Dlamini v Army Commander (USDF) and Another (4399/09) [2010] SZHC 99 (30 June 2010);

IN THE HIGH COURT OF SWAZILAND

 

 

 

 

HELD AT MBABANE                                             CASE NO. 4399/09

 

 

 

In the matter between:

 

 

 

SANDILE MYALO DLAMINI                              Applicant              

 

And

 

ARMY COMMANDER                                        First Respondent

ATTORNEY GENERAL                                      Second Respondent

 

JUDGMENT

 

 [1]   The Applicant approached this Court under a certificate of urgency on the 22^nd Day of December 2009, seeking an order of this Court inter alia interdicting the Respondents from evicting him from his house at Logoba area and also from persisting in the destruction of his house at the same place.  The Applicant also sought an order directing the First Respondent to rebuild and reconstruct the Applicant’s house and other structural damage caused on Applicant’s property.

 

[2]    When the matter came before me, and following the then uncontroverted averments of the Applicant, I issued an interim order interdicting the said demolition and called upon the parties to file the rest of the papers by the 24^th December 2009 so that all the issues could be ventilated in Court.

 

[3]      It is common course and was to later transpire, that when the order was meant to be served on the Respondent it was discovered that the demolition had already been completed.

 

[4]    It would appear that this development ended up having an effect on the urgency of the matter which was postponed a number of times before it was once again allocated to me to deal with a few months later. I must mention that at that stage the main issue was the reconstruction of the said house.

 

[5]    The brief background to the matter and at least as averred by both parties in terms of their papers is as follows:-

 

• The Applicant who contends to have khontaed at the area concerned claims that he was on a certain day preceding the demolition of his house (that is the 21^st December 2009) called by the First Respondent who ordered him to vacate the land concerned, claiming that his house had been built there without authority as the proper authorities of the said area had not allocated him that land.

 

• Following his failure to comply with the instruction to vacate the area concerned, the Applicant’s house was on the 22^nd day of December 2009, demolished by the Army personnel under the command of the First Respondent.  His properties from the house he claims were taken to a destination not known to him.

 

• Applicant claimed in his papers that when the said demolition was effected, the First Respondent or the Army personnel under his instructions did not have a court order.   He also claimed not to have consented thereto, just as he also claimed not to have been given a hearing prior thereto.

 

[6]    It was for the foregoing reasons that the Applicant approached this Court under a certificate of urgency on the 22^nd December 2009 claiming the reliefs referred to above.  I mention that although he sought an interdict, his cause of action is founded more on a spoliation whose principles will have to apply as well.

 

[7]    In his opposing affidavit, the Respondents averred inter alia that the Army personnel had, whilst acting under the instructions of the First Respondent demolished the said house.  They had done so following their being requested by the responsible authorities in the area to do so.  It was averred that the said authorities had done so because the Applicant had built his house aforesaid without authority and that he had actually been warned to remove the said structure failing which the said structure was to be demolished which ended up being the case when he would not heed the instructions to vacate the said piece of land.

 

[8]    It was contended that the demolition in question was lawful and was inkeeping with the provisions of Section 10 (3) bis of the amended Swazi Administration Act of 1950, (that is The Swazi Administration (Amendment) Act 1979 otherwise known as Act No. 6 of 1979), which section authorizes the demolition of a structure constructed in a Swazi area without the permission of the competent authority; which it says can be done without a Court Order.

 

[9]    It was contended that the Applicant was aware of the illegality of his actions as at the time he built it given that he built it exactly on the foundation of a previously demolished structure belonging to someone else and which was demolished for the same reasons as those referred to above.  This previous occupier aforesaid was a colleague of the Applicant as they were both soldiers employed by the Swaziland Defence Force and had accepted the decision against him.

 

[10]  It had also been alleged that the person that the Applicant claimed had given him the right to build his house on that piece of land (that is had allowed him to allegedly khonta) had no right to do so in law as the person with authority to do so was the Libandla appointed by The King who had clarified that he was the competent authority in the area.

 

[11]  In support of this averment, there was annexed to the opposing affidavit a list of names set out in a letter by the Regional Administrator – Manzini who were said to be the names of the authorised committee to deal with the matters of Logoba – the area in question.

 

[12]  Had the demolition not been finalised by the time the interim order was issued, I would have been required to determine the propriety or otherwise of the demolition, including the competent authority of the area so as to determine the grant or otherwise of the interdict sought.  It was however common course between the parties on the subsequent hearing of the matter that such a relief had been overtaken by events now that the demolition was completed even before the interim order could be served on the Respondents.  The Applicant’s Attorney Mr. Simelane clarified that as at the date of hearing the matter, they were seeking an order directing the Respondent to rebuild the structure concerned following the alleged illegal demolition of it.  I was then required to direct that the house concerned be rebuilt allegedly because its demolition was illegally done without an order of Court.

