IN THE HIGH COURT OF SWAZILAND

Transcription

1 1 IN THE HIGH COURT OF SWAZILAND HELD AT MBABANE CASE NO. 4004/2000 In the matter between: DANIEL DIDABANTU KHUMALO Applicant and MAFELENKHOSINI KHUMALO SWAZI NATIONAL COUNCIL STANDING COMMITTEE 1 ST Respondent 2 nd Respondent CORAM: MASUKU J. For Applicant : Mr. P. M. Shilubane For Respondents: Mr. Mduduzi Mabila (On instructions by the Attorney-General) JUDGMENT 29/12/00 In this application, filed under a Certificate of Urgency, the Applicant prayed for inter alia: 1. Waiving the time limits and the forms of service prescribed by the Rules of Court and hearing this matter urgently;

2 2 2. Directing the Respondents, their servants or agents immediately to restore to the Applicant and put him in possession of all his possessions and building material removed by them on 10 th December, Calling upon the Respondents, their servants or agents to show cause why they should not be interdicted and restrained from further dispossessing the Applicant of his possessions. 4. Calling upon the Respondents, their servants or agents (sic) why they should not pay the costs of this application jointly or severally, the one paying the other to be absolved. 5. That paragraphs (a) and (b) (which are not included in the numbering above) of this order operate as an interim order with immediate effect pending the return date. I must at the outset state that very little time and attention has been dedicated to punctuation and necessary detail in this matter e.g. the exact location of the premises is not disclosed in the Notice of Motion and the date when the Applicant was allegedly despoiled is only contained in the Notice of Motion, but not in the Founding Affidavit filed in support of the Application. Furthermore, the papers are littered with a litany of typographical errors. Notwithstanding any urgency that attaches, the Court is loath to accept slovenly work from its officers. No effort should be spared in presenting well written and well punctuated papers that the Court will derive joy in reading, as has come to be expected by the Court from it's officers. Briefly stated, the facts of this matter are as follows: The Applicant, who describes himself as a pastor at Ezulwini, alleges that he khontaed at Ezulwini chiefdom, under the 1 st Respondent in November, The said 1 st Respondent is the Acting Chief of the area. The Applicant further alleges that he erected structures on the aforesaid land allocated to him whose value he estimates at E280, He contends that in October, 1998, the 1 st Respondent purported to eject him from his home as aforesaid, ostensibly acting on the instructions of the King and Ingwenyama of Swaziland. The Applicant appealed against the 1 st Respondent's order, exploring avenues available under Swazi law and custom. He was advised by the King's Private Secretary that the Ingwenyama had referred the Applicant's appeal to the 2 nd Respondent. The 2 nd Respondent conducted hearings of the appeal on several occasions and eventually held that the Applicant had properly khontaed in terms of Swazi law and custom. After conducting an inspection of the Applicant's home, the 2 nd Respondent called the Applicant to Ludzidzini whereat he was subsequently advised by the 2 nd Respondent that he had not khontaed but was a refugee in that area. He was accordingly advised to khonta properly in another chiefdom. Indeed, the Applicant sought and found an alternative place for this purpose and reported this fact to the King's Private Secretary. He was later advised by the King's Acting Private Secretary to contact the 2 nd Respondent which would identify an emissary to represent him during the khonta process at the new chiefdom. The 2 nd Respondent refused to follow this directive by His Majesty and on the 7 th December 2000, the Applicant was summoned by members of the Royal Swaziland Police

3 3 to meet the 2 nd Respondent's Chairman at Ludzidzini. The latter ordered the Applicant to vacate his home forthwith and requests for an extension of time were flatly refused. The Applicant further states that he was thereafter forcibly removed from his homestead, tied to a tree while certain persons wrongfully, unlawfully and without his consent removed all his possessions and threw them out in the open where they were exposed to rainfall. It was on this basis that the Applicant applied for restoration of the status quo ante omnia. In response, the Respondents raised the following points in limine: 1. That this Court has no jurisdiction to entertain this matter because the alleged spoliation was done pursuant to an order of the 2 nd Respondent, which it is submitted has authority to deal with such matters. 2. The Applicant has failed to meet the requirements for relief in terms of the mandament van spolie. 3. The Applicant has not acted within a reasonable time since the dispossession. In the circumstances, the Applicant has displayed a state of mind which indicates that he acquiesced in the alleged dispossession. 4. The Applicant has failed to serve both Respondents with the papers despite the fact that no allegation is made in the papers that service of the application on the Respondents would destroy the purpose of the application. In the alternative, the Applicant, it was alleged, failed to allege and/ or show why he has averred that the Respondents are represented by the Attorney General. Mr. Mabila further argued from the bar that the Applicant's Founding Affidavit does not disclose facts why the matter is urgent and why he did nothing to address the alleged unlawful order with the requisite promptitude. It now behoves me to decide on the above points, suffice it to say that Mr. Shilubane argued against upholding the same. 1 No Jurisdiction. Mr. Mabila properly conceded that this point was insupportable and accordingly did not address the court on it. It is liable to fail. 2. Applicant's Failure to meet the Requirements for the Mandament van Spolie. The purpose of the mandament is "to restore unlawfully deprived possession ante omnia to the possessor, in order to prevent people from talcing the law into their own hands."-kleyn and Boraine, "Silberberg and Schoemans Law of Property," 3 rd Edition, Butterworths, Pretoria, 1992 at page 130.

