Tsabedze & Others v Swaziland National Provident Fund & Others (1400/11) [2011] SZHC 30 (12 June 2011);

IN THE HIGH COURT OF SWAZILAND

 

 

Held at Mbabane                             Civil Case No: 1400/2011

 

 

In the matter between:

 

 

Alice Fikile Tsabedze & 45 Others

APPLICANT

 

and

 

 

SwazilandNational Provident Fund

1^ST RESPONDENT

National Children Co-Ordinating Unit

2^ND RESPONDENT

Social Welfare Department

3^RD RESPONDENT

Government of Swaziland

4^th RESPONDENT

Attorney General

5^th RESPONDENT

 

 

Coram                                                                      Hlophe J.

For the Applicant                                                     Mr. S. Gumedze

For the 1^st Respondent                                            Mr. Z. D. Jele

For the 2^nd to 5^th Respondent                                   Mr. Nxumalo

 

JUDGMENT

 

HLOPHE J

[1]    Fourty Six (46) Applicants, who are either parents or guardians of the children who are said to be attending schools around Manzini and whose names appear in a list attached to the Founding Affidavit, instituted these proceedings in a representative capacity to the said children, under a certificate of urgency seeking the following reliefs:-

 

1. “that this Honourable Court dispense (sic) with the normal requirements relating to time limits, manner of service of process, form and procedure in applications and deal with this matter as one of urgency in terms of Rule 6 (25) (a) and (b) of the High Court Rules.

 

1. that this Honourable Court condones Applicant’s non-compliance with the Rules of Court.

 

1. that a rule be issued, calling upon the Respondent to show cause on a date and time to be determined by this Honourable Court why the prayers set out below should not be confirmed and made final.

 

1. Declaring the eviction and demolition of the 85 homesteads in so far as it relates to the 140 school going children to be inconsistent with the provisions of Sections 18 and 29 of the Constitution of the Kingdom of Swaziland Act, 2005 due to the fact that the eviction and demolitions of the homesteads are a threat to the children’s education; therefore (are) inhuman and cruel.

 

1. That the Deputy Prime Minister’s Office, National Children’s Co-Ordination Unit and Social Welfare Department be directed to conduct an impact and mitigation assessment and prepare a report that will be used by the government to ensure that the education of the children is not jeopardized.

 

1. That the Government of the Kingdom of Swaziland be directed to implement the report mentioned above.

 

1. that pending finalization of this matter and the completion of the impact assessment and the implementation of the mitigation recommendations by the Government of the Kingdom of Swaziland, the First Respondent and or its agents be interdicted and restrained from evicting the Applicant’s children and demolishing the Applicant’s homesteads situated in Farm No. 319, Manzini.

 

1. That prayer 7, operate with immediate and interim effect.
2. that the Respondents pays (sic) costs of this application in the event it is unnecessarily opposed.

 

1. Granting the Applicants any further and or alternative relief as this Honourable Court deems just in the circumstances.”

 

[2]    The application is founded on the affidavit of one Alice Fikile Tsabedze who describes herself as a parent to some of the children who are currently enrolled in some of the schools around Manzini and on whose behalf the orders of this Court referred to above are sought.  The parents of the other children have filed supporting affidavits on behalf of each Applicant’s child or children.

 

[3]    The case brought forth by the Applicants aforesaid is that they (parents of the children attending schools around Manzini) khontaed at an Umphakatsi called Emnyenyweni Royal Kraal, under the authority of one Malangeni Dlamini, as a result of which they were allocated land where they built their homes.  They subsequently enrolled their children in the neighbouring schools or those accessible from where they were allocated land.

 

[4]    It is alleged that after years of having settled in the area under the khonta custom, the Applicants were informed that they

had to vacate same because it was a farm belonging to the 1^st  Respondent, the Swaziland National Provident Fund.  This it is said happened around 2004.

 

[5]    As a result of this information, and notwithstanding their having been assured by the said Malangeni Dlamini that the land in question was Swazi Nation land under his authority, they formed a committee which established that the land was indeed a farm, from which they appealed to the Ingwenyama (His Majesty the King) who directed the Advisory Council, Liqoqo, to deliberate the matter and come up with a solution.  The Liqoqo took years from 2004, dealing with the matter and its decision was only communicated to the Applicants on or around the 11 March 2011.  It is alleged further that it was whilst the decision was awaited, that the First Respondent issued summons and eventually obtained a Default Judgment which was however not executed pending the decision of Liqoqo referred to above.  The decision of the Liqoqo was that attempts to prevent the eviction of the Applicants from the farm were unsuccessful.

 

[6]    It was subsequent to this decision that the Applicants then received letters from the 1^st Respondent on the 1^st April 2011 advising them to vacate the land in question by close of business on the 15^th April 2011, which prompted them to approach this Court under a certificate of urgency on the 20^th April 2011 for an order inter alia declaring their eviction from the said farm and demolition of, their homesteads as being inconsistent with the provisions of Sections 18 and 29 of the Constitution of the Kingdom of Swaziland Act, 2005 on the grounds that such conduct was a threat to the children’s education and as such was inhuman and cruel.

 

[7]    The 1^st Respondent’s version differed somewhat from that of the Applicants in that it sought to show that the case as exposed by the Applicants was not complete as some information was said to have been withheld.  The withheld information was particularly that the Applicants did not disclose that sometime in 2005 the 1^st Respondent instituted action proceedings for the ejectment of the Applicants from the farm, as a result of which a Default Judgment was granted.  The said Default Judgment was eventually followed by a rescission application which resulted in the rescission of the Default Judgment.  After a rescission of the said Judgment, no plea was filed notwithstanding the filing of a Notice of Bar which eventually resulted in another Default Judgment being issued, which judgment is the one whose execution sparked the institution of this application.  This Default Judgment is the one whose execution the 1^st Respondent withheld for a considerably long period whilst awaiting the decision of Liqoqo referred to above.

 

[8]    It is however common cause that between 2004 and the 11^th March 2011, when the Liqoqo eventually communicated its decision that they could not help against the eviction of the Applicants from the farm, the parties were jointly engaged in attempts to find an amicable solution to the dispute.  In fact the means to do so continued even after the 11^th March 2011 to the date when the current proceedings were instituted.

 

[9]    The 1^st Respondent raised points in limine and contended that the decision of same would have the effect of dismissing

the application.  The said points in limine included that of urgency (it being alleged that the matter was not urgent and that such urgency as may exist was of the Applicant’s own making; that the Court was functus officio as it had already pronounced on the propriety or otherwise of the Applicants remaining on the farm; that whilst an interdict was being sought by the Applicants, they had not met the requirements of such a remedy and that whilst this Court was required to grant a declaratory order, it had no power to do so in law.

 

[10]  In the merits of the matter it was contended that this Court granted the Default Judgment it did after having considered all the facts of the matter including the rights of the children and upon satisfying itself of the propriety of the demolishing and eviction orders.  It was argued that the rights of the children not to be subjected to inhumane and degrading treatment by being denied education, is a right contained in Chapter 3 of the Constitution just like the right of the property owner to enjoy his property and therefore that these rights are

complementary to each other and cannot be viewed as though that of the children aforesaid, supersedes that of the property owner.

 

I must say at this stage that I have observed from the papers placed before me that there is no indication either in the form of evidence or allegation that at the time it granted the Default Judgment referred to above, this Court had considered the competing rights – being those of the children to education against those of the property owner.

 

[11]  During the hearing of the matter it was agreed between the parties that the points in limine be argued together with the together with the merits, with the Court having to decide the matter fully in light of all the issues raised and argued before it.

 

[12]  Although endorsing the same approach as stated above, the 2^nd to 5^th Respondents, who had initially indicated they would abide the order of Court without joining issue, indicated that they were then opposing the application and had filed an opposing affidavit in that regard.  Their opposing affidavit was deposed to by one Dickson Z. Mkhonta who stated that he was the Acting Principal Secretary at the Deputy Prime Minister’s Office, which housed the 2^nd and 3^rd Respondents.

 

[13]  The thrust of these Respondents’ opposition was that the Applicant’s case was confusing as a Constitutional matter as it was not immediately clear which one of the Constitutional provisions were allegedly being violated.  It was equally contended that the rights of the interested parties herein as opposed to 2^nd to 5^th Respondents, require a horizontal application of the Constitution as opposed to a vertical one as well as there was neither a legislative nor judicially determined duty on the part of the 2^nd to 5^th Respondents to involve themselves in what is primarily an ejectment of the Applicants from a privately owned farm or an emotional dispute between the Applicants and the 1^st Respondent. It was contended further that the Applicants aforesaid are duty-bound to observe the rights of all persons including the duty to uphold the rule of law as it was apparent the application sought to defeat the upholding of a judgment of this Court through using the children concerned as human shields.

 

        I must now turn to deal with the points in limine raised.

 

        Urgency

[14]  At the commencement of the hearing, it was submitted by Mr. Jele that the matter is not urgent in as much as whatever urgency there was, was of the Applicants’ own making because facts giving rise to the application commenced in 2004 when the Applicants were advised to vacate 1^st Respondent’s farm.  It was contended further that the Applicants instead sought to negotiate the matter and took it to other structures only to run to this Court at the 11^th hour.

