Shongwe v Sithole and Another (604/2018) [2018] SZHC 154 (12 July 2018);

 

 

IN THE HIGH COURT OF ESWATINI

JUDGMENT

CASE No. 604/2018

HELD AT MBABANE

In the matter between:

MXOLISI SHONGWE                                                   APPLICANT

And

SIDZANDZANE SITHOLE                                         1st RESPONDENT

MTHANDENI SHONGWE                                          2nd RESPONDENT

 

Neutral Citation:          Mxolisi Shongwe and Sidzandzane Sithole & Another                                          [604/2018] [2018] SZHC 154 (12 July 2018)

Coram:                                   M. LANGWENYA

Heard:                           18 April 2018; 4 May 2018; 9 May 2018 and 11 May 2018

Delivered:                      12 July 2018

Summary:                     Civil law and Procedure-interim interdict-application to                                                interdict the second respondent from continuing with                                            construction of his structure at family fields pending                                             hearing of matter before traditional authorities-Applicant                                     argues he is the overseer of Shongwe homestead-That the                                     second respondent did not consult applicant nor did he get                                  permission from traditional structures to construct his                                           house-Matter was heard by the Lozitha Royal kraal which                                    found in favour of the second respondent-Application to                                                interdict second respondent’s construction project                                                          pending the alleged appeal before the Zombodze Royal                                        kraal.

                                      Civil law and Procedure-Interdict pending finalization of                                     alleged appeal before traditional structure-application of                                     common law principle regarding stay of execution of                                            decision of traditional structure pending appeal-Incorrect                                     to interpret applicable customary law principle in this                                              regard through the lens of Roman-Dutch common law-                                         Applicant has shown neither a clear right nor a prima                                            facie right for interdict-Application dismissed with costs-                                             Rule nisi operating as a temporary interdict is discharged.

 

JUDGMENT

 

Introduction

[1]     On 18 April 2018 the applicant approached the Court under the banner of a           certificate of urgency and moved an application for an order in the following           terms:

  1. Dispensing with the rules relating to the usual forms and procedure relating to the institution of proceedings and service and allowing this matter to be heard as one of urgency.
  2. That the application is condoned for non-compliance with the aforesaid rules of the Court.
  3. That a rule nisi hereby issue returnable on a day to be fixed by the honourable Court calling upon the Respondents to show cause why the following prayers should not be made final:
    1. Interdicting and/or restraining the Respondents from cutting and      destroying the perimeter fence in my homestead at Mfabantfu                    area (Ngonini) in the Manzini region.
    2. Interdicting and/or restraining the second respondent from                proceeding with the construction of his structure at the family                    fields pending hearing of the matter at traditional authorities.
    3. Interdicting and/or restraining the first Respondent from selling the Applicant’s plots in his homestead without his consent.
  4. That and pending finality hereof prayers 1, 2 , 3, 3.1; 3.2; 3.3 and 3.4        operate with immediate and sic interim relief.
  5.       Costs of the application.
  6. Any further and/or alternative relief.

 

[2]     It is common cause that on 18 April 2018 a rule nisi was issued operating with           immediate effect as an interim order calling upon the respondents to show           cause why the rule should not be made final. The interim order is effective           pending finalization of this matter in the High court.

The Parties

[3]     The parties are members of a Shongwe family located at Mfabantfu area. The   first respondent is Sidzandzane Sithole and a widow of Mabhensa Shongwe. The applicant and the second respondent are sons of the first respondent and       Mabhensa Shongwe.  

          Johannes Mandlenkhosi Shongwe and Minah Shongwe are siblings of the late           Mabhensa Shongwe; the former being a younger brother and the latter being     an older sister of Mabhensa Shongwe. Mabhensa Shongwe died in July 1997.

 

The Factual Background

[4]     The common cause facts in the matter are that the applicant and the second           respondent are biological brothers born of the same father and mother. In           terms of their birth order, the applicant is the eldest son to their parents and     the second respondent is younger; the latter’s birth order is unclear from the           papers[1]. What is clear though is that there were seven children born of the   applicant’s parents, three of whom have since died.

