IN THE HIGH COURT OF ESWATINI
JUDGMENT
HELD AT MBABANE CIVIL CASE NO: 1570/2017
In the matter between:
TIKANE INVESTMENT (PTY) LTD APPLICANT
And
SISANA FAKUDZE 1ST RESPONDENT
CATHERINE DLAMINI 2ND RESPONDENT
DUMSILE SIKHONDZE 3RD RESPONDENT
THE NATIONAL COMMISSIONER OF POLICE 4TH RESPONDENT
THE ATTORNEY GENERAL 5TH RESPONDENT
Neutral Citation: Tikane Investment (Pty) Ltd v Sisana Fakudze & 4 Others (1570/2017) [2019] SZHC 130 (23 July 2019)
CORAM: NKOSINATHI MASEKO J
FOR APPLICANT: MS. LINDIWE R. SIMELANE
FOR RESPONDENTS: MR. MANDLA H. MDLULI
DATE HEARD: 10TH DECEMBER 2018
DATE DELIVERD: 23RD JULY 2019
PREAMBLE: Application Proceedings – whether the members of the Applicant have a right to bypass the clear provisions of Article 9 of the Applicant’s Constitution and drag each to courts – whether the clear rights and duties of the Chief and Indlunkhulu can be disregarded by members of the Applicant who are in conflict.
HELD: That the position of the Chief and Indlunkhulu is prime due to his/ her oversight responsibilities of being a symbol of unity and father to his/her community.
[1] On the 5th October 2018, the Applicant launched motion proceedings seeking the following relief:
Ordering the Respondents to release to the Applicant the following items:
- The Company Books of Accounts.
- Cheque Books.
- Minute Books.
- Office keys.
- Any other items belonging to the company, in their possession.
[2] Mr. Sabelo Dlamini deposed to the Founding Affidavit in his capacity as Chairperson of the Applicant and Mr. Wandile Ndlovu filed his Supporting Affidavit in his capacity as the Secretary to the Board Members of the Applicant.
[3] The 1st to the 3rd Respondents are said to be members of the Executive Committee which was voted out of office on the 12th September 2018 when the Applicant conducted its elections to replace the previous members which consisted amongst others the 1st to the 3rd Respondents board respectively.
BRIEF OUTLINE
[4] I must state at the outset that Tikane Investments is not the ordinary private company, but is a public company in that it comprises members of the community who put together family fields and converted same into a sugarcane farm. This sugarcane farm is situate within the Engevini Royal Residence under Chief Mshikashika II at kaNgcamphalala area in the Lubombo Region.
[5] This sugarcane project is a product of the joint venture by the Government of Eswatini and ESWADE to empower indigenous Emaswati famers into venturing into the sugarcane commercial farming.
[6] Tikane Investments’ bankers is the Eswatini Development and Savings Bank. I must mention that the Bank always avail its officers to attend to the financial business of the Applicant wherein its officers literally travel to the offices of Tikane Investments to perform whatever duties necessary to facilitate the smooth operations of the Applicant.
[7] I must emphasize further that the Applicant conducts its business under the Chiefdom of Chief Mshikashika II. As the custodian of the Swazi Nation land where the sugarcane farm is situate, the Chief is a symbol of unity and plays a crucial role as the ultimate overseer of those operations of the project and that same are carried out fairly and justly by those who are in the executive committee at that appointed time or the so called Board of Directors of the time, in order to benefit all his subjects who are members of the Applicant.
[8] All the Chiefs in the Kingdom of Eswatini where such projects are carried out do not lose their powers of control to those in office at that particular time. It doesn’t operate that way in terms of our culture. I must emphasize that Chiefs countrywide shall always be in control exercising their Constitutional functions and duties as enshrined in Section 233 of The Constitution of Eswatini Act NO.1 of 2005, which provides as follows:
(1) Chiefs are the footstool of iNgwenyama and iNgwenyama rule through the Chiefs.
(2) The iNgwenyama may appoint any person to be Chief over any area.
