IN THE SUPREME COURT OF SWAZILAND
Civil Appeal Case No. 13/2013
In the matter between
UMBANE LIMITED APPELLANT
SOFI DLAMINI AND THREE OTHERS RESPONDENTS
Neutral citation: Umbane Limited vs Sofi Dlamini and Three Others (13/2013) SZSC 25 (31 MAY 2013)
Coram: M.M. RAMODIBEDI C.J., M.C.B. MAPHALALA J.A. and E.A. OTA J.A.
Heard 28 MAY 2013
Delivered: 31 MAY 2013
Summary: Civil procedure: Appellant is registered owner of suitland: Respondents in occupation of suitland on permission of the previous owner: Respondents refused to vacate suitland on demand by Appellant pleading the Common Law notion of acquisitive prescription as a defence: the Court a quo upheld the plea and granted orders not claimed for, effectively conferring title of the suitland on the Respondents: appeal against the decision a quo upheld: the defence of acquisitive prescription is defeated by the fact that Respondents occupied the suitland with the permission of the previous owner: the evidence a quo insufficient to found this defence: the orders granted by the Court a quo not counter claimed by the Respondents; the orders declared incompetent and set aside with costs: the application of the Appellant a quo for ejectment of the Respondents a quo allowed.
This is an appeal against the Judgment of the High Court per Hlophe J rendered on 13 February 2013.
 The bone of contention in casu, is immovable property described as Farm 670, Manzini District, Portion 8 of Farm 45 Manzini District and Portion 6 of Farm 45 Manzini District (the property). The Appellant is the registered owner of the property, by virtue of having purchased same from Usuthu Pulp Company Ltd (Usuthu Pulp), sometime in 1999. It is common cause that prior to 1999 when the Appellant acquired the property, the Respondents were already resident therein, and had erected temporary structures as dwellings. It appears that the Respondents refused to move out of the property upon demand by the Appellant. This bred the acrimony that elicited litigation a quo, wherein the Appellant sought the ejectment of the Respondents from the property. The suit a quo culminated in the following orders in favour of the Respondents who were Defendants therein:-
“ As concerns the Counter Claim by the Defendants, particularly the claim that they be declared owners of the land occupied by them, I direct as follows:-
1. The claim of the Defendants succeeds.
2. The land owned by each one of the Defendants shall be the one currently used by each one of the Defendants.
3. The Plaintiff is ordered to pay the costs of these proceedings”.
 The Appellant is disenchanted with the the aforegoing orders. Consequently, it has approached this Court for redress by way of an appeal predicated upon the following grounds:-
“GROUNDS OF APPEAL
1. Leave has been sought in terms of the attached notice in terms of Civil Form No. 5 to apply to produce fresh evidence at the hearing of the appeal. It is submitted that such evidence is fundamental to the Appellant’s case and decisive in that it is entirely destructive of the case for the defendants. The Honourable Court a quo found that the Respondents had acquired the land in question by acquisitive prescription because they had been there since at least 1957. As appears from the attached notice, the evidence will establish that this is entirely factually incorrect and that accordingly, if acquisitive prescription is still part of the law of Swaziland the Respondents had not become owners / had not acquired the right to become owners either prior to the coming into operation of the Constitution of Swaziland in 2005 or indeed at all. In the circumstances, it is submitted that the evidence, if accepted, will inevitably lead to the decision of the Court a quo being set aside once the evidence is produced.
2. It is submitted that the Honourable Court a quo erred in finding in paragraph 9 of the judgment that the Defendants’ case was that the land had been allocated to them. The judgment records that this was merely put to the Plaintiff’s witness under cross – examination. Such evidence was not given by either of the two witnesses on behalf of the Respondents – nor indeed could it be because clearly this would have not been within the knowledge of the two witnesses.
3. It is submitted that in the circumstances another Court would be of the view that too much weight was given to the evidence of the witnesses for the Appellant regarding the circumstances in which permission was granted for temporary structures to be erected.