[5]     As can be deciphered from the preliminary paragraph, several prayers were           made on the notice of motion but the fact of the matter is that the only issues           pursued during the hearing of the matter is that of an interdict against the           respondent from continuing with the construction of his structure on the family fields and the prayer of costs. During the hearing of the matter, Mr.         Simelane for the applicant stated that all the other prayers have been     abandoned and applied that the rule be confirmed in terms of prayers 3; 3.1;       3.2 and 3.4 of the notice of motion.

 

[6]     The land which forms the subject matter of this proceeding is on Swazi nation land and is therefore governed by Swazi law and custom. The land in question          was not acquired by the protagonist’s father through the well- established   practice of kukhonta in as much as it is the parental home of the applicant’s    father. This fact is not disputed by the applicant.

 

[7]     The details surrounding how the Shongwe family came to have a homestead     on the land which is now a subject of this dispute is contested terrain. The    applicant argues that the Shongwe homestead originally belongs to his paternal grandparents who left it in the hands of the applicant’s father when    they died. According to the version of the first respondent, the land initially   belonged to a Manyatsi family but was later passed on to the Shongwe family       on the death of Siyaphi Shongwe (born Manyatsi) and her husband      Gcobandlovu Shongwe[2].

 

The case for the Applicant

[8]     It is the applicant’s case that his parents were married to each other but           subsequently separated. During the period of separation, the applicant alleges that the first respondent married Benjamin Dlamini and lived with the said     Benjamin Dlamini at her parental homestead. The first respondent denies that         she ever remarried and states that she was only ever married to Mabhensa   Shongwe. It is the first respondent’s version that she separated from her         husband and relocated to her parental home due to the domestic violence she   endured at the hands of her husband Mabhensa Shongwe. She says when          she relocated to her parental home, she took all her children with her. When    her husband         died, the first respondent returned to her marital home, and          culturally mourned her husband by wearing the mourning gowns in terms of Swazi law and custom.

[9]     The applicant argues that when his father died, he was appointed the overseer or inkhosana and he took over the responsibilities and obligations of his      deceased father. The applicant does not spell out when the meeting appointing        him as such was held. It is the case for the applicant that as inkhosana he       determines how the land belonging to the family is utilized and apportions      family assets among family members. According to the applicant, the family       Council must allocate the member of the family the land and umphakatsi must           ratify the family Council’s decision; and the money for kukhonta must be paid       to umphakatsi before a member of the Shongwe family can construct a structure on the family land. As inkhosana of Mabhensa Shongwe the           applicant is accountable to umphakatsi for the construction of structures on      the family land if such is done without the requisite authority-so the argument        goes.

 

The case for the Respondents

[10]   The first respondent denies that the applicant was ever appointed as the overseer of the Shongwe home on the demise of the applicant’s father. She states that her husband died while living at his parental home and not at his     own place where he had khontaed. Put differently, the first respondent argues          that the place that the applicant calls home is the first respondent’s marital        home and for that reason, her husband’s siblings and not his children have a better title over the land on which the homestead stands[3]. Taken to its logical     conclusion, the first respondent’s argument is that in the circumstances, the          overseer of the Shongwe homestead would be Johannes Shongwe who is the   last surviving brother of Mabhensa Shongwe and not the applicant.

 

[11]   In his replying affidavit, the applicant states that both siblings of Mabhensa           Shongwe were allocated land away from the one occupied by the applicant’s           father. He says both siblings of Mabhensa Shongwe relinquished all authority   over the said land. This version was not replied to by the respondents as it was        raised for the first time in the applicant’s replying affidavit after the     respondents had filed their answering affidavit.

 

[12]   In his replying affidavit, the applicant states that he was appointed inkhosana by elders of the Shongwe household[4]. Minah Shongwe confirms that the       applicant was appointed inkhosana of his father’s estate. There are no details       of when the meeting to appoint the applicant was held and who, among the     family members were present other than the elders referred to in the       applicant’s replying affidavit. Minah Shongwe, Norah Shongwe and      Ganuganu Shongwe are the family elders who the applicant avers appointed   him as the overseer of the Shongwe home. Curiously, there are no supporting           affidavits of Norah and Ganuganu Shongwe dealing with the first   respondent’s averments that the applicant cannot be appointed an overseer        over his father’s parental home if a male sibling of the applicant’s father is     still alive. Only Minah Shongwe and Thulisile Shongwe’s affidavits were        filed and they only state that family elders appointed the applicant to be the     overseer of Mabhensa Shongwe’s estate; but they also do not go far enough          as they do not state who the family elders were and where and when the       meeting to appoint the applicant was held.

