IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 1154/17
In the matter between:
NCAMSILE NXUMALO APPLICANT
MAXWELL NKAMBULE 1ST RESPONDENT
THE NATIONAL COMMISSIONER OF POLICE 2ND RESPONDENT
Neutral Citation : Ncamsile Nxumalo v Maxwell Nkambule and Another
(1154/17)  SZHC 11 (13 FEBRUARY 2017)
Coram : MABUZA – PJ
Heard : 19 SEPTEMBER 2017
Delivered : 13 FEBRUARY 2018
Applicant instituted proceedings for an order interdicting and restraining the 1st Respondent from setting foot, visiting or interfering with her right of usage of the homestead where she resides at Fonteyn, Mbabane - Application was opposed by the 1st Respondent primarily on the grounds that the homestead being on Swazi Nation Land was allocated to him - Only males qualified to konta (pay allegiance to a chief in order to be allocated such land).
Held: Applicant has litigated on her right of occupation as contained in the Divorce
Deed of Settlement between the parties – Application granted with costs – Rule nisi confirmed.
 This matter came by way of urgency, the Applicant seeking an order in the following terms:
1. Dispensing with the usual forms and procedure relating institution of proceedings and allowing the matter to be heard as one of urgency.
2. Condoning Applicant’s non-compliance with the Rules of the Honourable Court.
3. That the Respondent be interdicted and restrained from going, visiting interfering with the Applicant’s home in Fonteyn or wherever the Applicant is…
4. That a rule nisi operating with immediate effect do hereby issue returnable on a date to be determined by this Honourable Court calling upon Respondent to appear and show cause why prayer 1, 2 and 3 should not be made that.
5. That the order of this Court be served with the notice of Motion upon Respondents.
6. That the Royal Swaziland Police be ordered to effect this Order.
7. Costs in the event of opposition.
8. Further or alternative relief.
 A rule nisi was granted in favour of the Applicant on the 11th August 2017, returnable on the 17th August 2017. On the return date, the 1st Respondent had filed an opposing affidavit and the matter was postponed to the 19th September 2017 for argument. The rule nisi must now be confirmed or discharged.
 The parties hereto were married to each other in community of property on the 29th December 1985 and were divorced on the 22nd September 2000.
 As part of their divorce the parties drew up an agreement of settlement which the 1st Respondent signed on the 21st August 2000 and the Applicant signed on the 8th August 2000. The deed of settlement was made an order of court. In the divorce suit, the present Applicant was the Plaintiff and the 1st Respondent the Defendant.
 The deed of settlement with respect to the marital properties provided as follows:
“(a) The Defendant shall retain as his sole and exclusive property:
- All the motor vehicles of the estate;
- The shopping complex at Mhlaleni;
- Lot No. 668 at Khayalami Township, Nhlangano, district of Shiselweni;
- And all furniture and movable property currently in his possession”.
(b) The Plaintiff shall retain as her sole and exclusive property the following:
- All the furniture and movable property currently at the matrimonial home, nothing whatsoever excepted;
- The matrimonial home at Fonteyn. It is specifically recorded that the matrimonial home has been built on Swazi Nation land in terms of the khonta system and as such transfer cannot be effected into the name of the Plaintiff. It is recorded however, that the Plaintiff shall have a life usufruct in and to the matrimonial home without any interference whatsoever from the Defendant. To that end, the Plaintiff shall be entitled to live in, rent, mortgage, and do whatsoever she may wish with the property save for being able to sell same in view of the legal impossibility. In the event that the Plaintiff may wish to mortgage and/or encumber the said property she shall seek the permission of the Defendant, which permission shall not unreasonable be withheld.
- The home built at the Plaintiff’s parental home including all furniture
 After the divorce the Applicant continued to live at the matrimonial home at Fonteyn and the Respondent away from this home.