 

[15]  Whatever shortcomings one can lay at the Applicant’s door, I am not inclined to accept that their matter is not urgent on this ground and that it should therefore be dismissed on it.   Whilst I agree that the facts do indicate that Applicants were notified around 2004 that the place where they had build their houses upon was the 1^st Respondent’s farm which they had to vacate, I cannot agree that urgency for them should have started counting then, owing to what eventually happened.  It is common cause that as they were notified of the foregoing there then ensued discussions or negotiations or engagements which at times resulted in the floating of offers and counter offers.  In fact at some stage, and for a considerable period in between, both parties jointly awaited the outcome of the referral of the matter to the traditional structures (Liqoqo) by the Applicants with the 1^st Respondent itself not insisting on enforcing the Judgment it had obtained against the Applicant’s parents.  Clearly, the Applicants depending on whether in law they have a good cause of action, could, and were not unduly out of time when they instituted the proceedings around the 19^th April, 2011 if I consider that the decision of the Liqoqo which both parties awaited to take the matter whichever way forward was made on the 11 March 2011, with some further engagements between them going on until the 19^th April 2011. 

 

[16]  In my view, it is not in every instance where parties engage each other prior to instituting proceedings that the one who eventually goes to Court when such negotiations fail can have such construed adversely against him.  This in my view should be dependant upon the circumstances of each particular matter as the position is trite that each matter turns on its own peculiar circumstances.  I have no doubt that there would be circumstances where, as in the present one, it becomes necessary for the parties to try and resolve a matter amicably before resorting to formal structures.  For this reason I am of firm view that there are instances where a refusal to hear a matter on urgency on the grounds that the parties started of by negotiating can only yield injustice which is against what parties come to Court to achieve in the first place.  Clearly this is what our Supreme Court had in mind in Shell Oil Swaziland (Pty) Ltd T/A Sir Motors v Motor World (Pty) Ltd Civil Appeal Case No. …….  In any event, I do not think it accords with justice or good sense, not to expect parties to try as much as possible to resolve their private disputes before coming to Court.

 

[17]  Of course this brings me to the other contention why the matter is said not to be urgent.  It was argued that in the Humphrey Henwood vs Maloma Colliery Limited and Another Case No. 1623/94, the Applicant who brings urgent proceedings is required to address the requirements of Rule 6 (25) which provides that the Applicant should set out explicitly the reason why he contends the matter is urgent and why he contends he cannot receive redress in due course.  I have no doubt this is the proper position but I must say from my observation that that case is distinguishable on the facts from the present one.

 

 In that case the Applicant who had allowed the Respondent to occupy his farm and carry out mining operations for over three years, approached Court on a certificate of urgency and sought to have such mining stopped with the Respondents being ejected from his farm. Even the time limits were unreasonably abridged with Respondent being given too short a notice to file its papers.

 

[18]  In my view, this state of affairs would have been similar in this matter if it was actually the 1^st Respondent now wanting the Applicants to vacate the farm on the basis of urgency and giving them too short a notice to vacate when considering its having allowed them to occupy that farm for over five years since it first demanded they vacate it and when there other basis is set for this sudden urgency.  In any event, I am of the considered view that whilst it may be unreasonable for the Applicant to have given First Respondent an unrealistically short time, it did not insist on the hearing of the matter on those abridged time limits as the Respondents ended up being given as much time as was necessary in the circumstances for them to file their papers so that at the time the matter was heard, all the papers were already before Court.

[19]  This pragmatic approach is the one I favoured in this matter which is why I directed the parties to file all the papers required of record before argument of the matter could commence.  This having been done and all the papers now before me, the matter was heard.  I must say that I had to bear in mind the comments of the Supreme Court in the Shell Oil Swaziland Limited t/a Sir Motors vs Motor World which admonishes Courts not to avoid dealing with the merits of the matter through upholding technical points at the expense of the merits of the matter yet no real prejudice is suffered by any of the parties.

 

[20]  I therefore do not agree that in the circumstances of this matter, the institution of these proceedings by the Applicant giving the Respondent the time it eventually did justified the dismissal of the application on the point of urgency raised.

 

[21]  I must sound very clear that I am not advocating a rule of thumb that after negotiations a party would always be allowed to approach Court on the basis of urgency, but I am merely emphasising the rule of practice that each matter turns on its own facts.  There may well be circumstances where a party who gives the other party too short a notice under the guise that the matter is urgent when that is not the case, (albeit there having been negotiations prior) would justifiably have his application dismissed.  I however am of the considered view that this one is not such a case and I dismiss the point.

 

        Application Amounts to a Stay of Proceedings

 

[22]  I agree that the Applicant’s application has the effect of a stay of the execution of a Judgment of this Court even though it is brought as, an interdict:  This is because of the existing judgment of this Court evicting the Applicants in their personal capacities from the farm as opposed to doing it on behalf of their minor children this time around.

 

[23]  Being that as it may, I do not believe that when considering the position set out in South Cape Corporation vs Engineering Management Services 1977 (3) SA 534 (AD), in the exercise of my discretion, and where I should determine what is just and equitable in all the circumstances of the matter, I can come to the conclusion that the potentiality of harm borne by the Respondent as opposed to that borne by the Applicant between now and the handing down of the judgment can be said to be any worse.

 

[24]  Furthermore considering what was said in Strime v Strime 1983 (4) SA 850, that is, “The Court will, generally speaking, grant a stay of execution where real and substantial justice requires such a stay or, put otherwise, where injustice would otherwise be done,” I do not think I can justifiably refuse to grant such a stay at least pending finalization of this application.

 

[25]  Without saying much on whether or not there are prospects of success at this stage, an issue I shall say more about later on in this judgment, I must say that I am of the view that justice would not be served if I dismiss the application at this stage. Consequently in exercise of the discretion I have in determining whether or not to grant a stay of execution it is my considered view that I do so.  For this reason I cannot uphold this point.

 

Court is Functus Officio

 

[26]  It was further argued on behalf of the 1^st Respondent that this Court could not entertain this matter given that it was now functus officio, it having issued the judgment for the eviction of the Applicants from the same farm. 

 

[27]  At the heart of the functus officio principle, is the understanding that once the Court has pronounced its judgment in a matter it cannot reopen it again.  In Firestone South Africa (Pty) Ltd v Gentiruco A.G. 1977 (4) SA 298, the position was put as follows:-

 

“Once a Court has duly pronounced a final judgment or

order, it has itself no authority to correct, alter or

supplement it.  The reason is that it thereupon becomes

functus officio:  Its jurisdiction in the case having been

fully and finally exercised, its authority over the subject

matter has closed.”

 

[28]  Coming back to this matter, can it realistically be said that the Court has become functus officio?  Put differently can it be said that this Court is now being called upon to correct, alter or supplement the existing Default Judgment?  This question can best be understood through comparing the case resulting in the Default Judgment aforesaid against the present one.  In the papers and as argued before me, the Applicants in this matter claim to be acting in a representative capacity – that is, they have instituted these proceedings on behalf of their children who are minors and cannot in law institute such proceedings.  Notionally the Applicants are therefore different from those in the case that resulted in the Default Judgment.  Furthermore it does not seem in my view that it would be correct to say that the relief sought hearing amounts to correcting, altering or supplementing the existing judgment.  It seems to me that the current application as framed is about the enforcement of the Bill of Rights which the Applicant’s herein claim is being violated.  The issue therefore is whether there is indeed a violation of Sections 18 and 29 of the Constitution.  Clearly this is not what the case determined by this Court resulting in the Default Judgment referred to was about.  Consequently I cannot uphold the point in limine that this Court is now functus officio. 

 

        Requirements of an Interdict not met

 

[29]  It was also contended on behalf of the First Respondent that this application falls to be dismissed on the basis that whereas

the Applicants seek an interdict, the requirements for such a relief are not met.  These, it is alleged are the requirements for an interim interdict as it is considered this is the relief the Applicants are seeking as they contend they have to remain in the farm whilst or until the government shall have come up with the mitigation plan to ameliorate the harshness of the evictions.

 

[30]  Having observed that by and large this application is about an interdict, it is my considered view that a decision on this point cannot realistically be taken to be in limine but is at the heart of this application.  Going forward, I shall therefore deal with the matter on this basis.

 

[31]  The position is now settled that for a party who seeks an interdict on an interim basis to succeed, he needs to establish a prima facie right, an apprehension of irreparable harm, balance of convenience and that he has no other satisfactory remedy.  See in this regard Hebstein and Van Winsen Others, The Civil Practice of the Supreme Court of South Africa Fourth Edition at page 1065. 

 

        I have noted that although the order sought is couched as an interim order, the reality is that if granted it would be final in effect.  It is for this reason that I cannot ignore the requirements of a final interdict which Hebstein and Van Winsen in their book cited above at page 1064 – 1065 enumerate as a clear right; an injury actual committed or reasonably apprehended; and the absence of an alternative remedy.

 

[32]  Starting of from the premise that what is sought is an interim interdict properly so called, can it be said that a prima facie right entitling Applicant to the relief sought has been established.  The Applicants contend that same has been whilst the First Respondent contends otherwise.

 

[33]  In Ferreira vs Levin and Others 1995 (2) SA 815 the principle  was enunciated that in order to establish a prima facie right justifying an interim interdict, the Applicant has to make out a case that would entitle him to a final interdict.

 

        It has been stated that the right of the Applicant to the reliefs sought herein, stems from the Constitution.  It was contended that the Applicants established that their children had a right to education; they had a right not to be treated in a cruel, inhuman and degrading manner.  It was contended that if their parents are evicted from the farm in execution of a judgment of this Court, such would amount to cruel, inhuman and degrading treatment.  This right it is said stems from Section 29 (1) and (2) read with Section 18 of the Constitution of Swaziland.

 

Section 18 of the Constitution provides as follows:- 

 

Protection from Inhuman or Degrading Treatment

        18      (1)      “The dignity of every person is inviolable.

(2)      A person shall not be subjected to torture or inhuman or degrading treatment or punishment.

