IN
THE HIGH COURT OF SWAZILAND
CIVIL
CASE NO.3437/02
In
the matter between:
MAHAWUKELA
SIMELANE APPLICANT
VS
AARON
MAMBA 1st RESPONDENT
MANYOVU
FARMERS ASSOCIATION 2nd RESPONDENT
CORAM
SHABANGU AJ
FOR
THE PLAINTIFF MR. MKHATSHWA
FOR
THE RESPONDENT MR. FLYNN
JUDGMENT
22nd
January, 2004
The
applicant has approached, this court seeking the relief which is
formulated in his notice of motion as follows:
"1
The first and second respondents are hereby ordered to vacate
forthwith a piece of land 13.5 hectares in extent part of the
Manyovu Farmers Association project at Manyovu ka Ngcamphalala under
Chief Mhawu Ngcamphalala;
That
first and second respondents give access to the applicant to
(description of premises) for the purpose of carrying on farming;
That
first and second respondents pay the costs of this application."
The
basis of the applicant's claim appears on his founding affidavit at
paragraph six to be stated as follows.
"6.
The first respondent and myself entered into a written agreement
dated 12th June, 2001 (Annexure A) the essential terms whereof are:-
6.1
That I was obliged to prepare virgin land measuring approximately 33
hectares allocated to first respondent for cane sugar farming. The
preparation involved amongst others:-
6.1.1
clearing a bush in an area approximately 12 hectares in extent.
6.1.2
removing rocks and other impediments on the land set aside for the
sugar cane farming project, some 33 hectares in total extent.
6.1.3
Arranging for the acquisition of water rights for the sugar cane
farming (the project).
6.1.4
Advising on all that was necessary to bring the project to a
success.
6.2
The first respondent undertook to provide me as soon as the project
started with some 13.52 hectares of the prepared ground as
compensation for the services rendered."
From
the above the applicants' claim to the right to have the respondents
ejected from the land is based on the aforementioned alleged
agreement. It is also clear from paragraph ten of the applicant's
founding affidavit that the land is under the occupation of the
second respondent. Actually the extent of the land which is under the
second respondent's occupation measures thirty three hectares in
total extent. The applicant seeks to have the respondents evicted
from a portion of the land which is described in the notice of motion
as measuring 13.5 hectares in extent. This land as appears from
paragraph 6.2 above forms part of the larger land measuring 33
hectares.
The
applicant seeks eviction of the respondents from some 13.52 hectares
of the 33 hectares of the land without properly and specifically
identifying this land on the ground by a fuller description, which
description is necessary to lend certainty and eliminate vagueness in
the order sought. As it is the prayer sought in failing to describe
and identify the porting measuring 33 hectares means that this court
is being asked to grant an order that is vague with perhaps a
possibility that the parties will have to agree on which portion of
the 33 hectares will the respondents have to vacate. If the parties
do not agree on which part of the thirty three hectares, (a portion
which will have to measure 13.5 hectares,) should the respondent
vacate, a further dispute may arise between the parties relating to
this. The other possibility may be that the applicant expects that
the respondents will have to choose which portion of the land will
they vacate. I am not certain that it would be appropriate for this
court to grant an order in the form as sought in the notice of motion
because from the notice of motion it is not possible even to know
with certainty which land or portion thereof is being referred to,
which the respondents are required to vacate. Some indication may be
discerned from a reading of the founding affidavit but even then
there is as already stated no certainty. This would be one reason the
application cannot succeed.
In
so far as the first respondent is concerned there is nothing in the
applicant's affidavit to indicate that he is in occupation of the
land. On this basis even though having regard to the alleged
agreement an order directing him to award 13.52 hectares of the 33
hectares of the land referred to in paragraph 6.1 of the applicant's
founding affidavit may appropriately be sought, it cannot be said
that an order directing the first respondent to vacate land which he
does not even occupy can appropriately be granted. This is the second
reason as against the first respondent why the order sought cannot be
granted against him.
Further
in so far as the second respondent is concerned it appears to be
common cause that the land is under the occupation of the said second
respondent which is conducting farming operations thereon. What the
applicant's founding affidavit does not state is its understanding of
the basis upon which the second respondent occupies the land. In
paragraph five of the founding affidavit the applicant avers that
"the first respondent has been allocated land on Swazi Trust
land in Siphofaneni for farming in terms of Swazi law and custom."