 According to the Applicant this arrangement was disturbed by the 1st Respondent on the 9th August 2017 when he in the company of another male counterpart entered the premises of the Fonteyn property without her knowledge or permission. She learnt of this intrusion from her neighbor, a Gama lady who actually asked the 1st Respondent what he was doing in the Applicant’s home. Unfortunately, the affidavit of the Gama lady was not sourced by the Applicant in order to confirm her story. Nevertheless her story of its own is credible.
 The 1st Respondent’s response is that there appears to be no reason why he should not visit “his” homestead as the Applicant clearly enjoys a right of use of the homestead. The long and short of it is that he admits that he did go there to find out why the Applicant had chased their child away from the homestead. The Applicant’s response and I agree with her is that the 1st Respondent could easily have telephoned her to hear her reasons or even gone to the Applicant’s work place to talk to her or even gone to the homestead when he knew that she would be home.
 The Applicant states that the actions of the Respondent visiting her home without her knowledge and in her absence makes her uneasy and to fear for her life because she lives alone.
 His response to her fears is dismissive stating that there is nothing in the deed of agreement that prohibits him from visiting the homestead because the local traditional authorities regard the home as a Nkambule homestead as it is built on Swazi nation land.
 The Applicant says that she has a clear right to the order claimed because she has a vested interest as the residence is her homestead. The response by the Respondent is that he is the owner of the homestead, the Applicant merely has an usufruct “which in simple terms is a right that is given by an owner to a third party, it being for the purposes of using and/or enjoying that property, and that such right is not absolute. That being the case he argues, the Applicant cannot claim an exclusive right over the homestead as he is the one who gave her the right to use and enjoy the property”.
 Elsewhere he says that:
“I still pay allegiance to the local traditional authorities who gave me the land to build that homestead and it is my duty to make sure that there is no misconduct going on in that homestead …”
 The arguments by the 1st Respondent are that the Applicant merely has a usufructory right to occupy the homestead at Fonteyn. That the house belongs to him having acquired it through the Swazi custom of kukhonta. This custom is that a male pays allegiance to a chief in order to obtain land on Swazi nation land.
 Prior to the advent of the Constitution 2005, this custom prevailed. After 2005 the prevailing order is that section 211 (2) of the Constitution alters that situation and the current status is that women have equal access to land for normal domestic purposes.
 The 1st Respondent’s further argument is that he bestowed upon the Applicant usufructory rights and not ownership rights and that she cannot seek the assistance of the Court to bar the 1st Respondent from visiting his home.
 It is my considered view that the clause 4.2.2 of the deed of settlement gives the Applicant the right to occupy and enjoy the usage of the said homestead without interference from anybody including by the 1st Respondent. She has a right to privacy which the 1st Respondent should not invade at whim or fancy even if he remains accountable to Umphakatsi. Common courtesy and decency requires him to consult the Applicant in a respectful manner if he wishes to discuss matters relating to the homestead, their child or any matter whatsoever.
 In approaching this Court for an interdict all she had to show were the following requirements: a clear right, irreparable harm or harm that is forseeable, balance of convenience and no alternative remedy.
See Setlogelo v Setlogelo 1914 AD at 221 at 227; Ntombi Maziya v Thembinkosi Ndzimandze, Supreme Court Case No. 2/2012 (unreported) paragraph 43 at page 13.
See also the Law and Practice of Interdicts by C.B. Prest SC at page 44.
 As stated above the Applicant derives a clear right from the agreement of settlement. She has shown that the unannounced visit to her home by the 1st Respondent created in her a reasonable apprehension of injury from the 1st Respondent. He infringed her right to privacy, usage and enjoyment of her home. The circumstances of this case (family case) are such that the cause of action cannot ground a cause of action for damages in due course. I am satisfied that she has shown that she has no alternative remedy.
 I am satisfied that in seeking the interdict (final) the Applicant has satisfied all the necessary requirements.
 In the result, the rule nisi that was issued in the Applicants favour on the 1st August 2017 is hereby confirmed with costs.
For the Applicant : Mr. Maseko
For the Respondents : Mr. Phakathi