 

                   On the other hand Section 29 reads as follows:-

 

Rights of a Child

29.      (1)        A child has the right to be protected from engaging in work that constitutes a threat to the health, education or development of that child.

           

1. A child shall not be subjected to abuse or torture or other cruel inhumane and degrading treatment or punishment subject to lawful and moderate chastisement for purposes of correction.”

 

[34]  It shall be noted that whilst the child undoubtedly has a right to education expressly stated in Section 29 (1) of the Constitution and also by necessary inference in terms of Section 29 (2), I cannot see anywhere, in the same Section or even the Constitution at large any other Section where it is stated if not expressly, at least by necessary inference that the said right of the child has to supersede the right of property owners who are acting lawfully and in enjoyment of such a right.  The Constitution as it stands, and this is my considered view, does not make the right of the property owners subservient to that of the child to education.  I agree that the rights in question are horizontal and not vertical as contended by Counsel for the 2^nd to 5^th Respondents.

 

[35]  The Constitution, to the contrary, expressly protects the right to ownership of property including a prohibition against unlawful deprivation of same.  Section 19 of the Constitution provides as follows in this regard:-

                        Protection from Deprivation of Property

“19      (1) A person has a right to own property either alone or in association with others.

(2)        A person shall not be compulsorily deprived of property or any interest in or right over property of any description except where the following conditions are satisfied:-

 

1. the taking of possession or acquisition is necessary for public use or in the interest of defence, public safety, public order, public health or public morality;

 

1. the compulsory taking of possession or acquisition of the property is made under a law which makes provision for:-

 

1. prompt payment of fair and adequate compensation; and
2. a right of access to a Court of Law by any person who has an interest or right over the property;

 

(c)        the taking of possession or the acquisition is made under a Court Order.”

 

[36]  It becomes difficult for one in light of the provisions of the foregoing Section to possibly conclude that the right of the child to education should run superior to that the property owner.

       

[37]  It is however clear that the matter is about competing rights.  Notwithstanding my several enquiries from Applicant’s Attorney Mr. Gumedze on why the right of the child to education has to supersede that of the First Respondent to the enjoyment of its right to its property, particularly where a competent Court has already determined the unlawfulness of the children’s parents occupation of the farm to the point of ordering that they vacate same, I could not get a clear answer.

 

[38]  The nearest to an answer I got was a reference to the South African Case of Governing Body of the JumaMusjid Primary Schooland Others v Ahmed Asruff Essay N.O. and Others, Case No. CCT 29/10, where the following was stated:-

 

“The right to education is both a human right in itself and an indispensable means of realizing other human rights.  As an empowerment right, education is the primary vehicle by which economically and socially marginalised adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities.  Education has a vital role in safeguarding children from exploitation and hazardous labour and sexual exploitation.”

 

[39]  The accuracy and importance of the foregoing observation by the Court in the said matter cannot be doubted.  As I understand it, however, it did not suggest that in order to afford children an education, obligations or duties have to be sub-planted on parties who do not have such legal duties.   I am supported in this view by what was stated at paragraph 57 of the same judgment by the Court:-

 

“It is clear that there is no primary positive obligation on the trust to provide basic education to the learners.  That Primary positive obligation rests on the MEC.  There was also no obligation on the trust to make its property available to the MEC for use as a public school.”

 

[40]  It becomes apposite that I now sum up the facts of this case which in my observation the present matter was modelled upon:-

 

 A certain Trust owned land on which was established a school.  The Member of the Executive Counsel (MEC) for education in KwaZulu-Natal was required to conclude a lease agreement and pay rentals for the school to the Trust which owned the land.  This, the MEC failed to do for a considerable period which prompted the Trust concerned to apply to Court for an Order evicting the school from its land.  There was no doubt that the MEC for Education was legally obliged to conclude the agreement and pay the rentals in execution of a Constitutional duty to ensure that the children at that school received education.  The High Court issued an order evicting the school from the said land as a result of which an unsuccessful application for leave to appeal to the Supreme Court was made.  Following the dismissal of those proceedings in the Supreme Court, an application for leave to appeal to the Constitutional Court was made. Whilst acknowledging the right of the Trust to eject the school from its land and the reasonableness of such action, the Constitutional Court however set aside the decision of the High Court on the grounds that the reasonableness of the eviction sought by the Trust alone did not justify the Order in the absence of calling upon the MEC to provide the steps she had taken to ensure that the children would have a school for the remainder of that year.  This resulted in an interim order being granted calling upon the MEC and the Trust to endeavour to conclude an agreement as envisaged by the relevant Act.

 

[41]  As I see it, the facts of this matter are clearly distinguishable from the facts of the current matter. 

 

• Firstly, that matter was about the eviction of a school from a land concerned, which was necessitated by the failure of the MEC for Education to sign the required lease agreement as well as to pay the relevant rentals.  Had these actions been performed the issue of the eviction of the school from the land would not have arisen. 

 

• Secondly, the MEC for Education had both the statutory and the constitutional duty to ensure that the children’s right to education is not hindered and is fulfilled.

 

[42]  The point here is that, Applicant’s Counsel could not point me to the duty the 1^st Respondent has towards the education of the children who happened to be on his farm illegally resulting in an order of Court issuing for their eviction or ejectment therefrom.  This can only mean that the 1^st Respondent has no such duty towards the education of the children.  In fact in the Governing Body of the Juma Musjid Primary School and Others v Ahmed Asruff Essay N.O. and Others case (supra) relied upon by the Applicants, it was made clear that the equivalent of our Section 14 (2) of the Constitution, (Section 8 (2) of the South African Constitution) is not to obstruct private enjoyment of property rights by property owners.  This was expressed in the following terms at page 58 of the judgment:-

 

“It needs to be stressed however that the purpose of Section 8 (2) of the Constitution is not to obstruct private autonomy or to impose on a private party the duties of the state in protecting the Bill of Rights.  It is rather to require private parties not to interfere with or diminish the enjoyment of a right.”

 

[43]  I have no hesitation therefore that the reliance by the Applicants on the case aforesaid as authority that education would take precedence in a case like the present one where the 1^st Respondent is not shown as having a duty to guarantee such education, or put differently is not shown as having interfered with or diminished the rights of the said children to education, is misplaced.

 

[44]  In this jurisdiction the duty to guarantee education to the children is placed on the parent in terms of Section 29 (3) of the Constitution which provides as follows:-

 

        “The child has the right to be properly cared for and brought up by parents or other lawful authority in place of parents.”

 

[45]  In Government of the Republic of South Africa and Others vs Grootboom and Others 2001 (1) SA 46 it was emphasized them that Section 28 of the South African Constitution ensured that children were properly cared for by their parents or families.  I have therefore failed to find the right to education that the children have against the 1^st Respondent, who is shown by the foregoing authorities not to be owing a duty to them in that regard as opposed to their own parents.

 

[46]  Having reached the conclusion I have on the right of the right of the child to education and the lack of the correlated duty by the 1^st Respondent, I will not go on to consider the contention whether the other requirements of an interdict are met or not as that can only be academic. 

 

[47]  I must however point out that one glaring requirement of an interdict which does not seem to have been met is the availability or otherwise of an alternative remedy.  It is common cause and judicial notice ought to be taken of this point; that in Swaziland one can obtain land through the traditional allocation of land method (khonta) like the Applicants claim to have initially done to the Emnyenyweni Royal Kraal.  It has not been alleged that they have not been able to secure land within areas where it would be possible for their children to pursue or continue with the schools they are currently attending.  In fact Mr. Gumedze indicated that his clients had not done so and that they could do so even by asking the same Malangeni Dlamini to provide them with alternative land in the portion where his authority is not in doubt.  It seems to me that even on this point alone the Applicants would not be entitled to the Order they are seeking. 

 

[48]  I am now required to deal with the enquiry whether or not there is a duty on the 2^nd to 4^th Respondents to perform the duties I am being asked to direct them to perform.

 

[49]  The starting point in this regard is the observation that I have not been referred to any source of such an obligation against the said Respondents.  It was contended by Mr. Gumedze that the duty against the said Respondents stems from the fact that the evictions and demolitions, already found appropriate by this Court, were cruel, inhuman and degrading treatment  as they would disrupt the children’s education.

 

[50]  Other than to observe that the Applicant’s case seems to have been an attempt to implant in this matter the circumstances in the Governing Body of the Juma Musjid Primary School and Others v Essay N. O. and Others (supra) case, I cannot see the basis of the duty these Respondents have to perform what I am asked to direct them to do. 

 

[51]  I am aware of the duty this Court has at times to fashion new Constitutional remedies so as to obtain justice as was stated in the case of Fose v Minister of Safety and Security 1997 (3) SA 786 CC but I am notpersuaded this is a case where I can direct the Respondents to do what I am asked to.   As indicated above the duty of the MEC in the South African case referred to namely the Governing Body of the Juma Musjid Primary School and Others v Essay N. O. and Others (supra) was statutorily created which is not the case in this jurisdiction.

 

[52]  Owing to the decision to which I have come in this matter and which is as expressed above, I do not find it necessary to determine whether or not in the exercise of its right to fashion out new Constitutional remedies this Court can order the performance of the duties I am asked to direct the 2^nd to 4^th Respondents herein. 

 

[53]  For the foregoing reasons and considerations, I have come to the conclusion that the Applicants have failed to establish their entitlements to the orders sought.  Consequently this application is dismissed with costs having to follow the event.

 

[54]  Owing to the conclusion I have come to as expressed above which is to dismiss the application on the issues considered, I do not find it necessary to determine whether or not this Court has power to grant a declaratory order as I was being asked to do.  I have no doubt it is an issue that will have to be dealt with in a matter where the determination of same will be germaine.