4. It is further submitted that the Honourable Court a quo erred in finding that acquisitive prescription was still part of the law of Swaziland or had been prior to the commencement of the Constitution. It is submitted that if acquisitive prescription was permissible in terms of the law of Swaziland, that merely gave an occupant a right to have himself declared as owner and seek transfer of the immovable property. The system of land registration in a deeds registry is conclusive proof of the ownership of the land and a party only becomes owner when the transfer is so registered. Accordingly at best for the Respondents they had merely acquired a right to seek an order transferring the property to them and they did not become the owner of the property until such order was granted or until the property was transferred. Since this clearly did not occur before 2005, the Constitution is applicable and accordingly another Court should find that the notion of acquisitive prescription is contrary to the Constitution of Swaziland and not permissible in this particular instance because the Respondents had not in law become the owner prior to 2005.
5. It is further submitted that the Honourable Court a quo erred in its finding that the Farm Dwellers Control Act was applicable and that the Plaintiff’s action could not therefore succeed. The Appellant did not rely on such Act and Respondents expressly rejected any reliance themselves. Accordingly it was in effect common cause between the parties that the claim by the Respondents did not fall under the Farm Dwellers Act and another Court should find that no reliance should have been placed by the Court a quo on such Act.
6. It is submitted in the premises that another Court should reasonably find that the Appellant / Plaintiff had established that the Respondents has no right to occupy the land and that accordingly the claim of the Appellant should have succeeded.
7. It is further submitted that the Court a quo erred in finding that the Respondents were entitled to be “declared owners of the land occupied by them” when there was no evidence at all of the precise dimensions of any such land so occupied. The Honourable court a quo was alive to that situation when it reflected in paragraph 25 of the judgment that there was uncertainty as to the extent of the land occupied by the Respondents. It is submitted that it erred however in finding that “such uncertainty can be more legal than factual – on a factual basis the portion utilized by the Defendants would be clear and certain and in any event it would have to be of reasonable size”. It is submitted there was simply no evidence of this and the result is that the order granted by the Court a quo is bad in law because it is not capable of enforcement.
8. For all the aforesaid reasons it is submitted that leave should be granted to the Appellant to lead the aforesaid new evidence either before this Honourable Court or that the matter should be remitted to the Court a quo for the hearing of such evidence and that accordingly the appeal should be upheld with costs”.
 It is important that I state here, that the Appellant launched a formal application for leave to lead further oral and documentary evidence in this appeal in aid of grounds  and  of his grounds of appeal. Advocate B.L. Skinner SC, who appeared for the Appellant withdrew this application when the appeal was heard. Since there was no opposition from Mr. S. Gumedze who appeared for the Respondents, the application for the said withdrawal was granted with costs.
 THE APPEAL
The following issues were raised for determination during the hearing of this appeal.
1. The competence of the orders granted in paragraph  of the impugned judgment.
2. Whether acquisitive prescription is applicable in casu.
3. Whether Section 19 (2) of the Constitution Act and The Farm Dwellers Act are applicable.
I will now proceed to determine these issues and seriatim.
 Competence of the orders in paragraph 
Advocate Skinner SC right from the outset of his oral exhortation, sought to defeat the orders granted a quo in limine. He contended that the orders cannot stand due to the fact that they are too vague and ambiguous therefore clearly unenforceable. That the order as granted in paragraph 37 (2) of the impugned decision is meaningless to demonstrate a precise description of the land the Respondents are declared to own. It was further Advocate Skinner SC’s contention, that the Court a quo lacked the competence to validly grant the orders in the absence of a Counter Claim by the Respondents specifically asking for same. Mr S. Gumedze who appeared for the Respondents for his part, conceded that he cannot defend the order as it appears in paragraph 37 (2) of the impugned decision.
 Now, it is common cause that the Respondents filed identical pleas in the 3 actions which were duly consolidated a quo and heard as one.
 It is further common cause that none of the Respondents raised a Counter Claim a quo. All the Respondents claimed for, was for the Appellant’s claim to be dismissed with costs.
 I am thus highly persuaded by Advocate Skinner SC’s contention, that in the circumstances, the Court a quo lacked the competence to grant the challenged orders. This is because, it is a cardinal principle of law that a litigant cannot also be granted that which he has not sought in the lis. This principle was expressed in apposite terms by Ramodibedi CJ, in the case of Commissioner of Correctional Services v Ntsetselelo Hlatshwako Civil Appeal No. 67/09 para [ 7 ] as follows:-
“At the outset it is instructive to note that the first order setting aside the decision of the Disciplinary Board was not prayed for. Accordingly, it was in my view incompetent for the Court a quo to make the order in the absence of an amendment to the notice of motion. This part of the order was unfair both procedurally and materially. It is trite that a litigant can also not be granted that which he / she has not prayed for in the lis ”.
