THE HIGH COURT OF SWAZILAND
Case No. 1180/94
the matter between:
MHLABA SHILUBANE N.O. Plaintiff
ELECTRICITY BOARD Defendant
PLAINTIFF Mr. Shilubane
DEFENDANT Mr. Flynn
this action, the plaintiff as the executor testamentary of the estate
of the late James Shadrack Mkhulunyelwa Matsebula seeks the removal
from the estate's land of an electric substation built on it by the
defendant, the Swaziland Electricity Board.
is alleged that the Board erected the substation unlawfully on the
its plea, in paragraph 3.2, the Board denies that this, and says that
it duly complied with the requirements of section 32 of the
Electricity Act No. 10 of 1963.
response to a subsequent request for further particulars the Board,
by a letter of 12th September 1994, says –
it complied with all the provisions of the section;
a copy of a notice attached at "A" to the letter is of the
notice served on the occupier of the land under section 32(6), and
that copies of registered mail slips at "B" and "C"
are those of the slips proving service;
the District Commissioner gave the Board permission to build the
substation, in terms of section 32(7), on land that was not occupied
by the plaintiff at that time;
a document attached at E to the letter of further particulars is a
copy of the written permission in terms of which the Board occupies
the property under section 32(7) - and that a document at "F"
is a written request to the District Commissioner in terms of
section 40 "paragraph 4".
plaintiff now excepts to the Board's response, as pleaded, on the
grounds that it has not disclosed a defence because –
District Commissioner had no power to permit the Board to occupy the
Board did not serve the notice referred to "in section 32"
in terms of "section 43."
Flynn, for the Board, has been able to show that since the
proclaiming of the Electricity Proclamation, 1963, that statute has
been edited by the Attorney General in the course of the revision of
the statute law. This has led to some confusion - in short, I think,
because both Mr. Shilubane and I had first assumed that the same
sequence of numbering had been maintained over the years, whereas the
references in the documents attached to the further particulars refer
to the provisions of the Proclamation as it stood originally.
does seem to me that further confusion may be avoided if the parties
abide by the sections and their numerical order as they stood at the
time when the Board first occupied the land and built the substation,
but I appreciate that that is a matter for the parties.
I do not consider that the exception can be sustained on the basis of
which it has been brought, namely that the Board's pleadings
(including its further particulars) do not disclose a defence.
section 40(1) as it stood the Board was empowered, subject to the
provisions of the Proclamation, to place electrical plant on land not
covered by buildings. Before doing so, it had to serve notice in
writing of its intention on the occupier: see section 40(2)(a).
the person served with the notice did not consent within fourteen
days, or attached terms or conditions of consent to which the Board
objected, the District Commissioner of the district concerned could
under section 40(4) give his consent - in other words to authorise
the project to proceed. In certain circumstances, section 40(4)
provided that the Resident Commissioner, instead of the District
Commissioner, was the person empowered to do so. These circumstances
are not shown to be relevant here. With respect, I think counsel for
the plaintiff has misconstrued section 40(4) in that regard. If in
that subsection the words "or, where such District Commissioner
is the person on whom the notice was served, the Resident
Commissioner" are enclosed in brackets, then I think it becomes
clear at once that in the ordinary case it is the District
Commissioner for the district who is empowered by the subsection to
allow the Board to proceed.
is the plaintiff's case, as pleaded, that the District Commissioner
consented. This head of exception must therefore fail.
51 of the original Proclamation governed service of notices. It began
with the words "Without prejudice to any other method of
service". It did not require that the notice had to be delivered
to or affixed on the land itself. This ground of exception, as taken,
cannot be sustained. But in any event the Board's plea is that it did
serve the requisite notice; and section 51 expressly allowed for
service by post - a fortiori, in my view, registered post.
exception is accordingly dismissed. Strictly, I think, the plaintiff
may have been entitled at least to the costs of the
but that was not pursued. They therefore follow the event on the
application as a whole, i.e. they will therefore be the Board's costs
in any event.
Mens Nike Cortez