IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 756/2018
In the matter between:
MUSA PETROS DLAMINI APPLICANT
and
MICRO PROJECT COORDINATING UNIT 1ST RESPONDENT
CHIEF SIFISO MASHAMPU KHUMALO 2ND RESPONDENT
THE ATTORNEY GENERAL 3RD RESPONDENT
Neutral Citation : Musa Petros Dlamini vs. Micro Project Unit and Two Others
(756/2018) [2018] SZHC 158 (24 JULY 2018)
Coram : Q.M. Mabuza – PJ; M.D. Mamba - J and N.J. Hlophe - J.
Heard : 07 JUNE 2018
Delivered : 24 JULY 2018
SUMMARY
Interdict - Applicant seeks an interdict (final) restraining the Respondents from
constructing a community hall at Ezulwini Umphakatsi.
Interdict - An Applicant seeking a final interdict must show three requisites:
A clear right; injury actually committed or reasonably apprehended and
no alternative remedy.
Constitutional Law - The Right to participate in community decisions in the development of the
community.
JUDGMENT
MABUZA -PJ
[1] The Applicant has brought this application under a certificate of urgency wherein, in the main, he is seeking an order interdicting and restraining the 1st and 2nd Respondents from constructing a community hall at Ezulwini area in the Hhohho District and that the Respondents should pay the costs of the application at attorney and own client scale in the event the application is unsuccessfully opposed.
[2] Needless to say the urgency fell away because the matter was enrolled and argued before us on the 7th June 2018.
[3] The Applicant is Musa Petros Dlamini an adult Swati male and resident of Ezulwini area in the Hhohho District. He has a homestead at Ebuka under the jurisdiction of the second Respondent.
[4] The 1st Respondent is Micro-projects Coordinating Unit, a statutory body established in terms of section 7 of The Finance Management and Audit Act, 1967. The place of business of the 1st Respondent is at care of the Ministry of Economic Planning and Development, Dlan’ubeka Building, Mbabane.
[5] The 2nd Respondent is Chief Sifiso Mashampu Khumalo, an adult male Swati of Ezulwini area. The 2nd Respondent is sued herein in his capacity as the Chief of Ezulwini area, appointed in terms of section 233 of the Constitution of Eswatini, Act No. 001 of 2005 (“the Constitution”).
[6] The 3rd Respondent is the Attorney General of Eswatini, sued herein in his capacity as the Principal legal advisor to all departments for the Government of Eswatini, including Chiefs.
[7] It is common cause between the parties that this Court has jurisdiction to hear and determine this matter by virtue of its inherent jurisdiction in terms of section 151 of the Constitution of Eswatini. And by virtue of the fact that the cause of action arose within Eswatini and the parties hereto are ordinarily resident within the area of jurisdiction of this Honourable Court.
[8] The bone of contention between the parties stems from a decision to construct a community hall at the Ezulwini Umphakatsi, the residence of the 2nd Respondent. The hall is for the use of the community to among other things, hold meetings. To that end some of the finances to construct the hall were sourced from the 1st Respondent.
[9] The Applicant in his founding affidavit states that the residents of the area were never consulted in the decision to construct a community hall, where it was to be constructed and how it was to be financed. He says the decision to construct a community hall was taken by the 2nd Respondent and his Libandla without the involvement or participation of the members of the community.
[10] He says that on or about 15th February 2018 at Ezulwini the 1st Respondent convened a meeting of the members of the community of Ezulwini. At this meeting were members of the community, a team of officers of the 1st Respondent as well as officers of the 2nd Respondent (Bandlancane).
[11] He further states that one of the agenda items of the meeting was to discuss development issues; in particular the meeting was informed of a decision that had been made for the construction of a community hall.
[12] He states further that some members of the community including himself were shocked and expressed their dismay and disapproval at the decision taken without them being consulted and being allowed to participate in the planning and implementation of the community hall.
