IN THE HIGH COURT OF ESWATINI
Held at Mbabane Cases No.: 1897/2016
In the matter between
RAPHAEL MANDLA MAPHENDUKA MBINGO Applicant
AND
THANDIE MBINGO (NEE SIMELANE) Respondent
Neutral Citation: Raphael Mandla Maphenduka Mbingo And Thandie Mbingo (Nee Simelane) (1897/2016) [2018] SZHC 138 ( 29th June 2018)
Coram: Hlophe J.
For the Applicant: Mr L. Malinga
For the Respondent: Mr B. Ngwenya
Dates Heard: 10th November 2017
Date Judgement Handed Down: July 2018
Summary
Civil Procedure- Application proceedings-Interdict sought – Points in limine raised, including that of the applicant’s locus standi – Whether applicant in its current constitution has locus standi in judicio to bring proceedings – Propriety of resolution relied upon in instituting proceedings considered – When considering the official constitution of the Board of Directors against the Resolution produced, proceedings not properly authorized – Application dismissed- Each party to bear its costs.
[1] The Applicant instituted these proceedings under a certificate of urgency seeking primarily an order calling upon the Respondent to show cause why a rule nisi to operate with immediate and interim effect could not be granted on the following terms:-
(a) Interdicting the Respondent or her servants or agents or anyone acting under or through her from disturbing the peace of the Applicant or his relatives at the piece of land at eMhlane area where his father had instructed him to build a home for the family.
(b) Interdicting the Respondent or her servants or agents or anyone else acting under or through her, from trespassing upon the piece of land at eMhlane area where his father had instructed him to build a home for the family or from erecting a fence or structure or from ploughing thereon.
(C) Directing or ordering the Respondent or her servants or agents or anyone else acting under or through her to remove any structures or fencing around the said piece of land failing which the applicant is hereby authorized to demolish or remove such structure or fencing by himself or through his duly authorized agents or servants.
(d) That the members of the Royal Swaziland Police stationed at Matsapha Police Station be and are authorized to assist the Deputy Sheriff or Applicant if necessary.
(e) That Paragraphs (9) – (c) Supra operate as an interim order operating with immediate effect pending finalization of the matter before the traditional authorities.
(f) That the Respondent pay the costs of this application.
[2] The applicant’s case as founded on an affidavit deposed to by one Raphael Mandla Maphenduka Mbingo is that sometime during life time of the latter’s late father, he, in the presence of all his close family members directed that he, Raphael, was to build a home on an identified area on Swazi Nation Land. Although the husband to the First Respondent, one Guva Mbingo, a biological brother to the Applicant herein, was present, he and his wife (the Respondent) herein did not accept their late father’s directive. In fact they had gone on to object to his lawful possession of the land in question and later started erecting a fence around the said piece of land among other acts consistent with proof they were objecting to the applicants possession of the piece of land in question.
[4] This behaviour by the Respondent according to the Applicant, resulted in a dispute over the same piece of land being reported to the Libandla lase Mhlane (a traditional council of eMhlane). (The latter being the name of the area where the disputed land was also known under). The decision of this alleged traditional council was that the disputed piece of land was supposed to be controlled by the applicant in line with his late father’s instructions.
[3] Although unclear – who had taken the matter to the Ludzidzini Loludzala Council, this council allegedly confirmed what had been ruled or determined by the earlier council with regards the piece of land in question. It in a nutshell confirmed that the piece of land in question was under the applicant’s control and possession. There was to this extent, annexed to the founding affidavit, two letters, signed respectively on the 6th April 2004 and 17th February 2004, confirming the said facts or position.
[4] In an endeavor to counter the resistance he allegedly faced from the Respondent, her late husband and their children who had allegedly become violent, the applicant contends that he moved an application before the Court under case no.1015/2007 for an appropriate remedy. He had in fact sought an interdict restraining anyone from trespassing on the land in question including anyone erecting any building or structure on the piece of land concerned. The other prayer was to order that anyone who had established a structure or fence on the land in question was to be ejected and lastly that failing the first Respondent’s actions on the structures, the applicant was authorized to remove or demolish such structures or fence immediately.