 The learned Chief Justice amplified the aforegoing pronouncement in the case of The Commissioner of Police and Another v Mkhondvo Aaron Maseko, Civil appeal No. 03/2011, para , in the following terms:-
“Interestingly, it will be seen from paragraph  above, that the respondent did not claim any progeny of the cattle in question. It is an elementary principle of law that a litigant cannot also be granted that which it has not sought in the lis. See, for example, Commissioner of Correctional Services v Ntsetselelo Hlatshwako, Civil Appeal No. 67/09”
See also my pronouncement in the case of Ezihisheni Kandlovu v Ndlovunga Dlamini and Another, Civil Appeal No 58/2012 paras  and .
 Advocate Skinner SC contends that the aforegoing situation constitutes a veritable ground for the judgment a quo to be set aside.
 It is beyond controversy, and as correctly submitted by Advocate Skinner SC that the order as contained in paragraph  (2) is clearly ambiguous and unenforceable for lack of description of the portion of the property adjudged to the Respondents. This state of affairs in my view clearly stemmed from the fact that the relief granted was not specifically claimed for in the lis.
 Mr Gumedze on the other hand contends that the proper order to be entered in the circumstances is one dismissing the application a quo.
 This takes us to the next leg of this enquiry, to wit:-
Whether acquisitive prescription is applicable in casu
This enquiry is pertinent because it was a finding that this Common Law notion applies that informed the controversial orders in paragraph  of the impugned judgment.
 Now, the Court a quo found that this common law notion is applicable in paragraphs ,  and  of the impugned decision, where it held as follows:-
“ To answer this question it is an undisputed fact that the Defendants began occupying the land in question way back in the early 1950’s and in any event by the year 1957 they were all settled there. By the year 1987 they had been there for thirty years and were thirty three years in 1990. Again at this time the Constitution was not in place and it appears to me there would have been some right at the least that then accrued to the defendants as afforded them by the hitherto applicable common law principle of acquisitive prescription which no doubt was part of our law then.
 If that is the case, and they had to be ejected from the Farm concerned they therefore could not be deprived of their said rights in the land without at least being compensated as contemplated by section 19 (2) (a) of the Constitution ---- This therefore means that even if they could be evicted or ejected, this would only happen after they would have been compensated.
 There is however, in my view an even more compelling argument as regards whether or not ownership of the land on which the homesteads are built can accrue to the defendants. This is on the fact that if the principle of acquisitive prescription was ever part of our law, and was so in the early 1950’s and particularly by 1957 the Constitution only took effect in 2005, then ownership in the land concerned accrued to the Defendants in 1990 at the most. This could mean that at the time the plaintiff bought the land concerned in 1999, ownership in the portions of the land as occupied by the Defendants had long passed to them. I say this because the Constitution does not apply retrospectively. In this regard therefore, I am of the view that the advent of the Constitution had no bearing to the rights of ownership of the land that accrued to the Defendants in terms of the law prior to its advent”.
 Advocate Skinner SC decries the above findings on the following grounds:-
(1) Acquisitive prescription is no longer part of the law of Swaziland by virtue of Section 19 (2) of the Constitution, 2005.
(2) Since the Respondents had not sought to have any such claim by them recognized and as a consequence certain land transferred to them, they are prevented by Section 19 (2) of the Constitution from seeking such transfer once the Constitution came into effect.
(3) The issue of compensating the Respondents in the circumstances is not tenable as the Respondents did not claim for compensation.
(4) The Respondents failed through the evidence of their two witnesses to prove any right to this principle.
 Mr Gumedze argued replicando that:-
(1) The Respondents acquired real rights in the property before the Appellant purchased it in 1999 and prior to the coming into force of the Constitution in 2005, therefore the notion of acquisitive prescription is applicable.
(2) The fact that the Respondents did not assert their right of ownership to the property prior to the Constitution does not derogate from their right in these circumstances.
(3) The evidence of the two witnesses led by the Respondents was sufficient to establish that they had been in possession of the property since the early 1950’s.