 

[13]  It is however difficult for this Court to accede to the request by Mr. Simelane.  Firstly such an approach would suggest that this Court would have been able to determine from the papers as they stand, the legality or otherwise of the said demolition which is obviously impossible as this aspect of the matter is characterised by all sorts of disputes on whether or not the Applicant had indeed khontaed in the area including whether or not as at the time he purported to build the house concerned he knew about the dispute surrounding the  competent authority as confirmed by the previously demolished structure on whose foundations he allegedly built.  Such a determination is in my view not possible on the papers as it is a highly disputed fact, which could not be determined without resort to oral evidence. When considering the provisions of the law as set out herein and the decision to which I have come it is not necessary for this dispute to be resolved in these proceedings.

 

[14]  Furthermore, the alleged illegality was based on the contention that the order to demolish had not come from the appropriate authority in as much as there was no proof of appointment of the said committee as a competent authority referred to in terms of the Act and as such entitled to demolish structures without an order of Court.  This aspect would also have to be resolved which as stated is impossible on the papers as oral evidence would be required.  The illegality would have to be determined on the propriety or otherwise of the procedure followed resulting in the said demolition, which again is disputed.

 

[15]  As indicated, attempting to answer these questions at these stage would not determine once and for all the substantive question namely whether or not the Applicant had proper authority to build the house in that piece of land.  In my view it would be appropriate to have these questions answered by the Court dealing with a damages action that Applicant may institute should he be so advised.

       

[16]  It is clear in my view that this is one of those matters where it cannot be said that the Applicant has no alternative remedy to the mandatory interdict sought.  The Applicant’s predicament could in the alternative, be addressed by way of damages provided he is able to prove the unlawfulness of the demolition together with the appropriate quantum of damages which is a question this Court is in the circumstances of the matter not required to determine.

 

[17]  According to CG Van der Merve’s The Law of Things 1987 Butterwoths, at page 79, (where he deals with the question of restoration of the status quo ante in the form of reconstructing a demolished house under the Mandamant Van Spolie), it would only be appropriate to restore the status quo ante in a case where it is possible to use the same material from the demolished structure, it being very doubtful that the scope of the Mandamant Van Spolie is wide enough to order the replacement of the original materials since it is aimed at the return of the spoliated article itself.

 

[18]  It shall be noted that the said writer was criticising the judgment of Diemant J in Fredericks vs Stelenbosch Divisional Council 1977 (3)SA 113 (c) where he had sought to extend the frontiers of the Mandament Van Spolie to go beyond the restoration of the status quo ante in the manner described above.  In my view resort should be had to the alternative of damages in a case like this one where even the entitlement or propriety to build the house in question on the land concerned is in itself a subject of a long protracted dispute.

 

[19]  I therefore with the view expressed in the case of Potgieter v Danel 1966 (3) SA 555 (O) where an application for the erection of some demolished structures was dismissed on the ground that there was available to the Applicant the remedy of a delictual claim for damages.

 

        Van der Merve op cit had this to say in this regard;

 

“It must be borne in mind that the primary aim of the Mandamant Van Spolie is to assist a person who has been dispossessed.  In this regard the crucial question arises whether the mere breaking down of a structure amounts to an act of dispossession or rather of damage to property rendering an aquilian action for damages applicable rather than the Mandament Van Spolie.”

 

[20]  Given that it cannot be ascertained from the papers that the same material as that forming part of the demolished structure can be used to restore the same house, an action for damages becomes an appropriate remedy in my view.  It would not be realistic to order restoration in a case where it is impracticable or undesirable to order a spoliator to restore the res to its former condition as stated in Silberberg and Sichaeman’s The Law of Property Second Edition at page 142 where the following was stated:-  This I say bearing in mind what seems to be common course that even before the Applicant could build on the same piece of land, someone else had already been caused to vacate it on the ground he was not entitled to build thereat.

 

[21]  Consequently I have come to the conclusion that the Applicant’s application, must for the reasons set out above, fail it being open to him to institute a claim for damages should he be so advised.  In this regard I make the following order.

 

• The Applicant’s application be and is hereby dismissed.
• There shall be no order as to costs.

 

Delivered in open Court on this the  day of June 2010.

 

 

………………………………………………

N. J. Hlophe

JUDGE OF THE HIGH COURT OF SWAZILAND