Mbhamali v Simelane and others (348/2016) [2018] SZHC 107 (01 June 2018);

 

 

 

IN THE HIGH  COURT OF  SWAZILAND

JUDGMENT

HELD AT MBABANE                                                          CASE NO. 348/16

In the matter between:

PHUMZILE MBHAMALI                                 APPLICANT

And

ELIZABETH SIMELANE                                1^ST RESPONDENT

MAGISTRATE MUSA Z. NXUMALO            2^ND RESPONDENT

ATTORNEY GENERAL                                   3^RD RESPONDENT

In re:

In the exparte application of:

ELIZABETH SIMELANE                                APPLICANT

In re:

ELIZABETH SIMELANE                                APPLICANT

And

PHUMZILE MBHAMALI                                 RESPONDENT

Neutral Citation: Phumzile Mbhamali v. Elizabeth Simelane and others (348/16) [2018] SZHC 107[2018] (31^st May 2018)

Coram :               J.S MAGAGULA J

Date of Heard:    6^TH April 2018

Date Delivered:    31^st May 2018

 

 

[1]     In this application the Applicant seeks the following substantive

relief:

“ (e)   That an order be hereby issued reviewing and/or  setting aside the  order that was issued by the 2^nd Respondent on the 20^th day of October 2015.

(b)     Costs of suit”.

BACKGROUND

[2]     The 1^st Respondent is a widow of the late JEREMIAH THEMBA SIMELANE to whom she was apparently married in accordance with Swazi law and custom. The deceased passed away during August 2014. The deceased and the 1^st Respondent had their marital home at Ngcoseni area. The deceased was employed by Swaziland United Bakeries and stationed at Nhlangano in the Shiselweni district. In order to be closer to his work station, the deceased sought and was granted permission to build some temporary structure on a private farm in Nhlangano. He however proceeded to build a number of those temporary structures on the farm and leased them out to obtain some extra income.

[3]     Whilst staying in the farm he met the applicant herein and they fell in love. They lived together on the farm until the deceased passed away in 2014. Applicant and the deceased were never married but they were live – in lovers. I should hasten to add that the applicant maintains that some of the structures on the farm were built by herself using her own personal resources. She maintains that the rentals collected from these structures should not form part of the deceased estate.

[4]     After the deceased passed away and on the 1^st September 2015, the 1^st Respondent herein instituted proceedings in the Nhlangano Magistrate’s court claiming inter arlia the following substantive orders:

“4.     Interdicting and/or restraining the Respondent and any other person acting in concert with her from collecting rentals from the tenants of the homestead of the late JEREMIAH THEMBA SIMELANE which homestead is situate on the farm below Premier Swaziland Bakeries premises in Nhlangano pending finalization of this matter.

5.       That an order do hereby issue as an interim order of court calling upon the Respondent to show cause, if any, on the 15^th day of September 2015 why;

5.1     An order in terms of prayer 3 above should not be made final.

5.2     She and all those holding title through her should not be evicted from the homestead of the late JEREMIAH THEMBA SIMELANE which homestead is situate in a farm below Premier Swaziland Bakeries premises in Nhlangano.

5.3     The applicant should [not] be declared as the one who is lawfully entitled to collect rentals from the homestead of the late JEREMIAH THEMBA SIMELANE which homestead is situate on a farm below Premier Swaziland Bakeries premises in Nhlangano;

5.4     Should not be ordered to pay costs of this application”.

[5]     It would appear that the interim order was granted on the 2^nd September 2015 and it was returnable on the 15^th September 2015. On the 15^th September 2015 Applicant’s attorneys (Respondent then) entered an appearance to oppose the application from the bar. Thereafter they never filed any opposing papers until the rule was confirmed on the 20^th October 2015. It is 1^st Respondent’s evidence that the matter had been postponed about four times prior to the confirmation of the rule and in all instances there was no appearance on behalf of the applicant herein and there was no explanation for the none appearance.

PRESENT APPLICATION

[6] In the present review application the court a quo is accused of gross irregularity in the conduct of the case. It is firstly alleged that the 2^nd Respondent acted irregularly in dealing with the matter whilst it was pending before another judicial officer. However from the facts of the case as outlined above it is abundantly clear that, if indeed the case was pending before another Magistrate, this fact was not brought to the attention of the 2^nd Respondent. On this ground alone this accusation lacks any basis. Secondly, the applicant has also failed to produce any proof even before this court that the case was pending before another Magistrate. The accusation of irregularity levelled against the 2^nd Respondent in this regard thefore has no basis.

[8]     The second alleged irregularity is that the 2^nd Respondent had no jurisdiction to deal with the matter since it related to land. However from the facts of the case it is clear that this is not a dispute over land. None of the parties claims owenership over the land on which the structures are erected. Each of the parties is claiming that she is the one entitled to collect rentals from the temporary structures built by the deceased on a farm belonging to a third party, not even the deceased. The dispute does not in anyway relate to the land in question.

[8]     For the foregoing reasons there is no doubt in my mind that the 2^nd Respondent did not commit any irregularities in handling the matter. The application for review must accordingly fail.

          In the result the application is dismissed with costs.

_________________

J.S MAGAGULA J

 

For the Applicant:                  Mr J. Maphalala

For the Respondent:               Mr B. Dlamini