Mvila v Vuka Sidwashini Farmers Association (11/15) [2015] SZSC 01 (09 December 2015);

 

 

 

IN THE SUPREME COURT OF SWAZILAND

 

HELD AT MBABANE

JUDGMENT

 

                                          

                  Appeal Case No: 11/2015

 

In the matter between                     

         

 

YENGWAYINI MVILA                                                        Appellant

 

And

 

VUKA SIDWASHINI FARMERS ASSOCIATION            Respondent

 

 

Neutral citation:            Yengwayini Mvila vs Vuka Sidwashini Farmer’s Association (11/2015) (2015)   SZSC 01    (9 December 2015)

 

 

 

Coram:                          N.J HLOPHE AJA; M.DLAMINI AJA AND M.J. MANZINI AJA.

                  

 

Heard:                            9   NOVEMBER 2015

 

Delivered:                       9    DECEMBER 2015

 

Summary:    Appeal – appeal from decision of the High Court dismissing application for review – High Court holding that it had no jurisdiction as a Court of first instance to deal with application – whether decision correct.

 

JUDGMENT

M.J. MANZINI AJA

1. This is an appeal against a judgment handed down on the 17^th February 2015 by Acting Judge of the High Court, D.B. Magagula (AJ). dismissing an application for review, with costs, on the ground that the High Court “has no jurisdiction to hear and determine this matter.”

 

1. The Appellant [the Applicant in the Court a quo] had by Notice of Motion launched motion proceedings in the High Court seeking an Order in the following terms:

2.1      That the suspension of the Applicant by the Respondent from its activities including attending meetings be and is hereby set aside.

2.2      Directing the Respondent to pay Applicant her dividends as and when they fall due.

2.3      Further and/or alternative relief.

3.         The Appellant is an adult widow of Sidwashini Northern Hhohho.

 

1. The Respondent is Vuka Sidwashini Farmers Company, a body corporate duly established in terms of the company laws of Swaziland.

 

1. According to the Appellant, the Respondent was formed by community members with the primary objective of growing sugar cane on a commercial basis.  Respondent’s constitution was annexed to her founding papers.  She stated that she qualified for membership by virtue of having donated a piece of land for the farming project, as well as by providing labour services.  The Appellant’s membership is not denied.
2. The Appellant stated in her Founding Affidavit that on or about the month of July 2014 she was advised by the Respondent’s Board that she had been suspended from all activities of the Respondent, including attending meetings.  In addition thereto, that she would not be paid dividends due to her as a member for a period of two years commencing in July, 2014.

 

1. The reason advanced by the Respondent was that the Appellant had harassed the company (Respondent).  This harassment, it was alleged, came in the form of persistently asking that one of the Appellant’s children be registered as a member in the place of her late husband in conformity with the Respondent’s constitution.

 

1. The Appellant further alleged that she was advised that her letter of suspension had been sent to her attorneys, Messrs Sigwane & Partners.  She alleged that this in itself was a surprise as she had not instructed the said law firm in relation to any matter.

 

1. The Appellant alleged that the decision to suspend her from the Respondent’s activities and failure to pay her dividends due was unlawful and illegal in that she was never formally charged with an offence, nor was she called upon to present her side of the case.  This conduct she claimed, flew against the fundamental principles of natural justice. Hence the review application.

 

 

1. The application was opposed.  The Respondent filed an Answering Affidavit deposed to by its chairperson one Melusi Maziya.  In it Mr Maziya gave a brief background on the incorporation of the Respondent, its objectives and its association with the Mvila Family (to which the Appellant belonged).  In summary, Mr. Maziya stated the following:

 

10.1         The Respondent was incorporated under certificate of Incorporation No.210 of 2012.  Prior to that it operated as an association, hence the constitution referred to by the Appellant;

10.2         That the members agreed that each family would have only 2 (two) as part of the association, and each family would contribute its fields for the cultivation of sugar cane;

10.3         After the death of the Appellant’s husband who was among the founding members there was a dispute regarding eligibility to membership of some of the members of the Mvila family.  In particular, the Appellant wanted her daughter registered as a member taking the place of her deceased husband and the Respondent refused to do so.  This was around the year 2010;

10.4         The Appellant reported the dispute between herself and the Respondent to the Sidwashini Umphakatsi, and they ruled against her.  The Ruling was to the effect that the provisions of the constitution should be upheld that is, no additional member of the Applicant’s family (her daughter) could be registered to take the place of her deceased husband; and

10.5         Dissatisfied with the ruling of the Sidwashini Umphakatsi, the Appellant appealed to the Libandla Lenkhosi at Buhleni Royal Kraal, where the matter was referred to the Ludzidzini Libandla Lenkhosi.  That forum upheld the ruling of the Sidwashini Umphakatsi.

