IN THE COURT
OF APPEAL OF SWAZILAND
CASE NO. 7/2005
CBD Business Development
Foundation (Pty) Ltd ….......4th
This is an
appeal against a decision of the High Court dismissing an application
for a spoliation order. The trial judge in the court a quo dismissed
the application on the grounds that the affidavits disclosed serious
disputes of fact which could not be determined on the papers, and
that this situation should have been foreseen by the applicants at
the time when they launched the application.
disputes concern the rights of the parties to occupy an area of land
known as Mashiyazimile. The case for the applicants (the appellants)
is that they were in peaceful and undisturbed possession of the land
and were forcibly removed from the land by the respondents. The order
they sought from the court a quo was stated in the following terms:
(c) That a rule
nisi returnable on a date and time to be determined by this
Honourable court do issue calling upon the respondents to show cause
why an order in the following terms should not be made final.
(i) That a
spoliation order be and is hereby made against the respondents in
terms of which the respondents are prohibited to deprive and/or
disturb and/or interfere with the possession by the applicants of a
piece of land known as Mashiyazimile - situated in Gomane between the
Imbuluzane river and the road from Ngomane Township to Simunye.
(d) That prayer
C (i) operates with full and immediate effect pending the return
respondent be ordered to pay costs of this application.
and/or alternative relief as this Honourable Court deem fit.
At the hearing
of the matter in the court a quo, and on appeal before us, several
issues were argued on behalf of the respondents. The answers to two
of these issues are, in my opinion, decisive of the matter. The two
(a) whether the application
should have been dismissed on the ground of a failure by the
applicants to join parties who have a substantial interest in the
(b) whether the applicants
succeeded in establishing that they were in peaceful and undisturbed
possession of the land when they were forcibly removed therefrom.
Many of the
allegations made in the affidavits by both parties are disputed. For
the sake of convenience, I will deal firstly with the facts alleged
by the respondents.
second and third applicants allege that they are members of the
fourth applicant which is a company duly incorporated in terms of the
company laws of Swaziland. The members of the company are all Swazi
indigenous people. The applicants allege that the company was formed
to co-ordinate the ploughing of sugar cane by indigenous Swazis.
These allegations are admitted by the respondents.
The main factual
dispute on the papers concerns the question whether the fourth
applicant had the right to occupy the land known as Mashiyazimile.
The respondents deny that the fourth applicant ever had that right.
respondent, George Mbatha, is described by the applicants as an adult
Swazi "employed by Big Game Parks, a wild life business
undertaking....... as a matter of fact, a wild life empire running
Park, Mlilwane Wildlife Sanctuary and Mkhaya Game
The second respondent is described by the applicants as an adult
Swazi male and Chief Executive Officer of Big Game Parks "and
cited herein in his capacity as such and/or in his personal
capacity." The respondents allege that although the second
respondent is the executive officer, he is merely an employee of Big
Game Parks Trust, as is the first respondent.
I come now to
deal with the respondents' allegations concerning the land in
question, known as Mashiyazimile.
respondent alleges that on or about 25 July 1967 he was appointed by
the late King Sobhuza II to supervise the control of game on land
known as Ehlane. This land was later gazetted to be a game sanctuary
and is now known as Hlane Royal National Park and it is administered
in trust by Big Game Parks Trust.
known as the Royal Swaziland Sugar Corporation, appointed by King
Sobhuza II, from as early as 1977 leased and occupied adjacent land
which land included Mashiyazimile. Around 1999 the Royal Swaziland
Sugar Corporation wanted to expand its cane growing area and by
agreement the Ngwenyama Trust was requested to amend Royal Swaziland
Sugar Corporation's lease to exclude Mashiyazimile and to include
Hlane Riverside, part of the land occupied by the Hlane Royal
National Park. This request was agreed to and in the result the Hlane
Royal National Park took over land, including Mashiyazimile, in
exchange for Hlane Riverside which was then included in the Royal
Swaziland Sugar Corporation's lease. Documentary evidence confirming
these arrangements is attached to the respondents' opposing
According to the
respondents' allegations, therefore, the land known as Mashiyazimile
was lawfully occupied by the Royal Swaziland Sugar Corporation from
1977 and by the Hlane Royal National Park from around 1999.