[13] Subsequent to the meeting of the 15th February 2018 the Applicant and five others by letter dated 18th February 2018 wrote to the 1st Respondent wherein they expressed their dissatisfaction with the project. In response to this letter of complaint, the 1st Respondent advised the 2nd Respondent and the Umphakatsi to convene another meeting of the community in order to explain the exigencies of the construction of the community hall and to get the community to participate in the project.
[14] Instead of convening an Umphakatsi meeting, the 2nd Respondent convened zonal meetings (Tigcuma) where the issue of the construction of the community hall was discussed.
[15] The application is opposed by the Respondents.
[16] The opposing affidavit is deposed to by Mr. William Ndlandla Mavimbela, Indvuna Yemcuba for Ezulwini, under the 2nd Respondent. In it he states that the issue of the construction of the hall started in 2007 after the community observed the need to have a multipurpose structure which the community could use for holding community meetings, which government could use as a centre to bring her services closer to the people, to be used as offices for Ezulwini Umphakatsi and the various Emabandla (development committees) as well as being a community development centre.
[17] Even though the Applicant disputes that any public meeting ever took place during 2007, we accept the noble notion behind the decision for the construction of the hall as stated by Mr. Mavimbela. And that after the decision was taken, the Ezulwini Umphakatsi Council formally applied for financial assistance from the Community Development Special Fund managed by the 1st Respondent under the Ministry of Economic Planning and Development, during 2017.
[18] After receiving confirmation that the request for funding by the Umphakatsi of Ezulwini had been approved by the 1st Respondent, a meeting was convened in order to inform the community that the construction of the community centre would commence soon. The meeting was called for the 15th February 2008. The Applicant as a member of the community was present at this meeting.
[19] Mr. Mavimbela says that the majority of the people present in that meeting expressed their appreciation about the commencement of the project except the Applicant who objected to the construction of the community hall together with one, Bhekisa Abraham Bhembe, as well as five other individuals.
[20] This objection by the Applicant and the six others, prompted the Ezulwini Umphakatsi leadership to embark on a consultation exercise to gather the views and opinions of the community of Ezulwini Umphakatsi towards the construction of the community hall, by visiting the various Tigcuma that make up Ezulwini.
[21] After consulting and soliciting the views of the various Tigcuma about the project, a list of signatories of those that favoured the construction of the community hall was prepared and is annexed to Mr. Mavimbela’s affidavit. The list comprises of people from the following Tigcuma: Nshakambile (EZW1); Mvutjini (EZW2); Longalaza (EZW3); Nyonyane (EZW4); Gelekeceni (EZW5); Somnjalose (EZW6).
[22] According to Mr. Mavimbela, the Ezulwini Umphakatsi Council (Bandlancane) is made up of zonal leaders from seven zones (Tigcuma) namely; Mvutjini, Somnjalose, Gelekeceni, Nyonyane, Ntshakabili, Lomgalaza, and Buka. The Applicant is from Ebuka.
[23] The leadership of Ezulwini Umphakatsi felt that rather than call one community meeting it was wiser to convene the zonal meetings so that everyone would have an opportunity to voice his or her views on the proposed project. The Applicant attended the meeting at Longalaza on the 4th March 2018. The minutes of that date (EZW7) have captured the Applicant being in attendance as follows:
“ The chairperson then gave the opportunity to one Mr. Musa Dlamini who shared a different view on the whole subject matter. His concern was that the people were not given the opportunity to state whether they were in agreement with the present arrangement.
The chairperson then requested the members to give their opinion on the submission by Mr. Dlamini. Their responses were that they are now in agreement with the Umphakatsi on the construction of the hall inside the Umphakatsi.”
[24] We are satisfied that the Applicant’s concerns about the failure of the 2nd Respondent to involve the Ezulwini community members in the development agenda of the community and to allow them participation and involvement in the construction of the community hall in particular, have been addressed by the meetings and consultations held with the seven Tigcuma.
[25] Ultimately the Applicant’s attempts to get the 2nd Respondent to rectify their alleged undemocratic conduct has yielded the desired results; and to that end section 58 (1) of the Constitution has been satisfied (under directive principles of state policy and duties of the citizen). It reads thus:
“Swaziland shall be a democratic country dedicated to principles which empower and encourage the active participation of all citizens at all levels in their own governance.”
