THE
HIGH COURT OF SWAZILAND
Civil
Case No. 135/03
In
the matter between:
DANIEL
MKHONTA Applicant
And
SITHUPHA
MAMBA 1st Respondent
LOKHUNDLA
MAMBA 2nd Respondent
THEMBA
GAMEDZE 3rd Respondent
DUMISA
DLAMINI 4th Respondent
CORAM
: MASUKU J.
For
the Applicant : Mr N.V. Mabuza
For
the 1st, 2nd & 4th Respondents : Adv. L.M. Maziya (Instructed
by Vilakazi & Co.)
For
the 3rd Respondent : Ms Lorraine Zwane
JUDGEMENT
11th
March 2004
Relief
Sought
Serving
before me is an application filed under a certificate of Urgency and
in which the above-named Applicant claims an Order against the four
Respondents inter alia: -
Dispensing
with the usual time limits procedures and manner of service provided
for in the Rules of the above Honourable Court and hearing this
matter as one of urgency.
Condoning
the Applicant for non-compliance with the said Rules.
2
Directing
the Respondents to remove forth with the fence erected on the
Applicant's
piece of land situate at Mabhubukweni area in the Lxibombo District.
Interdicting
and restraining the Respondents from interfering, in any way or form
with the Applicants' ownership and/or possession of the said piece
of land.
Authorising
the Station Commander (and/or his lawful subordinates) of
Siphofaneni Police Station to ensure that the above Orders are
effected.
Costs
Further
and/or alternative relief.
It
is clear from the foregoing prayers that the relief sought by the
Applicant is a final prohibitary interdict against the Respondents.
It is for me a matter of observation that in terms of prayer 5, this
Court is required to authorise the Station Commander of Siphofaneni
Police Station, or his lawful subordinates to ensure that the Orders
sought are effected if the Court is pleased to grant them. Curiously,
neither the Commissioner of Police nor the Station Commander have
been cited in these proceedings, nor does it appear that they were
served with the application, notwithstanding that they are required
to give effect to the Order. Certainly, they have an interest in the
Order or may have reason which they may wish to disclose to the Court
why prayer 5 should not be granted, but they are effectively denied
the right and opportunity to do so by the Applicant. This is
unacceptable-and should not be repeated. All interested parties in
any Order that the Court may be minded to issue must be cited and at
the least, served with a copy of the application, fully setting out
at the same time what their respective rights are, if they are
desirous of opposing the granting of any relief sought against them.
The
Applicant's case.
The
Applicant's depositions are to the effect that he is the lawful
'owner' or possessor of a certain piece of land falling under Swazi
Nation Land (hereinafter called "S.N.L."). which he
acquired through the Khonta customary rite. 1 interpose to state that
the use of the word "ownership" by the Applicant clearly is
a misnomer, for this is not ownership in the
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conventional
sense. It is some form of perennial lease and in terms of which the
land is leased to families virtually in perpetuity. That however does
not crystallise into ownership properly so - called.
The
Applicant deposes further that sometime in October 2001, a dispute
regarding the "ownership" of this piece of land arose
between him and the Respondents and this dispute was submitted to the
Madlenya Umphakatsi, under the chairmanship of Chief Madlenya
Gamedze, the appropriate traditional forum for settling such
disputes. He states further that a series of meetings ensued and
which culminated in a decision in his favour, a written version of
which was annexed to the papers.
It
is the Applicant's further contention that the said decision was duly
communicated to the Respondents but that notwithstanding, they
cultivated the said land for their use and further erected a fence
around, it thereby denying the Applicant and ingress thereto. The
Applicant's case is that the Respondents' aforesaid actions are
unlawful and wrongful and are not consonant with Swazi law and custom
or the common law. The Applicant further deposed that he was unduly
prejudiced by the denial of access to the land, particularly in view
of a loan he secured from the Swaziland Development and Savings Bank,
which stands in jeopardy of being cancelled by the Bank to his
detriment if the Orders sought are not granted.
The
Applicant also filed a supporting Affidavit, purportedly deposed to
by Chief Madlenya Gamedze on the 29th January, 2003, and in which the
latter confirmed the allegations in the Applicant's affidavit, in so
far as they relate to him as true.
Respondents'
Case
The
Respondents initially raised points in limine regarding the urgency
of the matter and the Court's jurisdiction to hear and determine this
matter. These were no longer persisted in at the hearing of the
matter and no further reference therefor needs be made in relation
thereto.
On
the merits, the 1st, 2nd and 4th Respondents deny that the land in
question was allocated to the Applicant, It is their case that the
land was allocated to the 1st Respondent's family
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for
three generations and that he is now the eldest member of his family.
They further depose that the land was leased to the 3rd Respondent in
1999 and this consistent with the 3rd Respondent's own version.
The
Respondents further deposed that some other piece of land was
allocated to one Lofana Mkhonta through the khonta system but he did
not cultivate the land in question. The 1st Respondent states that he
is the one who until 1999 cultivated the land in issue. The
Respondents emphatically deny that the land in question falls within
the disputed pieces of land and in respect of which the disputants
were the Applicant's uncle Lofana Mkhonta and one Phakama Dlamini,
the 4th Respondent's father.
