THE HIGH COURT OF SWAZILAND
Case No. 3218/2007
AFFECTED PEOPLE IN THE
OF THE MBABANE
(MR - 3) ROAD 9th
OF PUBLIC WORKS AND TRANSPORT 1st
CONSTRUCTION (PTY) LTD 2nd
ATTORNEY GENERAL 3rd
MAPHALALA – J
the Applicants: MISS C. DLAMINI
Respondent: MR. V. KUNENE AND MR. T DLAMINI (Attached to the
Attorney General's Chambers)
Respondent: MR. J. HENWOOD
The Applicants have filed an urgent application for relief in the
Dispensing with the usual forms and procedures and time limits
resulting to the institution of proceedings and allowing this matter
to be heard as a matter of urgency;
That a rule nisi
calling upon the Respondents to show cause on a date to be appointed
by the Honourable Court why an order in the following terms should
not be made final;
Respondent's ministry, being the Ministry of Public Works and
Transport, as well as the 2nd
Respondent be and are hereby interdicted from demolishing the homes
of the Project Affected People of Mangwaneni, Manzana and
Makholokholo areas through which the construction of the New Mbabane
Bypass (MR - 3) road is carried out.
Respondents' Ministry, being the Ministry of Public Works and
Transport as well as the 2nd
Respondent be and hereby interdicted from continuing with the
construction of the upgrading of the Mbabane - Ngwenya Road proposed
New Mbabane Bypass (MR - 3) Road pending finalization of this matter;
the omission of the Applicant to individually cite all the Project
Affected People be and is hereby condoned in this application;
that prayers 2.1, 2.2 and 2.3 operate as a rule nisi with immediate
interim effect pending the outcome of these proceedings;
the Deputy Sheriff to execute any order made by this Honourable Court
and to be duly assisted by the members of the Royal Swaziland Police,
particularly from the Mbabane Police Station.
upon the 1st
Respondent to show cause why the above Honourable Court
cancel the Environmental Compliance Certificate issued by the
Environment on 28th
July 2004 on the basis of its failure to comply with the
hereto marked "PAP1" is a copy of the said certificate
Alternatively, calling upon the 1st
Respondent's Ministry aforesaid to show cause why the Environmental
Compliance Certificate issued by the Director of Environment on the
July 2004 should not be suspended pending full compliance with
special conditions 5 and 10 therein and Regulation 15 and 16 of the
Environment Audit. Assessment and Review Regulations, 2000. Annexed
hereto marked "PAP2" is a copy of the said Regulations.
Granting costs of this application in terms of Section 58 of the
Environment Management Act No. 5 of 2002.
Granting any further and/or alternative relief in favour of the
Applicants in terms of the provisions of the Environment Management
Act No. 5 of 2002.
hereto marked "PAP 2b" is a copy of the said Act.
The application is founded on the affidavit of the 1st
Applicant one David Dlamini in his personal capacity and as a
Chairman of the Project Affected People in terms of the Resettlement
Plan prepared in terms of the Compliance Mitigation Plan (CMP) of the
Mbabane bypass (MR - 3), and in terms of Section 58 of the
Environment Management Act No. 5 of 2002. In the said affidavit a
number of annexures are filed from PAP1 to PAP 13. All the other
Applicants have filed confirmatory affidavits to the Founding
affidavit of the 1st
In view of the urgency in which this application has been brought the
Respondents have not filed their answering affidavits in terms of the
Rules of Court but have filed Notices to raise points of law followed
by Supplementary Notices:
In summary form the points of law raised by the Respondents are as
follows and these points will be revealed in detail when I deal with
each point raised:
Description of the parties.
Requirements of an interim interdict.
Balance of convenience.
No other satisfactory remedy.
Provisions of Section 7 (1) (b) of the Roads and Outspan Act No. 40
Provisions of the Environment Management Act read together with
Regulation 18 of the Environmental Audit, Assessment and Review
Regulation of 2000.
The arguments in this case took more than two weeks of highly charged
submissions on all sides. In order to do justice in this important
case I shall address each point of law as outlined above ad
deal with the arguments of each attorney for the Respondents under a
similar heading. I proceed as follows:
The issue of urgency.
