IN
THE HIGH COURT OF SWAZILAND
Civ.
Case No. 2155/94
in
the matter between:
ZACHARIA
DLAMINI 1st Applicant
JOHN
MKHATSHWA 2nd Applicant
MSHWALA
MKHWANAZI 3rd Applicant
ABEL
NHLABATSI 4th Applicant
MANDLENKHOSI
SIMELANE 5th Applicant
JOTAM
MKHATSHWA 6th Applicant
ISAAC
MKHWANAZI 7th Applicant
and
TYRONE
LAPIDOS MHLONGO 1st Respondent
ROMAN
DLAMINI 2nd Respondent
CORAM: Hull,
C.J.
FOR
THE APPLICANTS Mr. Littler
FOR
THE RESPONDENTS Mr. Flynn
Order
(7/2/95)
This
is an application to rescind a court order obtained by the first
respondent against the applicants in the High Court on 3rd December
1993 in Civil Case No. 1763/93 and to stay, pending the outcome of
this present application, the execution of a writ of ejectment that
the first respondent has issued against the present applicants in
that case.
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Several
issues arise on the present application. The respondents here have
objected in limine that the applicants' founding papers fail to
disclose that they have any good defence in Civil Case No. 1763/93.
There is a dispute of fact (inter alia) as to whether the present
applicants were duly served with the notice of application in that
case. What the present applicants are seeking to have rescinded is a
rule nisi that was in fact subsequently confirmed on 10th December
1993.
When
the present application came before me on 27th January 1995, however,
a more fundamental issue arose, which was whether the High Court had
jurisdiction to entertain the proceedings in Civil Case No. 1763/93.
It is the present applicants' contention that they are farm-dwellers
within the meaning of section 2 of the Farm Dwellers Control Act,
1982 (No. 12 of 1982) and that by reason of section 9(1) of that Act,
this court had no jurisdiction to hear the dispute in the case.
The
present applicants have not, in their notice of application, founding
and supporting affidavits, or replying affidavit pleaded explicitly
(or really, in my view, by any very clear implication) that they
dispute this court's jurisdiction on that basis. Nevertheless it was
agreed on 27th January that the matter should be considered as a
preliminary issue, for if the submission were correct, it would
dispose of the case. The present application was accordingly
postponed until 3rd February 1995 to enable counsel to consider and
argue the point fully.
Having
heard the further submissions, I am of the view that the issue of
jurisdiction cannot be resolved without oral evidence.
Section
9(1) of the Act is expressed in the following way:
"(1)
No court shall have jurisdiction to hear or determine any dispute
between an owner and an umnumzane concerning any rights and
liabilities
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under
this Act or as to who are dependants of an umnumzane or to order the
cancellation of an Agreement or removal of an umnumzane or his
dependants from any farm."
The
word "umnumzane" is defined by section 2 to mean "a
person recognised by Swazi law and custom (as) the head of a
homestead" and may include a woman.
The
same section defines the expression "farm-dweller" as a
person who resides on a farm but it also excludes certain classes of
persons, including in paragraph (c) of the definition "a lessee
under a written agreement of lease", from the meaning of
"farm-dweller."
The
long title or preamble to the Act states that it is "to regulate
and control relations between owners of farms and other persons
residing on such farms."
The
scheme of the Act was analysed by Hannah C.J. in Twala v. Sikhondze
1982-86(11) S.L.R. 424. An umnumzane who immediately before the
commencement of the Act was a farm-dweller (i.e. as defined in
section 2) or is after the commencement of the Act permitted by the
owner of a farm to reside on it was or, as the case may be, is
entitled within ninety days to obtain a written agreement complying
in form and substance with the requirements set out in section 4 of
the Act and was or is to take reasonable steps to have the agreement
entered into within that period.
The
agreement under section 4 is to be in writing and to be made between
the farm owner and the umnumzane and is to be expressed as conferring
on the umnumzane and his dependants the right to reside on the farm
for a definite period. It must also contain information that is set
out in the schedule to the Act.
The
statute establishes District Farm Dwellers Tribunals and a Central
Farm Dwellers Tribunal for its administration, including the
resolution of disputes between any farm owner and umnumzane. There is
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an
eventual right of appeal to the Minister for Home Affairs. The reason
for this is, no doubt, that it is considered that issues arising
between farm owners and people who live on farms in the traditional
manner may be politically sensitive and are better administered
through such tribunals and, eventually, by appeal to the Minister,
rather than in the civil courts of law.
Section
10 of the Act contains provisions that restrict the ejectment of
farm-dwellers from the land on which they reside, except by an order
of a Tribunal which may only be made in circumstances set out in that
section.
This
present case and others like it appear to have given rise to some
contusion as to the nature of questions of jurisdiction, and in
particular the jurisdiction of the High Court of Swaziland.
Mr.
Littler contended that the court itself should consider in every case
whether it has jurisdiction to entertain a case. I do not disagree in
principle. In the present case, it appears that the judge who granted
the rule nisi did raise the issue of his own motion, and that he was
at that point of time satisfied by the submissions made on behalf of
the person who is now the first respondent in these proceedings.
Nevertheless,
the practicalities must be kept in view. The High Court, as a
superior court, ordinarily has an unlimited jurisdiction to hear and
determine disputes about land. If it were otherwise of course,
section 9(1) of the Act now in question would not have been
necessary. Where on the face of the papers filed in any proceedings,
the court apparently has jurisdiction, and there is no reason to
think otherwise, then in practical terms there is of course a risk
that it will proceed until the objection is taken and sustained, or
it subsequently becomes aware itself that it has no jurisdiction.
Where
a defendant is represented by a lawyer, the lawyer should object to
jurisdiction expressly and as early as possible.
1
appreciate that some cases - even perhaps in many cases - involving
rural dwellers, they may not have legal representation. In such
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circumstances,
it is in my view always open to the Attorney General, in the public
interest, to intervene on their behalf if he sees fit to do so.
Properly, however, he should intervene formally in the legal
proceedings themselves.
Where
the High Court is satisfied that as a matter of law it does not have
jurisdiction to hear and determine a dispute, it will not entertain
the matter. If it has already begun to do so, it will decline to
continue on it.
Whether
or not the High Court does have jurisdiction is nevertheless itself
an issue which it will entertain. It will consider whether or not its
jurisdiction is limited by law. It will also consider whether on the
facts of a case before it, such as the present one, the legal
limitation on its jurisdiction is applicable.
On
the present application there is a dispute of fact that is relevant
to the issue of jurisdiction. The present respondents contend that
the applicants now before the court are not farm dwellers because
they fall under paragraph (c) of the definition of the expression in
section 2 of the Act. The applicants disagree. The issue will have to
be resolved on oral evidence. There may also be in my view a need to
clarify by further evidence whether or not each of the present
applicants is an umnumzane. They do not say so in the affidavits
expressly, though it may be that this is an oversight.
The
issue of jurisdiction must be resolved before the matter proceeds
further.
I
therefore direct that the application should go to oral evidence on
that issue. In the first instance, I will postpone it until 10th
February 1995 before me in case it can be heard within one hour and
that suits the convenience of the parties.
In
the meantime the interim order staying execution will continue.
DAVID
HULL
CHIEF
JUSTICE