4 4 In order to succeed in obtaining relief under these proceedings, the Applicant must prove- (a) That he was in possession of the thing; and (b) That he was illicitly ousted (despoiled) from such possession. This remedy is somewhat strange in that the respective rights of the parties are not enquired into before the order is issued. The Court does not investigate the rights, whether arising out of lease or the question of ownership. In this case, the Applicant has made the allegations that entitle him to the relief that he seeks. Mr. Mabila, however argued that the Court should not restore possession ante omnia for the following reasons: (a) That the Applicant consented to the removal from the premises and was awaiting reallocation of land in another chiefdom. It could not be said, continued Mr. Mabila, that the Applicant was ousted from possession against his will; (b) That the 2 nd Respondent must be regarded as a court or quasi court of law with competence to issue orders enforceable at law. Mr. Mabila argued that the 2 nd Respondent issued a valid and lawful order for the Applicant's ejectment from the premises, thus negativing the element of unlawfulness. Regarding (a) above, it is not in dispute that the Applicant was in peaceful possession of the premises in question. He states that having spoken to the 2 nd Respondent's Chairman, he was refused time to arrange for his departure and was forcibly removed from his homestead. He alleges further that whist his property was being removed from his houses and thrown into the rain, he was being tied to a tree by one Oupa Lapidos. This, to my mind, is an inducium that even though the Applicant had made up his mind to leave in the foreseeable future, he did not consent expressly or impliedly to leave the premises as and when he did. It is my finding therefor that the Applicant did not consent to vacate his premises when he did. In order to carry out the eviction effectively, it became necessary for the Applicant to be physically tied to a tree as his freedom would have militated against his forced removal. The consent alleged is also open to some doubt as the Applicant had then not been advised of his rights and acted under the impression that the 2 nd Respondent had a right to order his removal from one area to another. Regarding the second point, it is necessary to make reference to the relevant legislation in order to decide whether the 2 nd Respondent is in terms of the law competent to sit as a Court and if it is competent, to decide whether the ensuing order has the force of law. The 2 nd Respondent (S. N. C. S. C.), was first established by Decree Number 1 of The functions of the S. N. C. S. C. were set out in the following language by Section 3 of the Decree:

5 5 3.(1) The standing Committee shall advice (sic) the Ngwenyama on all matters- (a) regulated by Swazi Law and Custom and connected with Swazi tradition and culture; (b) referred to it from time to time by the Ngwenyama, with a view to ensuring good governance and building a coherent and integrated Swazi Nation. This Decree was subsequently repealed and replaced by Decree number 1 of 1999, which was deemed to have come into force on the 17 th November Section 3(1) of the new Decree reads as follows: The Standing Committee, shall advise the Ngwenyama on all matters- (a) regulated by Swazi Law and Custom and connected with Swazi tradition and culture; (b) referred to it from time to time by the Ngwenyama, with a view to ensuring good governance and building a coherent and integrated Swazi Nation. I have found it necessary to have recourse to both Decrees in order to see whether there was any change in the functions of the S. N. C. S. C. when the first Decree was repealed. From reading both Decrees, it is clear that the main, if not the sole function of the S. N. C. S. C is to render advice to the Ngwenyama and this is manifest from the words literally used. In terms of the 1999 Decree, the S. N. C. S. C. is to advise the Ngwenyama on all matters regulated by Swazi Law and Custom and connected with Swazi tradition and culture. It is also to advise on all matters referred to it by the Ngwenyama. There is no power arrogated upon the S. N. C. S. C. to sit as a court and to issue orders of any nature, eviction orders included. The S. N. C. S. C. may, in dealing with matters falling within the ambit of Section 3(1)(a) or (b) of the Decree make certain findings and recommendations thereon to the Ngwenyama, but not more. Had it been intended that the S. N. C. S. C. hold court and to issue any orders with any force of law, then the Decree would have stated so in clear and unambiguous terms. For this reason, any attempt to hold court and to issue any orders is ultra vires. Being a creature of statute, the S. N. C. S. C. can only be and do what the enactment establishing it stipulates. To do more is to do serious violence to the expressed intention manifest in the Decree. From the Applicant's papers, it appears that the matter was referred to the S. N. C. S. C. by the Ngwenyama, presumably in terms of Section 3(1) (b) of the Decree. It was therefor wrong and contrary to the letter and spirit of the Decree for the S. N. C. S. C. to issue the order for eviction. It follows that any act in furtherance of that order is liable to be declared null and void. As earlier indicated, the S. N. C. S. C. could only submit its findings to the Ngwenyama on the Applicants case for appropriate directives by the Ngwenyama.

