THE
HIGH COURT OF SWAZILAND
JOHN
BOY MATSEBULA AND THREE OTHERS
Applicants
And
CHIEF
MADZANGA NDWANDWE
1st
Respondent
INGCAYIZIVELA
FARMERS ASSOCIATION LIMITED
2nd
Respondent
Civil
Case No. 3294/2002
Coram S.B.
MAPHALALA - J
For
the Applicants MR. MABILA
For
the Respondents MR. MAZIBUKO
JUDGEMENT
(23/04/2003)
This
application came under a certificate of urgency for an order inter
alia that a rule nisi do issue calling upon 1st and 2nd Respondents,
their servants or agents to show cause why they should not be
interdicted and restrained from invading, ploughing and/or taking
over fields which are owned and in the lawful possession of the
Applicants and situate
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between
the Inkomazi and Mnyokanyoka river, and stretching from the Ngonini
area up to the Balegane Prison farm boundary (hereinafter referred to
as the "Disputed area") pending the determination of an
appeal filed by the Applicants to His Majesty the King Mswati III
against the 1st Respondent's decision to disown the Applicants
aforesaid fields; that pending the return date to be set by the court
aforementioned the prayer hereof should operate as an interim order
with immediate effect; and costs of suit.
The
founding affidavit of the 1st Applicant John Boy Matsebula is filed
in support thereto. Various annexures are attached to the said
affidavit in support of the application. The 2nd Applicant has filed
a supporting affidavit as well as the Applicants viz 3rd and 4th
Applicants.
A
rule nisi was issued by Sapire CJ on the 5th November 2002, and it
has been extended until the matter came for arguments on the merits
on the 25th February 2003.
In
the meantime the Respondents filed opposing affidavits thus joining
issue with the Applicants. The opposing affidavit of the 1st
Respondent is filed in opposition thereto. In respect of the 2nd
Respondent a supporting affidavit of Mfanakaziwa Joseph Masuku who is
the Assistant Secretary of the 2nd Respondent is filed. Various
annexures are also attached in opposition.
The
Applicants then filed a replying affidavit in the normal way.
The
Respondents have raised points in limine, the points which are the
subject matter of this judgement. These points are couched in the
following manner:
"This
Honourable Court has no jurisdiction over this matter on the
following grounds:
5.1. The
dispute the Applicants have brought to this Honourable Court is
pending for a decision by His Majesty: it is, therefore, pendente
lite.
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5.2. The
disputes relate to Swazi Nation Land "(sicintsi)" whose
allocation, use and enjoyment is governed by Swazi Law and Custom.
Therefore this Honourable Court, is not the competent arbitor in this
dispute.
5.3. The
Applicants have not exhausted the local conflict - resolution
mechanism obtaining under Swazi Law and Custom.
5.4. There
is inherent dispute of facts in this matter which cannot possibly be
resolved in an application of this nature is as much as oral evidence
is required to clarify and possibly resolve the dispute of facts as
above stated in as much the responsibilities and powers of the 1st
Respondent to administer and allocate land to its subject are
obtaining from and governed under Swazi Law and Custom.
In
support of the points in limine Mr. Mazibuko argued at length with
much vigour. His opening salvo was that the Applicant's claim is to
protect their ownership of a piece of Swazi Nation Land. Swazi Nation
Land is owned by the King in Libandla. An individual is incapable of
owning Swazi Nation Land. The court therefore has no power to protect
the alleged ownership. The confirmation of the interim order will
effectively legalise an otherwise non-existing right of ownership of
Swazi Nation Land. To buttress this point Mr. Mazibuko cited Section
94 (1) to (4) of the Constitution of Swaziland of 1968 and the
provisions of the Swazi Administration Order.
The
second prong of his argument was premised on the contention that the
Applicants in the present case have not fulfilled the requirements
for the granting of an interim interdict, viz i) a legal right; ii)
no other adequate remedy. On the first requirement he argued that a
right that forms the subject of an interdict must be a legal right. A
financial or commercial interest alone will not suffice. To support
this proposition the court's attention was drawn to the following
legal authorities: Herbstein et al "The Civil Practice of the
Supreme Court of South Africa (1977) pages 1066 - 1070; Airroad
Express (Pty) Ltd vs Chairman, Local Road Transportation Board,
Durban and others, 1984 (4) SA. 593 (w) at 600H. In the case of
Ferreira vs Levin and others 1995 (2) S.A. 815 at 817 G - H it was
held that in order to establish a prima facie right entitling an
Applicant to an interim interdict, an Applicant has not make out a
case that he is entitled to final relief. The court was also referred
to the cases of Webster vs Mitchell 1948 (1)
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S.A.