 

[55]  Consequently I have come to the conclusion that the Applicants’ application be dismissed with costs.

 

Delivered in open Court in Mbabane on this 13^th day of June 2011.

 

_____________________

N. J. Hlophe

JUDGE

 

 

IN THE HIGH COURT OF SWAZILAND

 

 

Held at Mbabane                             Civil Case No: 1400/2011

 

 

In the matter between:

 

 

Alice Fikile Tsabedze & 45 Others

APPLICANT

 

and

 

 

SwazilandNational Provident Fund

1^ST RESPONDENT

National Children Co-Ordinating Unit

2^ND RESPONDENT

Social Welfare Department

3^RD RESPONDENT

Government of Swaziland

4^th RESPONDENT

Attorney General

5^th RESPONDENT

 

 

Coram                                                                      Hlophe J.

For the Applicant                                                     Mr. S. Gumedze

For the 1^st Respondent                                            Mr. Z. D. Jele

For the 2^nd to 5^th Respondent                                   Mr. Nxumalo

 

JUDGMENT

 

HLOPHE J

[1]    Fourty Six (46) Applicants, who are either parents or guardians of the children who are said to be attending schools around Manzini and whose names appear in a list attached to the Founding Affidavit, instituted these proceedings in a representative capacity to the said children, under a certificate of urgency seeking the following reliefs:-

 

1. “that this Honourable Court dispense (sic) with the normal requirements relating to time limits, manner of service of process, form and procedure in applications and deal with this matter as one of urgency in terms of Rule 6 (25) (a) and (b) of the High Court Rules.

 

1. that this Honourable Court condones Applicant’s non-compliance with the Rules of Court.

 

1. that a rule be issued, calling upon the Respondent to show cause on a date and time to be determined by this Honourable Court why the prayers set out below should not be confirmed and made final.

 

1. Declaring the eviction and demolition of the 85 homesteads in so far as it relates to the 140 school going children to be inconsistent with the provisions of Sections 18 and 29 of the Constitution of the Kingdom of Swaziland Act, 2005 due to the fact that the eviction and demolitions of the homesteads are a threat to the children’s education; therefore (are) inhuman and cruel.

 

1. That the Deputy Prime Minister’s Office, National Children’s Co-Ordination Unit and Social Welfare Department be directed to conduct an impact and mitigation assessment and prepare a report that will be used by the government to ensure that the education of the children is not jeopardized.

 

1. That the Government of the Kingdom of Swaziland be directed to implement the report mentioned above.

 

1. that pending finalization of this matter and the completion of the impact assessment and the implementation of the mitigation recommendations by the Government of the Kingdom of Swaziland, the First Respondent and or its agents be interdicted and restrained from evicting the Applicant’s children and demolishing the Applicant’s homesteads situated in Farm No. 319, Manzini.

 

1. That prayer 7, operate with immediate and interim effect.
2. that the Respondents pays (sic) costs of this application in the event it is unnecessarily opposed.

 

1. Granting the Applicants any further and or alternative relief as this Honourable Court deems just in the circumstances.”

 

[2]    The application is founded on the affidavit of one Alice Fikile Tsabedze who describes herself as a parent to some of the children who are currently enrolled in some of the schools around Manzini and on whose behalf the orders of this Court referred to above are sought.  The parents of the other children have filed supporting affidavits on behalf of each Applicant’s child or children.

 

[3]    The case brought forth by the Applicants aforesaid is that they (parents of the children attending schools around Manzini) khontaed at an Umphakatsi called Emnyenyweni Royal Kraal, under the authority of one Malangeni Dlamini, as a result of which they were allocated land where they built their homes.  They subsequently enrolled their children in the neighbouring schools or those accessible from where they were allocated land.

 

[4]    It is alleged that after years of having settled in the area under the khonta custom, the Applicants were informed that they

had to vacate same because it was a farm belonging to the 1^st  Respondent, the Swaziland National Provident Fund.  This it is said happened around 2004.

 

[5]    As a result of this information, and notwithstanding their having been assured by the said Malangeni Dlamini that the land in question was Swazi Nation land under his authority, they formed a committee which established that the land was indeed a farm, from which they appealed to the Ingwenyama (His Majesty the King) who directed the Advisory Council, Liqoqo, to deliberate the matter and come up with a solution.  The Liqoqo took years from 2004, dealing with the matter and its decision was only communicated to the Applicants on or around the 11 March 2011.  It is alleged further that it was whilst the decision was awaited, that the First Respondent issued summons and eventually obtained a Default Judgment which was however not executed pending the decision of Liqoqo referred to above.  The decision of the Liqoqo was that attempts to prevent the eviction of the Applicants from the farm were unsuccessful.

 

[6]    It was subsequent to this decision that the Applicants then received letters from the 1^st Respondent on the 1^st April 2011 advising them to vacate the land in question by close of business on the 15^th April 2011, which prompted them to approach this Court under a certificate of urgency on the 20^th April 2011 for an order inter alia declaring their eviction from the said farm and demolition of, their homesteads as being inconsistent with the provisions of Sections 18 and 29 of the Constitution of the Kingdom of Swaziland Act, 2005 on the grounds that such conduct was a threat to the children’s education and as such was inhuman and cruel.

 

[7]    The 1^st Respondent’s version differed somewhat from that of the Applicants in that it sought to show that the case as exposed by the Applicants was not complete as some information was said to have been withheld.  The withheld information was particularly that the Applicants did not disclose that sometime in 2005 the 1^st Respondent instituted action proceedings for the ejectment of the Applicants from the farm, as a result of which a Default Judgment was granted.  The said Default Judgment was eventually followed by a rescission application which resulted in the rescission of the Default Judgment.  After a rescission of the said Judgment, no plea was filed notwithstanding the filing of a Notice of Bar which eventually resulted in another Default Judgment being issued, which judgment is the one whose execution sparked the institution of this application.  This Default Judgment is the one whose execution the 1^st Respondent withheld for a considerably long period whilst awaiting the decision of Liqoqo referred to above.

 

[8]    It is however common cause that between 2004 and the 11^th March 2011, when the Liqoqo eventually communicated its decision that they could not help against the eviction of the Applicants from the farm, the parties were jointly engaged in attempts to find an amicable solution to the dispute.  In fact the means to do so continued even after the 11^th March 2011 to the date when the current proceedings were instituted.

 

[9]    The 1^st Respondent raised points in limine and contended that the decision of same would have the effect of dismissing

the application.  The said points in limine included that of urgency (it being alleged that the matter was not urgent and that such urgency as may exist was of the Applicant’s own making; that the Court was functus officio as it had already pronounced on the propriety or otherwise of the Applicants remaining on the farm; that whilst an interdict was being sought by the Applicants, they had not met the requirements of such a remedy and that whilst this Court was required to grant a declaratory order, it had no power to do so in law.

 

[10]  In the merits of the matter it was contended that this Court granted the Default Judgment it did after having considered all the facts of the matter including the rights of the children and upon satisfying itself of the propriety of the demolishing and eviction orders.  It was argued that the rights of the children not to be subjected to inhumane and degrading treatment by being denied education, is a right contained in Chapter 3 of the Constitution just like the right of the property owner to enjoy his property and therefore that these rights are

complementary to each other and cannot be viewed as though that of the children aforesaid, supersedes that of the property owner.

 

I must say at this stage that I have observed from the papers placed before me that there is no indication either in the form of evidence or allegation that at the time it granted the Default Judgment referred to above, this Court had considered the competing rights – being those of the children to education against those of the property owner.

 

[11]  During the hearing of the matter it was agreed between the parties that the points in limine be argued together with the together with the merits, with the Court having to decide the matter fully in light of all the issues raised and argued before it.

 

[12]  Although endorsing the same approach as stated above, the 2^nd to 5^th Respondents, who had initially indicated they would abide the order of Court without joining issue, indicated that they were then opposing the application and had filed an opposing affidavit in that regard.  Their opposing affidavit was deposed to by one Dickson Z. Mkhonta who stated that he was the Acting Principal Secretary at the Deputy Prime Minister’s Office, which housed the 2^nd and 3^rd Respondents.

 

[13]  The thrust of these Respondents’ opposition was that the Applicant’s case was confusing as a Constitutional matter as it was not immediately clear which one of the Constitutional provisions were allegedly being violated.  It was equally contended that the rights of the interested parties herein as opposed to 2^nd to 5^th Respondents, require a horizontal application of the Constitution as opposed to a vertical one as well as there was neither a legislative nor judicially determined duty on the part of the 2^nd to 5^th Respondents to involve themselves in what is primarily an ejectment of the Applicants from a privately owned farm or an emotional dispute between the Applicants and the 1^st Respondent. It was contended further that the Applicants aforesaid are duty-bound to observe the rights of all persons including the duty to uphold the rule of law as it was apparent the application sought to defeat the upholding of a judgment of this Court through using the children concerned as human shields.

 

        I must now turn to deal with the points in limine raised.

 

        Urgency

[14]  At the commencement of the hearing, it was submitted by Mr. Jele that the matter is not urgent in as much as whatever urgency there was, was of the Applicants’ own making because facts giving rise to the application commenced in 2004 when the Applicants were advised to vacate 1^st Respondent’s farm.  It was contended further that the Applicants instead sought to negotiate the matter and took it to other structures only to run to this Court at the 11^th hour.

