THE HIGH COURT OF SWAZILAND
CASE No. 2499/99
the matter between
(SWD) LTD RESPONDENT
SB. MAPHALALA- J
Applicant In absentia
Respondent Mr. P. Flynn (instructed by Robinson Bertram)
applicant moved an application inter alia for rule nisi to issue
calling upon the respondent to show cause at a time and date to be
determined by the court why a final order cannot be made declaring
the actions of the respondent unlawful that of trespassing on the old
Nkoyoyo quarry site, interdicting the respondent from any way
interfering with the applicant's rights in and to the site and to the
timber there, and in anyway interring with or damaging the
applicant's wattle forest and timber at the said site. Further that
respondent pay costs of this application as between attorney and
application is fully supported by the affidavit of the applicant with
relevant annexures. The respondent who opposes this application filed
an answering affidavit of one Mark Kevin Davy who is the contract
Manager of the respondent. The answering affidavit is supported by
pertinent annexures. The matter was enrolled in the contested motion
of the 22nd October 1999, where a replying affidavit by the applicant
was filed from the bar. Attached to the said affidavit was an
application for condonation for late filing.
am to pause here briefly to relate what happened in court on the 22nd
October 1999, as this has a bearing on the events that took place
subsequent to that date. Initially applicant was represented by P.
Sbilubane & Associates although in my observation the founding
papers were drawn by the applicant himself. The offices during the
course of the week withdrew as attorneys of record. On the 22nd
October 1999, applicant appeared in person and sought a postponement
of the matter to
the services of another attorney to represent him. He applied to be
given (10) ten days. This application was strenuously opposed by Mr.
Flynn for the respondent contending amongst other things that
applicant brought this matter as an extremely urgent application he
cannot therefore be allowed to act as he pleases at the prejudice of
the respondent. There was a lot merit in what Mr. Flynn submitted but
I was inclined to oblige the applicant with a postponement and my
motivation being that I felt for the just prosecution of this case
the applicant deserved an attorney. I also considered the complexity
of the matter which involved vexed constitutional issues. I granted
the applicant a postponement to the 27th October 1999, with a caveat
that the matter was to proceed with or without his attorney. I must
say that applicant expressed concern on the short time given. But my
view was that the time was sufficient to brief counsel as all papers
had been filed.
the 22nd October 1999, applicant had filed a notice of withdrawal
stating in this notice that he abandons the application and tenders
costs to the respondent. He states in the notice that the reason for
withdrawal is that if respondent had at the time replied to applicant
would not have needed to apply to the court as respondent has in
reality now admitted and averred that:
had and has no rights to bulldoze the timbers. Respondent has no
rights to go into the old quarry site.
has stopped bull dozing and was stopped from doing so as it was not
entitled to do it.
actions were on their own version unlawful.
can only have rights in the event that it obtains a mining lease,
which it has not even applied for.
is off the site and is no longer damaging the applicant.
has implied that it will not again act illegally in this matter.
applicant was not in court on the 22nd October 1999, and on enquiry
it came out that his father was present and he informed the court
that his son (applicant) was out of the country. The matter however
proceeded in view of this new turn of events. Mr. Flynn for the
respondent vigorously opposed the withdrawal making a number of
submissions in that connection and I shall get back to them in due
course. In fact, this is the only issue the court is to decide. Mr.
Flynn applied that the application be dismissed with costs on a scale
of attorney and own client together with costs of counsel to be taxed
in terms of Rule 68 (2) of the High Court rules.
delving into the determination of the efficacy or otherwise of the
proposed withdrawal I wish to briefly outline the cause of the
dispute or imagined dispute.
applicant is a businessman, residing in Mbabane. The respondent is a
construction firm that was awarded the Oshoek - Mbabane MR 3 road
by the acronym W.
