SWAZILAND
HIGH COURT
Chief
Mtfuso II And Others
(Formerly
known as Nkenke Dlamini)
Applicant
vs
SWAZILAND
GOVERNMENT & OTHERS
Respondent
Civ.
Case No. 2685/2000
Chief
Mliba Fakudze And Others
Applicant
Vs
SWAZILAND
GOVERNMENT AND OTHERS
Respondents
Civ.
Case 2823/2000
Coram Sapire,
CJ + 2 Assessors
(Messers
Hlope and Mavuso)
For
Plaintiff(Chief Mliba & Others) L. Maziya
For
Defendant P.
M.
Dlamini
For
Plaintiff (Chief Mtfuso & Others) P.R. Dunseith
For
Defendant P.
M.
Dlamini
JUDGMENT
(05/09/2000)
2
The
two applications before the court arise from a long standing
chieftaincy dispute. This is not the correct forum in which to
resolve this dispute, or to review any decisions which have taken
place in regard thereto by the relevant authorities. What however
does concern us is the removal order made by the respondent in both
matters pursuant to an order made by the Ingwenyama in terms of the
Swazi Administration order 1998.
Because
this matter involves aspects of Swazi Law and Custom and to a certain
extent Swazi protocol I summoned to my assistance two assessors who
are present today and who have been present at the hearing to assist
me and advise me on these aspects of the matter. I have had the
benefit of deliberations with them on the issues raised and I would
like at this stage to express my gratitude for the assistance which
they have so readily given.
The
issues however of law have to be decided by me in the light of what
the factual situation is regarding Swazi law and custom as it
pertains in this matter. The two applications at this stage are for
similar relief.
The
application of the Chief Mtfuso II, formerly known as Nkenke Dlamini,
and two others, Isaac Dlamini and Makinini Sikhondze is an
application in which the applicants are represented by Mr. Dunseith.
The Attorney general has appeared for the respondent which is the
Swazi government.
The
original relief sought was as follows: The applicants brought the
matter as a matter of urgency and they sought an order declaring the
removal orders requiring the applicants to leave KaMkhweli Area by
the 5th of September 2000 to be stayed and suspended pending the
final determination of the appeal to the Ngwenyama relative to such
removal orders in terms of Section 28(2) of the Swazi Administration
order 1998. They also asked for an order interdicting and restraining
the Minister for Home Affairs and the Royal Swaziland Police or any
other Government authority from taking any action against the
applicants pursuant to the aforesaid orders pending final
determination of the said applications to the Ngwenyama for review of
such removal orders. There is also a request for costs.
The
application by the Chief Fakudze is in a different form and in this
case the applicants are represented by Mr. Maziya. The relief sought
was an order setting aside the rules of court. This is not quite what
was really intended. The application was made as a matter of urgency
and what was required that the rules be altered accordingly for the
purpose of this application. The ultimate relief was setting aside
3
what
was described as the purported undated removal orders of the Minister
of Home Affairs being B1, B2, B3 and B4 attached to the founding
affidavit and failing such an order, an order staying execution of
the eviction orders pending the applicants' audience with the
Ngwenyama.
The
point of similarity is that interim relief of the same nature was
requested. Such relief is framed as an order suspending the operation
of the orders made by the Minister pending a hearing by the Ngwenyama
of the appeal to which the applicants are entitled both in terms of
the Swazi Law and in terms of the Statute under which his Majesty
made the original eviction order.
It
is interesting and instructive to observe the terms of the removal
order to which His Majesty's signature is appended. It contains
instructions for the removal of certain persons and their dependants
by the Minister of Home Affairs under Section 28(3) and reads.
In
exercise of the powers conferred upon me by Section 28(3) of the
Swazi Administration Order, 1998, I, Mswati III, Ngwenyama of
Swaziland, instructs the Minister for Home Affairs to make an order
removing the following persons and their dependants -
1. Nkenke
Dlamini.
2. Isaac
Dlamini.
3. Makinini
Sikhondze.
Of
kaMkhweli area in the Lubombo Region under Chief Prince Maguga, from
kaMkhweli area to an area to be located by the Minister for Home
Affairs.
