Myrtle Horsley NO
Applicant seeks an order in the following terms
the Minister of Natural Resources and Energy in the
of Swaziland in terms of Section
of The Concessions Partitions Act No 28 of 1907 (formerly Section 7
of the Concessions Proclamation (Volume II of the Laws of Swaziland,
read with The Vesting of Land in King Order No 45/73) to issue to the
Concessionaires/Grantees, viz the Estate of the Late Mary Christabel
Groening, Mabel Myrtle Horsley and Dorothy Do Amaral, (they being the
successors in title to the original Concessionaire/Grantee, viz
Christian Grocning and the subsequent holder, viz Joseph Gourlay
Young) in equal undivided shares, freehold title by way of Government
Grant in respect of the following immovable property namely:
Portion "A" of Land Concession No. 3P
in the Lubombo District;
14885,1573 (One Four Eight Five Comma One Five Seven Three) Hectares;
as more fully appears on diagram No. S.G. S5/15 relating to Deed of
under Deed of Cession No 2/1947 and No.8/1952
and authorising the Registrar of deed for Swaziland to register the
Government Grant so issued by the Minister of
Resources and Energy in favour of the Late Mary Christabel Groening,
Mabel Myrtle Horsley and Dorothy Do Amaral in respect of the
of the suit only in the event the Respondents oppose the application.
Applicant presently holds her portion of land by what has been
referred to as Concession Title. Her right to the relief claimed by
her, namely to have her title converted to Freehold has to be
determined by reference to successive legislative instruments
promulgated legislation affecting tenure of such land.
applicant has argued that her right to "convert her Title Deed"
from concession Title to freehold Title first vested in her when the
Swaziland Concession Commissioner determined that her holding of
Portion A of Land Concession 3P was a "grant of land " in
terms of section 7 of Part II of the Concessions Proclamation (volume
II of the laws of Swaziland) now Section 5 of the Concessions
Partition Act No 28/1907.
support of this she has attached a copy of a letter addressed to her
by the Government secretary dated 20th February 1962. The Government
Secretary in this letter drew her attention to the provisions of
section 7, to which I have made reference earlier, which read in part
a concessionaire has under a land concession been granted -
to the ownership of land; or
lease of land which with or without rights of renewal is of not less
than ninety nine years duration; there shall be issued to such a
concessionaire freehold title in respect of any portion of land held
under such title .......",
appears that you are affected by the provisions of this section in
respect of your
of concession No. 1P was described by the Swaziland Concessions
grant of land."
meaning of this is not clear It does not appear from the documents
and information presented by the Applicant that the nature of the
concession (ownership or a long lease) granted to Groening, from whom
Applicant derived her title, was such to have entitled her, as of
right, to freehold in terms of the Section.
Secretary went on to request that the Applicant furnish him with
certain requirements to enable freehold title to be issued in
Applicant's name. It would be misleading to treat the contents of
this letter as a vesting of any rights in the Applicant. Her rights,
if any, flowed from the terms of the legislation. It does not,
without knowing the terms of the grant, seem possible to determine
whether section 7 conferred any rights upon the applicant to have her
title converted to freehold.
application was, however not contested upon this ground. The
respondent raised a point of law in terms of Rule 6(12) (c), which it
formulated in the following terms.
Applicant's rights to have the land converted to freehold title
lapsed with the promulgation of The Land Concession Order No.
15/1973. In particular sections 3 and 4 thereof. The Act did not
provide any exemption/exception to concessions that had already been
approved for but not converted to freehold title."
wording of the sections appears to support the argument raised by the
respondent. Section 3 provides in clear language that notwithstanding
anything in any other law any land held in Swaziland by a
concessionaire, whose concession title or lease is still in force,
shall be so held at the will and pleasure of the King on such terms
as he may determine.
4 makes it even clearer in providing that notwithstanding any other
law a concessionaire shall not be entitled as of right to be issued
with freehold title in respect of any land or portion of land held by
him under a concession title or lease.
Applicant's answer to this is based on the provisions of Section 94
(1) of Chapter VIII of the Constitution (repealed with savings) which
provides that all land which is vested in the Ngwenyama in trust for
the Swazi Nation shall continue to so vest subject to subsisting
rights and interests which before the 6th September 1968
been granted to or recognised as vested in any person. (My italics)
The applicant argues that the Land Concession Order in Council No.
15/1973, which is deemed to have come into force on 6th September
1968, is to be properly read, so as not to be in conflict with the
provisions of Section 94(1) of the constitution.
words quoted and italicised do not mean any thing more than that
concessionaries are to continue to enjoy their subsisting rights as,
presumably, are set out in their title deeds. Ownership in the land,
however, is to continue to vest in the Ingwenyama
trust. This in itself would seem incompatible with freehold of the
property being registered in the name of the concessionary.
legislation, which long pre dated independence, and on which the
applicant relies gave concessionaries in certain circumstances the
right to have their title converted to freehold. Unless and until
this right was exercised the concessionary continued to enjoy only
such title as was reflected in the deed of grant. In this sense it
cannot be said that freehold title had been granted to, or recognised
as vesting in, any person at the time of independence. The right to
convert to freehold established by legislation, in so far as it had
not been exercised by registration, could at any time either before
or after independence, be withdrawn by legislation.
term "vesting" has more than one meaning depending on the
particular context in which it is used. In cases concerning rights of
succession it is normally used to designate a right that has become
unconditionally fixed and established in a beneficiary, as opposed to
a merely contingent or conditional right. The same distinction seems
apposite in relation to rights in and to fixed property. In the
present case it would be incorrect and misleading to say of the
applicant's right to freehold that it had vested. Such right only
became vested when it became fixed and unconditional on registration.
The legislation that thereafter deprived concessionaries of the right
to have freehold registered did not deprive the concessionaries who
had taken advantage of the provisions of Section 7, of their freehold
was referred to a number of cases, where orders, such as that sought
by the applicant, were granted unopposed without any considered
judgment. They do not assist the applicant as the relief claimed is
now contested and the point now raised by the Respondent has not been
dealt with and rejected.
application is accordingly dismissed with costs