(3) The general rule is that every Umphakatsi (Chief’s Residence) is headed by a Chief who is appointed by iNgwenyama after the Chief has been selected by the Lusendvo (family council) and shall vacate office in like manner.
(4) The position of a Chief as a local of one or more areas is usually hereditary and is regulated by Swazi Law and Custom.
(5) -----
(6) A Chief, as a symbol of unity and a father of the community, does not take part in partisan politics.
(7) -----
(8) The powers and functions of Chiefs are in accordance with the Swazi Law and Custom or conferred by Parliament or iNgwenyama from time to time.
(9) In the exercise of the functions and duties of his office a Chief enforces a custom, tradition, practice of usage which is just and not discriminatory.
[9] I have deliberately reproduced Section 233 above to demonstrate that Chief Mshikashika II, like all Chiefs in the Kingdom, have the overall and ultimate duty and responsibility of being the symbols of unity and fathers of their communities.
[10] All subjects are therefore called upon to respect and adhere to the summons which the Chiefs issue to their subjects from time to time. It is unheard of in Swati Culture for a subject to disobey the summons by his Chief to appear before the Chief’s Libandla. EmaSwati are hereby reminded that disobedience to the lawful authority of the Chief(s) is a direct challenge to the authority of the appointing authority, and that cannot and shall not be accepted and tolerated by this Court.
[11] I say this because I have seen from Annexure “TR2” contained a page 50 of the Book that the 1st to the 3rd Respondents respectively disobeyed numerous summons by the Engeveni Royal Kraal to appear before the Indlunkhulu to deal with the issues of their removal from office, which have eventually landed before this court.
[12] I must say the attitude of 1st to 3rd Respondents in not obeying the summons of the Indlunkhulu and instead flood the Courts with these proceedings is being disrespectful to the Indlunkhulu, counterproductive and aimed at setting Chiefs against the Court, and such conduct should be discouraged because Courts shall never encroach into the constitutional powers and functions of the Chiefs in the Kingdom.
[13] If the 1st to 3rd Respondents have heeded the summons by the Indlunkhulu, this matter would not be in Court because in one way or the other, the Indlunkhulu would have dealt with this matter as it has the jurisdiction to deal with such traditional matters affecting their subjects.
[14] The fact that Tikane Investments is a company so called does not in my view reduce the powers of the Indlunkhulu to deal with its issues. Tikane was founded and formed by those community members with the ultimate blessings of Chief Mshikashika II because it is situate within his Chiefdom boundaries, hence the Indlunkhulu of Engevini Royal Kraal has the ultimate authority over this matter.
[15] It must be borne in mind that even ESWADE which brought about such commendable and applauded development of constructing the LUSIP water project to empower the indigenous emaSwati, did so with the blessings of the local Chiefs whose subjects were affected and the Government of His Majesty the King.
[16] The project would never have seen the light of day and the success that it is today had the affected Chiefs including Chief Mshikashika II refused to commission such projects and refused to sign whatever documentation that required their signatures.
[17] EmaSwati know very well that all projects carried out on Swazi Nation Land are blessed by the signatures of Chiefs of those particular Chiefdoms.
[18] In casu, the ultimate authority is Chief Mshikashika II and this Court shall not interfere with this constitutional mandate, but instead will advise those in like situations that running to the Courts will not solve their problems as this Court endorses and recognize fully the powers, functions and duties of the Chiefdom dispute resolution mechanisms.
[19] A point in limine was raised by the 1st – 3rd Respondents that no resolution was attached authorizing the deponent Mr. Sabelo Dlamini to depose to the Founding Affidavit on Applicant’s behalf.
[20] I must state that owing to the set-up of the Applicant, it being a community project under the control of Chief Mshikashika II, I do not see any need for such a resolution where the Indlunkhulu is very much aware that the 1st – 3rd Respondents tenure as office bearers to drive forward the aspirations and objections of the community project have come to an end, and all that is being sought is the return of the tools and instruments to the new office bearers so that the community project can be proceeded with, and further that 1st – 3rd Respondents account for their activities whilst in office. Looking at the prayers, really I do not think that the Applicant being a community company is asking for too much from the 1st – 3rd Respondents. The point in limine therefore has no merit and is dismissed.