 

[15]  Whatever shortcomings one can lay at the Applicant’s door, I am not inclined to accept that their matter is not urgent on this ground and that it should therefore be dismissed on it.   Whilst I agree that the facts do indicate that Applicants were notified around 2004 that the place where they had build their houses upon was the 1^st Respondent’s farm which they had to vacate, I cannot agree that urgency for them should have started counting then, owing to what eventually happened.  It is common cause that as they were notified of the foregoing there then ensued discussions or negotiations or engagements which at times resulted in the floating of offers and counter offers.  In fact at some stage, and for a considerable period in between, both parties jointly awaited the outcome of the referral of the matter to the traditional structures (Liqoqo) by the Applicants with the 1^st Respondent itself not insisting on enforcing the Judgment it had obtained against the Applicant’s parents.  Clearly, the Applicants depending on whether in law they have a good cause of action, could, and were not unduly out of time when they instituted the proceedings around the 19^th April, 2011 if I consider that the decision of the Liqoqo which both parties awaited to take the matter whichever way forward was made on the 11 March 2011, with some further engagements between them going on until the 19^th April 2011. 

 

[16]  In my view, it is not in every instance where parties engage each other prior to instituting proceedings that the one who eventually goes to Court when such negotiations fail can have such construed adversely against him.  This in my view should be dependant upon the circumstances of each particular matter as the position is trite that each matter turns on its own peculiar circumstances.  I have no doubt that there would be circumstances where, as in the present one, it becomes necessary for the parties to try and resolve a matter amicably before resorting to formal structures.  For this reason I am of firm view that there are instances where a refusal to hear a matter on urgency on the grounds that the parties started of by negotiating can only yield injustice which is against what parties come to Court to achieve in the first place.  Clearly this is what our Supreme Court had in mind in Shell Oil Swaziland (Pty) Ltd T/A Sir Motors v Motor World (Pty) Ltd Civil Appeal Case No. …….  In any event, I do not think it accords with justice or good sense, not to expect parties to try as much as possible to resolve their private disputes before coming to Court.

 

[17]  Of course this brings me to the other contention why the matter is said not to be urgent.  It was argued that in the Humphrey Henwood vs Maloma Colliery Limited and Another Case No. 1623/94, the Applicant who brings urgent proceedings is required to address the requirements of Rule 6 (25) which provides that the Applicant should set out explicitly the reason why he contends the matter is urgent and why he contends he cannot receive redress in due course.  I have no doubt this is the proper position but I must say from my observation that that case is distinguishable on the facts from the present one.

 

 In that case the Applicant who had allowed the Respondent to occupy his farm and carry out mining operations for over three years, approached Court on a certificate of urgency and sought to have such mining stopped with the Respondents being ejected from his farm. Even the time limits were unreasonably abridged with Respondent being given too short a notice to file its papers.

 

[18]  In my view, this state of affairs would have been similar in this matter if it was actually the 1^st Respondent now wanting the Applicants to vacate the farm on the basis of urgency and giving them too short a notice to vacate when considering its having allowed them to occupy that farm for over five years since it first demanded they vacate it and when there other basis is set for this sudden urgency.  In any event, I am of the considered view that whilst it may be unreasonable for the Applicant to have given First Respondent an unrealistically short time, it did not insist on the hearing of the matter on those abridged time limits as the Respondents ended up being given as much time as was necessary in the circumstances for them to file their papers so that at the time the matter was heard, all the papers were already before Court.

[19]  This pragmatic approach is the one I favoured in this matter which is why I directed the parties to file all the papers required of record before argument of the matter could commence.  This having been done and all the papers now before me, the matter was heard.  I must say that I had to bear in mind the comments of the Supreme Court in the Shell Oil Swaziland Limited t/a Sir Motors vs Motor World which admonishes Courts not to avoid dealing with the merits of the matter through upholding technical points at the expense of the merits of the matter yet no real prejudice is suffered by any of the parties.

 

[20]  I therefore do not agree that in the circumstances of this matter, the institution of these proceedings by the Applicant giving the Respondent the time it eventually did justified the dismissal of the application on the point of urgency raised.

 

[21]  I must sound very clear that I am not advocating a rule of thumb that after negotiations a party would always be allowed to approach Court on the basis of urgency, but I am merely emphasising the rule of practice that each matter turns on its own facts.  There may well be circumstances where a party who gives the other party too short a notice under the guise that the matter is urgent when that is not the case, (albeit there having been negotiations prior) would justifiably have his application dismissed.  I however am of the considered view that this one is not such a case and I dismiss the point.

 

        Application Amounts to a Stay of Proceedings

 

[22]  I agree that the Applicant’s application has the effect of a stay of the execution of a Judgment of this Court even though it is brought as, an interdict:  This is because of the existing judgment of this Court evicting the Applicants in their personal capacities from the farm as opposed to doing it on behalf of their minor children this time around.

 

[23]  Being that as it may, I do not believe that when considering the position set out in South Cape Corporation vs Engineering Management Services 1977 (3) SA 534 (AD), in the exercise of my discretion, and where I should determine what is just and equitable in all the circumstances of the matter, I can come to the conclusion that the potentiality of harm borne by the Respondent as opposed to that borne by the Applicant between now and the handing down of the judgment can be said to be any worse.

 

[24]  Furthermore considering what was said in Strime v Strime 1983 (4) SA 850, that is, “The Court will, generally speaking, grant a stay of execution where real and substantial justice requires such a stay or, put otherwise, where injustice would otherwise be done,” I do not think I can justifiably refuse to grant such a stay at least pending finalization of this application.

 

[25]  Without saying much on whether or not there are prospects of success at this stage, an issue I shall say more about later on in this judgment, I must say that I am of the view that justice would not be served if I dismiss the application at this stage. Consequently in exercise of the discretion I have in determining whether or not to grant a stay of execution it is my considered view that I do so.  For this reason I cannot uphold this point.

 

Court is Functus Officio

 

[26]  It was further argued on behalf of the 1^st Respondent that this Court could not entertain this matter given that it was now functus officio, it having issued the judgment for the eviction of the Applicants from the same farm. 

 

[27]  At the heart of the functus officio principle, is the understanding that once the Court has pronounced its judgment in a matter it cannot reopen it again.  In Firestone South Africa (Pty) Ltd v Gentiruco A.G. 1977 (4) SA 298, the position was put as follows:-

 

“Once a Court has duly pronounced a final judgment or

order, it has itself no authority to correct, alter or

supplement it.  The reason is that it thereupon becomes

functus officio:  Its jurisdiction in the case having been

fully and finally exercised, its authority over the subject

matter has closed.”

 

[28]  Coming back to this matter, can it realistically be said that the Court has become functus officio?  Put differently can it be said that this Court is now being called upon to correct, alter or supplement the existing Default Judgment?  This question can best be understood through comparing the case resulting in the Default Judgment aforesaid against the present one.  In the papers and as argued before me, the Applicants in this matter claim to be acting in a representative capacity – that is, they have instituted these proceedings on behalf of their children who are minors and cannot in law institute such proceedings.  Notionally the Applicants are therefore different from those in the case that resulted in the Default Judgment.  Furthermore it does not seem in my view that it would be correct to say that the relief sought hearing amounts to correcting, altering or supplementing the existing judgment.  It seems to me that the current application as framed is about the enforcement of the Bill of Rights which the Applicant’s herein claim is being violated.  The issue therefore is whether there is indeed a violation of Sections 18 and 29 of the Constitution.  Clearly this is not what the case determined by this Court resulting in the Default Judgment referred to was about.  Consequently I cannot uphold the point in limine that this Court is now functus officio. 

 

        Requirements of an Interdict not met

 

[29]  It was also contended on behalf of the First Respondent that this application falls to be dismissed on the basis that whereas

the Applicants seek an interdict, the requirements for such a relief are not met.  These, it is alleged are the requirements for an interim interdict as it is considered this is the relief the Applicants are seeking as they contend they have to remain in the farm whilst or until the government shall have come up with the mitigation plan to ameliorate the harshness of the evictions.

 

[30]  Having observed that by and large this application is about an interdict, it is my considered view that a decision on this point cannot realistically be taken to be in limine but is at the heart of this application.  Going forward, I shall therefore deal with the matter on this basis.

 

[31]  The position is now settled that for a party who seeks an interdict on an interim basis to succeed, he needs to establish a prima facie right, an apprehension of irreparable harm, balance of convenience and that he has no other satisfactory remedy.  See in this regard Hebstein and Van Winsen Others, The Civil Practice of the Supreme Court of South Africa Fourth Edition at page 1065. 

 

        I have noted that although the order sought is couched as an interim order, the reality is that if granted it would be final in effect.  It is for this reason that I cannot ignore the requirements of a final interdict which Hebstein and Van Winsen in their book cited above at page 1064 – 1065 enumerate as a clear right; an injury actual committed or reasonably apprehended; and the absence of an alternative remedy.

 

[32]  Starting of from the premise that what is sought is an interim interdict properly so called, can it be said that a prima facie right entitling Applicant to the relief sought has been established.  The Applicants contend that same has been whilst the First Respondent contends otherwise.

 

[33]  In Ferreira vs Levin and Others 1995 (2) SA 815 the principle  was enunciated that in order to establish a prima facie right justifying an interim interdict, the Applicant has to make out a case that would entitle him to a final interdict.

 

        It has been stated that the right of the Applicant to the reliefs sought herein, stems from the Constitution.  It was contended that the Applicants established that their children had a right to education; they had a right not to be treated in a cruel, inhuman and degrading manner.  It was contended that if their parents are evicted from the farm in execution of a judgment of this Court, such would amount to cruel, inhuman and degrading treatment.  This right it is said stems from Section 29 (1) and (2) read with Section 18 of the Constitution of Swaziland.

 

Section 18 of the Constitution provides as follows:- 

 

Protection from Inhuman or Degrading Treatment

        18      (1)      “The dignity of every person is inviolable.

(2)      A person shall not be subjected to torture or inhuman or degrading treatment or punishment.