(4) The Court a quo was within its rights to order compensation in these circumstances.
 It is clear that the parties raise a constitutional question, which is the application of the common law principle of acquisitive prescription vis a vis the Constitution Act of 2005. I will not bother myself with this. I say this because this Court has held in several of its decisions that a Court will not determine a constitutional issue where a matter can be properly determined on another basis. This principle is encapsulated in the words of Ramodibedi CJ in the case ofDaniel Didabantu Khumalo v The Attorney General Civil Appeal No. 31/2010 para . See also Jerry Nhlapo and 24 others v Lucky Howe N.O. (in his capacity as liquidation of VIP Limited in Liquidator ),Civil appeal No 37/07.
 To my mind the only question ripe for answer is whether the notion of acquisitive prescription is applicable on the facts of this case.
 It is common cause that the Appellant is the registered owner of the property. This system of land registration in a deeds registry is prima facie proof of ownership of land.
 In these circumstances, the Respondents had to show that they had a valid reason in law to be on the property. To this end they raised the defence of acquisitive prescription.
 The learned Judge a quo, in my view, correctly captured the basis of this common law principle in paragraphs  and  of the impugned decision in the following language:-
“ In line with the allegations contained in the pleadings, it was asserted that the Defendants acquired ownership of the land concerned through the notion of acquisitive prescription. Silberberg and Schoeman in their book: The Law of Property, 2nd Edition 1983, page 232 define acquisitive prescription in the following words:-
Acquisitive prescription, as a method of acquiring ownership, is a continuous process, namely the possession by one person of another person’s ---- movable or immovable --- property for an uninterrupted period of thirty years, nec vi nec clam nec precario (and with the intention of acquiring ownership) openly and as if he were the owner thereof-----
 I only need to clarify that the thirty year period referred to in the foregoing except (sic) from Silberberg and Schoeman’s book referred to above, is a result of an intervention by statute in South Africa. Otherwise the period forming the basis of Acquisitive Prescription in terms of the Common Law is a third of a century which is equivalent to thirty three years. For this position see the case of Welgernoed v Coetzer and Others 1946 TPD/ 10 at 712”.
 I agree with the aforegoing analogy. I have no wish to depart from it, save to add that there are exceptions to this rule as detailed in the case of Malan v Nabygelegen Estates 1946 AD 562-574. In that case the Court held that for this plea to be successful, the occupation must not be “by virtue of a precarious consent” or in other words “not by virtue of a revocable permission” or“not on sufferance”. The Court further found that the occupation must not be by virtue of some contract or legal relationship such as a lease or usufruct which recognizes the ownership of another.
 Let us now test the concomitants of this case against the rigours of the aforegoing principles to guage their substantiality. I must say straight away here, that having carefully perused the totality of the evidence led a quo, I am inclined to agree with Advocate Skinner SC, that the findings on acquisitive prescription are not supported by the evidence on record. The available evidence was clearly not sufficient to support the decision upon the inference drawn therefrom. The evidence was obviously not properly evaluated. Since an appeal is by way of a re-hearing on the record, this Court is entitled in the circumstances, to re-evaluate the evidence led to ensure a just decision of this matter.
 Now, the Appellant led the evidence of only one witness Veronica Dlamini (PW1) who told the Court that she is a board and founder member of the Appellant company. That after the Appellant bought the property and discovered the presence of the Respondents, the Appellant approached Usuthu Pulp Company from whom it purchased the property. PW1 told the Court that she, in the company of others, including the Chairperson of the Committee of which she was a member, one Mr Sipho Dlamini, approached Usuthu Pulp on a fact finding mission as to why Usuthu Pulp did not inform the Appellant that there are people that they allowed to settle on the property. It was further PW1’s evidence that Usuthu Pulp informed them that the structures in the property are temporary structures for it’s employees who had asked to stay in the property so that they could be close to work because their homes are far away.
 The Appellant’s case is thus that the Respondents and their predecessors are in occupation of the property on the permission of Usuthu Pulp, therefore, the notion of acquisitive prescription finds no application.
