THE COURT OF APPEAL OF SWAZILAND
the matter between:
MTFUSO II (formerly known as
DLAMINI) 1st APPELLANT
DLAMINI 2nd APPELLANT
SIKHONDZE 3rd APPELLANT
: BROWDE J
THE APPELLANTS : MR. DUNSEITH
THE RESPONDENT : ADVOCATE ROBERTS
appellants have at all times material to this matter been living in
an area of Swaziland known as ka-Mkhweli. A dispute arose in the area
in about 1992 regarding the chieftainship of the community which
resulted in conflict and occasional violence.
or about the 3rd August 2000 the appellants were each served with a
removal order signed by Prince Sobandla, Minister of Home Affairs,
ordering them together with their dependants to leave the area of
Ka-Mkhweli by 5th September 2000 and to relocate to other areas.
These orders purported to be issued by the Minister of Home Affairs
in terms of powers conferred on him by Section 28 of the Swazi
Order, 1998. ("The Administration Order") Section 25(11) of
that Order provides that a person whose removal has been ordered
under Section 28(3) may, within a period of 30 days from the date the
order was served on him, apply to the Ngwenyama (His Majesty King
Mswati III) for the review of such an order.
the 21st August 2000 the appellants brought an application to the
High Court as a matter of urgency seeking an order declaring the
removal orders to be stayed and suspended pending the final
determination of an application to the Ngwenyama for review of the
said orders. The appellants also sought an interdict restraining the
Minister of Home Affairs and others from taking any action against
them pursuant to the said removal orders, pending the final
determination of the said application to the Ngwenyama.
the founding affidavit the allegation was made that on 8th August
2000 the first appellant and his council proceeded to the Royal Kraal
at Eludzidzini in order to appeal to the Ngwenyama for the review of
the removal orders. The first appellant then stated that after being
kept waiting for some hours they were informed that they would not be
permitted to place their petition before the Ngwenyama because the
matter, so they were informed, had long been concluded and they were
was then that the application was brought before the High Court for
the relief set out above.
31st August 2000 the respondent's answering affidavit was filed. The
Attorney General of the Kingdom was the respondent's deponent. He
raised various points in limine the main one of which was that the
High Court did not have jurisdiction to entertain the application.
After setting out all the points in limine which he wished to argue
the Attorney-General then concluded his affidavit with the following:
none of the above points in limine be upheld, the respondent
respectfully reserves its right to file a supplementary affidavit(s)
on the merits of the matter,
comprehensive affidavit cannot be
at this time, regard had (sic) to the time constraints occasioned by
the manner in which the application has been brought.
do however at this stage state that I am personally in possession of
the Ngwenyama's instructions in terms of Section 28(3) pertaining to
this matter, and I confirm same".
ensued on Friday 1st September and Monday 4th September 2000. On the
latter day the learned Chief Justice had summoned to assist him in
deciding the matter, two Swazi assessors who could advise him on
aspects of the application which involved Swazi law and Custom. It
appears to be common cause that (a) the issue of jurisdiction was
fully canvassed in argument and (b) that the appellants, as it is put
in the heads of argument prepared on behalf of the respondent, "were
seeking an interim order, the purpose of which was to protect their
rights and interests pending the final determination of their
application to the Ngwenyama for review of the removal orders".
Tuesday 5th September 2000, Sapire CJ handed down a written judgment.
He analysed the contents of the removal orders which were served on
the appellants and pointed out that Section 28(1) of the
Administration Order ousts the court's jurisdiction to inquire into
any order made under sub-section (3) i.e. an order made by His
Majesty. The learned Chief Justice found that the orders "in
this case were made by the Minister himself." The learned judge
then went on to say: -
so far as they impose conditions as to the date by which the removal
should take place and the area to which they are to remove I find
that it is open for this court to deal with such orders as these
matters are not dealt with in the orders of the Ngwenyama." (our
seems clear to this court, therefore, that the Chief Justice found
that the court did have jurisdiction to enquire into the removal
orders issued in casu and that it is a necessary implication of what
he said that the point in limine regarding the jurisdiction of the
court was the subject of a final and definitive finding in favour of
CJ then went on to decide as follows (and we tabulate the learned
judge's observations for the sake of convenience and clarity): -
view of this we have come to the conclusion that the correct way of
handling the matter is that the order of the Minister, (which is not
the order of His Majesty) but the order of the Minister in so far as
it places a date on the removal should be inquired into and the order
should be in fact extended or suspended until such time as all the
applicants who are affected by the order have had the opportunity of
exercising their traditional right of appeal to Ngwenyama, which is
specifically referred to in the statute."