 

[13]   The result is there are two competing and mutually destructive claims before     the Court from the applicant on the one hand and from the first respondent on       the other hand. The question of who the overseer is, is clearly disputed on the        papers and cannot be settled in this forum.

 

Resolution of matters through motion proceeding

[14]   It is a trite position of our law that motion proceedings are concerned with the           resolution of legal issues based on common cause facts and not on probabilities. The approach which a court must follow when confronted by         disputes of fact in motion proceedings is that which was enunciated in     Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd[5] an approach that         was further crystalised by the Supreme Court of appeal in the case of National      Director of Public Prosecution v Zuma[6] in the following terms:

                   ‘[26] Motion proceeding, unless concerned with interim relief are all about the                                resolution of legal issues based on common cause facts. Unless the circumstances               are special they cannot be used to resolve factual issues because they are not                             designed to determine probabilities. It is well established under the Plascon-Evans              rule that where in motion proceedings disputes of fact arise on the affidavits, a final              order can be granted only if the facts averred in the applicant’s…affidavits, which             have been admitted by the respondent, together with the facts alleged by the latter,                     justify such order. It may be different if the respondent’s version consists of bald or             uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible,                              far-fetched or so clearly untenable that the court is justified in rejecting them                             merely on the papers…

Disputed Facts

[15]   The first respondent disputes that the applicant was ever appointed an overseer           or inkhosana of the Shongwe homestead. In this assertion, the first respondent is supported by Johannes Shongwe who is a younger brother of the applicant’s   father[7]. The first respondent avers that the applicant cannot have a better title     over his father’s siblings in their parental home. That the applicant lives         overseas and comes home occasionally and cannot therefore be able to pay          homage to their Majesties through kuhlehla are some of the grounds that        militate against the applicant being the overseer of the Shongwe homestead-     so the first respondent’s argument goes. The applicant does not dispute the     version of the first respondent; namely that he lives abroad and that he           therefore cannot pay homage to their Majesties through kuhlehla but confirms that he spends a better part of his life abroad-specifically in Switzerland where        he resides[8].

 

[16]   That the Shongwe homestead is the parental home of the applicant’s father           finds support in the fact that the applicant does not argue that his father acquired the land by kukhonta or any other means. The applicant’s version is        that the land initially belonged to his paternal grandparents and subsequently     became his father’s land. How the land changed hands to solely belong to the      applicant’s father is unclear. Even if for a minute the applicant’s version that           the land on which the Shongwe homestead stands belongs to his father was         taken to be the correct one, it is unclear why the second respondent should be        barred from building his house at his parental home especially after     permission to do so was granted by a traditional structure.

 

[17]   The applicant avers that as the overseer of the family of Mabhensa Shongwe    he is accountable to the traditional structures for all developments within the   homestead. He states also that all family members are obliged to consult him         before they initiate projects within the homestead as only the applicant, in          consultation with family elders can determine how the land can be utilized          and how it can be divided among family members. It is the applicant’s         contention further that as the overseer, he has the sole right to run the affairs          of the Shongwe homestead and that the respondents do not have the right to construct the structure that is the subject of the dispute in this matter without     the applicant’s consent and authority from umphakatsi. Before the Court are    two mutually destructive claims on the position of the overseer of the           Shongwe homestead. For that reason, the Court is therefore unable to find that           the applicant is an overseer of the Shongwe homestead on the basis of the           papers as they stand.

 

Relationship between the applicant and respondents

[18]   The relationship between the applicant and the first respondent is at an all-       time low and the applicant admits as much in his replying affidavit. In such    an environment, even if the court took the view that the applicant is entitled   to be consulted, consultation between parties whose relationship is at its         lowest ebb is likely going to be tenuous if not downright impossible to   achieve. This would further be compounded by the reality that the applicant           lives abroad for much of the year.