[5] When the matter was eventually heard in Court, this Court per Mabuza J, issued a ruling on the 26th March 2009. Reacting to an argument by the current Respondent’s Counsel, to the effect that the right sought by the Applicant was non-existent under the Common Law, this Court dismissed the point in limine raised on behalf of the Respondent. It found that the right contended to be non-existent under the Swazi Law and Custom, was actually existence. It found such a right to be much stronger where the deceased father of the applicant was no longer alive that during his lifetime. This court dismissed the point in limine raised and went on to order as follows:-
(b) The matter is referred back to the traditional structures for them to enforce their decision in this matter and to mete out whatever penalty follows the failure of the Respondent to abide their decision.
[6] It is contended by the Applicant that instead of the matter being taken by the Libandla lase Mhlane for enforcement in line with Court Order above; the said Libandla decided to rehear the matter afresh as a result of which it then came to decision which contradicted the earlier one. This decision, which was now reached by a Libandla called the Masundvwini Inner Council, is the one that forms the basis of the current proceedings. Prior to it being challenged before this Court as done in the notice of motion, it was allegedly taken on appeal to Ndabazabantu of Manzini from where it was taken to the Regional Administrator on an appellate basis. This structure confirmed the decision of the Masundvwini Inner Council, prompting the applicant to appeal to the Ludzidzini Council, where it is currently pending.
[7] The reliefs sought in the current proceedings are allegedly pending the outcome of the said Libandla lase Ludzidzini which is allegedly an appellate structure from the Regional Administrator.
[8] The applicant complains that is now being frustrated from pursuing his appeal because the Regional Administrator is allegedly not affording him the written ruling required by the Ludzidzini Council to enable it hear and finalize the matter. On the other hand the applicant said he observed that the Respondent and her servants were busy delivering sand and building blocks on the same area which they also invert on to fence. This then prompted applicant to seek the temporary reliefs he was now seeking before this Court.
[9] In its opposing affidavit, the Respondent raised several points in limine which include the following ones: (i) that the matter was now res judicata as it is hard since been decided by the Masundvwini Libandla and confirmed by the Regional Administrator; this was allegedly after this Court had directed it be allegedly heard by the traditional authourities.
(ii) The matter was allegedly not urgent as the applicant had not explicitly set out the circumstances that rendered the matter urgent; (iii) This Court had no jurisdiction to hear and determine this matter as it related to Swazi Nation Land which is a matter under the authority of Chiefs’ who exercise it through the Inner Councils. (iv) The Applicant was allegedly not entitled to the reliefs sought as those amounted to an interdict given that he has no clear right given that the land in question had been found and confirmed by two competent rulings of customary structures to belong to the Respondent; (v) Although the applicant required assistance from the Royal Swaziland Police the latter have not been joined as interested parties to the proceedings and that rendered the proceedings to be fatally defective.
[10] In the merits of Respondent’s opposition I notice that she does not deny the chronology of the matter as recited by the Applicant that the matter has had two contradictory decisions issued by structures of an equal standing. That is, the decision by the then EMhlane Inner Council which was confirmed later by the Ludzidzini Loludzala Inner Council which ruled that the land in question was properly allocated to the applicant when viewed against that of the Masundvwini Royal Inner Council confirmed by the Regional Administrator which has ruled that the same piece of land was allocated to the Respondent. It does not seem to be in argument that the EMhlane Inner Council like the Masundvwini Royal Council have the same status as exercising original jurisdiction. Similarly Old Ludzidzini exercise appellate are like the Regional Administrator.
