IN THE HIGH COURT OF ESWATINI
In the matter Between: Case No.395/2016 & 296/2017
THEMBISILE KHUMALO 1st Plaintiff
NOMBULELO MACIE 2nd Plaintiff
BETINO JUNIOR MACIE 3rd Plaintiff
REZIYA MACIE 4th Plaintiff
ENNES MACIE 5th Plaintiff
CHONGI MACIE 6th Plaintiff
MARCIA MACIE 7th Plaintiff
BETINO MATEUS MACIE 1st Respondent
TEMPLE MATHATHA DUMAKUDE GAMA 2nd Respondent
Neutral citation : Thembisile Khumalo and 6 Others v Benito Mateus Macie and Another (395/2016 & 396/2017) SZHC 233 (29th November, 2019)
Coram : M. Dlamini J
Heard : 16th October, 2019
Delivered : 29th November, 2019
Civil action - a plea : The rules do not permit a litigant to plead evidence in a plea. Again Counsel should therefore desist from drawing pleas as if they are drawing answering affidavits. I am much alive to the misinformed notion that some Counsel fear that it shall later be said that what their client asserts on trial is not in his pleadings. Yes, pleadings in a sense of motion proceeding. This cannot be said of action proceedings. A line of demarcation needs to be drawn in this regard therefore.
: onus of proof discussed
: defendant putting one piece of evidence and when testifying in chief, adducing another - afterthought
Summary: The plaintiffs by combined summons prayed for cancellation of a lease agreement in the name of 1st defendant and a registration of the said lease agreement to the 3rd plaintiff. The 1st defendant has extraneously defended the action.
 The 1st plaintiff is an adult female Swazi and a mother of the rest of the plaintiffs. The 1st defendant is a Mozambican national, the father of the 2nd to 7th plaintiffs.
 The plaintiffs alleged that 1st plaintiff secured plot 254, Msunduza Township, Extension No. 4, Mbabane, district of Hhohho (plot No: 254). Following that 1st plaintiff and 1st defendant merely cohabited together without any formal marriage, the Msunduza-inner-council decided that plot No: 254 allocated to 1st plaintiff be registered in the name of Betino Junior Macie (3rd plaintiff) a male child born between the union of 1st plaintiff and 1st defendant.
 After registration of plot No: 254, 1st plaintiff developed it by constructing flats for rental and for her habitation together with his children. However, 1st defendant began to demand rentals collected from the plot No: 254 on the basis that the said piece of land belonged to him. Later 1st defendant alienated the piece of land by selling it to 2nd defendant. On 4th January, 2011, plaintiff alleged that 1st defendant “fraudulently instructed the Swaziland Housing Board to change ownership…
 On 27th July, 2012, 1st defendant filed with Swazi National Housing Board what purported to be “a deed of cession.” The plaintiffs then prayed:
“1. That Lease Agreement No: 6/2011 issued by the Crown in favour of 1st Defendant be cancelled: and that a fresh notarial lease agreement be issued in favour of 3rd Plaintiff, on his own behalf as well of the rest of the Plaintiffs.
2. That Annexure “E” being 1st and 2nd Defendants’ purported Deed of Cession be declared null and void ab initio.
3. That 1st Defendants’ pays costs in the event they defend the action.”
 The 1st Defendant pleaded:
AD PARAGRAPH 11
“2.2 The 1st Defendant met the 1st plaintiff in 1984. They have seven children, namely, the 2nd to 7th Plaintiffs. The 1st Defendant singularly purchased and established a home at Nkwalini Zone 4, Mbabane. This home was registered in the name of the 1st Plaintiff. As they were staying at Nkwalini the 1st Plaintiff’s mother came and requested the 1st Plaintiff and the 1st Defendant to allow the brother of the 1st Plaintiff one Bongani Khumalo to construct his own house i.e. a one room in the yard. The 1st Plaintiff pressured the 1st Defendant to accede to her mother’s request.
