THE HIGH COURT OF SWAZILAND
the matter between:
MATHUNJWA & 10 OTHERS DEFENDANTS
THE APPLICANT: MS. VAN DER WALT
THE RESPONDENTS: MR L. MAZIYA
ON POINTS IN LIMTNE
is a matter brought under a certificate of urgency which according to
the date in the notice of motion should have been heard on 8th May
2000, but it would appear it was infact heard on the 9th May 2000
because that is the date reflected in the court order which issued a
the notice of motion which is accompanied by a founding affidavit of
one Paul Thomas Arnot the applicant prays for the following relief:-
the usual forms and service relating to the institution of
proceedings be dispensed with and that this matter be heard as a
matter of urgency.
the applicant's non-compliance with the rules relating to the above
said forms and service be condoned.
the finalisation of this application that a rule nisi do issue
returnable on a date and time to be determined by this Honourable
Court in the following terms-
the respondents be interdicted and restrained from utilising and/or
cultivating and/or erecting structures and/or making water ways on
and/or making any structural addition or changes and/or in any
unauthorised manner using or interfering with the land described as
remainder of Farm 860 Vuvulane, Lubombo Swaziland (hereinafter
referred to as the land)
the respondents be directed to remove any structures, implements, or
other things brought by the respondents onto or affixed to the said
land, failing which the applicant shall be entitled to remove and
dispose of same,
the respondents be interdicted and restrained from using the communal
water supply on any plots allocated to the respondents.
the respondents be interdicted and restrained impeding the applicant
in its utilisation of and control over said land or from causing any
interference, obstruction or disturbance on any portion of the said
land, including but not limited to any act of violence or any
interference with or threats of violence to the employees of the
the respondents be directed to pay the applicant's costs.
the orders (C1 to C4) above operate with immediate effect pending the
return date herein.
the respondents be called upon to show cause on a date and time to be
determined by this above Honourable Court as to why the rule nisi
should not be confirmed,
the applicant be directed to serve copies of the application herein
and of this order on each respondent.
further and/or alternative relief as this above Honourable Court may
take notice that the founding affidavit of Paul Thomas Arnot together
with its supporting annexures will be used in support thereof.
the 9th May 2000 the Honourable Chief Justice granted a rule nisi in
respect of above prayers and the matter was to be argued on the 17th
July 2000. On the 17th July 2000 it was further postponed to 18th
July 2000 and on 18th July 2000 it was finally argued before me and I
reserved my ruling on the points raised in limine which were raised
by the respondents and argued on that day.
will proceed to deal with those points in limine.
the commencement of the arguments on the 18th July 2000 counsel for
the applicant raised concerns about the failure of the respondents to
have filed their heads of argument on a date which was ordered by the
Honourable Chief Justice. Counsel for the respondents on the other
hand denied that any such order had been made, and added that the
Honourable Chief Justice had raised a query about how one Ndumiso
Mamba's affidavit had been filed whose contains dealt with the
application when he was a Managing Director of an organisation known
as Tibiyo TakaNgwane.
for applicant denied that such concern was ever raised by the
Honourable Chief Justice. As there was no endorsement on the court's
file I advised the two counsel to abandon the controversy and rather
proceed with the points in limine for the sake of progress.
Maziya for the respondents, had in his heads of argument first
applied that the affidavit filed by one Ndumiso Mamba be struck out
as being irrelevant and constituting hearsay evidence as there did
not seem to be any connection between Tibiyo TakaNgwane and applicant
as Tibiyo TakaNgwane had not been cited as a party to the
the matter of striking out is regulated by the provisions of Rule
23(2) of the Rules of this Court and Rules 23(2) provides as follows:
any pleading contains averments which are scandalous, vexatious, or
irrelevant, the opposite party may within the period allowed for
filing any subsequent pleading, apply for the striking of such matter
and may set such application down for hearing in terms of Rule 6(4)
but the court shall not grant he same unless it is satisfied that the
applicant will be prejudiced in the conduct of his claim or defence
if the application to strike out is not granted."
the reading of the provisions of this Rule as a whole it appears to
me that one would of necessity, have to consider the merits of the
application before one can be in a position to say whether or not a
party applying for such striking out will be prejudiced of such
application was not granted.
I had been asked to deal with the points in limine, I suggested to
Mr. Maziya that the application for striking out be left until the
court was dealing with the merits. However, the application for
striking out of Ndumiso Mamba's replying affidavit was an integral
part of the challenge by Mr. Maziya of the lack of locus standi of
the applicant, in that Mr. Maziya contended that Tibiyo TakaNgwane
according to the contents of Mr. Mamba's replying affidavit, had
authorised the applicant to perform certain acts.