order therefore is in these matters that the applications are
themselves postponed sine die. In the interim the orders of the
Minister are suspended until such time as the applicants have had an
opportunity of addressing His Majesty in the traditional way."
assessors agree with this and agree with the order which I have made.
We are especially anxious that an impression should not be gained
that this court assumes jurisdiction to deal with an order made by
His Majesty. What we are doing is to ensure that the terms of the
statute are complied with and that the provisions of Swazi Law and
Custom as generally known are applied in this case as in other cases.
Accordingly there will be an order in both cases suspending the
operation of the eviction orders until such time as the applicants
have had an opportunity of exercising their rights according to Swazi
Law of appeal to Ngwenyama."
two weeks after the judgment was delivered i.e. on 22nd September
2000 the respondent filed what were headed "Respondent's
Answering Affidavits" which included as a point in limine that
the court was "not possessed of jurisdiction to adjudicate upon
this matter." Included in the argument articulated in the
affidavit, this after an analysis of Section 28 of the Administration
Order, was the following submission: -
above Honourable Court has no power whatsoever to enquire or deal
with the removal orders made by the Minister of Home Affairs. The
reason for this is that the orders made by the Minister of Home
Affairs are orders
in terms of Section 28(3) of the Swazi Administration Order of 1998.
The orders of the Minister of Home (sic) were intended to be orders
in terms of
28(3). The Minister merely gave effect to the removal orders by His
Majesty the King."
reply to this submission the appellants stated that the issue of
jurisdiction was fully argued on lst and 4th September 2000 and was
finally determined by the court.
was therefore, so it was submitted, res judicata.
answering affidavit of the respondent also dealt at length with the
facts of the matter. In answer to the allegations regarding the
efforts of the appellants to place their petition before the
Ngwenyama and the allegation that they were ''chased away from the
Royal Kraal," the Attorney General stated that he denied the
allegations and submitted that they were argumentative. He did,
however, annex affidavits of various deponents placing in issue facts
relied on by the appellants.
matter again came before the learned Chief Justice on 6th October and
the issue relating to jurisdiction was, despite objection by the
appellants, allowed to be re-argued.
13th October 2000 the Chief Justice delivered his second judgment.
This time he found that the jurisdiction of the Court had been
excluded by Section 28(1) of the Administration Order and on that
basis dismissed the application with costs. It is against that order
that this appeal was brought before us.
dealing with the argument that the issue of jurisdiction was res
judicata Sapire CJ
is a fatal flaw in applicants' argument in that the order made by the
court afforded the applicants interim relief. It was not final and
did not finally dispose of any issues between the parties. It was
made to preserve the status quo until all the issues including that
of jurisdiction could be finally decided. Any provisional finding so
made can later be reversed. (emphasis added)
APLENI V MINISTER OF LAW & OTHERS 1989(1) SA 195 (A); ROUX D'ARCY
LTD V JAMESON AND OTHERS 1995(2) SA 579 (W).
is true that I could, and should not have made the interim order, if
the jurisdiction of the court was excluded. There is however nothing
which prevents me from correcting my error."