11.     Thus the Respondent’s resistance to relief claimed by the Appellant was premised on two grounds, namely:

(i)      First, that the Appellant’s claim had been adjudicated upon by the traditional authorities (in terms of Swazi Law and custom); and

(ii)    Secondly, that the Respondent was entitled to invoke clauses B9 (iv) and (vii) of the constitution.  Clause B9 (iv) provides that any member who sues or litigates against the Respondent           shall be barred from attending meetings.  And, clause B9 (vii) provides that if in such proceedings the litigating members’ claim is dismissed, the member would forfeit dividends for a period of two (2) years.

12.      The crisp issue which called for determination by the court a quo was whether “the suspension” of the Appellant from the Respondent’s activities and the directive of forfeiture were lawful.

 

13.      The learned Acting Judge, concluded as follows:

“[17]       It is the considered view of this Court that the Applicant made a deliberate choice to have her matter adjudicated upon in terms of Swazi Law and Custom and there is nothing wrong with that.  As a Swazi she was entitled to do that.  As a Swazi seeing that the outcome is not in her favour she has run to this Court without following the laid down procedures of the law.  If she was dissatisfied with the outcome she was, and still is, at liberty to appeal to a Swazi Court in terms of Swazi Courts Act.

 It is essential that she exhausts all local remedies before bringing the matter to this Court on appeal or review.  It follows that if she pursues an appeal she must comply with Rule 50 of the Rules of this Court.  If she pursues a review, she must comply with Rule 53 of the Rules of this Court.    

[18]        In the circumstanced, this Court has no jurisdiction to hear and determine this matter.  Consequently, this application is dismissed with costs.”

 

Appellants Grounds of Appeal to this Court

14.      Dissatisfied with this Judgment the Appellant filed a Notice of Appeal on the following grounds:

(i)        “The learned Judge in the Court a quo erred in law and in fact in finding that the matter of Appellants’ suspension and withholding of her dividends falls to be determined by the principles of Swazi Law and Custom.  As such it had no jurisdiction to determine the matter.

(ii)       The learned Judge in the Court a quo erred in law and in fact in making a finding that the issue of the suspension of the Appellant was heard and determined by the Libandla Lenkhosi at Ludzidzini.   The Appellant should not have approached the Court a quo as the court of first instance but by way of appeal or review of the decision of the Libandla Lenkhosi”

Arguments by Counsel for Appellant

15.       The highlight of  Mr. Hlophe’s (for the Appellant) arguments is that the relationship between a company and its members is governed by the common law, unless the Companies Act or other statute provides otherwise, and this necessitates that the matter be determined in accordance with the common law (Roman-Dutch law) as opposed to Swazi Law and Custom.  It was also argued that the issue heard by the traditional authorities related to the replacement of the Appellant’s husband, and not the suspension of the Appellant from the Respondent’s activities and withholding of her dividends.

Counsel for the Appellant submitted that these were separate and distinct issues.

            Arguments by Counsel for the Respondent

16.       Mr Motsa, for the Respondent, rightly conceded that the matter serving before the court a quo was “the suspension” of the Appellant, which had taken place in 2014, and not the replacement of her late husband (which had been adjudicated by the traditional authorities).  Further, that the decision to suspend the Appellant was not taken by the traditional authorities.

 

17.       Furthermore, Mr Motsa conceded that Clauses B9 (iv) and (vii) did not dispense with the right to be heard.  He stated that suspensions and withholding of dividends without a proper hearing were a norm in the Respondent’s operations.   This however, cannot help the Respondent’s cause.

 

            Findings of this Court

18.       In light of the above the Court has come to the conclusion that the Court a quo misdirected itself in holding that it had no jurisdiction to hear and determine the application.  The Appellant sought a determination of a dispute arising from her membership of a company incorporated in terms of the company laws of this country.  There is no legal basis for holding that this must be dealt with in accordance with Swazi Law and Custom.

 

19.       Equally, there is no legal basis for finding that the Appellant’s suspension was adjudicated by the traditional authorities.  The traditional authorities adjudicated a separate and distinct issue (replacement of the Appellant’s husband).

20.       The appeal is upheld with costs.

21.       The Court orders as follows:

 

(a)      The suspension of the Applicant by the Respondent from its activities including attending meetings is hereby set aside.

(b)      The Respondent is directed to pay Applicant all her dividends, including any arears, as and when they fall due.

(c)      The Respondent is to pay the costs of the application on the ordinary scale.       

             

                                                                             ____________________

       M.J.MANZINI

                                                                         ACTING JUSTICE OF APPEAL

 

 

 

I agree                                                        ______________________

     N.J.HLOPHE

ACTING JUSTICE OF APPEAL

 

 

         I agree                                                         _____________________

        M. DLAMINI

ACTING JUSTICE OF APPEAL

 

 

 

 

  For the Appellant                                              Mr. S. Hlophe

                                                                      

 

 For the Respondent                                             Mr. T. Motsa