 

[19]   The parties (the applicant and the first respondent) have pursued each other           quite relentlessly through the traditional structures, the criminal justice system as well as through the courts in an endeavor to have their personal differences       and self-created disputes resolved through unnecessary litigation. In my view,      the parties would do well to seek to restore their relationship through dialogue,        forgiveness and reconciliation; after all, they are family joined by birth and    cannot wish each other away.

Restatement of Lozitha Royal Kraal Decision

[20]   When submissions were made in this matter, it was conceded by the           applicant’s attorney, and correctly in my view, that the respondents did get           authority from umphakatsi of Lozitha to build the structure complained of in    the Shongwe homestead. In his founding affidavit the applicant argues that   the respondents’ conduct of constructing a structure on the land in question is          unlawful. This is not correct. The Lozitha royal kraal granted permission to the second respondent to construct his structure through its ruling as reflected          in annexture ‘AA’ of the respondents’ answering and confirmatory affidavits.      The ruling of the Lozitha royal kraal is reflected in annexture ‘AA’ dated 28     March 2018 and is couched in the following terms:

          SIJUBO SENDZABA YAMAKE SIDZANDZANE SHONGWE NA MXOLISI SHONGWE NGEKWAKHA KWAMTHANDENI SHONGWE

          Esikhalweni saMxolisi Shongwe ngekwakha kwemnakabo Mthandeni        Shongwe ekhaya kubo libandla lakaLozitha laya kuyobona ekhaya        kaShongwe latfola nakulokulandzelako.

  • Latfola kutsi Mthandeni ngumntfwana wamake Shongwe welama    Mxolisi Shongwe.
  • Libandla latfola kutsi Mthandeni wakha ekhaya etaleni kubo kukuvumelana namake wakhe kanye nababe lomncane MP Johannes Shongwe.
  • Libandla latfola kutsi kute lokubi lokwentikile futsi make Shongwe    nguye lowengamele lelikhaya njengoba umyeni wakhe Mabhensa    Shongwe sewashona.
  • Libandla latfola kutsi sikhalo saMxolisi sitebufakazi latsi uma           anesikhalo akasifake kubakaShongwe hhayi emphakatsini.

 

SIJUBO SELIBANDLA

[21]   Ngekubukisisa bonkhe bufakazi lobubekiwe libandla lijube naku       lokulandzelako:

          Libandla labutfola bufakazi kutsi Mthandeni wakha ekhaya kubo     lokulilungelo lakhe njengemntfwana wasekhaya. Nekutsi imvume wayitfola kulofanele (make Shongwe) nekutsi nababe losasele wakhulula kutsi akhe.      Libandla lijuba kutsi Mthandeni akachubeke akhe longamumisa ngumndeni          wakaShongwe ngoba wakha endzaweni yakaShongwe lebukwe ngumake        Sidzandzane Shongwe (LaSithole).

          Vice Chairman

          Mattie Shabangu.

 

[22]   The ruling of the Lozitha royal kraal effectively granted the second respondent           permission to continue with the construction in the family land as he had first   been granted permission to do so by the first respondent and Johannes Shongwe. The ruling states also, that the applicant’s complaint had no         substance and that if the applicant has any further complaint about the matter         he should address it to the Shongwe family and not to the royal kraal. In light   of the ruling, the second respondent’s conduct of continuing with the    construction cannot, in law be said to be unlawful.

 

Interim Interdict pending alleged appeal at Zombodze Royal Kraal

[23]   The fact that the Lozitha royal kraal permitted the second respondent to build his structure at his parental home without having heard the applicant’s         complaint about why it was inappropriate for the second respondent to          continue with the construction seems to be another aspect of the present           proceeding.

[24]   The applicant contends that the Lozitha royal kraal’s ruling offends the audi           alteram partem rule as it was handed down without so much as hearing his           version. The applicant contends further that the interdict be granted stopping   the second respondent’s construction project while the matter is pending       before the Zombodze royal kraal where it is alleged the applicant has noted    his appeal.

