the High Court of Swaziland
Case No. 1423/93
the matter between:
Investments (Proprietary) Applicant
Minister for Works & Construction 1st
Construction Limited 2nd Respondent
APPLICANT Mr. Kuhny, S.C.
FIRST RESPONDENT Mr. Wilmaratne
SECOND RESPONDENT Mr. Millin
applicant is the registered owner of land situated near the outskirts
of the City of Manzini. It operates the Prince Velebantfu Hotel on
the site. The property comprises Portion of Farm 1 of Farm 1206
Manzini and Remainder of Farm 1206 Manzini . Access to the hotel is
at present gained from the main road from Manzini to Matsapa.
Ministry of Works is constructing a new road between those two
places. Marples Construction Limited is the contractor on this major
project. As planned, this road is intended to pass on the other side
of the hotel.
the end of 1992, for the purposes of building the road, the
contractor entered upon the applicant's land and began construction
September 1993, the applicant commenced these present proceedings
which it has brought by way of notice of application. What it is now
seeking is first, an order evicting the respondents from its property
and secondly, if necessary, a permanent interdict restraining the
respondents from entering on the land other than to remove its
equipment. Mr. Kuhny, for the applicant, indicated at the hearing
that any question of compensation will be pursued elsewhere, at a
application is opposed by both respondents. Before the hearing, an
order was made by consent which included (inter alia) an undertaking
by the respondents that until the outcome of this hearing, they would
proceed on their work in such a way as not to interfere with existing
access to the hotel or to demolish any further buildings belonging to
the applicant or disturb trees and vegetation on its property.
was common cause at the hearing that the cause of action of the
applicant being a rei vindicato, and it being not disputed that the
applicant is the owner of the property or that the respondents are in
possession of it (or of part of it), then the applicant is entitled
of right to an order evicting them unless the respondents discharge
the onus of proving that they have a legal right to occupy the
property. For these propositions, which as I say are not contentious,
the following cases were cited in argument: Graham v. Ridley 1931 TPD
476, Chetty v. Naidoo 1974(3) SA 13 AD and Pretoria Stadsraad v.
Ebrahim 1979(4) SA 193T.
is also accepted by the second respondent, the contractor, that any
rights that it may have to be on the applicant's land are derived by
it through the Minister of Works, i.e. under the contract that it
entered into with the Minister for the execution of the road project.
issues thus being defined succinctly by counsel for the parties, I
will therefore turn directly to the bases on which the respondents
claim to be entitled to be on the land.
the outset, Mr. Wilmaratne at first submitted in limine that it was
not shown, on the papers, that the applicant's attorneys had been
duly authorised by it to sue the Minister. This objection was however
abandoned, correctly in my view.
respondents made common cause on their other grounds of opposition to
the application. It is, I think, convenient and sufficient to deal
with each ground in itself, referring as necessary to any submissions
made in particular by Mr. Wilmaratne for the Minister or Mr. Millin
for the contractor.
first contention is that they are undertaking the project on the
applicant's land pursuant to the authority of the Roads and Outspans
Act (No. 40 of 1931) - specifically section 7(3).
is not disputed that on 28th, 29th, and 30th May 1991 the Minister
through his servants caused to be published in local newspapers in
Swaziland the public notice that is annexed at "1R1" to the
affidavit of the Chief Professional Officer in the Ministry of Works,
Mr. Andreas Manana, which has been filed in opposition to the
application. I refer to that notice, according to its tenor, for its
terms. As far as its legal significance in this matter is concerned,
it is necessary for me to refer to subsections (3) and (4) of section
7 of the Act, which provide as follows:
The Minister or any person acting under his authority in that behalf
may after notice to the owner enter upon any" (sic) "take
possession of so much of any land as may be required for the opening
or construction of any public road or any other purpose subsidiary to
the discharge of the duties or
conferred and imposed by this Act in respect of such road.