The
order is said to be in terms of Section 28(3). Section 28(3) empowers
the Ngwenyama (in so far as an act of Parliament was necessary for
this purpose) as follows
"The
Ngwenyama may at any time instruct the Minister for Home Affairs in
writing to make art order containing such conditions as the Ngwenyama
may consider appropriate for the removal of any person or any of his
dependants living with him from one Swazi area to another Swazi area
"
4
The
order of His Majesty is silent as to when the removal should take
place. It is silent as to which area these persons are to go. The
order as signed by His Majesty instructs him to go to an area to be
allocated by the Minister of Home Affairs. In terms of the Act it
would seem that the choice of the area is that of His Majesty and
that the order should contain the terms of the removal and it must
also contain the area to which the people have to be taken. The same
consideration applies in both cases. It is not for this court to
consider the validity or otherwise of the order made by His Majesty
and sub-section 10 of Section 28 reads.
"A
Court shall not have jurisdiction to inquire into any order made
under sub-section (3) nor shall any court issue an interdict or
otherwise order the stay of such an order as a result of an appeal
against conviction under sub-section (5)."
The
specific reference is however to an order made under 3 and that is an
order made by His Majesty. The orders made by the Minister in this
case were made by the Minister himself. In so far as they impose
conditions as to the date by which the removal should take place and
the area to which they are to remove I Find that it is open for this
court to deal with such order as these matters are not dealt with in
the orders of the Ingwenyama. Section 28 under which the Ngwenyama
has acted provides that
"A
person whose removal has been ordered under subsection (3) or who
has, in terms of subsection (6) been removed may, within a period of
not more than thirty days from the date when the order was served
upon him or such removal effected, apply to Ngwenyama (embule ingubo
eNkhosini) for the review of such an order or removal. "
It
is the words in Siswati I have just mentioned for which I require
elucidation and explanation. It is in this respect that my assessors
have been most helpful. It is clearly the recognized right of any
Swazi affected by an order of His Majesty to make an appeal of this
nature to His Majesty. What has disturbed my assessors and myself in
regard to this matter is that according to the allegations which have
been made and
5
which
have not really been denied, all the applicants in the case of
application by Mr. Dunseith that is in the case of Chief Mtfuso II,
their access to His Majesty was blocked by officials and free access
to His Majesty was prevented. This free access is an essential part
of Swazi Law and Custom and the blocking or placing difficulties in
the way of such an appeal is as I say disturbing.
In
view of this we have come to the conclusion that the correct way of
handling the matter is that the order of the Minister, (which is not
the order of His Majesty) but the order of the Minister in so far as
it places a date on the removal should be inquired into and the order
should be in fact extended or suspended until such time as all the
applicants who are affected by the order have had the opportunity of
exercising their traditional right of appeal to Ngwenyama, which is
specifically referedto in the statute.
The
order therefore is in these matters that the applications are
themselves postponed sine die. In the interim the orders of the
Minister are suspended until such time as the applicants have had an
opportunity of addressing His Majesty in the traditional way.
This
does not mean necessarily as I understand it that they should see His
Majesty personally but His Majesty may appoint advisers or a
committee to investigate the matter. My attention has been drawn by
one of my assessors Mr. Mavuso to a case in which he was involved
during the rein of the late King Sobhuza. It related to a matter in
which a deportation order had been granted. The late King appointed
Mr. Mavuso himself and others to enquire into the matter and to
advise His Majesty. This is in accordance with the tradition and the
tradition and Swazi law which is to be applied in cases of this
nature.
My
assessors agree with this and agree with the order which I have made.
We are especially anxious that an impression should not be gained
that this court assumes jurisdiction to deal with an order made by
His Majesty. What we are doing is to ensure that the terms of the
statute are complied with and that the provisions of Swazi Law and
Custom as generally known are applied in this case as in other cases.
Accordingly there will be an order in both cases suspending the
operation of the eviction orders until such time as the applicants
have had an opportunity of exercising their rights according to Swazi
Law of appeal to Ngwenyama.
I
am not making any order for costs. I may indicate that my assessors
are in full agreement with the order that I have made.
SAPIRE,
CJ
Adidas 