[26] Directive principles of state, though not justiciable, are a useful guideline for those in authority to keep in mind when carrying out the duties of their respective offices.
[27] In submissions the Respondent raised points of law, namely that of lack of Locus Standi of the Applicant and lack of urgency.
Urgency
[28] Even though the issue of urgency was pleaded in the opposing affidavit as a point of law, the Respondents did not persue it in their heads of argument. In any event the point of urgency has been overtaken by events as the matter has been enrolled. Consequently, we shall not deal with this point of law.
Lack of locus standi in judicio
[29] The Respondents contention is that the Applicant has no locus standi to bring this application and to seek the relief claimed.
[30] Mr. Tsabedze on behalf of the Respondents contended that the Applicant has not made any appropriate allegation in his founding affidavit establishing his locus standi to bring this application. And that it is trite that in every court action it is the duty of the Applicant to plead sufficient facts which clearly establish his or her locus standi to bring an application. In support of this argument, the following cases have been cited:
VIF Limited v Vuvulane Irrigation Farms Association (Public) Company Ltd and Another, Case No. 30/2000; Swaziland Coalition of Concerned Civic Organisations Trust and Others v The Elections and Boundaries Commission and Others Civil Appeal Case No. 26/2008.
[31] We agree with this erudition of the law. However, the Applicant has overcome this hurdle. In his founding affidavit he clearly describes himself as an adult male and citizen of Ezulwini area, and that the 2nd Respondent is chief of Ezulwini area, implying very clearly that the 2nd Respondent is his chief. Elsewhere he describes himself as a member and resident of Ezulwini.
[32] All those descriptions of himself are not denied by the Respondents, in fact they too refer to him as a member of the community of Ezulwini in their opposing affidavit and that he is from Ebuka under the Ezulwini Umphakatsi.
[33] Even though the Respondents in their answering affidavit raised the issue that the Applicant should show a direct and substantial interest in the relief sought and that this interest must be based on a legally enforceable right, they did not pursue these issues in the heads of argument.
[34] In the circumstances and because of the foregoing it is our finding that the Applicant has locus standi to bring this application and to seek the relief claimed.
Interdict
[35] It is evident that the Applicant seeks a final interdict as clearly set out in his Notice of Motion. Mr. Bhembe the signatory to the confirmatory affidavit to that of the Applicant succinctly echoes this finality in Annexure “MPD6” found at page 97 of the Book of Pleadings. Annexure “MPD6” is a letter dated 23 February 2018 addressed to the 1st Respondent a portion of which reads:
“So I as a constituency headman hereby request microprojects to stop the projects and call for restart on the application. Residents must meet, residents must contribute 10%, residents must have committee elected by them and residents must have a full say on the site where the projects hall must be built.”
[36] There are three requirements that a party must establish in order to be granted a final interdict. In Setlogelo v Setlogelo 1914 AD 221 at 227, quoted with approval by Ota J in Thembinkosi Ndzimandze v Ntombi Maziya Civil Case No. 394/10 [Unreported], the Court declared as follows:
“It is well established that the pre-requisite for an interdict are a clear right, injury actually committed or apprehended and the absence of similar protection by another remedy”.
Clear right
[37] An Applicant seeking a final interdict must establish facts on a balance of probabilities that he has a right which has to be protected. In the case of Minister of Law and Order v Committee of the Church Summit 1994 (3) SA 89 at 98 Friedman AJP, quoted with approval by Ota J in Ndzimandze v Maziya supra, enunciated the law on the question of a clear right for a final interdict in this manner:
“Whether the Applicant has a right is a matter of substantive law. The onus is on the Applicant applying for a final interdict to establish on a balance of probability the facts and evidence which he has, a clear and definite right in terms of substantive law. The right which the Applicant must prove is also a right which can be protected. This is a right which exists only in law, be it at common law or statutory law.”