(SWD) Ltd formerly known as Wilson Bayly Homes (Swd) Limited in terms
of its certificate of incorporation with the Registrar of Companies
stamp dated the 17th March 1998. The applicant alleges that on the
evening of Thursday 7th October 1999, he went to the old quarry site
and found that part of it had been bulldozed and that trees had been
damaged and bulldozed over. Applicant was informed by someone in the
vicinity that the respondent had done it.
actions by the respondent were unlawful, damaging and malicious. The
actions were also illegal and done without applicant's permission and
were done despite the applicant in writing having warned respondent
not to act in such a manner. The land in which this took place in
Swazi nation land under Chief Petros Dube. The claim of right the
applicant has over the land which has a quarry and a wattle tree
forest is based on a lease agreement he entered into with the said
chief on the 2nd August 1998, for a rental of E250-00 covering an
area described as "several hectares" in the lease
agreement. Annexure 3 to applicant's founding affidavit). The
applicant claims the wattle trees on the basis of a sale agreement
with one Nicholas Masuku who sold the wattle trees on the area for
E3, 000 - 00 payable at E500 - 00 per month. Another term of the sale
agreement is that the timber to be removed by the end of 2001 and
payment to be made in full before removal of wood.
therefore, is the basis of the applicant right which motivated him to
launch this application.
appears from the papers that there has been a lot of correspondence
and activity surrounding this issue.
respondent's takes the view that the right applicant purports
have over the old quarry does not exist. Respondent fortifies its
stance by citing a number of statutory provisions touching on the
first salvo by the applicant is that the area is a Swazi area within
the meaning of a Swazi area as defined in the definition of Swazi
Areas Act No. 41 of 1916. I was referred to Section 3 (1) of that
reads ippissima verba, as follows:
to the powers conferred upon the Ngwenyama in Libandla by Section 94
of the constitution, the Swazi nation shall be entitled to the sole
and exclusive use and occupation of Swazi areas..."
submitted that the Ngwenyama in the Libandla may exercise all rights
of ownership over such land including the power to make grants,
leases, or other dispositions, subject to such rights and interests
and conditions as he may think fit (Section 94 of the constitution).
The purported agreement of lease entered into between a chief and the
applicant is invalid in terms of Section 94 of the constitution.
third prong of the respondents attack is that the agreement is also
invalid in terms of the safe guarding of Swazi Areas Act No. 39 of
1910 in that in terms of Section 3 of that Act no person other than a
Swazi shall without the written permission of the Ngwenyama use or
occupy any portion of a Swazi area. Furthermore that in terms of the
Contracts by Swazi Chief Act No. 14 of 1924 Section 2 of that Act
provides that no contract entered into or obligation undertaken by
any Swazi chief shall be valid in so far as it affects the Swazi
nation or portion thereof, unless the approval of the Ngwenyama
thereto has been given in writing.
also is of the view that the agreement would in any event be invalid
in that it is so vague as to be unenforceable. The area leased in
terms of the purported agreement of lease is not properly described
and its extent is vague and unascertainable.
appeared from reading of the papers that respondent was stopped
clearing wattle in the area by Mr. Duma who is the respondent's
senior resident engineer for the project. The reason given by the
respondent is that the procedures required by the Swaziland
Environmental Authority has not been completed and no further
clearing was done because of these requirements. A meeting was to
take place at Nkoyoyo quarry site on Saturday the 10th October 1999,
in order to allow members of the public to voice any concerns
regarding the project for eventual input into the environmental
impact assessment for the opening of the quarry. It also emerged that
respondent require a quarry licence before it can begin to extract
rock from the quarry. That respondent has taken steps to secure
rights with regard to the quarry site. It also emerged in the papers
that applicant owns a commercial quarry site. The papers also show
that the applicant has obtained Swaziland citizenship through the
"khonta" method on the 17th November 1982, under Chief
Sipho Dlamini of the Esigangeni area.
outlined the facts of the matter I now proceed to determine the real
issues in this dispute. The first issue to be determined is whether
or not the withdrawal of the application was proper in terms of the
rules. The second issue is whether the application for the dismissal
of the application has any merit. The third and last issue which is
intertwined with the latter issue is the question of costs to be
awarded against the applicant in the event the court come to the
conclusion that the application was ill conceived. I shall proceed to
deal with the issues in seriatum.