2.3 The 1st Defendant, being aggrieved left Nkwalini. Thereafter, the 1st Defendant singularly secured a place at Macobolwane, Mbabane from the Swaziland National Housing Board, namely, Lot 254, Msunduza Township, Extension 4 situate in the Hhohho District (“the Property”). The 1st Defendant built several rooms on the property. The 1st Plaintiff then searched for the whereabouts of the 1st defendant at Msunduza in 1989. They then stayed together. In 1993 1st Defendant got injured at Gasa, Mozambique from landmines.
2.5 The 1st Defendant then secured another place for his children at Ezulwini. This property is situate on Swazi nation land. Be that as t may, the children through the influence of the 1st Plaintiff have refused to go and stay at Ezulwini.
2.6 In 2012, the 1st Plaintiff forcefully came back to stay at Extension 4. On the same year the 1st Plaintiff instituted proceedings against the 1st Defendant at the Mbabane Magistrate Court. An interim Court Order was obtained. Thereafter, the matter was withdrawn from the above Honourable Court.”
 I must hasten to point out that the above is not a plea but evidence. Counsel for the defendant is cautioned to pay much attention in drawing a plea. There is in our law a difference between a plea and evidence. Evidence must be left for trial and a litigant must state his plea. In the present case all the defendant had to do was to deny the allegation of the plaintiff and then state that plot No: 254 was purchased by him. He was to put plaintiffs into strict proof therefore. The rest of the allegations ought to have been left for trial. The rules do not permit a litigant to plead evidence in a plea. Again Counsel should therefore desist from drawing pleas as if they are drawing answering affidavits. I am much alive to the misinformed notion that some Counsel fear that it shall later be said that what their client asserts on trial is not in his pleadings. Yes, pleadings in a sense of motion proceeding. This cannot be said of action proceedings. A line of demarcation needs to be drawn in this regard therefore.
 1st plaintiff gave evidence under oath. She testified that she was a resident of Macobolwane, Msunduza. 1st defendant was the father of her children. While they were residing as tenants at Mr. Mthembu, she gave her a piece of land following that she knew that she had children. Mr. Mthembu was with Mrs. Mthembu, his wife when he gave her the piece of land. She did not purchase the said piece of land. At that time she had three children with 1st defendant. She then embarked on building upon the piece of land. She constructed rooms for rentals. 1st defendant was with her at that time. She borrowed money i.e. E20 000 from Inhlanyelo Fund to construct the flats. She constructed five single rooms and a three roomed flat.
 She decided to register the piece of land. They took a decision to register it in the name of the male child, 3rd plaintiff. Sometime over the years, 1st defendant sold the piece of land without consulting her and 3rd plaintiff. They discovered he went to Housing Board and changed it to his name without informing her and the inner council. He sold it to 2nd defendant. She reported the matter to eMntulwini inner council who ordered 1st defendant to pay back 2nd defendant his money he had received as purchase sum.
 She also went to the Magistrate Court Mbabane to complain that 1st defendant was selling the common homestead. 1st defendant resides at Bahai with his wife while she was residing at plot No: 254 with all her children. She and her children have no alternative place of abode.
 Under cross-examination it was put to 1st plaintiff that they first resided together with 1st defendant in 1984. They rented at Ntabamhlophe. They also resided at Zone 4 Nkwalini. The property at Nkwalini was secured by 1st defendant. She denied that at Nkwalini she requested from defendant to have her brother lodge with them. She testified that when they relocated to Msunduza, (plot No: 254) they went there together. She disputed that 1st defendant secured plot No: 254 and that he built a one room flat. She maintained her evidence that the inner-council advised that the land be registered under the name of the male child and disputed 1st defendant’s allegations that it was so registered because at that time the 1st defendant was a foreigner.
