IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
CIVIL
CASE NO.1410/93
In
the matter between:
BUSISIWE
ALICE MAZIYA Applicant
And
ALFRED
VELAPHI MAZIYA Respondent
C
O R A M : DUNN J.
FOR
THE APPLICANT : MR P. M. SHILUBANE
FOR
THE RESPONDENT: MR CJ. LITTLER
JUDGMENT
22/10/93
The
parties to this application were married to each other according to
Swazi Law and Custom on the 1st December 1985. Three minor children
were born of the marriage. It Would appear that as from 1989, the
respondent started assaulting the plaintiff accusing her of
infidelity. The assaults by the respondent resulted in the applicant
leaving the matrimonial home with the three minor children. The
assaults and threats thereof continued despite the applicant having
left the matrimonial home and the applicant was obliged to seek an
order restraining the respondent from further assaulting and/or
threatening the applicant. An order to that effect was granted by the
High Court on the 16th August 1993. The order was served on the
respondent.
In
the present application which was filed on the 8th September 1993,
the applicant seeks an order -
ejecting
the respondent from Lot, No. 2330 Mbabane Extension No.2,
awarding
custody of the three minor children to the applicant.
2
The
applicant sets out that she is the registered owner of the property
in question by virtue of Deed of Transfer No.475/1990 dated 30th
August 1990. She states that she was compelled to move from the
property as a result of the assaults and threats by the respondent.
The respondent was apparently left in occupation of the property. The
applicant states at paragraph 8 of her affidavit -
I
fear that if I return to live with respondent he will continue with
his assaults and I accordingly pray for an order ejecting him from my
property because I have no other place at which to live with my
aforesaid minor children.
There
is no allegation that the respondent is in breach of the court order
of the 16th August.
The
application is opposed by the respondent on the grounds that the
registration of the property into the applicant's name was fraudulent
and in contravention of section 16 of the Transfer Duty Act No.
37/68. The respondent further submits that he made a contribution
towards the development of the property and that he is in the
circumstances at least a part owner of the property. The respondent
then sets out at paragraph 2.6 that the dispute between the parties
"has already been enrolled before the chief's court at KaLanga
that being the requisite procedure for having the matter (if the need
arises) ultimately adjudicated upon by a Swazi national Court having
the necessary jurisdiction."
The
applicant's ownership of the property cannot, in my view, be
challenged in the present application. The property is registered in
the applicant's name and unless and until such registration is set
aside the respondent cannot raise fraud as a defence to the present
application. The application will in the circumstances be approached
on the basis that the applicant is the owner of the property.
3
Mr
Shilubane for the applicant referred to the case of BADENHORST v.
BADENHORST 1964(2) S.A. 676 for the submission that a wife has a
right in certain circumstances to eject her husband from property
owned by her. The cases of HAMMAN v. HAMMAN 1949(1) S.A. 1191 and
GORULNICK v. GORULNICK (1958)1 ALL E.R. 146 (C.A.) were considered in
the BADENHORST case in which Vieyra J. stated at p679 –
My
view is that a wife has no right to seek to eject her husband from
the matrimonial home merely because the property belongs to her.
Because he is her husband he has rights flowing from the marriage
which in relation to that property put him in a category differing
toto coeli from that of a stranger. The wife's right to eject him
must therefore flow from considerations which to a great extent must
depend on the merits of the matrimonial dispute.
The
position in the cases referred to was that matrimonial proceedings
were pending at the time of the proceedings for ejectment. The
proceedings for ejectment in those cases were considered in the light
of the pending matrimonial proceedings. That is not the position in
the present case. The applicant has denied the allegation by the
respondent that the dispute between the parties has been reported to
a Swazi customary court. The reason for the application is that the
applicant fears that the respondent will continue assaulting her if
she returns to the property. That is not in my view sufficient to
justify the grant of the relief sought. The applicant is armed with a
restraining order against the respondent.
Non-compliance
with the order can be dealt with by the court, whilst the parties are
living under one roof.
4
The
application is refused. I make no order as to costs.
B.DUNN
JUDGE
