IN THE HIGH COURT OF ESWATIN
JUDGMENT
CASE NO. 1805/2018
In the matter between:
MARY QUEIROS First Applicant
ROMEO QUEIROS N.O. Second Applicant
And
DECEMBER DLAMINI First Respondent
MDINGO SHABANGU Second Respondent
THE NATIONAL COMMISSIONER OF POLICE Third Respondent
ATTORNEY GENERAL Fourth Respondent
Neutral Citation : Mary Queiros and Romeo Queiros N.O. v December Shabangu
Mdingo Shabangu
1805/2018 [2019] SZHC 160 (28 June 2019)
Coram : MAMBA J
Heard : 12 June 2019
Delivered : 28 June 2019
[1] Civil Law – Acting Chief and Indvuna sued for allegedly settling their subjects on a private farm. Respondents denying having allocated portion of farm to subjects. No evidence that persons on the farm were settled therein by Respondents or that respondents intend to do so in the future.
[2] Civil Law – application for an interdict – requirements of an interdict restated. Prima facie right which is threatened about to be violated and no alternative remedy available to the applicant.
[1] The applicants are the owners of portion 6 of Farm No. 932 situate in the Hhohho Region or District in the Kingdom of Eswatini. They hold this farm under Deed of partition Transfer No 335 of 1992. The farm is in Emvembili Area and has a common boundary fence with the Eswatini nation land which is under the Umphakatsi or Chief’s homestead in the said area.
[2] It is common cause that there are several homesteads on the farm. This fact is also confirmed by the Surveyor General in his report dated 27 February 2019. (See page 61 of the book of Pleadings). It is not clear whether these are mere illegal farm occupiers (squatters) or farm Dwellers. Nothing terms on this uncertainty in this judgment, however.
[3] The first respondent is an adult Liswati male person of Emvembili area and is the acting Chief of the said area, whilst the second respondent is the acting Indvuna of that area. They are sued herein in their respective capacities aforesaid.
[4] It is common cause further that until the issue was ascertained or clarified by the report of the Surveyor General referred to above, the inhabitants of Emvembili were not sure or certain of the boundary fence of the said farm. Infact, the general opinion in the area was that the property in question was not a farm but part of Eswatini Nation Land under the tutelage or control of the Emvembili Chief’s Kraal.
[5] The applicants allege that the squatters or illegal occupiers of the farm have been settled there by the respondents using the Siswati way of Land allocation known as Kukhonta. By necessary implication, they allege that these illegal occupiers are the subjects of the said Chief’s Kraal or at least pay allegiance to that Kraal or Chiefdom.
[6] By Notice of Motion dated 19 November 2018, the applicants seek an order in the following terms; inter alia:
‘2.1 The first and second respondents and or all those acting on their behalf are interdicted and or restrained from allocating land to people on portion 6 of farm 932 ---.
2.2 The first and second respondents and or all those acting on their behalf are interdicted from inciting the members of Emvembili Umphakatsi and or community to rebel against the applicants over the farm in dispute ---.
2.3 Any clearing of land and or construction of any structure by any one on portion 6 of farm 932 --- is hereby stopped and or restrained and or interdicted.’
The applicants also seek an order authorising the Police in the area to arrest any one who violates the above prayers (in the event that such prayers are granted).
[7] The applicants have stated that certain unnamed or unidentified occupiers of the farm have told them that they were settled or allocated land on the farm by the first respondent, in his capacity as the acting Chief of Emvembili area. The applicants further aver that as a matter of Siswati Law and Custom, an acting Chief has no power or jurisdiction to allocate land to anyone under his jurisdiction, let alone land that is a farm and not under his jurisdiction.
[8] The Respondents have denied that they allocated pieces of land on the farm to anyone. They state that the persons who are in occupation of the farm have been there since ‘time immemorial and their forefathers are buried thereat.’ The respondents have been in office for a short period. (This period is, however, not stated in the papers before me. The averment though is that it is not immemorial).
[9] I accept that, before the report by the Surveyor General was filed, the people of Emvembili Area, including the first and second respondents disputed that the property in question was a farm. Again, it is common cause that the said respondents at one stage wanted to be given the names of the people or families that had been allegedly settled on the land in question. They were given some of these names. What is significant though; and fatal to the applicants’ case, is the fact that these respondents did not admit having settled these people on the land in question. Equally important and crucial in considering or evaluating the evidence herein, the applicants have not filed any evidence establishing that the first and second respondents are guilty of any of the acts complained of; namely, the settling of persons on the farm in question. The newspaper reports filed by the applicants do not constitute the required evidence or material.
[10] That the people of Emvembili Chiefdom are reported to have vowed not to vacate the farm or even to recognise it as such, does not, in law, make the first and second respondents culpable or in any way liable for what the applicants have complained of.
[11] The suggestion or argument that the interdict or injunction sought herein would not prejudice the two respondents because it merely and only seeks to prevent them from allocating land to people in the future, is legally flawed and unhelpful. The simple answer is that there is no evidence that they have either done so or that they are likely to do so in the future. For an injunction to be granted, it is common cause, the wrong complained of must either be continuing or imminent. Neither of these elements or requirements are present in this application.
[12] I think the point must be made that the mere fact that the illegal occupiers of the farm are the subject of the Emvembili Chiefdom, of whom the first and second respondents are the acting Chief and acting Indvuna respectively, does not make these respondents liable for the illegal acts of
their subjects. In order for the said respondents to be liable, they must have done or performed some act, or deed that amounts to the act of allocating land or to settling such occupiers on the land in question. Passivity, short of encouraging or aiding and abetting by them may not be sufficient to ground or found liability on their part.
[13] For the above reasons, the application is dismissed with costs.
MAMBA J.
For the Applicants: Mr N.D. Jele
For the 1st and 2nd Respondents : Mr L. Dlamini