[11] What I see is that the Respondent seems to gloss over the earlier two rulings by placing emphasis on the latest decisions, corroborating each other as made by the recent Council and Regional Administrator which were in its favour. The Respondent seeks to gloss over the two earlier rulings by the councils of the same standing as those who found in its favour through contending that the recent two findings issued after this Court had decided, through the ruling cited above, that the matter be heard afresh by the traditional structures. There is a gloving anomaly in the latter rulings. Firstly the High Court per Mabuza J did not say that the matter had to start afresh than that the hitherto existing decision be enforced. Secondly it would have been nationally wrong for a matter already decided by an appellate structure to find itself having to go to an original structure as the Masundvwini Council was such a structure if the Old Ludzidzini Council was an appellate one.
[12] I beside have read and reread the ruling concerned but cannot find anywhere, where it said that the matter was being referred to the traditional structures for a rehearing as the Respondent suggest. I find it to be unequivocally saying that the matter was being referred to the traditional structures to enforce their hitherto existing decisions which were then undisputed to be that the piece of land in question was allocated the applicant. The Court never said that matter was to be reheard which it could not do on those papers and the reliefs sought than that these traditional structures which had reached the decisions that were not disputed before it had to go and enforce them which was clearly the question sewing before it.
[13] I can add that it was not competent in law for the Masundvwini Inner Council together with the Regional Administrator to decide a matter that had already been decided by bodies of equal authority as non can in law have the power to reverse the decision of the other. I say that accepting for one moment that the Regional Administrator is equivalent to an appellate structure under Swazi Law and Custom which I do very reluctantly and only for purposes of this matter where it is not having disputed. I have not been shown any instrument giving that officer such a status unlike the Inner Councils referred to which are no doubt structures established with the power to determine such disputes by both the Swazi Administration Order 1950 and the Swazi Court’s Act of 1950.
[14] Having said that, I notice that the Applicant in his application has not sought an order reviewing and setting aside the decisions of both the Masundvwini Libandla or Inner Council and the Regional Administrator, Manzini. Applicant has at every given point decided to appeal such decisions such that even at this point there is a pending appeal. This is notwithstanding its strong objection in the papers emphasizing that the decision of this Court per Mabuza J. did not say that the matter was to be reheard. I take it that the route taken by the applicant is the one he has chosen to take and he cannot be faulted for that as the appeal can possibly reach the same conclusion as that which would have been reached by this court as a review count on the propriety or otherwise of the rehearing of the matter by the Masundvwini Council and Regional Administrator Manzini.
[15] It is for this reason therefore that, other than commenting in the manner I have done above, I will not do anything to the decision by the Masundvwini Inner Council and the Regional Administrator to rehear the matter instead of enforcing the hitherto existing decision by the Inner Council of EMhlane and the Old Ludzidzini Council. I do that because that is the route chosen by the Applicant who has decided to deal with those issues through appeals to the Swazi Law and Custom structures to which he is entitled given the dual nature of our Legal Process.
[16] The question for determination is whether or not it is open to this Court to grant the interim order sought by the applicant. As I understand it, this relief is sought from two fronts. The first one is the fact that after the matter had just commenced before this Court, there was these made an undertaking by applicants counsel that they were not to proceed with the complaints raised by the applicant in the notice of motion until the matter has been concluded. This was on the 4th of November 2016 before the Honourable Justice Mabuza before whom the matter served on that date.
[17] The significance of this is in that the undertakings by Counsel before the courts are not jokes as they are taken very seriously and they are similar to an order issued by the Court itself. I have no doubt that a breach of such an undertaking by a party before court is viewed as contempt by a court of law and should attract the necessary sanction. Since the matter has not yet been finalized in line with the undertaking by the Respondent’s own council, I do not understand how she can ignore it if that is what the opposing papers seek to suggest.