[21] It is therefore the duty of this Court to see to it that the community project progresses by ordering the 1st – 3rd Respondents to release the Books of Accounts, Cheque Books, Minute Books, Office keys and of course any other items in their possession that belong to the Applicant. Holding on to these items as listed above hinders the progress of the Applicant’s objective as a community bases company under the direction and supervision of Chief Mshikashika II. This Court will not allow individuals to frustrate the objectives of a community based company in order to fulfil their own particularly where the Indlunkhulu has summoned them to attend meetings where such issues and conflicts would have been sorted out, but they refused and completely disregarded their own Article 9 of the Applicant’s Constitution.
[22] I must state that my reasons are based solely within the pleadings as filed in this case number in casu being 1570/2018. I have deliberately avoided adjudicating on matters not pending before me although having sight of those pleadings assisted a great deal in appreciating the history of this matter.
[23] The 1st – 3rd Respondents’ Answering Affidavits, in the main, clearly demonstrate and indicate that the Indlunkhulu under Chief Mshikashika II is not part and parcel of these proceedings as no mention of the Umphakatsi whatsoever is found in their affidavits. This is in my view wrong as it paints a picture of a dispute between directors and shareholders in a privately owned company. This is not the position in casu as this is a community based company carrying on a community project under the chieftaincy of Chief Mshikashika II. This is a fact and cannot be ignored. It is the Indlunkhulu under Chief Mshikashika II that has the rights and powers to deal with issues affecting his community members in so far as this project is concerned. This extends to other Chiefdoms as well where community projects of whatever nature are concerned, where a dispute of whatever nature arises it must be dealt with at Chiefdom level and through those dispute resolution mechanisms that have been in place since time immemorial.
[24] Even though the constitution of the Applicant has not been filed by the 1st to 3rd Respondents in these proceedings, I have had the opportunity to go through same in the Book of Pleadings between the parties under Case No. 1538/2018.
[25] I must state that Article 9 is headed in SiSwati as SAHLUKO 9: KWELEKELELA EMIMANGWENI NEKU SEBENTISANA NENDLUNKHULU – this heading basically translates to the COMPANY’S SOCIAL RESPONSIBILITY AND CO-0PERATION WITH THE INDLUNKHULU.
[26] Article 9 of the Applicant’s Constitution is the cornerstone and foundation and is clear in that from allocation of the land, granting the Chief’s Letter of Consent, blessing of the members, compliance with the agreement between the Indlunkhulu and the members, surrendering of the land allocated by the Chief back to Indlunkhulu and submission of operational and other requests to the Indlunkhulu, to name but a few the Indlunkhulu is involved.
[27] Further, any form of dispute between or amongst members shall ultimately be reported to the Indlunkhulu for resolution where the members have failed to resolve them.
[28] The Constitution of the Applicant therefore clearly demonstrates that the Indlunkhulu has a very crucial role to play in its operational and other crucial requirements and thus whether the members like it or not, the Indlunkhulu has the ultimate oversight and responsibility to see to it that the Applicant performs at its best for the benefit of its members. It must be borne in mind that Chief Mshikashika is not a member of the Applicant but it is his subjects who are members of the Applicant utilizing the land which he allocated for use by the Applicant for this sugarcane project. His responsibilities, duties, functions and his symbol of unity over his subjects who are members of Applicant must therefore be respected both by those in the leadership of the Applicant, and equally by those not in the leadership of the Applicant.
[29] For the above reasons I hereby grant the following order:
1. The 1st to 3rd Respondents are hereby ordered to forthwith release to the Applicant the following items:
(i) The company’s Book of Accounts
(ii) Cheque Books
(iii) Minute Books
(iv) Office keys
(v) Any other items belonging to the company which is in their possession.
2. Costs of this Application on the ordinary scale.
NKOSINATHI MASEKO
JUDGE