There is no allegation and evidence of the rules of Swazi law and
custom which govern the allocation of land. It seems to me that it
would have been necessary for the applicant to allege and prove (a)
the relevant rule of Swazi law and custom which govern the allocation
of the land which is the subject of this proceedings, which facts
would show that the land was allocated in accordance with Swazi law
and custom. It does seem however that the respondents do not deny the
allegation that the land was allocated to the first respondent in
terms of Swazi law and custom even though such allegation is made
baldly. The explanation as to how the land came under the occupation
of the second respondent is contained in paragraph five of the
answering affidavit filed on behalf of the respondents wherein it is
stated –
"The
first respondent was allocated 36 hectares of land at ka Ngcamphalala
area, Lubombo region in 1958. In 1995 the first respondent approached
the Chief and sought permission to give the land allocated to him in
1958 to the second respondent. On 29th July, 1995 Chief Mhawu
Ngcamphalala certified that the land was given to the second
respondent for the purpose of growing sugar cane. / annex hereto a
document marked annexure "M.F.A.1" which records that the
land was given to the second respondent."
In
support of this allegation the first respondent himself has deposed
to an affidavit in which he states the following:
"I
did not have any authority to enter into any contract on behalf of
the second respondent. The land in question was allocated to me in
1958 and thereafter in 1995 it was allocated to the second
respondent. I accordingly have no right to dispose of any of the land
which was allocated to the second respondent."
The
explanation therefore of how the land is under the occupation of the
second respondent is that it was allocated by the Chief or
transferred from the first respondent's possession by him to the
possession of the second respondent by the concurrence of wills of
the two aforesaid parties accompanied by the approval of Chief Mhawu
Ngcamphalala and the "umphakatsi". In the circumstances
there is no proof or sufficient evidence that the first respondent
possessed some title over the land which he could by annexure "A"
transfer or dispose to the applicant in such a way that the applicant
could acquire a right to the said land or a portion thereof.
Finally
the respondents deny that there was agreement between the applicant
and the first respondent that the applicant's remuneration for having
rendered the services alleged in paragraph six of the founding
affidavit, would be to grant use of 13.52 hectares to the applicant.
On this aspect of the matter there seems to be a serious dispute of
fact. At paragraph six of its answering affidavit (deposed to by the
applicant's own son) the second respondent supported by the first
respondent states, as follows;
"6.1
In 1997 the second respondent approached the applicant to clear the
bush on a twelve hectare portion of the land. The balance of the land
had been cleared. The first respondent, in his capacity as Vice
Chairman of the second respondent, represented the second respondent
in this regard.
6.3
The applicant agreed to clear the twelve hectares of land and
prepare for planting a total of twenty eight hectares. From 1998 the
second respondent started planting sugar cane on the land.
6.4
The remuneration of the applicant for the work done would be to
allow me, the son of the applicant, to become a member of the second
respondent. I was allowed to become a member of the second
respondent,
6.5
The applicant thereafter demanded payment from the second respondent
of an amount of E52,000-00 at a meeting with the executive committee
of the second respondent in 1997 and he denied that the .agreement
was that remuneration consisted of me becoming a member of second
respondent.
6.6
The applicant was paid the following amounts for work he performed.
"
Then
there follows evidence of the payments made by the second respondent
to the applicant on 24th October, 1997 amounting to E27,000-00
(twenty seven thousand Emalangeni). It appears from Annexure MFA2
(the applicant's invoice) and MFA3 and MFA4 that the amount was paid
to the applicant by the Swaziland Development and Savings Bank which
made the payment on behalf of the second respondent. The second
respondent's deponent to the answering affidavit goes to state that
the balance of E25,000-00 (twenty five thousand Emalangeni) was paid
in three instalments of cash thus fully remunerating the applicant in
respect of the services rendered. The first respondent denies that
annexure "A" to the founding affidavit constitutes the
agreement and says that he did not know the contents of annexure "A"
which he says was not read to him. He further says he was told that
the letter indicated that the applicant was going to assist the
second respondent whenever necessary. The first respondent does not
say why it was necessary that annexure "A" be read to him
because ordinarily he himself ought to have read the document before
signing same. However judging by the fact that he signed annexure "A"
and the affidavit in these proceedings by his thumbprint it is
possible that
he
is illiterate. This should have been made clear in the affidavit. In
light of this dispute of fact, however, and in any event, the
applicant who has not replied to these allegations or proposed that
the dispute be cleared by oral evidence has not proven and I am
unable to find that the applicant has proven the alleged term
relating to bis remuneration for the services rendered. This would be
a fourth reason for refusing the relief sought by the applicant.
On
the basis of the aforegoing the application is dismissed with costs.
A.S.
SHABANGU
Acting
Judge