[18] The second angle on the grant or otherwise of the interim order is whether on the facts of the matter this court can grant such an order on the basis that there is an appeal sewing before the Ludzidzini Council which applies Swazi Law and Custom. The reality is that whether an interim order can be granted depends on whether the requirements of an interim order are met in a given situation. The position is long settled that these requirements are the existence of a clear right or a prima facie right; an injury that has occurred or is about to occur also referred to as prejudice; the balance of convenience favouring such a grant and lastly absence of an alternative remedy or relief. The old case of Setlongelo V Setlogelo 1914 AD 221 at 227 and the recent one of Musa Petros Dlamini V Micro Project Coordinating Unit and 2 Others Case No.756/2018 are authority for this proposition. This position was captured in the following words by Herbstein and Van Winsen’s, The Civil Practice of The Supreme Court of South Africa, Fourth Edition, Juta and Company, at page 1063 where the learned authors were quoting what was stated y the then South African Appellate Division in Airodexpress (PTY) LTD V Chairman, Local Road Transportation Board, Durban and Others 1986 (2) SA 663 (A) at 676 D:-
“The Appellate Division has held that the inherent jurisdiction of the court to grant interim relief in order to avoid injustice and hardship is a salutary power that must be jealously preserved and even extended when exceptional circumstances are present and when, but for the exercise of that power, a litigant would be remediless.”
[19] There can be no doubt that in the circumstances of this matter, the applicant does have at least a prima facie right if not a clear one. This is because it is not in dispute that two competent structures in the Swazi Courts hierarchy had found in her favour that his late father had allocated him the same piece of land which is a decision reversed by other two structures when they relied on an order that on the face of it did not authorize the fresh commencement of the matter. There is also no dispute that the decision by the latter two structures is pending before an even higher appellate structures on Swazi Law and Custom, the Ludzidzini Counsel.
[20] There is also no denial in my view that if the piece of land forming the subject of the dispute is being utilized by the Respondent whilst the matter is pending before a lawful structure which may reverse the decision relied upon by the Respondent to use the property in the manner alleged-which includes building permanent structures on it-the applicant would suffer an irreparable harm.
[21] The balance of convenience favours the conclusion that the applicant is likely to suffer irreparably should the interim order not be granted; yet the Respondent can only suffer a delay if the decision of the appellate structure before which the matter is pending were to be in its favour. Clearly if the Respondent were to be allowed to continue building on the disputed piece of land, it would be highly inconvenient to have the structures as would have been put up there to be demolished. Given that the parties were ordered through an undertaking by the Respondent, not to build on the said piece of land as well as by this court after the hearing of this matter to maintain the status quo as then prevailing, it would be convenient for all the parties to continue maintaining the status quo until the final pronouncement by the appellate structure before whom the matter is pending.
[22] On the requirement that there applicant should have no other satisfactory remedy, it seems to me to be not doubtful that an interdict is a remedy available under the common law which is why the interim interdict should be granted pending the outcome of applicant’s appeal.
[23] On the points in limine raised, it had been argued among the others that the matter was now res judicata. This point does not seem to appreciate that what is sought is an interim interdit which in its basic form would be to seek the maintenance of the status quo pending the outcome of the appeal. It that is the case, it cannot be real that this court or even the Libandla lase Ludzidzini are res judicata. The Ludzidzini Council would hear the matter in its capacity as the appellate structure whilst this court is being asked to effectively order the maintenance of the status quo pending the finalization of the appeal. I am of the view this is not a good point on the part of the Respondent and it stands to be dismissed.
[24] It was further argued that this matter was not urgent. I did not hear the Respondents to be insisting on this point which was for a good cause given the stage the matter had reached. The matter had been pending in court for a period in excess of a year with all the pleadings having been filed. It was for that reason overtaken by events for a conclusion that it was not urgent. I am convinced none of the parties was occasioned irreparable harm when the matter was eventually heard in court.