 

[25]   It is the applicant’s contention that he is entitled to the order prayed for because he has allegedly appealed the decision of the Lozitha Royal kraal and that the status quo ante that prevailed prior to the decision allegedly appealed against was made has to remain in place. The reasoning seems to be- this        position is in keeping with the principle that once an appeal has been noted,         the implementation of the new order is suspended. The view taken by the    applicant in this regard is to interpret the applicable customary law through          the lens of the Roman-Dutch common law. This cannot be correct. It has been held by the High court in various decisions that the High court does not have           jurisdiction to interfere in a matter that is the preserve of the customary law      of EmaSwati[9].

 

[26]   If the common law principle of suspending the execution of the decision reached or order issued is super-imposed in cases where only customary law   is applicable, there is likely to be an undesirable tension between the    application of Roman-Dutch common law and the customary law in this    regard. It is not a given that matters of customary law necessarily require the   application of common law principles as the two systems of laws are not        necessarily the same in their complexion and application. It may well be that           in line with the requirements of justice in appropriate matters the traditional           structures exercising appellate jurisdiction and applying customary law may     well grant a stay of proceedings pending the determination of the alleged         appeal. The applicant did not advance reasons why the Zombodze royal kraal   cannot regulate its processes where justice so demands.

 

[27]   In the present matter, there is no material-either evidential or legal- confirming the applicability or otherwise of suspension of the execution of a decision or          order granted by the Lozitha royal kraal once an appeal is noted. The applicant         did not address the court on this issue.

 

[28]   In an application for an interim interdict the dispute is whether, applying the           relevant legal requirements, the status quo should be preserved or restored           pending the decision of the main dispute. Equally important is that at common           law, a court’s jurisdiction to entertain an application for an interim interdict           depends on whether it has jurisdiction to preserve or restore the status quo[10].    In the case at hand, the application is for an interim interdict pending the     finalization of the substantive dispute between the parties which is alleged to        be pending before the Zombodze royal kraal, a traditional structure that is     vested with power to apply Swazi law and custom. I have not been shown by          the applicant why I should apply a common law principle in a matter that is   within the purview of the traditional structures.

 

[29]   It is only when an appeal or review application has been filed before this Court           that it can exercise its inherent jurisdiction pursuant to section 151 (1) (a) of     the Constitution[11]. Inherent jurisdiction in this context means the court may draw upon its reserve of powers whenever it is just or equitable to do so, and       in particular to ensure the observance of the due process of law or to do justice        between the parties and to secure a fair trial between them. In matters that are      before traditional structures, the jurisdiction of this Court is excluded and   deferred by constitutional provisions and provisions of the Swazi Courts Act,           80/1950.

          The next enquiry is whether the applicant has established the pre-requisites of an interim interdict which would entitle him to the relief sought.

 

Requirements for an Interim Interdict

[30]   The requirements for the granting of an interim interdict are notorious and the           decisions legion. The requirements are the following: a prima facie right, a           well-grounded apprehension of irreparable harm if the interim relief is not           granted and the ultimate relief is eventually granted, that the balance of           convenience favours the granting of an interim relief, and that the applicant      has no other satisfactory remedy[12]. In the Eriksen Motors (Welkom) case,        Holmes JA said the following:

                        ‘The granting of an interim interdict pending an action is an extraordinary remedy             within the discretion of the court. Where the right which is sought to protect is not                clear, the Court’s approach in the matter of an interim interdict was lucidly laid by                 Innes, JA in Setogelo v Setlogelo.[13] In general the requisites are-

  1. A right which ‘though prima facie established, is open to some doubt;
  2. A well-grounded apprehension of irreparable injury; and
  3. The absence of a remedy.

 

[31]   The court’s discretion should be exercised through weighing, inter alia, the           prejudice to the applicant if the interdict is withheld against the prejudice to      the respondent if it is granted. This delicate balancing act is called the balance         of convenience. The stronger the applicant’s prospects of success the less his        need to rely on prejudice to himself; conversely, the more the element of     ‘some doubt’ the greater the need for the other factors to favour him. The court         considers the affidavits as a whole and the interrelation of the foregoing considerations, according to the facts and probabilities[14].