6 6 I have no option in the circumstances but to hold that Mr. Mabila's second point should likewise fail. The order issued by the S. N. C. S. C. in casu does not ensure good governance and building a coherent and integrated Swazi Nation, to borrow from the language of the Decree. I say this because if the S. N. C. S. C. would be allowed to issue eviction orders as it did, not only would that be ultra vires, regard being had to the language of the Decree, but it would also amount to a usurpation of the powers conferred upon the Ngwenyama by the provisions of Section 28 (3) and (4) of the Swazi Administration Order, The said Sub-sections read as follows: (3)" The Ngwenyama may at any time instruct the Minister for Home Affairs in writing to make an order containing such conditions as the Ngwenyama may consider appropriate for the removal of any person or any of his dependants living with him from one Swazi area to another. (4) Any order made under sub-section(3) shall be served on the person concerned by a messenger of the Minister for Home Affairs by exhibiting the original order to the person concerned and leaving a copy thereof with him or at his place of residence and by depositing another copy at the nearest Royal Swaziland Police Station." The order issued by the S. N. C. S. C. was clearly not issued in terms of the Order. The procedure adopted by the S. N. C. S. C. is not in keeping with the provisions stipulated by the Order and it follows logically that the purported ejectment of the Applicant is against both the spirit and letter of the Decree and the Order. It is therefor liable to be declared a nullity and can not form the basis for alleging that the Respondent did not show that the ejectment was unlawful. 3. Urgency. Mr. Mabila also argued that the Applicant failed to state reasons why the matter was to be declared to be one of urgency. He argued further that the Applicant's papers reflect that the decision for him to vacate the premises was communicated on the 7 th December, 2000, and he did nothing to set aside the order until the removal took effect on the 10 th December, In response, Mr. Shilubane reasoned that the mandament is by its nature an urgent remedy and that the surrounding facts must be taken into account in deciding on the urgency. The question for determination is whether an applicant should not comply with the peremptory provisions of Rule 6 (25) (a) and (b) basing his non-compliance on the urgent nature of the remedy sought? This question must be answered in the negative. The provisions of the Rules relating to urgency are mandatory and in spite of the urgent nature of the relief sought, still, compliance therewith cannot be jettisoned. In this regard, I refer to the Learned Authors Kleyn and Boraine supra, at page 134 where the law is propounded as follows:

7 7 "The expeditious nature of the mandament must, however, not be seen out of context. The mere fact that the application is one for a mandament does not automatically imply that the matter becomes one of urgency." Further support for this proposition is to be found in the case of MANGALA VS MANGALA 1967 (2) SA 415 at 416, where Munnik J., stated as follows (par D - F): "It is true that a spoliation order is a remedy which in the nature of things should be a speedy one, but the fact that there has to be restitution before all else, simply means that, once an applicant has proved that he was in peaceful possession and his possession was disturbed, the respondent must restore that position before entering the merits of the ownership or otherwise of the subject matter. It does not follow that, because an application is one for a spoliation order the matter automatically becomes one of urgency. The applicant must either comply with the Rules in the normal way or make out a case for urgency in accordance with the provision of Rule 6 (12) (b)." There is a long line of decided cases setting out in detail the requirements the above Rule. I will make reference to the following local cases which are however unreported, namely, HUMPHREY H. HENWOOD VS MALOMA COLLIERY AND ANOTHER CASE NO. 623/94; HP. ENTERPRISES VS NEDBANK CASE NO. 788/99; MEGALITH HOLDINGS VS R. M. S. TIBIYO (PTY) LTD. AND ANOTHER CASE NO. 199/2000.; BEN M. ZWANE VS THE DEPUTY PRIME MINISTER CASE NO. 624/2000. Even a cursory glance at the Applicant's papers immediately testifies to the correctness of Mr. Mabila's contention in this regard. There is no allegation why the matter falls to be declared as one of urgency and why the Applicant claims that he cannot be afforded substantial redress at a hearing in due course. I have observed that in many applications for the mandament before this Court, many practitioners have not religiously complied with the provisions of Rule 6 (25), ostensibly on the grounds that the mandament is by it's nature a speedy remedy. The authorities frown upon that approach. It is now high time that the Rules must be fully complied with in relation to applications for the mandament in particular. I will, in this case, only for the reason that an erroneous practice has been followed by many practitioners previously, allow this matter to be enrolled as one of urgency. In future, the strict requirements of the Rule in question, as amplified by local decisions must be followed to the letter, with erring parties facing the real prospect of the Court refusing to enrol the offending applications. Mr. Mabila, further argued that the Applicant did not act within a reasonable time from the date of the ejectment, thus leading to an inference that he acquiesced in the alleged dispossession. This argument finds no support from the founding papers where the Applicant states that he was despoiled on the 10 th December, 2000, and he gave instructions to his attorney of record, who by the 13 th December, 2000, had drafted the necessary papers for the Applicant to sign the affidavit before a Commissioner of Oaths. This in my view cannot in any way be construed as tardiness on the Applicant's part. I find that the Applicant acted with the requisite promptitude to be expected of a diligens paterfamilias in the circumstances. I say this not in oblivion to what the authors Kleyn and Boraine {supra) say at page 136, namely, that, " In principle, a spoliatus has a year or