1186 at 1189 and that of
Becham
Group vs B.M. Group (Pty) Ltd 1977 S.A. 50 at
55
in this regard.
On
point no. ii) that the Applicant for an interdict must establish that
there is no other adequate remedy available to him. The Applicant
must inter alia furnish evidence to prove that Applicant has
exhausted other remedies that might be regarded as adequate (see
Herbstein (supra) at page 1076). That in the instant case the dispute
between the parties is already pending before His Majesty for
adjudication. His Majesty has power to grant an interim relief and
final relief. Once the matter is pending before His Majesty King
Mswati III it is lis pendens. The High Court has no power to hear the
same matter nor grant an interim relief on the matter. As His Majesty
the King has power to grant final relief he also has power to grant
interim relief in a matter before him. I must say prematurely though,
that there is considerable force in this submission because were the
courts to grant such orders there would be a duplication of
applications before different forums on the same subject matter and
this would lead to a lot of confusion. However, I must hasten to add
that I am still to closely examine this aspect of the matter later on
during the course of this judgment.
The
last point raised was that there are material disputes of fact. Mr.
Mazibuko contended that these were obvious when the Applicants
launched these proceedings. The Applicants should have approached the
court by way of action. The description of the land in question is
vague and unidentifiable ex facie the Applicant's papers. The court
cannot grant an order which is unenforceable. To support this
submission counsel referred the court to the celebrated case of Room
Hire vs Jeppe Street Mansions 1949 (3) SA. 116).
Mr.
Mabila advanced arguments per contra. On the first point that of
jurisdiction Mr. Mabila submitted that the word "ownership"
in the application is used in a loose sense so as to include
"possession". In casu, the application is not concerned
with ownership but to restore the status quo ante, pending the final
determination of the matter by His
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Majesty
the King. To support this view the court was referred to Lawsa Vol II
First Reissue at paragraph 14.
On
the issue of lis pendens it is contended on behalf of the Applicants
that this issue does not arise as the dispute before His Majesty the
King is not the same dispute before court being an interdict pendente
lite. The issue before His Majesty the King is the issue of
ownership.
On
the issue that there are disputes of facts as to the description of
the land in question Mr. Mabila retorts that in the present case the
court is not seized with a matter involving title deed land but Swazi
Nation Land. Further, he argued on this point that when one reads the
affidavits filed by both parties it appears that the parties are in
agreement as to which piece of land they are referring to. Mr. Mabila
referred the court to paragraph 5.1. of the Applicants affidavit on
this point. The said paragraph reads as follows:
"5.1. I
am a resident of Nkambeni area and subject to Chief Madzanga Ndwandwe
(the 1st Respondent herein). I own a homestead in the area and my
allocated homestead number is 13113002. I also own a piece of farming
land which lies between the Inkomazi and Mnyokanyoka rivers and
stretching from Ngonini area up to the Balegane Prison farm boundary
(hereinafter referred to as the disputed area)".
He
contended that the Respondents have not challenged this paragraph in
their opposing affidavit and thus it remains uncontroverted. Without
further ado, I am inclined to agree with Mr. Mabila in this regard
and on the face of this, the point of law raised cannot be sustained
on the facts. Further, in my opinion the description given in
paragraph 5.1 of the Applicants founding affidavit is sufficient for
purposes of pleading. I would therefore dismiss this point of law in
limine forthwith.
These
are the issues presented for determination. I have considered them in
toto. My view is that the Applicants have not made a
prima
facie
case on the papers following the dicta in the South African case of
Ferreira vs Levin NO. and others 1995 (2) S.A. 813 (w) at 817 F.H.
where Schreiner J said the following: and I quote:
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"It
has, up to now, been accepted that in order to establish a prima
facie right entitling an Applicant to an interim interdict, an
Applicant has to make out a case that he is entitled to final relief.
If on the facts alleged by the Applicant and the undisputed facts
alleged by the Respondent a court would not be able to grant final
relief the Applicant has not established a prima facie right and is
not entitled to interim protection" (my emphasis).
(See
also Herbstein et al (supra) and the cases cited thereat at page
1069)
It
is clear from the facts that it is His Majesty the King who has the
power to grant a final relief in this matter. It has not been shown
in the instant case that His Majesty the King cannot grant interim
relief pendente lite. Further, it would appear to me that Mr.
Mazibuko is correct in his submissions that by operation of the
doctrine of submission the Applicants' cause has to be determined by
His Majesty the King as Applicants have submitted themselves to his
jurisdiction. All matters incidental to the main issue before His
Majesty the King therefore ought to be directed to His Majesty the
King.
In
sum, I come to the conclusion based on the above reasons that the
application ought to be dismissed and it is so ordered.
The
costs to follow the event.
S.B.
MAPHALALA
JUDGE