 

[32]   Where the right is clear, the remaining questions are whether the applicant has also shown:

  1.      An infringement of his right by the respondent; or a well-grounded      apprehension of such an infringement;
  2. The absence of any other satisfactory remedy;
  3. That the balance of convenience favours the granting of an     interlocutory interdict[15]

 

Prima facie Right

[33]   The applicant’s prima facie right upon which he relies is       founded on the               unproven and contested assertion that he is a lawful overseer of the Shongwe        homestead. For the reasons outlined above, the applicant has shown neither a            clear right nor a prima facie right to the land on which he seeks to stop the                 construction by the second respondent. The conduct of the second respondent       (to build a house at his parental home) cannot be said to be unlawful in so far as    it was sanctioned by the Lozitha royal kraal whose jurisdiction to do so has       not been challenged by the applicant.

 

Irreparable Harm

[34]   The applicant has failed to demonstrate what, if any irreparable harm he’ll      suffer if the second respondent continues with the construction of his structure at his parental homestead. The applicant alludes only to prejudice which will   be suffered by other family members if the respondents are not interdicted        from sub-dividing and disposing of family land. Equally un-meritorious, the      applicant has not provided any evidence-not even a phantom of it to support the assertion that the respondents are subdividing the family land.

 

    Balance of Convenience

[35]   It has not been shown that the applicant will suffer any prejudice if his younger      brother continues with the construction of his structure at his parental home.    I am of the view that the prejudice the second respondent has suffered and           continues to suffer at the halting of his construction project pending the    finalization of these proceedings far outweighs any prejudice, if any, that the   applicant would suffer if the second respondent is allowed to continue with         the construction project.

 

[36]   It is my considered view that the applicant has shown neither a clear right nor a prima facie right for the interdict prayed for. The application is therefore           dismissed and the rule nisi operating as a temporary interdict is discharged.   Costs will follow the event, which is that they are borne by the applicant.

          Accordingly, the foregoing reasoning and conclusions respecting the issues I           have considered and determined are dispositive of the present application.

 

 

__________________________

M. LANGWENYA

JUDGE OF THE HIGH COURT

 

 

For the applicant:                 Mr. S. Simelane

For the Respondents:           Mr. G. Mhlanga   

 

[1] It is clear though from the papers that the first born child of the first respondent and Mabhensa Shongwe is a girl-Thulisile Shongwe.

[2] Siyaphi Shongwe, nee Manyatsi and Gcobandlovu Shongwe were the applicant’s paternal grandparents.

[3] See paragraph 10.4 of the Respondents’ Answering affidavit.

[4] In the replying affidavit of the applicant, see paragraph 19.2.1 where the names of the Shongwe family elders are listed as Mainah Shongwe, Norah Shongwe and Ganuganu Shongwe.

[5] 1984 (4) SA 623 (AD).

[6] (2009) ZASCA 1 at para [26]

[7] See paragraph 6 of Johannes Mandlenkhosi Shongwe’s confirmatory affidavit.

[8] See paragraph 5.17 of the applicant’s founding affidavit

[9] See Mariah Duduzile Dlamini v Augustine Divorce Dlamini and two others (550/2012) [2012SZHC] 66 (12 April 2012); Abraham Mathunjwa and four others v Shiselweni Regional Administrator and another (285/2017) [2017] SZHC 110 (09 June 2017).

[10] See National Gambling Board v Premier, KwaZulu Natal and Others 2002 (2) SA 715 at 730-731.

[11] ‘The High Court has unlimited original jurisdiction in civil and criminal matters as the High Court possesses at the date of commencement of this Constitution’.

[12] See: David Themba Dlamini v Sylvian Longendo Okonda and Seven Others Civil Case No 1995/2008; Eriksen Motors (Welkom) Ltd v Protea Motors Warrenton and Another 1973 (3) SA 685 (A); Knox D Arcy Ltd v Jameson and Others 1996 (4) SA 348 (A) at 361.

[13] 1914 AD 221 at 227.

[14] See: Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D) at 383 D-G.

[15] Knox D’ Arcy Ltd and Others v Jameson and Others 1995 (2) SA 579 (W) at 592-593.