 

                   On the other hand Section 29 reads as follows:-

 

Rights of a Child

29.      (1)        A child has the right to be protected from engaging in work that constitutes a threat to the health, education or development of that child.

           

1. A child shall not be subjected to abuse or torture or other cruel inhumane and degrading treatment or punishment subject to lawful and moderate chastisement for purposes of correction.”

 

[34]  It shall be noted that whilst the child undoubtedly has a right to education expressly stated in Section 29 (1) of the Constitution and also by necessary inference in terms of Section 29 (2), I cannot see anywhere, in the same Section or even the Constitution at large any other Section where it is stated if not expressly, at least by necessary inference that the said right of the child has to supersede the right of property owners who are acting lawfully and in enjoyment of such a right.  The Constitution as it stands, and this is my considered view, does not make the right of the property owners subservient to that of the child to education.  I agree that the rights in question are horizontal and not vertical as contended by Counsel for the 2^nd to 5^th Respondents.

 

[35]  The Constitution, to the contrary, expressly protects the right to ownership of property including a prohibition against unlawful deprivation of same.  Section 19 of the Constitution provides as follows in this regard:-

                        Protection from Deprivation of Property

“19      (1) A person has a right to own property either alone or in association with others.

(2)        A person shall not be compulsorily deprived of property or any interest in or right over property of any description except where the following conditions are satisfied:-

 

1. the taking of possession or acquisition is necessary for public use or in the interest of defence, public safety, public order, public health or public morality;

 

1. the compulsory taking of possession or acquisition of the property is made under a law which makes provision for:-

 

1. prompt payment of fair and adequate compensation; and
2. a right of access to a Court of Law by any person who has an interest or right over the property;

 

(c)        the taking of possession or the acquisition is made under a Court Order.”

 

[36]  It becomes difficult for one in light of the provisions of the foregoing Section to possibly conclude that the right of the child to education should run superior to that the property owner.

       

[37]  It is however clear that the matter is about competing rights.  Notwithstanding my several enquiries from Applicant’s Attorney Mr. Gumedze on why the right of the child to education has to supersede that of the First Respondent to the enjoyment of its right to its property, particularly where a competent Court has already determined the unlawfulness of the children’s parents occupation of the farm to the point of ordering that they vacate same, I could not get a clear answer.

 

[38]  The nearest to an answer I got was a reference to the South African Case of Governing Body of the JumaMusjid Primary Schooland Others v Ahmed Asruff Essay N.O. and Others, Case No. CCT 29/10, where the following was stated:-

 

“The right to education is both a human right in itself and an indispensable means of realizing other human rights.  As an empowerment right, education is the primary vehicle by which economically and socially marginalised adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities.  Education has a vital role in safeguarding children from exploitation and hazardous labour and sexual exploitation.”

 

[39]  The accuracy and importance of the foregoing observation by the Court in the said matter cannot be doubted.  As I understand it, however, it did not suggest that in order to afford children an education, obligations or duties have to be sub-planted on parties who do not have such legal duties.   I am supported in this view by what was stated at paragraph 57 of the same judgment by the Court:-

 

“It is clear that there is no primary positive obligation on the trust to provide basic education to the learners.  That Primary positive obligation rests on the MEC.  There was also no obligation on the trust to make its property available to the MEC for use as a public school.”

 

[40]  It becomes apposite that I now sum up the facts of this case which in my observation the present matter was modelled upon:-

 

 A certain Trust owned land on which was established a school.  The Member of the Executive Counsel (MEC) for education in KwaZulu-Natal was required to conclude a lease agreement and pay rentals for the school to the Trust which owned the land.  This, the MEC failed to do for a considerable period which prompted the Trust concerned to apply to Court for an Order evicting the school from its land.  There was no doubt that the MEC for Education was legally obliged to conclude the agreement and pay the rentals in execution of a Constitutional duty to ensure that the children at that school received education.  The High Court issued an order evicting the school from the said land as a result of which an unsuccessful application for leave to appeal to the Supreme Court was made.  Following the dismissal of those proceedings in the Supreme Court, an application for leave to appeal to the Constitutional Court was made. Whilst acknowledging the right of the Trust to eject the school from its land and the reasonableness of such action, the Constitutional Court however set aside the decision of the High Court on the grounds that the reasonableness of the eviction sought by the Trust alone did not justify the Order in the absence of calling upon the MEC to provide the steps she had taken to ensure that the children would have a school for the remainder of that year.  This resulted in an interim order being granted calling upon the MEC and the Trust to endeavour to conclude an agreement as envisaged by the relevant Act.

 

[41]  As I see it, the facts of this matter are clearly distinguishable from the facts of the current matter. 

 

• Firstly, that matter was about the eviction of a school from a land concerned, which was necessitated by the failure of the MEC for Education to sign the required lease agreement as well as to pay the relevant rentals.  Had these actions been performed the issue of the eviction of the school from the land would not have arisen. 

 

• Secondly, the MEC for Education had both the statutory and the constitutional duty to ensure that the children’s right to education is not hindered and is fulfilled.

 

[42]  The point here is that, Applicant’s Counsel could not point me to the duty the 1^st Respondent has towards the education of the children who happened to be on his farm illegally resulting in an order of Court issuing for their eviction or ejectment therefrom.  This can only mean that the 1^st Respondent has no such duty towards the education of the children.  In fact in the Governing Body of the Juma Musjid Primary School and Others v Ahmed Asruff Essay N.O. and Others case (supra) relied upon by the Applicants, it was made clear that the equivalent of our Section 14 (2) of the Constitution, (Section 8 (2) of the South African Constitution) is not to obstruct private enjoyment of property rights by property owners.  This was expressed in the following terms at page 58 of the judgment:-

 

“It needs to be stressed however that the purpose of Section 8 (2) of the Constitution is not to obstruct private autonomy or to impose on a private party the duties of the state in protecting the Bill of Rights.  It is rather to require private parties not to interfere with or diminish the enjoyment of a right.”

 

[43]  I have no hesitation therefore that the reliance by the Applicants on the case aforesaid as authority that education would take precedence in a case like the present one where the 1^st Respondent is not shown as having a duty to guarantee such education, or put differently is not shown as having interfered with or diminished the rights of the said children to education, is misplaced.

 

[44]  In this jurisdiction the duty to guarantee education to the children is placed on the parent in terms of Section 29 (3) of the Constitution which provides as follows:-

 

        “The child has the right to be properly cared for and brought up by parents or other lawful authority in place of parents.”

 

[45]  In Government of the Republic of South Africa and Others vs Grootboom and Others 2001 (1) SA 46 it was emphasized them that Section 28 of the South African Constitution ensured that children were properly cared for by their parents or families.  I have therefore failed to find the right to education that the children have against the 1^st Respondent, who is shown by the foregoing authorities not to be owing a duty to them in that regard as opposed to their own parents.

 

[46]  Having reached the conclusion I have on the right of the right of the child to education and the lack of the correlated duty by the 1^st Respondent, I will not go on to consider the contention whether the other requirements of an interdict are met or not as that can only be academic. 

 

[47]  I must however point out that one glaring requirement of an interdict which does not seem to have been met is the availability or otherwise of an alternative remedy.  It is common cause and judicial notice ought to be taken of this point; that in Swaziland one can obtain land through the traditional allocation of land method (khonta) like the Applicants claim to have initially done to the Emnyenyweni Royal Kraal.  It has not been alleged that they have not been able to secure land within areas where it would be possible for their children to pursue or continue with the schools they are currently attending.  In fact Mr. Gumedze indicated that his clients had not done so and that they could do so even by asking the same Malangeni Dlamini to provide them with alternative land in the portion where his authority is not in doubt.  It seems to me that even on this point alone the Applicants would not be entitled to the Order they are seeking. 

 

[48]  I am now required to deal with the enquiry whether or not there is a duty on the 2^nd to 4^th Respondents to perform the duties I am being asked to direct them to perform.

 

[49]  The starting point in this regard is the observation that I have not been referred to any source of such an obligation against the said Respondents.  It was contended by Mr. Gumedze that the duty against the said Respondents stems from the fact that the evictions and demolitions, already found appropriate by this Court, were cruel, inhuman and degrading treatment  as they would disrupt the children’s education.

 

[50]  Other than to observe that the Applicant’s case seems to have been an attempt to implant in this matter the circumstances in the Governing Body of the Juma Musjid Primary School and Others v Essay N. O. and Others (supra) case, I cannot see the basis of the duty these Respondents have to perform what I am asked to direct them to do. 

 

[51]  I am aware of the duty this Court has at times to fashion new Constitutional remedies so as to obtain justice as was stated in the case of Fose v Minister of Safety and Security 1997 (3) SA 786 CC but I am notpersuaded this is a case where I can direct the Respondents to do what I am asked to.   As indicated above the duty of the MEC in the South African case referred to namely the Governing Body of the Juma Musjid Primary School and Others v Essay N. O. and Others (supra) was statutorily created which is not the case in this jurisdiction.

 

[52]  Owing to the decision to which I have come in this matter and which is as expressed above, I do not find it necessary to determine whether or not in the exercise of its right to fashion out new Constitutional remedies this Court can order the performance of the duties I am asked to direct the 2^nd to 4^th Respondents herein. 

 

[53]  For the foregoing reasons and considerations, I have come to the conclusion that the Applicants have failed to establish their entitlements to the orders sought.  Consequently this application is dismissed with costs having to follow the event.

 

[54]  Owing to the conclusion I have come to as expressed above which is to dismiss the application on the issues considered, I do not find it necessary to determine whether or not this Court has power to grant a declaratory order as I was being asked to do.  I have no doubt it is an issue that will have to be dealt with in a matter where the determination of same will be germaine.