now proceed to determine the issue of the withdrawal. Mr. Flynn
argued at great length on this aspect. The gravamen of his
submissions in this regard is that the withdrawal does not conform
with Rule 41 of the Rules of this court more particularly sub rule 1
(a). It appears to me that Mr. Flynn is correct that the applicant
has not complied with the said rules. The rule provides that a person
instituting any proceedings may at any time before the matter has
been set down and thereafter by consent to the parties or leave of
the court. In the instant case this has not been done. I agree with
Mr. Flynn 's submissions that this is a clear case of an abuse of the
court process where a litigant after realizing the hopelessness of
his cause opts to withdraw at the same time giving the court the
impression that he was doing so as a result of the respondent
conceding to certain facts. The applicant was well aware that the
matter was to proceed but he elected to adopt this approach contrary
to the rules. On the issue I rule that the applicant's Notice of
Withdrawal dated the 25th October 1999, as invalid.
coming to the issue of the dismissal of this matter. Again I agree
with the submissions made by Mr. Flynn in this connection. It is
clear from the statutes cited by the respondent that the applicant
has no right whatsoever on the land. It appears that the power to
lease land on Swazi nation land lies with the Ngwenyama where the
Ngwenyama in the Libandla may exercise all rights to ownership over
such land including the power to make grants, leases, or other
dispositions, subject to such rights and interest and conditions as
he may think fit. These powers are conferred to the Ingwenyama by
Section 94 of the Constitution. This means therefore, that the
agreement entered into between the chief and the applicant offends
against Section 94 of the Constitution. Further, the statutes cited
by the respondent are Apposite. These are Section 3 of the Safe
Guarding of Swazi Areas Act No. 39 of 1910 and Section 2 of the
Contract by Swazi Chief Act No. 14 of 1924 which provides that no
contract entered into or obligation undertaken by any swazi chief
shall be valid in so far as it affects the swazi nation or portion
thereof, unless the approval of the Ngwenyama thereto has been given
in writing. In the present case this has not been done.
the purported lease between the applicant and the chief is with
respect so vague as to be unenforceable. The area leased in terms of
the lease agreement is not properly described and its extent is vague
and unascertainable. It is merely described in the lease agreement as
"several hectares". This, I must say is vagueness in its
sum, I agree in toto with the submissions made by Mr. Flynn on this
aspect that the applicant has not proved a prima facie right to be
entitled to an interim interdict. The applicant does not have any
right whatsoever on the land on the basis of the statutory enactment
cited on which I have already alluded to. The applicant brought an
application which has backfired on him. It also appears from the
papers and the various letters of correspondence filed of record that
applicant has been trying to get the respondent to buy quarry from
him. That this application was tailored to force the respondent to
buy from his commercial quarry. Clearly, this is an abuse of the
court process for one to seek a commercial advantage through the
an aside, it is my respectful view that since the court has found
that the sale of the forest was invalid in law it would only be fair
and equitable that the initial owner of the forest be adequately
compensated by the respondent so that he may in turn compensate the
applicant to the extent in which he had already paid for the forest
after all in my view applicant bought the forest with a bona fide
belief that the sale was valid in law.
to the last issue for determination that of the costs to be levied as
I have already concluded that the application should be dismissed. It
is clear that this application was an abuse of the court process. I
have already touched on some aspects of the abuse. An applicant in
law is normally permitted to withdraw a claim, subject to an
appropriate order as to costs, unless the withdrawal amounts to an
abuse of the court's process (see Levy vs Levy 1991 (3) S.A. 614 (A)
at 619 - 620 c).
view on the matter is that this application was a clear abuse of the
courts process and applicant should bear the brunt of punitive costs.
the result, I dismiss the application with costs to be levied at
attorney and own client scale and costs of counsel to be exempt from
Section 68 of the rules.