 The second witness for the plaintiff was Esther Debora Dlamini. She testified under oath that she knew 1st plaintiff as she is the chair of Macobolwane Zone Community. The 1st plaintiff resides at Macobolwane with her children. In the past, she resided with 1st defendant as well. She was fully aware of the history of the present matter. She came to know 1st plaintiff and her family when she was a Treasure i.e. before becoming a chairperson. In 1980 almost everyone was acquiring a piece of land at Macobolwane. She also acquired a piece of land for her shop. They kept records of residents in the area. Nee Ntshangase, Mrs Mthembu registered plots of land for her children.
 Mrs Mthembu spearheaded the matter by approaching them as committee. She reported that she was giving 1st plaintiff a piece of land on the basis that she had a number of children yet she was subjected to paying rentals. At that time 1st plaintiff was a tenant at Mrs. Mthembu’s homestead. Mrs. Mthembu was accompanied by her husband and one of their children as witnesses. Mrs. Mthembu pre-deceased her husband.
 When this dispute of ownership of the piece of land was first raised at the community level as well as at the Magistrate Court, Mrs Mthembu was still alive. She testified that she had given the piece of land to 1st plaintiff. Since the piece of land had to be registered at Housing Board, they decided to have it registered in the name of their son Benito Junior Macie.
 Turning to the development at the said piece of land, she later became active at the Mbabane East constituency. Inhlanyelo Fund was introduced for purposes of granting community members loans. As chair, 1st plaintiff is one of the people she recommended as eligible for the Fund. 1st plaintiff’s application under the Fund was successful. 1st plaintiff utilised the loan from Inhlanyelo Fund to construct the flats that are currently on plot No: 254.
 This witness proceeded to narrate how change of the registered name is effected at her community. In the instant case, the laid down procedure was not followed. As a result they enquired from Housing Board how it effected change without a letter from them as Council. Housing Board apologised for the error saying that it was misled by the similarities in 3rd defendant and 1st defendant names. As a result Housing Board complied with the order of the inner council not to change registration of plot No: 254 to 1st defendant’s buyer i.e. Mr. Gama (2nd defendant).
 Under cross-examination, she stood her ground that the piece of land was given to 1st plaintiff. This was confirmed by Mr. Mthembu at the Magistrate Court and before eMntulwini Council. She disputed 1st defendant’s version that it was given to him by Mr. Sihlongonyane.
 The third witness was Robert Mandla Shongwe. He was employed by eSwatini Housing Board since 1996 and in charge of community project. He was in possession of the file relating to the piece of land under issue. The piece of land is described as plot No: 254 Msunduza. It had a lease agreement of ninety nine years in the name of Benito Mateus Macie.
 When led to the effect that 1st plaintiff was saying that plot No: 254 was registered in his son’s name, Shongwe referred to the minutes of a meeting held on 22 October, 1997 where it reflected that the allocation committee decided to allocate the plot to his son. The reason was that 1st defendant was a non-Swazi at that time. On 4th June 2011, Housing Board received a letter from Benito Macie senior instructing them to transfer the plot to his name as he was now a citizen of the country. The allocating Committee was no longer functional when Housing Board received the letter. The transfer was done by officers from Housing Board. The officers did not ask for a confirmatory letter from the local Council. There was further no confirmation letter from Benito Macie Junior.
 The fourth witness was Henry Mabuza. He testified that he was the deputy chair committee of Macobolwane since 2010. Before then he was a member of Mntulwini Council.
 He knew the Macie family as they were residing at Mthembu homestead. Mr. Mthembu married a Ntshangase woman. His wife had brought children to the marriage. She then decided to allocate her children pieces of land. 1st plaintiff requested for land for her children as well. The Mthembu family sympathised with her as they gave her the said piece of land. It is then that they took her to Mntulwini Council and introduced her to the community elders. 1st plaintiff then constructed her homestead in the said piece of land. 1st plaintiff was a hard worker in various homesteads. She also maintained a bottle business on the side. She also constructed some of the houses using a loan from Inhlanyelo Fund. When she sourced the loan, he was the constituency headman (indvuna yenkhundla). The loan application passed through this witness.
