IN
THE HIGH COURT OF SWAZILAND
Civ.
Case No. 1760/94
In
the matter between:
ENOCK
QEDUSIZI NDLOVU Applicant
and
BHOKILE
ELLIOT SHIBA 1st Respondent
NOMUSA
BOBBY SHIBA 2nd Respondent
CORAM: S.W.
Sapire A.J.
FOR
THE APPLICANT Mr. Maphalala
FOR
1ST & 2ND RESPONDENTS Mr. Lukhele
Judgment
(14/9/95)
The
applicant, Enock Ndlovu has applied on notice of motion for an order
directing the first respondent Bhokile Elliot Shiba to restore
thirteen (13) herd of cattle to the applicant together with their
progeny.
The
applicant alleges that it was intended that he marry the second
respondent and that the cattle were delivered to the first respondent
as lobola. The marriage never took place and there is no prospect of
it ever taking place as the second respondent has apparently
committed herself to someone else.
There
is no basis for any claim against the second respondent, but as her
defence and representation were undertaken and provided for by the
first respondent and the legal representatives appointed by him no
additional costs have been incurred by what may be a misjoinder. The
respondent has raised as an issue the jurisdiction of this court to
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hear
a matter such as this where a knowledge of Swazi Law and Custom is
necessary. Our authority has been cited in support of respondent's
contention. A survey or reported judgments reveals that cases such as
this have been dealt with by this court frequently in the past. The
National Courts have concurrent jurisdiction and the claimant may
choose the court in which he will bring his case. There are often
compelling reasons for a claimant to choose the National Court as the
venue. In this court judicial cognizance of Swazi Law and Custom may
not be taken. A litigant who relies on Swazi Law and Custom as the
basis of his claim will have to produce expert evidence as to the
provisions of Swazi Law and Custom applicable to his case. In motion
proceedings this evidence must be given on affidavit attested to by
an expert and one who qualifies as such. The respondent would be
entitled in opposing the application to put the expert's opinion in
issue by filing affidavits attested by the respondent's own experts.
The court would then deal with the issue as one of fact. In the
National Courts, Swazi Law and Custom may be applied without any
proof of the provisions thereon. Differences of opinion on such
issues in such courts are matters of law.
In
this case the applicant has not filed any affidavit dealing with the
Swazi Law and Custom in the manner I have just outlined and the
application must fail on this ground alone.
Moreover
there are factual issues in dispute which cannot be decided on the
affidavit alone, an oral evidence is required if these disputes are
to be resolved. These disputes should have been anticipated by the
applicant. If there were considerations which influenced him to bring
this case into this court, he should have instituted an action. This
is not a suitable case to order a referral to oral evidence, not only
because of the fatal defect constituted by the absence of any
evidence as to the applicable provisions of Swazi Law and Custom but
because the dispute of facts were raised by the respondent and known
to the applicant before the application was launched. The application
is dismissed with costs.
S.W.
SAPIRE
ACTING
JUDGE