 Even though Mr Gumedze now challenges this evidence as hearsay, I agree with Advocate Skinner that Mr Gumdeze’s cries at this stage is tantamount to shutting the stable after the horse has bolted away. This is because, Mr Gumedze not only failed to take any objection to this piece of evidence when it was advanced by PW1, but he himself elicited further evidence in this regard under cross examination of PW1, as is extant from pages 53, 56 and 57 of the record as follows :-
“DA: Did Usuthu Pulp advise you as to when (sic) did they allow these residence (sic) to settle in the farm?
PW1: Usuthu Pulp did not tell us anything but what they advised us was that whatever we found in the farm was temporary. It had given people permission to build temporary. So they did not allow them to be permanent residence (sic) of that farm.
DA: Are you in a position Mrs Dlamini to dispute that these homesteads were established and they remain in these specific locations since the early 1950’s?
PW: My Lord I wont involve myself about things of the 1950’s because we spoke to Usuthu Pulp who told us that those are people who are there (sic) are just temporary residents, and to prove that when we arrived there was not even a single house that was built out of brick which proved to us that indeed there (sic) were temporary structures.
DA: Mrs Dlamini some of the residents will give evidence before this Court, they will tell this Court that they have never occupied the land in question at the mercy of anyone including Usuthu Pulp.
PW1: I understand what you are saying my Lord but we go (sic) through the process because we wanted to find out and Usuthu Pulp told us that they are the permanent owner of the land that the people who are there are just people whom they temporarily allowed to stay there, since they were their employees”.
 It is inexorably apparent that this evidence was also copiously elicited by Mr Gumedze under cross examination. I am thus persuaded by Advocate Skinner SC’s contention in paragraph (i) (c) at page 9 of Appellant’s heads of argument that:-
“if a cross examiner succeeds in eliciting unfavourable evidence which would ordinarily be inadmissible he is not entitled to object to its being received (R v Bosch ) 1949 (1) SA 548 (A). The South African Law of Evidence by Zeffert Paizes Skeen page 752 “
 The foregoing principle in my respectful view, fits this case like hands in gloves.
 In these circumstances, the onus rested squarely on the Respondents who raised the defence of acquisitive prescription, to prove it. This they could do, in my respectful view, by demonstrating that they were not in possession of the property with the permission of Usuthu Pulp.
 Did the Respondents discharge this onus of proof? My answer to this poser is an emphatic No.
 I hold the firm view that the Court a quo misdirected itself when it relied on the evidence of the two defence witnesses in coming to the conclusion that the Respondents have been in occupation of the property at most by 1957, and therefore the notion of acquisitive prescription applied. In coming to this conclusion the Court a quo failed to advert its mind to the fact that the Respondents failed to rebut the evidence that they were in possession of the property on the permission of Usuthu Pulp or the fact that the two witnesses were too young during the relevant period to know the basis on which their predecessors occupied the property or when precisely their predecessors occupied the property. I’ll now proceed to demonstrate why I say so.
 The evidence of DW1, Simphiwe Patricia Dlamini (Mndzebele), appears from pages 63 to 68 of the record. She told the Court that she was born in 1946. That the homestead that belongs to her family is that for Jabulani Dlamini and that the homestead was build in the 1950’s though she could not recall the exact date. Then follows this evidence which it is convenient for me to recap verbatim:-.
“ I say it was in the early 50’s because I remember well in 1957 June that is the year in which my own mother died whilst I was young. I recall very well because of the pain I felt that year.
I am not sure who gave the homes, that land, but I heard from the elders that when the trees were being planted the King directed that the homesteads should give way and built where they are established now” (page 64 of record ).
 Under cross-examination DW1 advanced the following evidence:-
"(Q) Is it your evidence that your homes are where they are because of a word from above?
(A) Not to me, but that is what I hear from the elders that the King said so.
(Q) Now that you are old and understand and above the age of 60, is it your understanding that these are there because of an instruction form the (sic) above?
(A) I cant really say there are because of an instruction, the reality is that a person can leave (sic) on a area if it no longer suits him there. What I mean however is that the people are there because that is their home, they have done everything there, including spending their whole life there” (emphasis added).
 Similarly, DW2 led evidence which appears on pages 68 to 72 of the record. He told the Court that he was born on 8th of May 1960. That he has lived on the property since birth and his family never paid allegiance to anyone as owner of the property. Then follows the following evidence on page 68:-
“This court has been told through evidence that your family had been allowed or given permission by Usuthu Pulp Company to establishe temporary structures as its employees. This I deny because since my birth I have always known that to be my home. The manner in which the houses were built here by our fathers and I cannot say much. All I know is that the area is our homestead”.