 The Mntulwini Council accepted 1st plaintiff as a resident. He only knew 1st defendant when the homestead was built. He disputed under cross-examination that 1st defendant acquired the plot. When asked if he was present when 1st plaintiff requested to be allocated land by the Mthembu family, he responded to the positive and stated that he was working at the Mthembu homestead during that period. Asked what work he was performing, he said he was clearing the Mthembu land as it was rocky. He also disputed that 1st defendant constructed the first room and that he developed plot No: 254 single handed.
 This witness further pointed out that the last time the matter was deliberated upon by Mntulwini Council, they ordered 1st defendant not to evict his family. Mntulwini Council assembled a delegation to escort 1st defendant to his homestead at eZulwini. He testified further that the plot No: 254 could not be registered under the name of 1st plaintiff because culturally a woman does not khonta. Plaintiffs closed their case.
 The 1st defendant led evidence establishing his defence. He testified that he arrived in the kingdom in 1982 from his country of birth, Republic of Mozambique. He worked at MacNubs Refrigerator and resided at Mthembu’s homestead as a tenant. He met 1st plaintiff in 1984 and she gave birth to his two children. She had her own children, namely two boys and a girl. Her children resided with her mother at Mantabeni area. He resided with 1st plaintiff and their children.
 Following that she had two children with him, he decided to rent a house at Ntabamhlophe. Following that he did not have citizenship documents, he registered the plot under 1st plaintiff’s name. This plot was at Zone 4. He experienced problems with 1st plaintiff. He decided to leave her and seek for his own piece of land. He approached Petros Shongwe who was the Zone leader. He asked him where he had identified a piece of land. This plot was allocated to him by Mr. Sihlongonyane. He paid E2.00 at the District Commissioner offices. At all material times 1st plaintiff was left at Zone 4.
 He then commenced construction alone. He would construct on weekends. He used his salary from McNubs Refrigerators. 1st plaintiff demanded to come and reside at plot No: 254 saying that she could not maintain the children. By then there were three children. It is then that she resided with him. When the plots were registered, Mr. Massage advised him to register in the name of his son pending his becoming a citizen of the country. He did. When he received his citizenship, he approached the Board for registration. He was assisted by Mandla Shongwe at Housing Board.
 The plaintiffs bore the burden of proof on a balance of probability. Hoexter JA wrote on the subject with reference to Kolze JA in Kunz v Swart and Others 1924 AD 618 at 662-3:
“The rule of the Civil law was actori incumbit suae intentionis probatio, so that if the plaintiff failed to establish his claim the defendant was absolved. The defendant (reus), however, if he sets up an exception or defence, was, in respect of it, considered to be in the position of a plaintiff and had to prove his exception. It was also a rule that, per naturam rei a negative is not capable of proof, but this refers to a negative in substance and not in expression or mere form of words. All matters of fact had to be established by the party alleging and relying on such fact or facts, for facts are not presumed but have to be proved. Where, however, a legal presumption exists in favour of one of the parties, such presumption will prevail donee probetur in contratrium.”
 Then the learned Justice quoted from Pillay v Krishna and Another 1946 AD 946. The statements by Davis AJA in that judgement were concurred in by Watermeyer CJ, Tindall JA, Greenberg JA, and Schreiner JA. Of the onus probandi, Davis AJA took care immediately to note:
“The first principle in regard to the burden of proof is thus stated in the Corpus Juris: If one person claims something from another in a Court of law, then he has to satisfy the Court that he is entitled to it. But there is a second principle which must always be read with it: ‘Agere etiam is videtur, qui exceptione utitur: nam reus in exceptione actor est (D. 44.1.1). (Exceptio does not mean, of course, an exception in the sense in which the term is now used in our practice). Where the person against whom the claim is made is not content with a mere denial of that claim, but sets up a special defence, then he is regarded quoad that defence, as being the claimant: for his defence to be upheld he must satisfy the court that he is entitled to succeed on it. (I am not here going into questions as to how far either party may be assisted by presumptions: nothing of the kind arises here, so far as I know, and I am only stating the general rules which, as I see them, are applicable to the present case.)”
