judgment, arguing that they had no bona fide defence to the claims. He said they filed the notice to defend solely to delay the matter. The defendants submitted that Dlamini breached the Deed of Sale by stopping payment, which he was to do until the purchase price had been paid in full without giving them written notice of cancellation.

They also informed the court that Dlamini was given possession of the land after payment of the deposit and that they were still working on the subdivision of the property and were doing everything to have that process finalised.  They also stated that Dlamini’s case could not be categorised as unanswerable as it was clouded with many disputes. Baphetsile and Cebisile submitted that they were misjoined by being sued in their personal capacities as opposed to have been sued in their nominal capacities as representatives of the parties in the Deed of Sale.
In response, Dlamini told the court that with regard to the point of misjoinder, the defendants had misrepresented to him that they had the necessary authority to represent their siblings and to that end, should have produced a power of attorney from their siblings.

“It is the plaintiff’s stand that the defendants acted in their personal capacities to defraud him of the amount claimed in the summons,” submitted the pastor.

Defendants

Dlamini further informed the court that the defendants did not have a bona fide defence because they misled him into thinking that they had authority to represent their siblings yet there was no proof confirming such representation capacity. He argued that the Deeds of Sale were void for lack of capacity to transfer the real rights in the immovable property and consequently, Baphetsile and Cebisile had enriched themselves unjustly at his expense.

Dlamini denied being given possession and occupation of the land. He said he communicated to the defendants that payment would be stopped. “The defendants failed to subdivide the land and could, therefore, not have given the plaintiff possession if the portions were not subdivided. The plaintiff (Dlamini) was misled of such subdivision through diagrams that were not ordinarily from the surveyor general. Such failure to subdivide the land was as a result of defendant’s untruthfulness regarding their representation of all family members,” said Dlamini.

The pastor further submitted that, according to Baphetsile, one of her family members refused to sign a power of attorney authorising the defendants to subdivide the land. “The defendants may claim to be working on the subdivision but they are not and there has been no progress after six years with no results,” he added. Dlamini argued that the defendants were in breach of the Deeds of Sale, which provided that they should give possession and occupation of the land upon payment of the agreed deposits of E500 000 and E300 000 respectively.
Baphetsile and Cebisile told the court that Dlamini failed to show how the amount he was claiming was computed, save for the amounts of E500 000 and E300 000 which he paid as deposit for the portions of land.

Subdivided

They also said Dlamini was aware that the land had not been subdivided and insisted that transfer was to be made once payment had been made in full. They also stated that they could not be sued in their representative capabilities. In her judgment, Principal Judge Mabuza said the payments of E500 000 and E300 000 to Baphetsile were clear and unambiguous. The judge stated that the claim for balances beyond E500 000 and E300 000 failed and must go to trial. “It is not clear how much was paid to C.J. Littler and Company and why the payments were made to them. There is no evidence of any payments made to the second respondent (Cebisile) in respect of those monies.

The third respondent (C.J. Littler and Co.) is mum about moneys paid to it and they need to respond as to what is to be made of the money paid to them,” said the judge. The principal judge ordered the cancellation of the agreements and granted summary judgment in respect of the amounts of E500 000 and E300 000, at nine per cent interest per annum, paid to Baphetsile. The court refused the summary judgment in respect of the outstanding balances.

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