[38] The Applicant’s contention is that he has a clear right, that of public participation and involvement in the community’s affairs which is a fundamental right and that it is this right that he seeks to vindicate.
[39] His argument is that it is his right and the rights of others to be involved in the decisions of the community, and in particular the decision for the construction of the community hall. He argues further that this right is based on the fact that the system of governance in Eswatini is democratic and participatory.
[40] Both he and the Respondents seem to be in agreement with this concept namely, that the system of governance in this country is participatory democracy. For example in the Respondents heads of argument it is stated that –
“Participatory democracy means that there must be a channel of
influence in policy making i.e. that citizens be engaged in a process
of deliberation and public communications”.
[41] In other words, citizens should be afforded the opportunity to deliberate on issues affecting them.
[42] Section 58 (1) of the Constitution states that:
“Swaziland shall be a democratic country dedicated to principles
which empower and encourage the active participation of all citizens
at all levels in their own governance.”
[43] In determining whether an infringement of rights can be justified in a free and democratic society it was stated in a widely celebrated Canadian case:
“The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the charter and ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.” R v Oakes (1986) SCR 103 (para 46).
[44] The Preamble to the Constitution of Eswatini reflects societal values with respect to the rights of the people of Eswatini. To this end certain key affirmations emerge therefrom namely:
“Whereas it is necessary to blend the good institutions of traditional Law and custom with those of an open and democratic society so as to promote transparency and the social, economic and cultural development of our Nation.”
(Paragraph 5)
[45] The genesis of the human rights discourse globally is the Universal Declaration of Human Rights adopted on 10 December 1948. It is the blueprint for the fundamental rights enshrined in various constitutions of member states to the United Nations.
[46] Human rights are not exhaustive and are not restricted to Chapter 3 of the Constitution. Consequently the argument that the Applicant has failed to establish that a right enshrined in Chapter 3 of the Constitution has been violated is unfortunate.
[47] We are of the view that the Applicant has established his right and that of other community members of participating in decision making about how best to manage and direct their own affairs.
[48] We recognize that initially the right to participate in the decision was breached by the Respondents however, they later corrected the breach by carrying out consultations within the community and the issue of the construction of the hall became a community decision.
An injury actually committed or reasonably apprehended.
[49] In Minister of Law and Order v Committee of the Church Summit supra. Quoted with approval by Ota J in Ndzimandze v Maziya supra. Friedman AJP remarked:
“The phraseology ‘injury’ means a breach or infraction of the right which has been shown or demonstrated ad the prejudice that has resulted therefrom…. It will suffice to establish potential prejudice.”
[50] The Applicant was given the opportunity to voice his views, not once but twice, on the construction of the community hall. Clearly, an interdict stopping the construction of the community hall will cause great prejudice to the people of Ezulwini and will not be in the interest of the Ezulwini community.
No alternative remedy
[51] A final interdict is a drastic remedy and in the court’s discretion. An Applicant for a permanent interdict must allege and establish, on a balance of probability, that he has no alternative legal remedy. (per Ota J in Ndzimandze v Maziya supra).
[52] In our view, the matter of the construction of the hall is now history. A major portion of members of the community have given their approval to the construction of the hall and that it be constructed at the Umphakatsi. The financial contribution has been approved by both the residents and the 1st Respondent, clearing of the site has also begun. To stop the project now and start the process afresh would be counter productive and not in the interest of the people of Ezulwini.
[53] It is clear therefore that the loss to the community compared to the Applicant would be enormous were we to grant the interdict sought by the Applicant. Furthermore the Applicant has only satisfied one of the three requisites for a final interdict.
[54] The application raised salient constitutional matters and because of that we shall not invoke the principle that costs follow the event. In the circumstances the application fails and is hereby dismissed. There shall be no order as to costs.
______________________
Q.M. MABUZA
PRINCIPAL JUDGE
I agree
_____________________
M. D. MAMBA
JUDGE
I agree
_________________
N.J. HLOPHE
JUDGE
For the Applicant : Mr. S. Nhlabatsi
For the Respondent : Mr. B. Tsabedze