 He also continued:
The first is that, in my opinion, the only correct use of the word ‘onus’ is that which I believe to be its true and original sense (cf. D.31.22), namely, the duty which is cast on the particular litigant, in order to be successful, of finally satisfying the Court that he is entitled to succeed on his claim or defence as to the case may be, and not in the sense merely of his duty to adduce evidence to combat a prima facie case by his opponent. The second is that, where there are several and distinct issues, for instance a claim and a special defence, then there are several and distinct burdens of proof, which have nothing to do with each other, save of course that the second will not arise until the first has been discharged.
The third point is that the onus, in the sense in which I used the word, can never shift from the party upon whom it originally rested. It may have been completely discharged once and for all, not by any evidence which he has led, but by some admission made by his opponent on the pleadings (or even during the course of the case), so that he can never be asked to do anything more in regard thereto; but the onus which then rests upon his opponent is not one which has been transferred to him: it is an entirely different onus, namely the onus of establishing any special defence which he may have. Any confusion that there may be has arisen, as I think, because the word onus has often been used in one and the same judgement in different senses, as meaning (1) the full onus which lies initially on one of the parties to prove his case, (2) the quite different full onus which lies on the other party to prove his case on a quite different issue, and (3) the duty on both parties in turn to combat by evidence ant prima facie case so far made by his opponent: this duty alone unlike a true onus, shifts or is transferred.” 
An instructive practice illustration of an “onus” in the secondary and loose sense of a duty on the part of a litigant to combat a prima facie case presented by his opponent is afforded by the facts of South (Cape) Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A). In delivering the judgement of the court Corbett JA referred (at 548A) to the distinction drawn by Davis AJA in the passage from Pillay v Krishna (supra) at 952-3 quoted above, and went on to say at (548A-G): Only the first of these concepts represents onus in its true and original sense. In Brand v Minister of Justice and Another, 1959(4) SA 712 (AD) at p 715, Ogilvie Thompson JA called it ‘the overall onus’. In this sense the onus can never shift from the party upon whom it originally rested. The second concept may be termed, in order to avoid confusion, the burden of adducing evidence in rebuttal (‘weerleggingslas’). This may shift or be transferred in the course of the case, depending upon the measure of proof furnished by the one party or the other.
(See also Tregea and Another v Godart and Another, 1939 A.D.16 at p 28; Marine and Trade Insurance Co Ltd v Van der Schyff, 1972 (1) SA 26 (AD) at pp37-9). Applying these concepts to an application for leave to execute a judgement pending an appeal, the onus proper (or overall onus) rests, as I have already indicated, upon the applicant. This is so, in my view, irrespective of whether the judgement in question is one sounding in money only or is one granting other forms of relief. Where the judgement is for money only, then, in an appropriate case, the inference may be drawn, prima facie, that the furnishing of security de restituedo would protect the appellant against irreparable harm or prejudice. This would go a long way towards establishing, prima facie, the applicant’s claim for relief, and, in the absence of any rebutting evidence from the other party (the appellant), might be conclusive…. It is only in this sense, in my view, that an ‘onus’ can be said to rest on the other party. This not being an onus proper but merely a burden of adducing evidence to rebut a prima facie, the other party would not be obliged to establish a case on a preponderance of probability; and, if upon a consideration of all the evidence the court were left in doubt as to whether irreparable harm would be suffered or not, then the applicant upon whom the true onus rested, would fail on this issue.”
 Whose land is plot 254?