It
is the Respondents' further deposition that it was after the demise
of Chief Madlenya Gamedze that the Applicant then laid claim to the
piece of land in question. The Respondents deny that the Order
annexed was issued by the Inner Council of the Umphakatsi, the
appropriate authority, but was actually an Order emanating from the
Chief's homestead and which was unilaterally handed down to them
without hearing their side of the story. This, continue the
Respondents, caused them to appeal against the said Order to the main
Council (Bandlankhufu), in terms of Swazi law and custom.
The
1st Respondent, in connection with the Affidavit purportedly deposed
to by Chief Madlenya Gamedze, states that according to his knowledge,
Chief Madlenya died and no successor has assumed that name. The
Respondents further contend that the Applicant is not entitled to the
interdict on account of his failure to establish that he has a clear
right to the land. The latter is one of the issues to be decided in
the course of this judgement.
The
Applicant's Replying Affidavit does not merit much consideration as
it mainly reaffirms the contents of the Founding Affidavit. The
Applicant's main gripe is that the Order of the Chief's Council in
his favour stands and remains valid and operative until it is set
aside. In consequence thereof, the Respondents' occupation of the
land according to the Applicant in the face of the said Order, is
therefor unlawful and entitles the Applicant to the final interdict
as claimed in the papers.
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The
Law applicable to Final Interdicts
Innes
J.A. carefully set out the law applicable to the granting of final
interdicts in the celebrated case of SETLOGELO VS SETLOGELO 1914 AD
221. These are the following: -
A
clear right
An
act of interference; and
No
other remedy.
See
also LIPSCHITZ VS WATRUS NO.1980 (1) SA 662 (TPD) at 673.
C.B.
Prest in his work entitled, "Interlocutory Interdicts", 1st
Edition, Juta & Co. Ltd, 1993, at page 46-7 states the following,
regarding the character of final interdicts: -
"Unlike
an interim interdict, which does not involve a final determination of
rights of the parties, a final interdict effects such a final
determination of rights. It is granted in order to secure a permanent
cessation of an unlawful course of conduct or state of affairs'. For
the grant of such an order there are three requisites, all of which
must be present".
The
said prerequisites have been stated above. All that remains is to
investigate whether the Applicant herein has succeeded in
establishing these. - - -
Mr
Maziya, in his able argument, submitted that the Applicant dismally
failed to establish that he has a clear right to the property in
question. This, Mr Maziya, submitted, was due to the fact that there
were serious disputes of fact on the papers, which would render it
improper for this Court to grant the final interdict. He referred the
Court to some authorities in this connection,
Mr
Mabuza, for the Applicant, on the other hand, initially insisted that
his client had established all the requisites referred to above and
that his client was therefor entitled to the Order he seeks. The
force and authority of Mr Maziya's arguments, however left Mr Mabuza
somewhat dazed as to how to respond.
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Applying
the Law to the facts
The
starting point is to determine whether the Applicant has succeeded in
establishing a clear right, together with the effect, if any, of the
disputes of fact, which have ineluctably been proved to exist.
From
the Applicant's depositions, it is clear that he alleges that the
clear right emanates from the Ruling of the Chief's Council, which
ordered in part: -
The
3rd Respondent to desist from ploughing the land.
The
1st, 2nd and 4th Respondents to remove the fence and to stop
interfering with the Applicant's use of the land in question.
The
validity of the Order is challenged by the Respondents on the ground
that the Applicant alleges that the deliberations on the matter were
presided over Chief Madlenya Gamedze, whom the Respondents claim died
some time ago and could not, in view of his demise, preside over the
said deliberations in 2003 and also depose to the affidavit as he was
by then dead.
In
reply to the above allegations, the Applicant made a bald denial
without answering to the substance thereof i.e. whether or not the
Chief did die. The denial is silent on this important issue and one
cannot say that the Applicant's response raises a real dispute of
fact. That could only be so if the Applicant reiterated that the
Chief was alive at the time and further attested to the affidavit or
if he stated facts that clearly and unambiguously controvert the
Respondents' assertions. The Applicant's failure or refusal therefore
to answer to an affidavit apparently deposed to posthumously does not
deserve the criticism imputed by the Applicant.
In
view of the foregoing, the conclusion is irresistible therefor that
the Ruling itself is tainted with invalidity as the Respondent's
claim that the Chief died cannot be gainsaid. It appears therefor
that a person who is not the rightful chief masqueraded as one and
chaired the meetings and further deposed to the affidavit. On this
ground alone, I am of the view
7
that
the Applicant cannot be said to have shown that he has a clear right
and Mr Maziyals submissions should therefor stand.
It
is well to also consider that the Respondents claim that the
decision, or ruling in question was not taken by the appropriate
authority, which fact prompted them to appeal to the area's main
council. The Applicant denies that any appeal was filed against the
ruling to the best of his knowledge and states further that there is
no affidavit by the Indvuna confirming that the appeal was lodged.