 

[55]  Consequently I have come to the conclusion that the Applicants’ application be dismissed with costs.

 

Delivered in open Court in Mbabane on this 13^th day of June 2011.

 

_____________________

N. J. Hlophe

JUDGE

 

 

IN THE HIGH COURT OF SWAZILAND

 

 

Held at Mbabane                             Civil Case No: 1400/2011

 

 

In the matter between:

 

 

Alice Fikile Tsabedze & 45 Others

APPLICANT

 

and

 

 

SwazilandNational Provident Fund

1^ST RESPONDENT

National Children Co-Ordinating Unit

2^ND RESPONDENT

Social Welfare Department

3^RD RESPONDENT

Government of Swaziland

4^th RESPONDENT

Attorney General

5^th RESPONDENT

 

 

Coram                                                                      Hlophe J.

For the Applicant                                                     Mr. S. Gumedze

For the 1^st Respondent                                            Mr. Z. D. Jele

For the 2^nd to 5^th Respondent                                   Mr. Nxumalo

 

JUDGMENT

 

HLOPHE J

[1]    Fourty Six (46) Applicants, who are either parents or guardians of the children who are said to be attending schools around Manzini and whose names appear in a list attached to the Founding Affidavit, instituted these proceedings in a representative capacity to the said children, under a certificate of urgency seeking the following reliefs:-

 

1. “that this Honourable Court dispense (sic) with the normal requirements relating to time limits, manner of service of process, form and procedure in applications and deal with this matter as one of urgency in terms of Rule 6 (25) (a) and (b) of the High Court Rules.

 

1. that this Honourable Court condones Applicant’s non-compliance with the Rules of Court.

 

1. that a rule be issued, calling upon the Respondent to show cause on a date and time to be determined by this Honourable Court why the prayers set out below should not be confirmed and made final.

 

1. Declaring the eviction and demolition of the 85 homesteads in so far as it relates to the 140 school going children to be inconsistent with the provisions of Sections 18 and 29 of the Constitution of the Kingdom of Swaziland Act, 2005 due to the fact that the eviction and demolitions of the homesteads are a threat to the children’s education; therefore (are) inhuman and cruel.

 

1. That the Deputy Prime Minister’s Office, National Children’s Co-Ordination Unit and Social Welfare Department be directed to conduct an impact and mitigation assessment and prepare a report that will be used by the government to ensure that the education of the children is not jeopardized.

 

1. That the Government of the Kingdom of Swaziland be directed to implement the report mentioned above.

 

1. that pending finalization of this matter and the completion of the impact assessment and the implementation of the mitigation recommendations by the Government of the Kingdom of Swaziland, the First Respondent and or its agents be interdicted and restrained from evicting the Applicant’s children and demolishing the Applicant’s homesteads situated in Farm No. 319, Manzini.

 

1. That prayer 7, operate with immediate and interim effect.
2. that the Respondents pays (sic) costs of this application in the event it is unnecessarily opposed.

 

1. Granting the Applicants any further and or alternative relief as this Honourable Court deems just in the circumstances.”

 

[2]    The application is founded on the affidavit of one Alice Fikile Tsabedze who describes herself as a parent to some of the children who are currently enrolled in some of the schools around Manzini and on whose behalf the orders of this Court referred to above are sought.  The parents of the other children have filed supporting affidavits on behalf of each Applicant’s child or children.

 

[3]    The case brought forth by the Applicants aforesaid is that they (parents of the children attending schools around Manzini) khontaed at an Umphakatsi called Emnyenyweni Royal Kraal, under the authority of one Malangeni Dlamini, as a result of which they were allocated land where they built their homes.  They subsequently enrolled their children in the neighbouring schools or those accessible from where they were allocated land.

 

[4]    It is alleged that after years of having settled in the area under the khonta custom, the Applicants were informed that they

had to vacate same because it was a farm belonging to the 1^st  Respondent, the Swaziland National Provident Fund.  This it is said happened around 2004.

 

[5]    As a result of this information, and notwithstanding their having been assured by the said Malangeni Dlamini that the land in question was Swazi Nation land under his authority, they formed a committee which established that the land was indeed a farm, from which they appealed to the Ingwenyama (His Majesty the King) who directed the Advisory Council, Liqoqo, to deliberate the matter and come up with a solution.  The Liqoqo took years from 2004, dealing with the matter and its decision was only communicated to the Applicants on or around the 11 March 2011.  It is alleged further that it was whilst the decision was awaited, that the First Respondent issued summons and eventually obtained a Default Judgment which was however not executed pending the decision of Liqoqo referred to above.  The decision of the Liqoqo was that attempts to prevent the eviction of the Applicants from the farm were unsuccessful.

 

[6]    It was subsequent to this decision that the Applicants then received letters from the 1^st Respondent on the 1^st April 2011 advising them to vacate the land in question by close of business on the 15^th April 2011, which prompted them to approach this Court under a certificate of urgency on the 20^th April 2011 for an order inter alia declaring their eviction from the said farm and demolition of, their homesteads as being inconsistent with the provisions of Sections 18 and 29 of the Constitution of the Kingdom of Swaziland Act, 2005 on the grounds that such conduct was a threat to the children’s education and as such was inhuman and cruel.

 

[7]    The 1^st Respondent’s version differed somewhat from that of the Applicants in that it sought to show that the case as exposed by the Applicants was not complete as some information was said to have been withheld.  The withheld information was particularly that the Applicants did not disclose that sometime in 2005 the 1^st Respondent instituted action proceedings for the ejectment of the Applicants from the farm, as a result of which a Default Judgment was granted.  The said Default Judgment was eventually followed by a rescission application which resulted in the rescission of the Default Judgment.  After a rescission of the said Judgment, no plea was filed notwithstanding the filing of a Notice of Bar which eventually resulted in another Default Judgment being issued, which judgment is the one whose execution sparked the institution of this application.  This Default Judgment is the one whose execution the 1^st Respondent withheld for a considerably long period whilst awaiting the decision of Liqoqo referred to above.

 

[8]    It is however common cause that between 2004 and the 11^th March 2011, when the Liqoqo eventually communicated its decision that they could not help against the eviction of the Applicants from the farm, the parties were jointly engaged in attempts to find an amicable solution to the dispute.  In fact the means to do so continued even after the 11^th March 2011 to the date when the current proceedings were instituted.

 

[9]    The 1^st Respondent raised points in limine and contended that the decision of same would have the effect of dismissing

the application.  The said points in limine included that of urgency (it being alleged that the matter was not urgent and that such urgency as may exist was of the Applicant’s own making; that the Court was functus officio as it had already pronounced on the propriety or otherwise of the Applicants remaining on the farm; that whilst an interdict was being sought by the Applicants, they had not met the requirements of such a remedy and that whilst this Court was required to grant a declaratory order, it had no power to do so in law.

 

[10]  In the merits of the matter it was contended that this Court granted the Default Judgment it did after having considered all the facts of the matter including the rights of the children and upon satisfying itself of the propriety of the demolishing and eviction orders.  It was argued that the rights of the children not to be subjected to inhumane and degrading treatment by being denied education, is a right contained in Chapter 3 of the Constitution just like the right of the property owner to enjoy his property and therefore that these rights are

complementary to each other and cannot be viewed as though that of the children aforesaid, supersedes that of the property owner.

 

I must say at this stage that I have observed from the papers placed before me that there is no indication either in the form of evidence or allegation that at the time it granted the Default Judgment referred to above, this Court had considered the competing rights – being those of the children to education against those of the property owner.

 

[11]  During the hearing of the matter it was agreed between the parties that the points in limine be argued together with the together with the merits, with the Court having to decide the matter fully in light of all the issues raised and argued before it.

 

[12]  Although endorsing the same approach as stated above, the 2^nd to 5^th Respondents, who had initially indicated they would abide the order of Court without joining issue, indicated that they were then opposing the application and had filed an opposing affidavit in that regard.  Their opposing affidavit was deposed to by one Dickson Z. Mkhonta who stated that he was the Acting Principal Secretary at the Deputy Prime Minister’s Office, which housed the 2^nd and 3^rd Respondents.

 

[13]  The thrust of these Respondents’ opposition was that the Applicant’s case was confusing as a Constitutional matter as it was not immediately clear which one of the Constitutional provisions were allegedly being violated.  It was equally contended that the rights of the interested parties herein as opposed to 2^nd to 5^th Respondents, require a horizontal application of the Constitution as opposed to a vertical one as well as there was neither a legislative nor judicially determined duty on the part of the 2^nd to 5^th Respondents to involve themselves in what is primarily an ejectment of the Applicants from a privately owned farm or an emotional dispute between the Applicants and the 1^st Respondent. It was contended further that the Applicants aforesaid are duty-bound to observe the rights of all persons including the duty to uphold the rule of law as it was apparent the application sought to defeat the upholding of a judgment of this Court through using the children concerned as human shields.

 

        I must now turn to deal with the points in limine raised.

 

        Urgency

[14]  At the commencement of the hearing, it was submitted by Mr. Jele that the matter is not urgent in as much as whatever urgency there was, was of the Applicants’ own making because facts giving rise to the application commenced in 2004 when the Applicants were advised to vacate 1^st Respondent’s farm.  It was contended further that the Applicants instead sought to negotiate the matter and took it to other structures only to run to this Court at the 11^th hour.