 This matter commenced as motion proceedings at the instance of 1st defendant calling upon the court to interdict the present plaintiffs from collecting rentals at plot No: 254 and further evicting the plaintiffs from the said plot. This application was served upon the plaintiff’s attorneys on 5th September 2018. It became clear during submission that there was a serious dispute of fact on who acquired the land between the two once love birds. The plaintiffs had on 29th February, 2016 instituted legal proceedings in this court by means of combined summons seeking for cancelation of the registration of plot 254 in the name of 1st defendant. It became apparent that the question of who acquired the land had to be resolved first.
 It is common cause that the 1st defendant resides at eZulwini with his Mozambican wife and children. It is further common cause that the 1st defendant fathered the plaintiffs from 1st plaintiff. All the plaintiffs reside at plot 254.
 The court heard the evidence of three witness on behalf of the plaintiffs. These were 1st plaintiff, Esther Dlamini and Henry Mabuza. Esther Dlamini and Henry Mabuza are members of the Macobolwane and Mntulwini inner-council respectively. They both attested on how Mrs Mthembu (laNtshangase) appointed a portion of her family‘s land to 1st plaintiff. Both Mr. and Mrs Mthembu sympathised with 1st plaintiff because she had a number of children and yet she was renting. Thereafter, the Mthembu‘s introduced 1st plaintiff to the inner- council, Macobolwane being the local inner council while Mntulwini inner-council, the overseer. Mabuza clarified that at that time, culture dictated that the piece of land be registered under a male child. Esther Dlamini pointed out that the inner-council advised that it be registered in the name of the male child. This male child happened to bear the same names as 1st defendant.
 Under cross-examination, they were not deterred. They stood their ground. Esther Dlamini in her testimony, pointed out that both Mr and Mrs Mthembu during their lifetime, testified before the Mntulwini inner-council that the said plot No: 254 had been apportioned to the 1st plaintiff. She further pointed out that Mrs. Mthembu testified even in a court of law at the Mbabane Magistrate Court that plot No: 254 was allocated to 1st plaintiff by her. This was during a hearing for a peace binding order filed by the 1st plaintiff against 1st defendant.
 Mr. Mabuza testified that he was present when Mrs. Mthembu allocated the said piece of land to plaintiff. Now the viva voce evidence of the 1st defendant is that he acquired plot Mo: 254 from Obed Sihlongonyane. He testified in chief:
“There were problems with Thembi (1st plaintiff). I left her to go and khonta at Petros Shongwe as Zone leader. They would ask where you identified a place. Mr. Obed Sihlongonyane is the one who allocated me that piece of land.”
 This piece of evidence was not put to any of the witnesses on behalf of plaintiff. The name of Obed Sihlongonyane was heard for the first time when 1st defendant was leading his defence. In fact, throughout the plaintiffs’ case, 1st defendant cross-examined the witnesses to the effect that in fact the Mthembu’s allocated plot No: 254 to him.
 The effect of the above preceding paragraph is that the 1st defendant changes his version. His testimony is in law unreliable. The court cannot therefore place any reliance on it. It stands to be ignored. However, his version is highly unlikely. Khonta cannot be done to a zone leader. Khonta as per procedure is a matter of the inner-council. Now in the present case, two witnesses testified that 1st plaintiff khontaed for plot No: 254 with the inner counsel. As already demonstrated, Esther Dlamini was from Macobolwane inner-council and Mr. Henry Mabuza from Mntulwinmi inner-council. These two inner-council are responsible for the Msunduza location where plot 254 is situate. Both witnesses from the respective inner-council testified that they knew 1st defendant who came in the company of the Mthembu’s to khonta. They came to know 1st defendant later as the father of 1st plaintiff’s children.
 Maybe 1st defendant noted that none of the members of the Council knew him. He then decided to say he khontaed to Petros Shongwe, a zone leader. Asked if he were to bring Petros Shongwe to testify on his behalf, he answered that he would not because he did not know where he was. Similarly, he said he did not know where Obed Sihlongonyane was when asked if he would bring him to testify on his behalf. The reason 1st defendant failed to bring his witness to testify on his behalf I must point out is a lay one. He was to establish his defence or the two were a fiction of his mind.