Before issuing any notice under subsection (l)(a), (b) or (d) the
Minister shall cause notice of his intention in writing to do so to
be given to all owners whose property may be affected by such
declaration, deviation or closing, requiring any person who may
object thereto to lodge such objection in writing with the District
Commissioner within thirty days after the date of the said notice:
that when the address of an owner is not known the notice shall be
published in the Gazette and sent to such owner by registered post to
his last known place of residence and a copy shall be posted at all
public offices in the district.
provided further that where a road has been in existence for a period
of twelve months before the commencement of this Act and has been in
use as a public road, it shall not be necessary to give notification
in writing to such owner."
is common ground that apart from the public notice to which I have
referred, no notice relating to this matter was ever published, in a
newspaper or in the Gazette, and no other form of notice was ever
given to the applicant, before the respondents occupied its land and
proceed to build a road upon it.
intention of section 7 of the Act, as far as the present case is
concerned, is in my view clear.
subsection (1) the Minister may (inter alia) declare that a public
road shall exist on land where no road was previously in existence
and define its course, or deviate any public road. In either case,
before doing so, a road board constituted under the Act is required
to investigate and report on the proposed action.
subsection (3) the Minister or a person acting under his authority
may, after notice to the owner, enter on and take possession of so
much of any land as may be required for the opening or construction
of a public road. It is in my opinion intended as a condition
precedent to such action that the Minister shall have first
established the road under subsection (1).
he may do so however, he is required under subsection (4) to give
notice of his intention to all land owners who may be affected by his
decision to do so. The purpose of this, clearly, is to call on any
landowner who objects to lodge his objection in writing with the
District Commissioner within thirty days.
subsection (5) the road board has a duty to inspect the locality
affected and make full enquiries into the intended action and any
objections, and to transmit its report on these matters as soon as
possible to the Minister. The words "intended action", read
in conjunction with subsection (1), refer to a proposal by the
Minister under that subsection to declare and define a new public
road or to order the deviation of an existing public road.
Act also provides, in Part VII, for the compensation of landowners
affected by road projects. That is however, in my view, a separate,
subsequent provision. It may be that in due course, after a road
board has considered objections, and reported to the Minister, he
will decide to proceed on his intended action. He will no doubt, in
reaching a decision, have regard to the public interest as well as
that of individual landowners. He may decided that the public
interest is overriding. In that event, if adversely affected, the
landowner will be entitled to compensation.
quite apart from this, and before that point is reached, the scheme
of the Act, in section 7, is that landowners whose property may be
affected are to be given the
to object to the intended action, before it is taken at all. Such
objections must be considered, and duly-weighed - albeit against
competing considerations such as the public interest - before a
decision is made to proceed on the intended action.
the present case, it is conceded by the respondents that the notice
published in local newspapers in May of 1991 did not comply strictly
with section 7(4).
is no doubt about that. The notice does indicate an intention to
alter the alignment of the Mbabane/Manzini road. It does disclose
that certain specified properties, including that of the applicant,
may be affected. It also does intimate specifically, elsewhere, that
the approach of the existing road to Manzini, near the Trade Fair
ground, may be affected. The hotel is in that general vicinity.
does not define the proposed new course of the road. I do not say
that that last point is necessarily a fatal defect but the notice
does not call for objections either. It is a preliminary warning to
landowners who may be affected. It asks them for their postal
addresses. It indicates that plans showing the actual area to be
affected are expected to be available within three months, and it
gives public notice that owners should arrange to inspect them.
notice that was published in the newspapers was not, in my opinion,
anything more than an advance warning of a proposal to re-route the
road. There is no evidence before me that in fact plans were
subsequently made available for inspection. The notice in May did not
specify where they could be viewed. No further notices were
was required to be done, to comply with section 7(4), was not only to
give all owners whose property might be affected notice of the
intended action, but also require them to object within thirty days
if they had objections.
in terms of the second leg of that requirement was not given. For
that reason alone, the subsection was not complied with. I do not
consider that the omission can, in itself, be regarded as merely
technical. The opportunity to object to a proposal that may affect
one's property rights is an important one. It is important as well to
bring that opportunity to the attention of landowners. Not everyone
would be aware of it.
notice published during May did not comply with subsection (4) in one
other respect. The subsection contemplates that where the address of
a landowner is known, the notice shall be given to him directly (or
at the least in one of the ways provided for in section 33 of the
Interpretation Act 1970 (No. 21 of 1970)). It is only in the case
where his address is not known that service can be effected by public
notice under section 7(4). The subsection stipulates that such notice
is to be published in the Gazette, but it also goes on to stipulate
that in addition it must be sent to the owner at his last known place
of residence, and that copies must be posted at all public offices in
this case, the applicant, which is a company, was registered as the
owner of the land concerned. It has not been asserted in the opposing
affidavits that the respondents were unaware of its address. In
preparing a project of this nature, I would have thought that it
would be possible, readily, to ascertain from public land records the
names of the property owners concerned. After all, the notice that
was published identified the legal lots. From this, I would also have
thought it an easy matter, by referring to the public records
pertaining to companies, to ascertain the applicant's registered
office. Quite apart from these things, it must surely have been known
that one of the properties that were likely to be affected was the
one on which the Prince Velebantfu Hotel stood. (Indeed it would
appear to me to be evident from the notice that it was known that
that was one of the properties.)