we have already said, the context in which the finding regarding the
issue of jurisdiction was made and the words used by the learned
Chief Justice lead inescapably to the conclusion that the finding was
a final one. While the order was intended to give temporary relief to
the appellants in the sense that the interdict was granted and the
operation of the eviction orders of the Minister of Home Affairs was
suspended "until such time as the appellants have had an
opportunity of exercising their rights according to Swazi Law of
appeal to Ngwenyama," there was nothing temporary or provisional
about the finding that the court had jurisdiction in the matter. This
did not in any way depend upon the filing of further affidavits by
the respondent. It was, as above stated, fully argued and therefore
the learned judge is palpably wrong in suggesting that the decision
regarding jurisdiction was part of an erroneous judgement that could
be corrected by him. If the respondent was dissatisfied with the
decision regarding jurisdiction its remedy lay in a forum other than
that presided over by the Chief Justice who was, as far as that issue
was concerned, functus offtcio. See BELL V BELL 1908 T.S.887.
Roberts who ably argued the matter before us on behalf of the
respondent urged us to find that the order made by Sapire CJ in his
first judgment was of a provisional nature and could therefore be
amended or set aside by the court which granted it. He referred us to
cases such as RAHME MARKETING AGENCIES SA(PTY) LTD VS GREATER
JOHANNESBURG TRANSITIONAL METROPOLITAN COUNCIL 1997(4) SA313; MV
RIZCUN TRADER 2000(3) SA776©; DUNCAN N.O. VS MINISTER OF LAW AND
the last-mentioned case it was clearly stated by VAN DIJKHORST J that
general rule is that a final judgment which correctly expresses the
decision of the Court cannot be altered by the same tribunal which
Simple interlocutory orders stand on
different footing and are subject to variation. The learned Judge
went on to find that an order made by him in regard to security for
costs "does not bear directly upon the issue to be
decided.....it cannot affect that decision. It is therefore a simple
interlocutory order. It is open to reconsideration, variation or
rescission on good cause shown."
question we have to decide, therefore, is simply whether Sapire CJ's
finding, in his first judgment, that the court had jurisdiction was
interlocutory or not.
can do no better in this regard than to cite the judgment of Innes CJ
in STEYTLER VS FITZGERALD 1911 AD 295 in which that great jurist
order dismissing the plea (to jurisdiction) was one of the greatest
consequence; it settled a definite portion of the dispute and had a
direct bearing on the ultimate issue. It is difficult to see how such
a decision could properly be called a simple interlocutory one."
is also a well-established principle that if, on a plea to its
jurisdiction, the Court finds that it has jurisdiction such finding
is appealable because, of course, it is not interlocutory. See
MALHERBE VS BRITSTOWN MUNICIPALITY 1948(1) SA676(2).
our judgment Sapire CJ's finding that he had jurisdiction was
unequivocal, final and definitive and it was therefore not open to
him to reverse it even if he later thought he was wrong.
is, therefore, the decision of this Court that the second judgment of
the learned Chief Justice was bad in law and it must be set aside as
is a factual dispute on the papers before us regarding the question
whether or not the appellants were afforded a hearing by His Majesty
the King in accordance with Swazi Law and Custom or at all. That
issue cannot be decided without the hearing of oral evidence. Because
the learned Chief Justice purported to dispose of the matter purely
on the basis of the Court having no jurisdiction to hear it, he made
reference to this factual dispute in the second judgment. Although,
in theory, our judgment restores the original judgment of Sapire CJ.
Mr. Dunseith who appeared for the appellant very properly and fairly
conceded that it was the intention of his clients to be protected by
interdict only until the determination of the application before the
High Court. He also indicated that that is all that the Chief Justice
could be asked to grant. With that in mind we have decided that the
fairest way of resolving the present impasse is to restore the effect
of the first judgment of the Chief Justice in the following terms:
there will be an order in both cases suspending the operation of the
eviction orders pending the final determination of the applications.
will be no order of costs."
we have been advised that pursuant to the second judgment of the
Chief Justice the appellants and persons in their community affected
by the order of the Minister of Home Affairs have been evicted from
their homes in Ka-Mkhweli. The effect of this judgment is that the
status quo ante must be restored, that they must be allowed to return
and that that position must be maintained until the final
determination of the proceedings in the High Court.
costs of appeal must be paid by the respondent.
on this 13th
of December 2000.