THE HIGH COURT OF SWAZILAND
AT MBABANE CASE
the matter between:
COUNCIL OF MANZINI APPLICANT
NKAMANE MKHATSHWA 2nd
MABUZA - AJ
APPLICANT: MR. B.W. MAGAGULA
RESPONDENT: MR. Z. MAGAGULA
is an application wherein the applicant claims:
the Respondents and whosoever that is acting under their authority
be interdicted from constructing any structure on Plot 1260 Ngwane
Park Extension. Manzini, in the District of Manzini.
That the Applicant be and is hereby authorised in terms of the
Building Housing Act No. 34/1938 to forthwith demolish the illegal
structure constructed by the Respondents on Plot 1260 Ngwane Park
Extension, Manzini in the District of Manzini.
That the Applicant be allowed to engage the services of the Royal
Swaziland Police in carrying out prayer 2 of this notice of motion.
That the Respondents be and are hereby ordered to pay the costs of
That the Third Respondent be interdicted from interfering and
effecting any other developments in whatsoever manner on Lot 1260
Ngwane Park Extension, Manzini in the Manzini District.
That the Respondents be ordered to pay costs of suit.
Further and/or alternative relief.
applicant filed an affidavit in support thereof deposed to by Madoda
David Dlamini the City Engineer who is employed by the applicant. In
the affidavit the deponent gives the background to the cause of
action namely that on or around the 28th
June 2005 one of the applicants Building Inspectors, Mathokoza
Lawrence Thwala while carrying out a routine inspection discovered a
foundation for a construction having been dug out on Plot 1260,
Ngwane Park Extension, Manzini. He thereupon requested from the
bricklayer that he found on the site written permission which
contained plans and drawings that were approved by the City Council
of Manzini for the construction of the building. The bricklayer
failed to produce the written authority for the erstwhile
construction. The bricklayer had been contracted by the 1st
Dumisa Mkhatshwa on behalf of the Ticancweni Community to construct
the building which was intended for use as a soup kitchen to feed
orphans and vulnerable children.
respondents answering affidavit was deposed to by the 1st
Dumisa Mkhatshwa. The core response of the 1st
respondent was that the land viz Plot 1260 Ngwane Park on which the
soup kitchen was to be built was Swazi Nation Land under the control
of the chief of Elwandle who did not require any planning permission
from the Manzini City Council to construct the kitchen thereon. He
further states that the Chief of Elwandle allocated the said piece of
land for the said purpose.
due course the services of a surveyor Mr. Dumisa Thwala of A.M Thwala
Surveys were obtained and paid for by the applicant. Mr. Thwala
conducted a survey and furnished a report about his findings. Mr.
Dumisa Thwala deposed to a confirmatory affidavit to that of Madoda
David Dlamini on behalf of the applicant which sets out his findings
after conducting the survey on Plot 1260, Ngwane Park Manzini.
may pause to add here that the confirmatory affidavit should have
been attached to David Madoda Dlamini's founding affidavit and not
the answering affidavit. That is the procedure of our courts and
should be adhered to.
7.3 of applicant's founding affidavit (page 7) adequately sets out
applicants clear right to the piece of land wherein reference is made
to Annexure "MCC2". Annexure "MCC2" is very clear
with regard to the boundaries of the City Council in so far as the
area known as Ngwane Park ends i.e. along mid spruit, mid Gabogobo
stream, mid Mzimnene River.
court will take judicial cognisance of the black blot that appears on
"MCC2" (page 13) as representing the whereabouts of the
soup kitchen which is on Council Land. "R3" (on p.52) and
"R4" (on p. 53) are not very helpful in pin-pointing the
exact location of Plot 1260. The surveyor's report does not take the
matter further. In fact Plot 1260 is much more easily identified in
"MCC2" and to that end there was no need in my opinion to
appoint the services of the said surveyor. The applicant's attorney
has requested this court to order the respondents to pay the survey
costs. I do not agree for the reasons aforementioned.
findings therefore are as follows: The order as prayed is granted in
terms of prayers: 1,2,3,4,5, and 6 of the applicants Notice of