I now come to
deal with the applicants' allegations.
allege that from as early as the 1960's they formed themselves into a
farmers association with the intention of ploughing sugar cane. At a
certain stage (no date is mentioned) they were removed from the land
they occupied which was taken over by the Royal Swaziland Sugar
Corporation. They were however given the undertaking that after 5
years they would be able to return to their fields. They allege that
in April 1994 King Mswati III stated that the indigenous people of
Mashiyazimile would be allowed to plough sugar cane in certain listed
areas which included Mashiyazimile. The applicants allege, therefore,
that they have the right to occupy Mashiyazimile and they deny that
Mashiyazimile is part of the Hlane Royal National Park.
What is clear
from the papers is that both parties have for a long period of time
claimed the right to occupy Mashiyazimile and this has resulted in a
long-standing dispute between them.
facts appear to be common cause:
In the year 2002
or 2003 the applicants started clearing bush on Mashiyazimile and
were stopped from doing so by persons representing the Hlane Royal
National Park. The applicants were told that Mashiyazimile belonged
to the Hlane Royal National Park. On 11 July 2003 attorneys
representing the applicants wrote a letter to the station commander
at the police station in Simunye complaining that they had on several
occasions been stopped by the first respondent from farming on the
disputed land. On 1 October 2003 the applicants, through their
attorneys, wrote a letter to the managing director of the Royal
Swaziland Sugar Corporation complaining of the fact that rangers from
the Hlane Royal National Park had interfered with their operations on
the land. In the letter they stated that they had been instructed
that the Royal Swaziland Sugar Corporation was taking over the land
and was in the process of erecting a fence on the land. They allege
in the letter that the Royal Swaziland Sugar Corporation has no right
to take over the land. On 6 October 2003, in response to the said
letter, the general manager of the Royal Swaziland Sugar Corporation
wrote to the applicants' attorneys advising them that the land in
question was part of the Hlane Royal National Park and that the fence
line demarcated the boundary between its leasehold land and the land
occupied by the Hlane Royal National Park. The applicants on 27
October 2003 wrote another letter to the station commander at Simunye
stating that they had advised their clients to proceed with their
activity of clearing the land for the purpose of farming thereon.
They stated that any interference therewith by the Hlane Royal
National Park rangers would be unlawful. On 12 December 2003 the
second respondent wrote a letter to the applicants' attorneys stating
unequivocally that Mashiyazimile formed part of the Hlane Royal
National Park and stating that any invasion of the land by the
applicants would constitute a criminal offence.
Despite what is
stated above, the applicants allege that in January 2004 they again
went onto the land and started clearing bush on Mashiyazimile. On 11
March 2004 they were forcibly removed from the land by the
respondents' game rangers.
It is clear from
what is stated above that the applicants' right to occupy Hlane Royal
National Park was at all relevant times disputed by the respondents,
and that this was communicated to the applicants several times.
I come now to
deal with the two issues referred to earlier in this judgment namely
the question of non-joinder and the question whether the applicants
succeeded in proving that they were in peaceful and undisturbed
possession of the land when the dispossession took place on 11 March
chose to join only two respondents in their application, namely, the
executive officer of Big Game Parks Trust and an employee of that
Trust. The second respondent, the executive officer of the Trust, is
cited by the applicants in his capacity as the executive officer and/
or in his personal capacity.
It is clear from
the papers that the applicants were repeatedly told that
Mashiyazimile was claimed to be part of the Hlane Royal National
Park. This Park is administered in trust by the Big Game Parks Trust.
No attempt was made by the applicants to join, as respondents, the
Hlane Royal National Park or the Big Game Parks Trust, both of which
have a direct and substantial interest in the disputed land. Mr.
Dlamini for the applicants (appellants), pointed out that a trust is
not a juristic person and that all its assets rest in the trustees.