[25] A further point in limine raised was to the effect that this court had no jurisdiction to hear this application because it related to Swazi Nation Land which is a preserve of Swazi Law and Custom. This application was about what can be loosely termed a preparatory remedy. Whether this court can entertain it or not is mainly an answer to the question whether it does have a clear right or a prima facie right; a question that has been answered above. In previous judgements of this Court, this question has been settled on the affirmative which is to the effect that this court has the power to grant an interdict on matters governed by Swazi Law and Custom. These cases include Bhekwako Dlamini and Others Vs Chief Zulelihle Maseko, Supreme Court, Appeal Case No. 33/2014 as well as Light of Nations Church V Themba Hlophe, High Court Case No,397/2018. This approach also find support in Herbstein and Van Winsen’s The Civil Practice of the Supreme Court, Fourth Edition at page 1063-1064. Where it was expressed as follows:-
“Interdicts pendent lite are not limited to situations in which court litigation is pending, but may also be granted pending the decision of an administrative tribunal. Accordingly, a provincial or local division (equivalents of our High Court) will not be precluded from granting an interim interdict merely, because that Court lacks ultimate jurisdiction over the determination of the right in question.’ (underlining mine)
[26] It was contended further, and still in limine, that the applicant was not entitled to the reliefs sought because he had no clear right because the land in question had been found by two competent structures under Swazi Law in question to be under the control and possession of the Respondent. I cannot agree with this contention. Firstly it disregards the fact that prior to these latter Swazi Law and Custom structures which found on behalf of the Respondent there were two such competent structures under Swazi Law and Custom which had found in favour of the Applicant. Secondly it, on the face of it, appears that the decision by those structures had been changed irregularly when considering that they were allegedly altered on the basis of a decision of this court that allowed the matter to be heard afresh only to find that the decision in question did say so. It had in fact directed that the earlier decisions be enforced. It therefore cannot be said that the applicant had no clear right.
[27] Besides, sight should not be last of the fact that the real legal requirement for an interim interdict is not a clear right alone as a prima facie right open to some doubt would still enable its grant. There can be no doubt that if it could be argued successfully, though unlikely, that the applicant had no clear right, it definitely cannot be argued successfully that the applicant did not have a prima facie right even if opened to some doubt. I have no hesitation therefore that this point can also not succeed.
[28] The last point in limine raised was that the applicant’s application was fatally defective because whilst it required some assistance from the Royal Eswatini Police, it had failed to join them as parties. The reality is that the police were only required to assist during the execution of the order prayed for. The meaning of this is that the citation of the Police was nominal given that no prejudicial remedy was sought against them. They would have been required to perform a duty which it is their inherent duty to perform whether cited or not.
[29] Besides,the position of our law is now settled that a failure to join a party in certain proceedings would not ordinarily lead to a dismissal than it would lead to such proceedings being postponed with that party being joined after which the matter would have to be proceeded with In any event there is no doubt that the joinder of a party like the police in a matter like the present ,where they do not have a direct and substantial interest in the outcome of the matter, such a joinder is called one of convenience and whether or not it should be granted is a matter of the court having to exercise its discretion. I am satisfied no prejudice would befall the police in the execution of the order this court may grant and therefore that this court may not dismiss this proceedings on this point. Consequently ,this point again cannot succeed.
30 For the foregoing reasons, I have come to the conclusion that the applicant’s application succeed to the extent of the order set out hereunder;
- The Respondent and those acting at its behest be and are hereby interdicted from in any way interfering with the piece of land forming the subject matter of these proceedings, pending the outcome of the appeal noted by the applicant which is currently pending before the Ludzidzini Council or Libandla.
- To the extent that this order may not be clear ,pending the outcome of the appeal proceedings as noted by the applicant to the Ludzidzini Council or Libandla all the parties are required to maintain the status quo as prevailed on the property in question as of the 4th November 2016 when the interim order based on the Respondent’s undertaking was made by this court.
- Given the nature of the matter and that is effectively a family dispute each party is to bear its costs.
______________________
N. J. HLOPHE
JUDGE – HIGH COURT