I acknowledge the practical force of the submission that, where the
address of a landowner is in fact unknown, publication in a local
newspaper is more likely to come to his attention than is notice in
the Gazette, and I also keep in mind the evidence for the respondents
that wide publicity was given to this project in the media, notice
was not in fact published in the Gazette and there is no evidence
that it was sent to the applicant's last known address or put up in
public offices in the district.
am therefore in respect of service of the notice bound to hold, as
Broome J. held in Durban Corporation v. Lewis 1941 42 SA 24 (NPD NPA)
(cited by Mr. Wilmaratne and to which I shall shortly come) that the
statutory requirements were not met.
was submitted by Mr.Millin that non-compliance with section 7(4) was
not a matter of real consequence because in the circumstances of this
case, the applicant was in due course in fact given for all practical
purposes an opportunity to make its objections, and did so.
25th November 1992, the applicant did write to the Ministry (through
its estate agents) stating that it had recently come to its notice
that road works were being conducted on its property, and objecting
to them. This letter is annexed at "IR2" to Mr. Manana's
affidavit. The letter also foreshadowed the applicant's subsequent
discussion with the Ministry, in which it included the question of
answer to this particular submission by Mr. Millin is that even if
this letter could properly have been treated as curing the earlier
failure by the Ministry to comply with section 7(4), the subsection
requires that objections are to be investigated and reported upon, to
the Minister, by a road board. It did not lie with the applicant to
have to ensure that this was done. That was a matter for the
But there is no evidence here that the applicant's objection was ever
referred to a road board for investigation and report. On the
contrary, it seems quite clear that this was not done.
Wilmaratne has also submitted - and strictly I think that it is a
prior issue - that Durban Corporation v. Lewis is authority for the
proposition that the court can disregard technical shortcomings in a
statutory requirement such as that in section 7(4) for notice. I
understood him to put it that widely.
respect I am not able to agree. In that case Broome J. expressly held
that the relevant statutory provisions had not been complied with. He
then proceeded to hold that this was not a defence for the landowner,
not because of any general rule that the omissions were merely
technical, but because on the facts the landowner was estopped from
relying on them.
the present case, I do not regard the failure of the first respondent
to comply with section 7(4) as a mere technicality, for the reasons
that I have already given. The respondents do however assert that the
applicant is in any event estopped from asserting non-compliance. Mr.
Millin also contends that it has waived its rights to dispute the
authority of the Minister and his contractor to go on to its property
and build the road, and he contends further that it has consented to
their doing so. (In advancing this last assertion, he said that the
respondents were in occupation and undertaking the project with the
applicant's "knowledge and consent", but as a person cannot
meaningfully consent to a course of action without knowing about it,
I think that it comes down simply to an allegation of consent.)
Millin also submitted that in any event the papers disclose a dispute
of fact in respect of these issues so that I should at least order
that oral evidence should he heard on them. He did not press, in the
event of a dispute, for the dismissal of the application.
three further bases on which the respondents seek to justify their
entry on to the applicant's land and their actions there all depend
on an assertion that the applicant has, by words or conduct, not
pursued its objections to the construction of the road over its land
to whether the papers disclose a real issue of fact in that regard,
Mr. Manana in paragraph 7(2) of his affidavit deposed that after
receiving the letter of 25th November 1992, and responding to it, he
then had discussions in the same month with the applicant's managing
director, Mr. Dumisa Dlamini.
latter proposed a certain form of compensation. There were subsequent
discussions, and at some time after 7th June 1993 the applicant
agreed to appoint its own valuers to assess compensation and report
back to the Ministry. Instead, however, it launched this present
Manana also deposed that at no stage of the discussions did the
applicant object to the construction of the road over its property.