It is contended by the Respondents that this matter is not urgent or
urgency is self-created. The issue of resettlement of those affected
by the construction of the road began in late 2005. In this regard
Counsel for the Respondents referred the court to the trilogy of
cases by this court on urgency. The trilogy of cases includes the
celebrated case of Humphrey
H. Henwood vs Maloma Colliery and another - Civil Case No. 1623/1993
the case of H.P.
Enterprises (Pty) Ltd vs Nedbank (Swaziland) Limited - Civil case No.
788/1999 (unreported) (per Sapire
(as he then was) and that of Megalith
Holdings vs RMS Tibiyo (Pty) Ltd and another -Civil Case No. 199/2000
(unreported) (per Masuku
In the latter judgment Masuku
held at page 5 as follows:
provisions of Rule 6 (25) (b) exact two obligations on any Applicant
in an urgent matter. Firstly, that the Applicant shall
in affidavit or petition set forth explicitly the circumstances which
he avers render the matter urgent. Secondly, the Applicant is
enjoined, in the same affidavit or petition to state the reasons why
he claims he could not be afforded substantial redress at a hearing
in due course. These must appear ex facie the papers and may not be
gleaned from the surrounding circumstances brought to the Court's
attention from the bar in an embellishing address by the Applicant's
held at pages 2-3
litigant seeking to invoke the urgency procedures must make specific
allegations of fact which demonstrate that the observance of the
normal procedures and time limits prescribed by the Rules will result
in irreparable loss or irreversible deteriotion to his prejudice in
the situation giving rise to the litigation. The facts alleged must
not be contrived or fanciful but must give rise to a reasonable fear
that it immediate relief is not afforded, irreparable harm will
Rule 6 (25) (a) and (b) which governs urgent applications, provides
In urgent applications, the Court or Judge may dispense with the
forms and service provided for in these rules and may dispose of such
matter at such time and place and in such manner and in accordance
with such procedure (which shall as far as practicable be in terms of
these rules) as to the Court or Judge, as the case may be, seems fit.
In every affidavit or petition filed in support of an application
under paragraph (a) of this sub-rule, the Applicant shall set forth
explicitly the circumstances which he avers render the matter urgent
and the reasons why he claims that he could not be afforded
substantial redress at a hearing in due course".
The Applicants in the Founding affidavit of one David Dlamini who is
Applicant where the following averments are made regarding urgency at
page 17 of the Book of Pleadings:
INJURY AND URGENCY
Respondent as I speak is busy heartlessly demolishing houses of
helpless members of some of the members of the 9th
refer the Honourable Court to annexure "PAP8" which is the
last structure they demolished belonging to an elderly person with
nowhere to go to thereafter on the 31st
Respondent's Ministry as the project proponent, more especially the
Project Implementation Unit, knows all of the affected Project
Affected People's concerns but is very insensitive;
The Project Affected people's plight and chances of getting help from
anywhere are diminishing each day as the project continues to be
implemented in this way;
The Applicants are left in a "worse of situation as this happens
only because of the 1st
Respondent's Ministry deliberate failure and/or neglect to observe
the Environmental Laws cited herein and the Constitution of this
Respondent himself has on numerous occasions conceded that the said
environmental procedures have not been adhered to, but at all
material times failed to even put in place supplementary speedy
measures to avoid extreme situations of misery in this matter;
The Applicants, in particular the 9 Applicants have lost hope and
faith that these injuries will ever be attended to by the 1st
Respondent and his Ministry because of the following reasons;
On or about 30th
May 2007, the 9th
Applicants delivered a petition to the 1st
Respondent on the numerous grievances resulting from the violation of
the EIA/CMP Reports and Resettlement Plan;
Although an ultimatum of 5 days was stated therein it was only after
about a month had elapsed that the 1st
annexed copies of the said petition and the responses thereto marked
The response lacked commitment and, to say the least, demonstrate the
lack of the will to comply with the Resettlement Plan, especially at
The Applicants received with emotional shock that the 1st
actually saw nothing wrong with the deviation;
It became apparent that the fate of the Applicants, in particular the
is "not the 1st
Respondent's business" hence Applicants had to find an
alternative way of compelling the 1st
Respondent's Ministry to comply in full with the EIA/CMP Report and
Resettlement Plan, viz
solicit this Honourable Court's intervention in this matter in terms
of the Environment Management Act.
