for Home Affairs
Applicants Mr. Maziya
Respondents Mr. Southwood
applicants have applied for an order setting aside as invalid
purported orders of the Minister of Home Affairs being annexures B1
B2 B3 B4 attached to the Founding Affidavits in support of this
orders will be referred to as the eviction orders).
factual and historical background behind the issue of the orders is
controversial, but not germane to the present application.
litigation arising out of this, and another similar application, has
been long drawn out. Orders staying execution of the eviction orders,
which were intended to be interim pending the outcome of this and the
other application have, been held by the Appeal Court to have been
permanent. The confusion and uncertainty which still persists
regarding the validity of the eviction orders will be eliminated by
this judgment, subject to any appeal the unsuccessful litigants may
care to make.
of the constitutional implications of a decision in this matter, and
the widespread interest in the outcome, the Chief Justice has
directed that a full court of three judges hear the matter. This
judgment is the unanimous decision of all three.
Minister, 1st Respondent, acting on instructions from His Majesty,
Mswati III Ngwenyama of Swaziland, made the eviction orders. The
Removal Order is said to be under the hand of His Majesty. For
present purposes, statements in the founding affidavits putting in
issue the authenticity of the signature, need not be considered, and
the signature of His Majesty to the Removal Order will be assumed to
removal order reads as follows:-
Administration Order, 1998
No 6 of 1998)
INSTRUCTIONS FOR THE REMOVAL OF CERTAIN PERSONS AND THEIR DEPENDANTS
BY THE MINISTER FOR HOME AFFAIRS
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 of Home Affairs to make an order
removing the following persons and their dependants
Macetjeni area in the Lubombo Region under Chief Prince Maguga from
Macetjeni area to an area (sic repetition ) be located by the
Minister of home affairs
DONE UNDER MY HAND AT LOZITHA THIS 12™ DAY OF JULY 2000
connection with this Removal Order it should be observed that, His
Majesty purports to be exercising powers conferred upon him by
Section 28(3) of the Swazi Administration Order. Whatever other
powers he may have in these matters derived from other sources, once
His Majesty elects to exercise powers so conferred upon him, the
provisions of the Order must be followed. On an analysis of the
legislation it will emerge that the Order may limit rather than widen
the powers of the Ingwenyama. It is for the court to enquire into
whether the Swazi Administration
itself is valid and whether the procedures therein prescribed have
to His Majesty's removal order, Prince Sobandla, Minister of Home
Affairs ordered that applicants leave the Macetjeni, area and to move
to Esihlutse under Chief Bhejisa on or before the 5th September 2000.
seeking the setting aside of the removal orders applicants' counsel
Mr Maziya has raised a number of arguments. Fundamental to all is the
validity of the Swazi Administration order.
are three types of legislation in Swaziland.
King may legislate by decree. This power appears to be derived from
the 1973 Proclamation and subsequent Decrees and proclamations. The
extent of this power has never been tested. The use of this form of
legislation could be justified if his advisors properly served the
King, if the power were rarely used and then only in emergencies.
of Parliament are or should be the usual form of legislation.
Parliament is the legislative body, and it should not be circumvented
save in the most extraordinary circumstances
Order in Council, of which the Swazi Administration Order, presently
being examined, is an example, is a third way in which legislation
may be imposed. The Legislative Procedure Decree, No. 1 of 1998,
enabled the Order in council in the present case.
Decree itself is of doubtful validity in view of the failure to
identify the Government notice to which reference is made in section
and constitution of the Council of Ministers.
shall be as at the 13th day of August, 1998 a Council of Ministers
constituted by the Cabinet of Ministers in office before the coming
force of Legal Notice No.......of 1998 or as may be changed from time
called for the original in the custody of the Attorney General and
confirmed by examination thereof that indeed the blank space has not
been filled in. Counsel for the Respondents suggested that it would
be possible and proper in order to give the Decree some meaning, to
examine all the Legal Notices of 1998 to determine which one was
apposite. This is not a convincing or satisfying answer. Since this
judgment was prepared further written submissions were received from
the respondent's Counsel pointing to the number of authorities
dealing with the construction of statutes where the wording is not
clear. Those cases are not apposite in the present instance because
in this case it is not a question of whether the wording is not
clear. In this case there is no wording at all to interpret. It is
not possible for not only the court but anybody else concerned to
have to page through a number of legal notices and to guess which one
is the one affected. It is for this reason that we say the answer is
not convincing or satisfying. In this case the incompleteness is so
material, that it is not proper to guess what is intended. The decree
as it stands is inchoate. We are perturbed that an incomplete
document was placed unchecked before His Majesty. It reflects poorly
on those are charged with the duty of ensuring and certifying that
documents placed before the King may properly be signed by him. In
our view because of the lacuna the decree was of no force and effect.