 It is beyond controversy from the aforegoing excepts from the evidence led by the Respondents’ witnesses a quo, that they failed to show the basis on which their predecessors occupied the property.
 This is not surprising in view of the fact that DW1 was only 11 years old as at 1957, which is the year that the Court a quo relied on in coming to the conclusion that acquisitive prescription applies. She was thus too young to categorically testify in this regard. She could neither tell the Court the basis on which her predecessors occupied the property nor the year the said occupation took place. Thus, the obvious ambivalence of her evidence. The Court a quo in my respectful view, erred in relying on her evidence to reach the conclusion that the Respondents moved into the property in 1957 and that acquisitive prescription applies.
 Worse still is the situation of DW2 who was born after 1957, in 1960. Little wonder then his evidence is completely clueless on this issue and is not worthy of any weight.
 When this appeal was argued, Mr Gumedze when confronted with this insuperable obstacle, gallantly conceded that DW2, by reason of his age, might not have known the basis on which the parents came to occupy the homestead.
 It follows therefore, that the Respondents failed to prove that acquisitive prescription is applicable, as they failed to rebut the evidence of the Appellant that they and their predecessors are in occupation of the property with the permission of it’s previous owner Usuthu Pulp. The fact of their being in occupation with the permission of Usuthu Pulp defeats this defence. I say this because since ownership of the property passed to the Appellant upon it’s purchase in 1999, it follows that the Respondents have been in occupation of property for only 15 years under the new ownership. This emasculates any plea of acquisitive prescription which is only perceived after 33 years of undisturbed occupation. The findings of the Court a quo to the effect that acquisitive prescription is applicable in casu, is thus erroneous and is accordingly set aside.
 I have no wish to belabour the findings of the Court a quo in relation to Section 19 (2) of the Constitution and the Farm Dwellers Control Act of 1982. This is because Section19 (2) of the Constitution which states that “a person shall not be compulsorily deprived of property or any interest in or right over the property of any description “ clearly, as amplifiedly by subsections (a) and (b), envisages a situation where the state or an organ of it expropriates land. Section 19 (2) of the Constitution finds no application in casu. The findings of the Court a quo that it applies is thus erroneous and is accordingly set aside. In any case, the compensation anticipated by Section 19 (2) (b) (1) of the Constitution can only be validly granted if specifically claimed in a lis. This is not such a case.
 Similarly, the findings of the Court a quo in relation to the Farm Dwellers Act, is liable to be set aside. This is because the Respondents did not plead any rights under this Act. Their defence was based strictu sensu on the Common Law notion of acquisitive prescription. It is a cardinal rule of law, one of hallowed antiquity, that parties are bound by their pleadings. The jurisdiction of the Court is also curtailed within the parameters of the material facts pleaded. Not having pleaded any rights under the Act, the Court a quo clearly lacked the competence to determine any rights of the Respondents within the purview of same. Accordingly the findings made by the Court a quo on the applicability of the Farm Dwellers Act, is hereby set aside.
 In light of the totality of the foregoing, there is merit in this appeal. It is accordingly allowed.
 On these premises, I make the following orders:-
1. The orders of the court a quo as appear in paragraph  (1), (2) and (3) of the impugned decision are hereby set aside.
2. In their place, I substitute the following orders:-
“(a) That the Defendants be and are hereby directed to vacate the immovable property described as Remainder of Farm 670 Malkerns within a period of twenty one (21) days from the date of this order.
(b) That the Deputy sheriff for Manzini Region be and is hereby directed and authorized to evict the Defendants from the said premises and if necessary to seek the assistance of the Royal Swaziland Police Malkerns Station.
(c) Costs of suit”.
3. Costs of this appeal go to the Appellant including certified costs. Of counsel.
JUSTICE OF APPEAL
I agree M.M. RAMODIBEDI
I agree M.C.B. MAPHALALA
JUSTICE OF APPEAL
For Appellant: Advocate B.L. Skinner SC
Instructed by Attorney
Mr. T. Mlangeni
For Respondents: Mr. S. Gumedze