We have been advised and verily believe that an interdict is the only
remedy available to the Applicants in lieu of this state of affairs.
Further we have been advised that an interdict is by its nature a
speedy remedy, hence the need to file an urgent application with this
I humbly submit that had the 1st
Respondent's Ministry complied with the EIA/CMP Reports and
Resettlement Plan it would not have suffered any prejudice as the
whole process would only have taken four (4) months prior to the
excavation of the road site as it more fully appears in page (xi) of
Conversely the Applicants will suffer irreparable harm if the 1st
Ministry is not compelled to take on board grievances of the
Applicant's in implementing the project.
Suspending the Environmental Compliance Certificate pending
compliance with the Resettlement Plan is the most effective and
legal remedy available to counteract the irreparable harm likely to
be suffered by the Applicants;
Further it is unjust for the 1st
Respondent's Ministry to continue to enjoy the rights granted to it
by the Environmental Compliance Certificate as same was obtained
through misrepresentation to the African Development Bank and the
Swaziland Environment Authority.
The Applicants contend that the matter is urgent in the following
Respondents are practically demolishing houses of the Applicants
periodically as road construction continue. Such is done
intentionally and negligently without any consideration for
compensation as per the 1st
Ministry in approved resettlement plan. The latest but not last
being one home demolished on the 31st
August 2007, belonging to an elderly woman without prior notice. In
this regard the court was referred to the Notice of application at
page 17 of the Founding affidavit of David Dlamini.
Applicants submit further that those houses that are not demolished
yet but which lie on the road map will soon be destroyed as the
process goes on as they either have severe cracks or some very few
metres from the actual road maps contrary to acceptable standards.
Some homesteads are hanging on cliffs due to road works and through
any slight rains and/or vibrations they can collapse. In fact they
are a potential danger to the inhabitants. Furthermore there are no
satisfactory compensation measures and/or alternative housing
offered to the owners or dwellers. It is submitted that in terms of
the plan the 1st
Respondent's Ministry has the primary duty to address these
anomalities, which it now feel they have been "overtaken by
events" or not possible to undertake or even "costly".
is submitted further that directly affected Applicants and those
speaking on their behalf started as way back as the said 2005 to
register concerns with the relevant structures identified by the
Resettlement Plan but they fell and continue to fall on deaf ears.
affected homestead was and still is the full responsibility of the
Respondent's Ministry but it is neglecting to do same to such an
extent that lives of occupants are extremely endangered. In this
regard the court was referred to CMP page 7-9
and Resettlement Plan at page 39.
Respondent's Ministry has violated the Environment Compliance
Certificate, an Act which entitles the Applicants to invoke Section
58 of the Environment Management Act, 2002 for this interdict.
According to the allegation that the requirements of Rule 6 (25) (b)
have not been complied with the Applicants contends that they have
explicitly complied with this Rule as more fully appears in the
Founding affidavit of David Dlamini in paragraph  supra.
redress was to follow the structures placed by the 1st
Respondent's Ministry in the Resettlement Plan but same has been
disregarded by the 1st
Respondent itself amidst the chaotic situation that exist on road
site. In fact this fact is fully acknowledged by the 1st
Respondent himself. The 1st
Respondent Ministry has clearly failed, to comply with the
conditions of the Environmental Compliance Certificate much to the
prejudice of the project affected parties and this necessitated the
Applicants to invoke the Environmental Management Act for
In the Founding affidavit of David Dlamini in paragraph 13 averments
are made on urgency and in paragraph 14 thereof further averments
are made that no other satisfactory remedy is available. In my
assessment of the averments in the Applicants Founding affidavit and
confirmatory affidavits the Applicants have proved the requirements
of the rule governing urgency and I would thus hold that this point
of law in
the Respondents cannot succeed and the matter is accordingly
enrolled in terms of the Rules of court.
Description of the parties.
The argument in this regard is that the 9th
Applicant is not fully described in the application. The names of
the members are not mentioned. Further that the 2nd
Respondent is not clearly described. If the 2nd
is a company it has to be mentioned in terms of which law is that
company registered or incorporated.