There
is in my view no substance in the denial. The Applicant is not a
member of the Appellate body and his ignorance regarding whether or
not the appeal was lodged would be expected. I also take the view
that the lodging of an appeal is a unilateral act of the appellant
and does need the affidavit of the Indvuna to become a properly
lodged appeal. Should I be not correct in this regard, I hold the
view that the question of whether or not the appeal was lodged at the
least constitutes a dispute of fact, which should militate against
the granting of a final interdict, as will be demonstrated in
reference to case law below.
Besides
the foregoing, it is abundantly clear that there is a clear dispute
of fact regarding who the lawful occupant of the land in question is.
There are two competing and mutually destructive claims before Court
from the Applicant and the Respondents. The true history and lawful
occupation of the land is clearly disputed on the papers and cannot
be settled in this forum, moreso when according to the Respondents,
the order on which the Applicant's case stands is at best limping and
that an appeal against it remains pending.
It
is worth noting that the dispute goes further than just the piece of
land in question. In view of the Respondents' claim that the land
allocated to the Applicant or his father is not the one that he now
claims is the subject matter of the dispute. He was, according to the
Respondents, allocated or had his father/uncle allocated some other
distinct and separate property.
In
VIF LIMITED VS VUVULANE IRRIGATION FARMERS ASSOCIATION (PUBLIC)
COMPANY (PTY) LIMITED AND ANOTHER CIV. APPEAL CASE
NO.30/2000,
Tebbutt J.A. had this to say at page 8 of the unreported judgement
regarding the granting interdicts where disputes of fact exist: -
8
"It
is equally well established that where there is a dispute of fact on
the papers a final interdict should only be granted on notice of
motion proceedings if the facts as stated by the respondent together
with the admitted facts in the applicant's affidavits justify such an
order. "
See
also the cases therein referred to.
A
cursory glance at the papers filed of record, together with what I
have observed above, lead to the only undeniable conclusion that the
conflicting and irreconcilable contents of the Applicant's affidavit
on the one hand and the Respondents Answering Affidavits on the
other, do not justify such an Order being granted. This is especially
so on such papers in the light of the numerous and material disputes
of fact.
In
ALIWAL NORTH MUNICIPALITY VS OVER AND SMITH (1875) 5 Buch 1308 at 140
-1, Denyesen J. said: -
"It
has not been shown that there is any clear right vested in the
applicants which had been infringed as is essential to entitle them
to an interdict. An interdict is a remedy of a summary nature, and to
obtain this remedy a clear right must be shown. If the alleged right
be of a doubtful nature, it is not fit to be decided upon in a
summary manner, (my emphasis added).
The
above excerpt perfectly sums up the position in this case. I am of
the view that the Applicant has failed to overcome the first hurdle
of establishing a clear right and it is clear at the least that the
right he seeks to assert is doubtful. Furthermore, there are real and
substantial disputes of fact which militate against determining this
matter in a summary fashion. I do not, in the event, find it
necessary or desirable, to consider whether the Applicant has
succeeded to establish the balance of the prerequisites. I likewise
find it unnecessary to consider Mr Maziya's other attacks on the
Applicant's case.
The
Application be and is hereby dismissed with costs. I specifically
order that the costs mulcted are in respect of Mr Maziya's clients
only. I say this for the reason that Ms.
9
Zwane
for the 3rd Respondent, absented herself from the Court when the
matter was argued, it having been stood down earlier. She therefore
never made any submissions during argument and on her late arrival
never offered any explanation for her absence nor "did she
tender her apologies to the Court, She only appeared when Mr Mabuza
made his replies on points of law and quietly sat down without
uttering a word. I order that she is therefor not entitled to recover
her fees in respect of the hearing in question. Her example does not
require or merit any disciples.
As
an aside, I observe that this case was misallocated in the sense that
it was referred to the Registrar for allocation of a date. The
Registrar, on the parties' request, allocated it two (2) days when it
was concluded in less than forty-five (45) minutes. More accurate
estimates are necessary to redeem the time.
Another
disconcerting aspect to this matter is that I had to deal with it in
the mysterious absence of the original Judges' file. A new file had
to be reconstructed specifically for the hearing and in the process,
I was robbed the opportunity to read the Judges' notes and Orders on
the file, which may have had an effect on the case. Happily, it does
not appear so. Its whereabouts, notwithstanding a diligent search
could not be ascertained. The security of files in this Court is
becoming a matter of grave concern and this is not the first incident
in which I have faced. Strict remedial measures are therefor called
for the arrest this cancerous tendency. A stitch in time saves nine.
Finally,
I order that an investigation be launched into the identity of the
person who deposed to the affidavit attributed to Chief Madlenya
Gamedze, to ascertain whether or not a crime was thereby committed. I
further order the Police and the Director of Public Prosecutions to
take appropriate steps against any individual who may be found to
have contravened the law in this regard.
T.S.
MASUKU
JUDGE