In paragraph 10 he also stated that "in permitting the
construction works to proceed for almost a year," the applicant
was estopped from seeking an interdict, and that his proper remedy
second respondent filed an affidavit by Mr. L.M.S. De Sousa, who is
one of its directors. He deposed in paragraph 7.2 of that affidavit
that he was "advised" by the first respondent that the
applicant was given notice of the work, that construction commenced
with its knowledge and consent, and that compensation was lawfully
determined and the applicant informed.
also deposed in paragraph 7.3 and repeated in effect, in paragraph
8.2, that he was "advised" by the first respondent that the
applicant had (as the deponent put it in paragraph 7.3) "at all
times" disputed the amount of compensation "but
the fact" that the road would be constructed over his land.
paragraph 8.3 and 8.4 he referred to substantial works being carried
out on the property after discussions with the hotel manager and
without "protest" from the applicant; at paragraph 8.7 he
stated that as far as he was aware, the applicant had never protested
against the works as such; and at paragraph 10.5 that the applicant's
employees had assisted in demolishing the only building that was
is however clear from the first respondent's own papers, to which the
letter of 25th November 1992 was annexed, that in that letter the
applicant did at the outset object to the execution of the works
themselves. It is also quite clear from Mr. De Sousa's affidavit that
apart from his assertions that the applicant's staff (including,
admittedly, a manager) discussed with the contractor certain work,
and never protested to the contractor, and helped in demolishing a
building, his evidence that it consented to the building of the road
over its land and had not objected to it is not only hearsay but, in
the last respect, is incorrect.
its replying affidavits, the applicant denied that the work had
commenced with its knowledge or consent, and that it had over
abandoned its objections to the execution of such at the works
themselves. Mr. Dlamini deposed that he first became aware that the
first respondent was purporting to act under the Roads and Outspans
Act after discussions between lawyers at court on 22nd October 1993.
He also stated that the applicant's objection to the execution of the
works was maintained. In that respect he annexed at RD - RG letters
dated 17th June 1993, 30th June 1993, 26th July 1993, and 5th August
1993. The last three of these, according to their tenor, all voice
objection to the carrying on of the works.
hotel manager, Mr. H. Zikalala, also denied that equipment was
brought on to the property with his knowledge or consent.
Wilmaratne, for the first respondent did not seek to object in limine
that there were disputes of fact that could not be resolved on the
papers alone. He himself did not in fact make such a submission
expressly at all, and Mr. Millin did not do so except as a final
argument at the end of his own submissions.
do not consider that the papers in these proceedings disclose
sufficiently a real or genuine dispute of fact as to whether or not
the applicant is estopped from denying the respondents' authority to
enter or occupy its land and to carry out the road works, or has
waived its rights in those respects or has consented to the works.
applicant, as the lawful owner of the land, is entitled as of right
to the order for ejectment sought by it in paragraph 2 of the notice
of application, in the absence of proof by the respondents that they
have entered upon and occupied the land pursuant to legal authority.
The respondents have not in my judgment discharged that onus or shown
that the plaintiff is estopped from enforcing its right or has waived
it or consented to their activities. They have not shown that it is
prevented by delay from insisting on its right. Accordingly I find
that the applicant is entitled to the order sought in paragraph 2 of
the notice of application.
has also sought a permanent interdict under paragraph 3 of the notice
of application. This is a matter of discretion. I do not see the need
for such an order. The order under paragraph 2 will secure
effectively to the applicant the relief it desires, as Mr. Kuhny has
more or less acknowledged. The court does not contemplate that a
Minister of the Crown or his servants or agents would seek to enter
on and occupy land contrary to an order for ejectment. I do not
consider that there is a real prospect that the contractor would do
so either. I see no need at present for such an interdiction, and I
do not regard it as appropriate.
there is a question of costs. Mr. Millin has argued that as the
applicant has not pursued on this occasion any question of
compensation, but the second respondent has prepared its case on such
issue, the appropriate order is that there should be no order for
costs. With respect this submission is misconceived. At the time when
the applicant commenced these proceedings, it was entitled to seek
compensation. The first respondent invoked the Roads and Outspans Act
(which has its own provision for compensation.) The second respondent
relied on a derivative right from the first respondent to seek to
justify its own actions. In the way in which the respondents have
answered this application - on their papers - the applicant has gone
as far as it needs to go for the time being in seeking the relief it
desires. It has substantially succeeded on the application. I think
that there are evident reasons why it may think fit not to pursue the
question of compensation at this time, and that it is also evident
that that issue will essentially be one between the applicant and the
costs must therefore follow the event, and there will be an order
accordingly as prayed in paragraph 5 of the notice of application in
favour of the applicant.