8 8 more to apply for a mandament." I am even doubtful whether the requirements for pleading acquiescence have been met by the Respondents. I find it unnecessary though to make any finding thereon. 4. Service. Lastly, it was contended on the Respondents' behalf that they were not served with the papers and that there is no allegation that service on the Respondents would frustrate the object of the application. In the alternative, it was alleged that there is no allegation as to why the Applicant contended that the Attorney General represented the Respondents. Service of the papers on the Attorney General in this matter ex facie appears improper as the Respondents are not Civil Servants, nor could it be said that they were acting in the scope of their employment with the Government when they committed the acts complained of. However the Attorney General's Chambers accepted service of the papers and filed a Notice to Oppose, in which the Attorney General was described as the Respondents' attorney of record. Furthermore, Mr. Mabila raised certain points in limine which attacked propriety of granting the Order sought by the Applicant herein. From Mr. Mabila's arguments, one could not help but notice that he had some instructions from the Respondents. The issue of service was only raised at the tail end of argument and appears to be mutually destructive of the other arguments referred to earlier. This argument, viewed from the backdrop above can only be described as tantamount to hunting with the hounds and running with the hares as it were. The Attorney General's Chambers cannot be allowed to blow hot and cold at the same time. If the argument was that the Respondents were not served and that the Attorney General could not act on behalf of the Respondents, then that should have been raised as the main point with the others being argued in the alternative and only if the Court held that the issue of service was a bad point. I now have to determine the issue of costs. The Applicant has prayed for rule nisi with interim effect. Part of the rule nisi is to call upon the Respondents to show cause why they should not be ordered to pay the costs of the application. The authors Kleyn and Boraine record as follows on page 132: "The Appeal Court, however ruled that, except in special circumstances, an order for costs should be made during the spoliation proceedings because the mandament does not have an interlocutory nature but is ' a final determination of the immediate right to possession'. Thus, although the mandament only offers temporary relief, it is a final court order. Not only does it imply that an order for costs must be made, but also that the applicant must prove his case on a balance of probabilities, and that appeal against a spoliation order is possible". This position was set out by the South African Appellate Division in the case of MANKOWITZ VS LOEWENTHAL 1982(3) SA 758 at 767 (per Jansen J.A.). From the above authorities, it follows that due to the nature of the remedy and in the absence of special

9 9 circumstances, an order for costs must be made even at this stage. I am satisfied on a balance of probabilities that the Applicant has made out a case for relief and there are no special circumstances in my view why an order for costs must not be made in the Applicant's favour even at this stage. I must mention that no allegations have been made to justify granting prayer 3. I shall therefor make no order thereon. The Order which I am minded to issue in the circumstances is as follows: 1. The Respondents, their servants or agents be and are hereby ordered to restore to the Applicant ante omnia, possession of his home, all his possessions and building material removed from his home at Ezulwini on the 10 th December, That the Respondents be and are hereby ordered to pay costs of this application jointly and severally the one paying the other to be absolved. 3. The Applicant be and is hereby ordered to pay the Respondents wasted costs occasioned by his setting of the matter down for the 20 th December, 2000 and not the 21 st December, 2000, which the Court had appointed for hearing this matter. T.S. MASUKU JUDGE