Sun International: Spa sale shouldn’t hang on one man

MBABANE – Sun International Management Limited says the removal of Paul Mulindwa as co-liquidator will not, by itself, bring the liquidation of Swazi Spa Holdings and its subsidiaries to an end.

It also questioned why the master of the High Court and attorney general are seeking urgent court intervention over Mulindwa’s continued role.

In an answering affidavit filed in the High Court, the respondents, Sun International, Nedbank (Swaziland) Limited and the Eswatini National Provident Fund (ENPF), argue that the master and attorney general (applicants) have failed to demonstrate that the respondents’ actions threaten the liquidation process or that Mulindwa’s removal would cause the prejudice they allege.

The respondents are opposing an application brought by the master of the High Court and attorney general following a dispute over correspondence from their lawyers concerning the legal implications of a judgment that declared Mulindwa’s appointment as co-liquidator unlawful, irrational and invalid.

The dispute has implications for the liquidation of the former Royal Swazi Spa business and the proposed transaction aimed at reviving the hotel.

The master, through Deputy Master Lindelwa Magagula’s founding affidavit, alleged that correspondence from the respondents’ lawyers threatened to disrupt the liquidation process and the proposed transaction. The concerns arose after the High Court ruled against the appointment of Mulindwa, who had been serving alongside co-liquidator Marisa Boxshall Smith.

However, Sun International and its co-respondents deny that their correspondence amounted to a threat or unlawful interference. They maintain that their lawyers were communicating their interpretation of the court judgment and informing relevant stakeholders of the legal implications they believed flowed from it.

The respondents argue that the applicants have not identified any specific unlawful act committed by them or demonstrated concrete prejudice that would justify the extraordinary relief sought.

They further contend that the continued participation of Mulindwa is not indispensable to the liquidation and that legitimate concerns about actions undertaken during his tenure could be addressed through the appropriate legal procedures.

The dispute dates back to March 18, 2022, when the master appointed Mulindwa as co-liquidator of Swazi Spa Holdings and its subsidiaries under the master’s reference number MCL 11/2021.

Sun International subsequently challenged the appointment in court.

On July 29, 2026, the High Court, under case number 614/2022, ruled that the master’s decision to appoint Mulindwa was unlawful, irrational and invalid, and consequently null and void. The court reviewed and set aside the decision, with costs following the event.

The master and the attorney general appealed against the judgment before the Supreme Court. The appeal is pending under case number 83/2026.

The respondents acknowledge in their answering affidavit that the general rule is that the noting of an appeal suspends the operation and execution of the judgment being appealed against.

However, they argue that the nature of the order in this case raises a further question: Whether noting an appeal can, without more, restore the validity of an administrative decision that the High Court has expressly declared unlawful and null and void.

According to the respondents, the judgment did not merely suspend or vary Mulindwa’s appointment. It declared the decision invalid and set it aside.

They maintain that the noting of an appeal does not automatically transform an appointment declared invalid by the High Court into a lawful one. They further argue that the appeal does not, in itself, amount to a judicial determination that Mulindwa is entitled to continue exercising the powers and functions of co-liquidator.

The respondents say they remain entitled to rely on the judgment, subject to any subsequent order by the Supreme Court, until the appeal is determined.

They argue that if the applicants disagree with their interpretation of the judgment, the appropriate course is for the issue to be determined by the Supreme Court, which is already seized with the appeal.

One of the central arguments in the answering affidavit is that the applicants have not demonstrated that Mulindwa’s removal would bring the liquidation process to an end.

The respondents deny that the continued participation of Mulindwa is necessary to preserve the integrity or continuity of the liquidation.

They argue that his removal as co-liquidator would not, by itself, terminate the liquidation or cause the prejudice alleged by the applicants.

The respondents further contend that any legitimate concerns about acts undertaken during Mulindwa’s tenure could be addressed through the appropriate mechanisms available in the liquidation process. These could include consideration and, where appropriate, ratification by the concursus creditorum, a term referring to the collective body of creditors in an insolvency or liquidation process.

“The applicants have relied on speculative or hypothetical prejudice without providing a sufficient evidential basis to show that the respondents’ conduct has caused, or is likely to cause, irreparable harm to the liquidation,” they argue. The veracity of these allegations is still to be tested in court.

The respondents therefore submit that the applicants have failed to establish a reasonable apprehension of injury, unlawful interference or irreparable prejudice that would justify the interdict sought.

Sun International and its co-respondents also challenge the legal basis on which the master and the attorney general have brought the application.

They argue that the relief sought is, in substance, aimed at protecting Mulindwa’s alleged right to continue acting as co-liquidator, yet he has not personally instituted the proceedings or filed a confirmatory affidavit stating that he supports the application.

The respondents contend that Mulindwa is a necessary and interested party because the orders sought would directly affect his legal position and his alleged entitlement to continue exercising the functions of co-liquidator.

They argue that the applicants have not demonstrated that they possess the necessary legal standing to seek relief on his behalf.

The respondents acknowledge that the master has statutory duties and responsibilities concerning the administration and supervision of liquidation proceedings.

However, they maintain that those responsibilities do not automatically give the master a direct and substantial legal interest in the personal rights of a particular liquidator.

They further argue that there is no evidence that Mulindwa ceded, assigned, transferred or otherwise conferred upon the applicants any right or authority to pursue the relief on his behalf. The matter is pending in court.

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