On the other hand Applicants contend that under the Rules of court
there is no specific provision for the description of parties in
applications. The parties are known to each other in their
relationship as "Project Affected Parties" a name which
was neatly designed by the 1st
Respondent's Ministry as the project proponent in the CMP and the
Resettlement Plan documents. In this regard the court was referred
to Rule 17 (4) of the High Court Rules and the textbook by Herbstein
and Van Winsen, The Civil Practice of the Supreme Court of South
Edition, 1997 at
page 727 and the court was further referred to the case of Kayalandi
Town Committee vs Mkhalo and others 1991 (2) S.A. 630.
Having considered the pros and cons of the arguments by the parties
in this regard I am satisfied with what has been said by the
Applicants that the parties are known to each other in their
relationship as "project affected parties" a name which
was designed by the 1st
Respondent's Ministry as the project proponent in the CMP and the
Resettlement Plan documents. I have also adopted the approach in
cases in other jurisdictions on public interest litigation including
the South African case of Van
Rooyen and Others vs The State and zothers 2001 (4) S.A. 396 and
that of Rogers
Muema Nzioka and others vs Tiomin Kenya Limited (unreported) - Civil
Case No. 97 of 2001 in the High Court of Kenya. I
have also considered what is stated by the learned author Michael
Kidd, Environmental Law: A South African Guide, Juta and Co. 1997 at
the author states that courts on environmental law issues have
tended to take a relaxed approach on the locus
to enable public interest litigations. The learned author states
that the common law approach is an "obstacle" to an
individual's being to be able to vindicate the public interest.
Furthermore Section 58 of the Environment Management Act confers
standi in judicio " of
prospective Applicants who would want to sue on public interest.
In view of what I have said above in paragraph  I condon the
citation of the parties due to the complexities of the matter.
Requirements of an interdict.
The third point in
by the Respondents is that the Applicants have not satisfied the
requirements of an interim interdict. Although the Applicants have
alleged a clear right but they have failed to show on the papers
what the clear right is and in what way are they directly and
adversely affected. The Applicants have not stated or alleged if the
balance of convenience favour them at all. The Applicant do have an
alternative remedy. The Applicants can always sue Government for
damages if they are not satisfactory compensated.
The Respondents further contend that Applicant's have failed to set
out fully the right which they seek protection and/or enforcement of
in that the basis of the Applicants rights have not been set out.
Further that the Applicants have failed to set out how and in what
manner the balance of convenience favour the granting of an
interdict as they seek to stop the entire project being the
upgrading of the Mbabane - Ngwenya main road yet, the alleged rights
which they seek to protect relate to properties which are
constructed on only a small fraction of the total project.
The Applicants on the other hand contends that they have satisfied
the requirements of an interdict in full in their affidavits. The
affidavits state explicitly the numerous grievances and that the
project should be suspended temporarily pending addressing same in
terms of the Environment Management Act, 2002. Further that the
nature of the complainants by the Applicants are life threatening
yet they are taken lightly by the Respondents. Counsel for the
Applicant further filed arguments in paragraphs (c), (d), and (e) of
her Heads of Arguments.
Having considered the above arguments by the parties, it would
appear to me that the nub of the dispute between the parties
revolves around the operations of the BRC - Bypass Resettlement
Committee (hereinafter refer to as the "committee") which
according to the documents filed of record is tasked with
compensating the people who have been re-settled by the project. It
is also common cause between the parties that the money for
compensating these people has been provided for by the project.
There appears to be a communication breakdown between the parties
leading to this urgent application before court. The Applicants say
the BRC no longer exist. Whilst Respondents state that the BRC exist
but has not been utilized by the Applicant since 2003. To this end
the Respondents have led the evidence of the Secretary of the BRC
who testified to this effect.
In view of this confusion it is my considered view that this
committee ought to be activated to address the plight of the
Applicants as a matter of urgency. For this reason I would postpone
this matter for a period of 21 days from the date of this judgment
and further order that Applicants should within 7 days from the
issuance of this judgment furnish to the Secretary of the BRC
through their attorney with their claims and within 21 days from
today's date the committee to address the Applicants' claims.
Further on the return date being 26th
November 2007, the Secretary of the BRC should file a written report
to this court on how the complainants have been addressed. The court
will then issue its final judgment on the points raised by the
Respondents including the issue of costs, and so it is ordered.