THE HIGH COURT OF SWAZILAND
the matter of:
ATTORNEY GENERAL 1st Defendant
SHABALALA 2nd Defendant
F. X. ROONEY
PLAINTIFF P. SHILUBANE
exception was dismissed on the 26th April 1990 when I indicated that
I would give my reasons for my ruling at a later date.
the action the plaintiff claims against the defendants jointly and
severally the sum of E18.000. It is alleged that in 1987 the second
defendant acting within the course of his duties as 'Indvuna
yetinkhudla' wrongfully and unlawfully expropriated the plaintiff's
dwelling house valued at E18.000 which was built on Swazi National
main burden of the defence is that plaintiff elected to establish his
homestead within an area reserved as His Majesty the King's residence
and "the tenets of Swazi law and custom require that plaintiff
could for any good reason be ordered by the Indvuna yetinkhundla of
that area to vacate the area, the plaintiff being entitled only to
remove with him the corrugated iron roof, steel doors and window
frames, which option the plaintiff was granted but failed or ignored
to exercise when his chief allocated him an alternative area of
exception taken reads:
Defendants' purport to have acted under Swazi law and custom in
expropriating the plaintiff's house.
law and custom is only valid to the extent that it is not repugnant
to natural justice or morality
or inconsistent with the provisions of any law in force in Swaziland
or is contra bowes mores"
Shilubane for the plaintiff cited Dlamini v. Thwala 1979-81 S.L.R.
117 and in particular the passage from the judgment of Lukele J. at
118 which reads -
this judgment I shall assume that the Swazi custom of 'buying'
children still exists although I
am inclined to the view that this process does not comply with the
provisions of s5 of the Swaziland
Order in Council of 1903 under which Swazi law and custom would not
'so far as the same may be incompatible with the due exercise of His
and jurisdiction, or clearly injurious to the welfare of the said
natives'. This provision has
been judicially interpreted elsewhere as meaning that customs which
are contra bonos mores,
such as buying of children like chattels, were not recognised, and I
consider the 'buying'
of children to be in conflict with presently ecceptable standards."
Shilubane submitted that the action taken against the plaintiff was
contrary to the provision of the Aquisition of Property Act 1961 and
that it was unjust to deprive the plaintiff of his property without
Letwaba for the defendants complained that the exception did not
specify in what respect the defence pleaded was in conflict with any
statute and that Swazi law and custom could be relied upon as part of
the law of Swaziland.
regard to the definition of property and real property in section 2
of the Aquisition of Property Act and the general purposes of the
statute, I am satisfied that the Act has no application to Swazi
Nation land. The defence raised is that the plaintiff's right to
occupy his land and build upon it is governed by Swazi law and
custom. If it is the case that the plaintiff built his homestead on
land reserved for the use of His Majesty and Swazi custom provides
for the action taken by the second defendant this would appear to be
a proper defence to raise in this Court.
may be the case that the plaintiff's right to compensation is
restricted and he may suffer loss as a result. However, am not
persuaded that this fact alone constitutes a good ground for
excepting to the defence raised. A person who builds a house on
freehold land without the necessary permission may find himself in a
position similar to that in which the the plaintiff is alleged to be.
I refer in this connection to sections 23 and 28(4) and (5) of the
Town Planning Act 1961 which empowers a local authority to demolish
and remove any building, erected in contravention of the Act, without