 It appears further that 1st defendant noted that his conduct of evicting his own children from plot No: 254 would be frowned upon. To shield such conduct he then testified that he purchased a piece of land at zone 4 for the plaintiffs. Again this piece of evidence was not put to any of the witnesses for the plaintiffs including 1st plaintiff. When the matter came before me, the main concern on behalf of the plaintiffs was that the 1st defendant was evicting them from the only homestead they had. Further, when 1st plaintiff testified, she pointed out that 1st defendant has a place of abode whereas she and her children have no alternative place. This should have reminded defendant to remind 1st plaintiff that she has one at zone 4. This was not so. Further, Esher Dlamini testified that the Mntulwini Council summoned 1st defendant to appear before it. It ordered 1st defendant to desist from evicting her children. This again should have reminded plaintiff to put it to this witness that in fact the plaintiffs do have an alternative place of abode. This was not so. The only inference to be drawn is that 1st defendant did not purchase any land in zone 4 for the plaintiffs. This is an afterthought as it were.
 Then there is a legal point established under cross-examination of defendant. It is that at the time of transferring the piece of land from 3rd plaintiff to his name, the plaintiff did not obtain any consent from 3rd plaintiff. 1st defendant was asked as to how old was 3rd plaintiff when he transferred plot No: 254 to his name in 2011. He responded that 3rd plaintiff was born in 1987. This means that in 2011, 3rd plaintiff was a major of twenty four years old. His consent was necessary in the form of a power of attorney.
 Putting the above evidence adduced on behalf of plaintiffs and 1st defendant, and not owing to the number of witnesses but the probative value of their testimony, the scales of justice tilt in favour of plaintiffs. The court must find in favour of plaintiffs therefore.
2nd defendant and cost order
 The 2nd defendant is said to be a buyer of the plot No: 254. It appears that 1st defendant, realising that he was meeting resistance when collecting the rentals from the said plot, then attempted to sell the plot to 2nd defendant. The two inner-council, as testified by Esther Dlamini intervened by approaching Housing Board and ordered it not to register the cession in favour of 2nd defendant owing to the pending dispute. The 2nd defendant has not apposed this action. He has taken the view that he shall abide by the decision of this court. In the result, he cannot be mulct with a costs order even though plaintiffs have prayed for costs order against him as well.
 There was much of time spent on behalf of both plaintiffs and 1st defendant showing who constructed the houses in plot No: 254. This was unnecessary as there was no counter-claim for the sum expended in constructing one roomed flats. As I pointed out the only bone of contention was who acquired plot No: 254 and not who constructed on it. I need not decide this issue therefore. Of course the evidence may be ancillary to the question of who acquired the piece of land but it is my considered view that it is unnecessary for me to make a determination on it.
 In the foregoing, I enter as follows:
43.1 Plaintiffs cause of action succeeds;
43.2 1st defendant application to interdict plaintiffs under case No: 396/2017 is hereby dismissed;
43.3 The lease agreement registered under Crown Grant Lease Agreement No: 6/2011 in favour of 1st defendant is hereby declared cancelled;
43.4 Eswatini Housing Board is hereby ordered to register lease in the name of 3rd plaintiff viz., Benito Junior Macie.
43.5 The purported Deed of Cession in favour of 2nd defendant is hereby declared null and void ab initio.
43.6 1st defendant is ordered to pay plaintiff costs of suit.
M. DLAMINI J
For Plaintiffs : S. N. Maseko of Henwood and Company
For Defendants : W Maseko of Waring Attorneys
 See para 18 page 7 of book of pleadings
 See page 36 of book of pleadings (book)
 Neethling v Du Preez and Others, Neethling v Weekly Mail and Others (184/91, 401/91)  ZASCA 203; 1994 (1) SA 708 (AD) at para 163
 At page 951
 At para 166