In view of the decision in this matter this view may be obiter.
even if the Decree were valid, The Swazi Administration Order itself
Mr Maziya has argued, was not promulgated in accordance with its
Maziya's argument was based on the wording of the Decree itself.
1 and 2 read
title and commencement.
Decree may be cited as the Establishment of the Council of Ministers
and Legislative Procedure Decree, 1998, No. 1 of 1998 and shall come
into force on the 13th day of August 1998.
Decree shall apply and operate pending the establishment or
constitution of a new Parliament as constituted from the General
Elections of 1998.
Maziya's argument was that as the decree itself was a temporary
measure, its operation terminated on the formation of a new
parliament as constituted from the General Elections of 1998. This
cannot be contradicted, having regard to the terms of Section 2 above
Government Gazette Extraordinary of Friday 27th November 1998 the
Electoral Officer announced the election and nomination of all the
members of the House of Assembly with effect from 26th October 1998,
and the Senate with effect from 12th November 1998. Such announcement
was made in terms of the ESTABLISHMENT OF THE PARLIAMENT OF SWAZILAND
ORDER, 1992 (Order 1 of 1992). On the same day the appointment of new
Ministers was also announced with effect from 19th November 1998. The
new parliament was therefor constituted from the elections at the
latest on 12th November 1998
this matter first came before us on argument, the attorney instructed
by the Attorney General to represent the Respondents conceded the
argument. We however were not prepared to deal with the case on the
basis of the concession and asked that argument a contra be
presented. Mr Southwood an advocate from South Africa appeared to
assist us in coming to our decision. We are grateful to both counsel
and the attorneys for their industry and full presentation of both
sides of the dispute.
Southwood, who appeared for the respondents, argued that the
announcement in the gazette did not constitute the Parliament. He
urged that a number of procedural matters such as the election and
swearing in of a Speaker and the election and swearing in of a
President of the Senate had to take place. This overlooks that it is
only the Parliament and its constituent houses which could take these
steps. Once the members were declared elected the new Parliament was
constituted from the General Elections of 1998. Upon this event,
namely the effective date stipulated in the gazette, the Decree, (if
it had been valid in the first place) ceased to operate.
Majesty assented to the Swazi Administration order on the 13th
November 1998, i.e. when the decree was no longer operative. The
Council of Ministers no longer existed at that date. As the decree
was no longer operative His Majesty could on that date no longer
validly assent to the draft order in terms of the decree. Accordingly
its promulgation is not in terms of the empowering decree, and the
Swazi Administration Order is invalid.
the light of the incontestable facts evidenced by the notices in the
gazette, the presumption omnia praesumuntur rite esse acta relied on
by the Respondents cannot assist the respondents or advance their
case. This is an instance where ''''donec probaetum in contrario"
applies. For those who do not understand that it means "except
when the contrary is proved.
Maziya raised a further point. Section 28 (3) in terms of which His
Majesty made the Removal Order reads
The Ngwenyama may at any time instruct the Minister for Home Affairs
in writing to make an 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
point raised is that for an order under (3) to be valid, His Majesty
should in his instructions to the Minister himself specify the
conditions for the removal, and himself identify the other Swazi area
to which the indicated persons are to remove. The force in this
argument is that it the discretion of his Majesty, which has to be
exercised in terms of the provisions, cited. It is not for the
Ngwenyama to delegate the exercise of the discretion. It is a point
well taken to which there was no convincing reply. On this point too
the application should succeed for the removal orders are not in
accordance with the provisions of the legislation even if it were
application succeeds with costs; the orders of the Minister of Home
Affairs being annexures B1, B2, B3, and B4 to the founding papers are
set aside and declared of no force and effect. Counsel's fees are
certified as having been properly incurred in terms of Rule 68
W Sapire CJ
J Masuku J