Maziya contended that the applicant had not even established whether
Tibiyo TakaNgwane itself was an organisation which was capable of
suing or being sued. It was Mr. Maziya's submission that, unless that
had been clearly established by the applicant, the applicant itself
would not be heard to say it had the necessary locus standi in the
proceedings. Mr, Maziya further argued that in the founding affidavit
of Paul Thomas Arnot he had not even attempted to say anything about
Tibiyo TakaNgwane, it was only in the replying affidavit by Mr. Mamba
that Tibiyo TakaNgwane was first mentioned. Mr. Maziya stated that an
applicant must stand or fall by the contents of its founding
affidavit. The court was referred to numerous decided cases on the
point (see pages 2 and 3 of the heads of argument. Heads of argument
forms part of these proceedings) So that instead of completely
ignoring the application to strike out by Mr. Maziya, the court had
to partly focus its mind to it as it is, i.e. the application to
strike out intricably interwoven with the question of applicant's
locus standi which in turn forms part of the respondents' heads of
Maziya argued very vociferously that applicant was made aware as far
back as on the 29th November 1999 when respondents' attorneys wrote a
letter to wit VIF3, paragraph 4 thereof states, "Our clients
have advised us that they have no dealings with V.
Limited and further advised that they have no reason to report to
your offices." (See page 32 of the book of pleadings.) It was
Mr. Maziya's submissions that because of the attitude adopted by the
respondents' vis-a-vis applicant's
it was incumbent upon it to clearly set out its authority and locus
standi in its founding affidavit. This, it dismally failed to do, so
submitted Mr. Maziya.
page 7 of his heads of arguments, Mr. Maziya further deals with
applicants' founding affidavit and refers to numerous decided cases
demonstrating what the contents of a founding affidavit should set
out. I don't propose to name these cases seriatim suffice it that Mr.
Maziya's submission is to the effect that if Tibiyo TakaNgwane had
authority over the land in question, it too, should have shown
clearly what it is, is it a legal persona - capable of suing and
being sued, has it authority to delegate its powers to the applicant.
Maziya also challenged the question of urgency and submitted that the
applicant had been dealing with this matter as far back as in August
1999. He submitted that on a number of occasions the matter was
referred to Ludzidzini and Tibiyo TakaNgwane had also been advised at
some stage - why should the matter suddenly be urgent on 8th May 2000
Mr. Maziya wondered. Mr. Maziya asked that the court should uphold
the points in limine and discharge the rule with costs.
van der Walt has also addressed me in rebuttal of Mr. Maziya's
submissions. She urged it upon me to consider the founding affidavit
of deponent Arnot as whole and not just paragraphs. It was her
submission that once the court has done that it will be clear that
applicant has not only been authorised but has also the necessary
locus standi. This I have done, I have however excluded the contents
of TTN2 for reasons I stated when reference was made to Her Majesty
the Indlovukazi. In so far as the reference to the applicant
operating under the auspices of Tibiyo, I have encountered the
difficulty mentioned by Mr. Maziya in his argument to wit - applicant
has not even made an attempt to throw light whether or not this
organisation is a legal person or indeed an organisation capable of
suing and being sued. All the deponent says is that Tibiyo TakaNgwane
is a Swazi organisation established pursuant to a Royal Charter in
my view, what applicant sets out in his founding affidavit must not
only be the usual and ordinary requirements but also accord with the
substance of the law i.e. locus standi, clear right where these are
is my considered view that the reliance of the applicant on Tibiyo
TakaNgwane to have authorised and empowered it to act under its
auspices falls far short of the compliance of the above requirements
in as much as Tibiyo itself has not been shown in the applicant's
founding affidavit to have those rights i.e. to authorise and empower
applicant to do what he claims it did authorise and empower it.
in this regards VAN WINSON CILLIERS AND LOOTS - THE CIVIL PRACTICE OF
THE SUPREME COURT OF SOUTH AFRICA 4th ED. Where the learned authors
dealing with the subject of what the applicant's founding affidavit
must contain. (See also ERASMUS SUPERIOR COURT PRACTICE B37-38) where
the author states inter alia, that the applicant must set out his
right to apply that is locus standi.
remedy sought by the applicant and in respect of which a rule nisi
was granted when it first moved its applicant ex parte is a final
interdict. The requirements for a final interdict are clearly set out
by the C
PREST - INTERLOCUTORY INTERDICTS AT PAGE 46 and these are:-
right i.e. a definite right.
other remedy available to applicant.
learned author goes further and states that a final interdict unlike
an interim interdict which does not involve a final determination of
rights of the parties a final interdict is an order to secure a
permanent cessation of an unlawful course of conduct or state of
affairs (see APPLEM VS MNISTER OF LAW AND ORDER AND OTHERS 1989(1) SA
195 (A) @201B)) and other cases there.
the court to grant a final interdict all the three requisites
mentioned above must be present (see SETLOGELO VS SETLOGELO 1914AD AT
221) and the further cases cited there.
is mention of the Ludzidzini Royal Residence where the applicant on
some occasion went and reported the matter. It is therefore my
considered view that the applicant has not complied with all the
requisites in order that this court can grant it a final interdict.
the result, the points in limine are upheld and the rule granted by
this court on 9th May 2000 is hereby discharged with costs.