By Bahle Gama
ESWATINI Development Finance Corporation (FINCORP) has put in an urgent application to have the Micro Projects Programme Office pay E319 380.21 to K Brothers Civils (Pty) LTD.
In an affidavit by FINCORP Senior Legal Affairs Manager Lomalangeni Dlamini, the order seeks that Micro Projects be ordered to give effect to a cession instrument dated March 14, 2023, executed by K Brothers directors Bhekinkhosi and Mncedisi Kunene and further effect forthwith payment of the amount to FINCORP from monies due.
She disclosed that FINCORP availed a lease facility to K Brothers to enable the latter to acquire a Mercedes Axor 2628 mixer truck for a total consideration of E487 463. The company was obliged to repay an entire amount through monthly instalments of E25 573 with the last payment expected to be made on January 8, 2025.
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However, K Brothers defaulted on its obligation and FINCORP instituted a proceeding on December 19 at the High Court for the cancellation of the lease and payment of the outstanding balance which in terms of the lease is a sum of E443 433.10.
In terms of the lease, FINCORP availed a leased facility to the first respondent to enable the latter to acquire a UD Tipper Truck for a total consideration of E492,000. The first respondent was obliged to repay the entire amount through monthly instalments of El 3 213. 00 with the last payment being made on or before 30 August 2025.
The application was granted by the High Court on November 21 with an alternative order that the company pay a total sum of E1.3 million together with interest and in the alternative forfeiture of the leased asset and payment of the difference between the value obtained on the sale of the leased assets and the amounts outstanding.
According to the orders of Bhekinkhosi and Mncedisi in their capacities as Directors of the first respondent (K Brothers) caused to be executed cession in favour of the applicant in respect of proceeds that were due to the first respondent from the fourth respondent.
The cession document was duly delivered to the Micro Projects director who reportedly acknowledged receipt and confirmed that they were indeed indebted to the K Brothers about the construction project, subject to being no defects on the project and the lapse of defects liability period.
On June 5, 2023, when FINCORP sought to enforce the sessions, they were advised by Micro Projects that it would be required to obtain an order to give effect to the cession. “The present application therefore is directed at enforcing the cession by directing that the fourth respondent pay over to the applicant the sum of E319 380.21 which is in its possession and is due to FINCORP in terms of the agreement between the K Brothers and Micro Projects,” she stated.
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She further stated that there were no disputes of fact in the matter as all parties are consensus on the effect of the session and in the circumstances submitted that good course existed for the enrolment of the matter as one of the urgent and the grant of the relief sought.
According to the application, Micro Projects is able to pay a sum of E319 380.21 to the K Brothers. The cession must be given effect to avoid a situation whereby the amount is paid to the K Brothers to the prejudice of FINCORP.
FINCORP’s liability with the applicant carries with it a monthly interest charge and is forever increasing whilst payment is outstanding. The directors reportedly signed deeds of suretyships of due fulfilment of their company’s obligation towards FINCORP.
“It is in their interest that the liability be reduced by the amount reflected in the session as the current value of the assets is far lower than the amount outstanding. At present, the total outstanding amount is the sum of 1 476 338.11,” reads the application.
Dlamini further stated that adherence to the timelines provided for in the Rules of Court would result in this application being enrolled for hearing after six weeks in which time the interest would have been increased to the prejudice of the applicant and the first respondent. A hearing in due course will therefore not provide an adequate remedy to the applicant.
“I humbly submit that there is a good course for the matter to be enrolled as one of urgency and for the grant of the prayers sought,” she said.