What is clear, however, is that legal proceedings can be brought by
and against a trust. In such a case all of the trustees must be
joined. See e.g. Goolam Ally Family Trust v. Textile Curtaining and
Trimming 1989 (4) S.A. 985 (C); Mariola and Others v. Kaye-Eddie N.O.
and Others 1995 (2) S.A. 728 (W). In the present case the failure to
join, as respondents, the Hlane Royal National Park and the Big Game
Parks Trust is a clear case of non-joinder. See Prospect Investment
Co. Ltd. v. Chairman, Community Development Board and Another 1981
(3) S.A. 500 (T). See also Safcor Forwarding (Jhb) (Pty) Ltd v.
National Transport Commission 1980 (3) S.A. 108 (W).
circumstances the orders sought by the applicants could not be
granted without the Hlane Royal National Park and Big Game Parks
Trust being joined as parties in the application.
The next point I
will deal with is the question whether the applicants succeeded in
proving that they were in peaceful and undisturbed possession of the
land when they were removed therefrom.
Long before they
moved onto the land in the year 2004 the applicants had already been
removed from that land and were aware of the fact that their right to
occupy the land was disputed. They were further aware that if they
attempted to do so they would again be forcibly removed therefrom.
claiming a spoliation order must prove that when he was dispossessed
his possession was peaceful and undisturbed. His possession must have
been a sufficiently firm and established possession. The remedy is
not open to a person whose de facto control is not an accomplished
fact, and who is in effect being dislodged by the person already in
possession of the property. In such a case his dislodgement amounts
to a justifiable counter-spoliation. If the recovery of the property
is instanter in the sense of being still a part of the res gestae of
the act of spoliation, it is a continuation of the breach of peace
which already exists. See in this connection the case of Mbangi and
Others v. Dobsonville City Council 1991 (2) S.A 330 (W). See also De
Beer v. Firs Investments Ltd 1980 (3) S.A. 1087 (W); Ness and Another
v. Greef 1985 (4) S.A. 641 (C).
In the present
case the land was being occupied by the Hlane National Park and the
applicants were aware of the fact that their right to come onto the
land was disputed and would be resisted. It cannot in the
circumstances be said that when they again moved onto the land they
were in peaceful and undisturbed possession thereof. For this reason
also their application, seeking a spoliation order, could not
In view of the
above findings it is not necessary for us to deal with a further
submission made on behalf of the respondents, namely that the
applicants were merely detentors attempting to advance the interests
of the indigenous people, and did not have locus standi to bring the
There are two
further matters to which I wish to refer.
A point taken by
the respondents is that the application, brought as a matter of
urgency, should not have been entertained by the High Court as it was
in fact not an urgent matter and therefore did not justify a
non-compliance with the rules of court. Bearing in mind the fact that
the right of the applicants, or the persons whom they purported to
represent, to occupy Mashiyazimile was the subject of a long-standing
dispute I would agree that there was no justification in bringing the
matter before the court as a matter of urgency. The actions of the
applicants in going onto the land, knowing that their right to occupy
the land was disputed and that they would in all probability be
forcibly removed therefrom, and then when they were removed bringing
the matter before the court as a matter of urgency, cannot be
The final point
I wish to deal with concerns the heads of argument filed by counsel
for purposes of this appeal.
This matter was
set down to be heard in this Court during the Appeal Court session
starting on 13 June 2005. The matter was in fact heard on 16 June
2005. The appellants' heads of argument, which should have been filed
28 days before the hearing of the matter, are dated 8 June 2005. The
respondents' heads of argument are dated 13 June 2005. There was no
application by either counsel for condonation of the late filing of
the heads of argument, and no written reason given for this failure
to comply with the rules of this Court. This disregard for the rules
is becoming prevalent. In a circular dated 21 April 2005
practitioners were again warned that failure to comply with the rules
in respect of the filing of heads of argument would be regarded with
extreme disapproval by this Court and might be met with an order that
the appeals be struck off the roll or with a punitive cost order.
This warning is hereby repeated.
For the reasons
set out above the appeal in this matter is dismissed with costs.
the.. day of June 2005
N. W. ZIETSMAN
JUDGE OF APPEAL
JUDGE OF APPEAL
J. H. STEYN
JUDGE OF APPEAL