 

[15]  Whatever shortcomings one can lay at the Applicant’s door, I am not inclined to accept that their matter is not urgent on this ground and that it should therefore be dismissed on it.   Whilst I agree that the facts do indicate that Applicants were notified around 2004 that the place where they had build their houses upon was the 1^st Respondent’s farm which they had to vacate, I cannot agree that urgency for them should have started counting then, owing to what eventually happened.  It is common cause that as they were notified of the foregoing there then ensued discussions or negotiations or engagements which at times resulted in the floating of offers and counter offers.  In fact at some stage, and for a considerable period in between, both parties jointly awaited the outcome of the referral of the matter to the traditional structures (Liqoqo) by the Applicants with the 1^st Respondent itself not insisting on enforcing the Judgment it had obtained against the Applicant’s parents.  Clearly, the Applicants depending on whether in law they have a good cause of action, could, and were not unduly out of time when they instituted the proceedings around the 19^th April, 2011 if I consider that the decision of the Liqoqo which both parties awaited to take the matter whichever way forward was made on the 11 March 2011, with some further engagements between them going on until the 19^th April 2011. 

 

[16]  In my view, it is not in every instance where parties engage each other prior to instituting proceedings that the one who eventually goes to Court when such negotiations fail can have such construed adversely against him.  This in my view should be dependant upon the circumstances of each particular matter as the position is trite that each matter turns on its own peculiar circumstances.  I have no doubt that there would be circumstances where, as in the present one, it becomes necessary for the parties to try and resolve a matter amicably before resorting to formal structures.  For this reason I am of firm view that there are instances where a refusal to hear a matter on urgency on the grounds that the parties started of by negotiating can only yield injustice which is against what parties come to Court to achieve in the first place.  Clearly this is what our Supreme Court had in mind in Shell Oil Swaziland (Pty) Ltd T/A Sir Motors v Motor World (Pty) Ltd Civil Appeal Case No. …….  In any event, I do not think it accords with justice or good sense, not to expect parties to try as much as possible to resolve their private disputes before coming to Court.

 

[17]  Of course this brings me to the other contention why the matter is said not to be urgent.  It was argued that in the Humphrey Henwood vs Maloma Colliery Limited and Another Case No. 1623/94, the Applicant who brings urgent proceedings is required to address the requirements of Rule 6 (25) which provides that the Applicant should set out explicitly the reason why he contends the matter is urgent and why he contends he cannot receive redress in due course.  I have no doubt this is the proper position but I must say from my observation that that case is distinguishable on the facts from the present one.

 

 In that case the Applicant who had allowed the Respondent to occupy his farm and carry out mining operations for over three years, approached Court on a certificate of urgency and sought to have such mining stopped with the Respondents being ejected from his farm. Even the time limits were unreasonably abridged with Respondent being given too short a notice to file its papers.

 

[18]  In my view, this state of affairs would have been similar in this matter if it was actually the 1^st Respondent now wanting the Applicants to vacate the farm on the basis of urgency and giving them too short a notice to vacate when considering its having allowed them to occupy that farm for over five years since it first demanded they vacate it and when there other basis is set for this sudden urgency.  In any event, I am of the considered view that whilst it may be unreasonable for the Applicant to have given First Respondent an unrealistically short time, it did not insist on the hearing of the matter on those abridged time limits as the Respondents ended up being given as much time as was necessary in the circumstances for them to file their papers so that at the time the matter was heard, all the papers were already before Court.

[19]  This pragmatic approach is the one I favoured in this matter which is why I directed the parties to file all the papers required of record before argument of the matter could commence.  This having been done and all the papers now before me, the matter was heard.  I must say that I had to bear in mind the comments of the Supreme Court in the Shell Oil Swaziland Limited t/a Sir Motors vs Motor World which admonishes Courts not to avoid dealing with the merits of the matter through upholding technical points at the expense of the merits of the matter yet no real prejudice is suffered by any of the parties.

 

[20]  I therefore do not agree that in the circumstances of this matter, the institution of these proceedings by the Applicant giving the Respondent the time it eventually did justified the dismissal of the application on the point of urgency raised.

 

[21]  I must sound very clear that I am not advocating a rule of thumb that after negotiations a party would always be allowed to approach Court on the basis of urgency, but I am merely emphasising the rule of practice that each matter turns on its own facts.  There may well be circumstances where a party who gives the other party too short a notice under the guise that the matter is urgent when that is not the case, (albeit there having been negotiations prior) would justifiably have his application dismissed.  I however am of the considered view that this one is not such a case and I dismiss the point.

 

        Application Amounts to a Stay of Proceedings

 

[22]  I agree that the Applicant’s application has the effect of a stay of the execution of a Judgment of this Court even though it is brought as, an interdict:  This is because of the existing judgment of this Court evicting the Applicants in their personal capacities from the farm as opposed to doing it on behalf of their minor children this time around.

 

[23]  Being that as it may, I do not believe that when considering the position set out in South Cape Corporation vs Engineering Management Services 1977 (3) SA 534 (AD), in the exercise of my discretion, and where I should determine what is just and equitable in all the circumstances of the matter, I can come to the conclusion that the potentiality of harm borne by the Respondent as opposed to that borne by the Applicant between now and the handing down of the judgment can be said to be any worse.

 

[24]  Furthermore considering what was said in Strime v Strime 1983 (4) SA 850, that is, “The Court will, generally speaking, grant a stay of execution where real and substantial justice requires such a stay or, put otherwise, where injustice would otherwise be done,” I do not think I can justifiably refuse to grant such a stay at least pending finalization of this application.

 

[25]  Without saying much on whether or not there are prospects of success at this stage, an issue I shall say more about later on in this judgment, I must say that I am of the view that justice would not be served if I dismiss the application at this stage. Consequently in exercise of the discretion I have in determining whether or not to grant a stay of execution it is my considered view that I do so.  For this reason I cannot uphold this point.

 

Court is Functus Officio

 

[26]  It was further argued on behalf of the 1^st Respondent that this Court could not entertain this matter given that it was now functus officio, it having issued the judgment for the eviction of the Applicants from the same farm. 

 

[27]  At the heart of the functus officio principle, is the understanding that once the Court has pronounced its judgment in a matter it cannot reopen it again.  In Firestone South Africa (Pty) Ltd v Gentiruco A.G. 1977 (4) SA 298, the position was put as follows:-

 

“Once a Court has duly pronounced a final judgment or

order, it has itself no authority to correct, alter or

supplement it.  The reason is that it thereupon becomes

functus officio:  Its jurisdiction in the case having been

fully and finally exercised, its authority over the subject

matter has closed.”

 

[28]  Coming back to this matter, can it realistically be said that the Court has become functus officio?  Put differently can it be said that this Court is now being called upon to correct, alter or supplement the existing Default Judgment?  This question can best be understood through comparing the case resulting in the Default Judgment aforesaid against the present one.  In the papers and as argued before me, the Applicants in this matter claim to be acting in a representative capacity – that is, they have instituted these proceedings on behalf of their children who are minors and cannot in law institute such proceedings.  Notionally the Applicants are therefore different from those in the case that resulted in the Default Judgment.  Furthermore it does not seem in my view that it would be correct to say that the relief sought hearing amounts to correcting, altering or supplementing the existing judgment.  It seems to me that the current application as framed is about the enforcement of the Bill of Rights which the Applicant’s herein claim is being violated.  The issue therefore is whether there is indeed a violation of Sections 18 and 29 of the Constitution.  Clearly this is not what the case determined by this Court resulting in the Default Judgment referred to was about.  Consequently I cannot uphold the point in limine that this Court is now functus officio. 

 

        Requirements of an Interdict not met

 

[29]  It was also contended on behalf of the First Respondent that this application falls to be dismissed on the basis that whereas

the Applicants seek an interdict, the requirements for such a relief are not met.  These, it is alleged are the requirements for an interim interdict as it is considered this is the relief the Applicants are seeking as they contend they have to remain in the farm whilst or until the government shall have come up with the mitigation plan to ameliorate the harshness of the evictions.

 

[30]  Having observed that by and large this application is about an interdict, it is my considered view that a decision on this point cannot realistically be taken to be in limine but is at the heart of this application.  Going forward, I shall therefore deal with the matter on this basis.

 

[31]  The position is now settled that for a party who seeks an interdict on an interim basis to succeed, he needs to establish a prima facie right, an apprehension of irreparable harm, balance of convenience and that he has no other satisfactory remedy.  See in this regard Hebstein and Van Winsen Others, The Civil Practice of the Supreme Court of South Africa Fourth Edition at page 1065. 

 

        I have noted that although the order sought is couched as an interim order, the reality is that if granted it would be final in effect.  It is for this reason that I cannot ignore the requirements of a final interdict which Hebstein and Van Winsen in their book cited above at page 1064 – 1065 enumerate as a clear right; an injury actual committed or reasonably apprehended; and the absence of an alternative remedy.

 

[32]  Starting of from the premise that what is sought is an interim interdict properly so called, can it be said that a prima facie right entitling Applicant to the relief sought has been established.  The Applicants contend that same has been whilst the First Respondent contends otherwise.

 

[33]  In Ferreira vs Levin and Others 1995 (2) SA 815 the principle  was enunciated that in order to establish a prima facie right justifying an interim interdict, the Applicant has to make out a case that would entitle him to a final interdict.

 

        It has been stated that the right of the Applicant to the reliefs sought herein, stems from the Constitution.  It was contended that the Applicants established that their children had a right to education; they had a right not to be treated in a cruel, inhuman and degrading manner.  It was contended that if their parents are evicted from the farm in execution of a judgment of this Court, such would amount to cruel, inhuman and degrading treatment.  This right it is said stems from Section 29 (1) and (2) read with Section 18 of the Constitution of Swaziland.

 

Section 18 of the Constitution provides as follows:- 

 

Protection from Inhuman or Degrading Treatment

        18      (1)      “The dignity of every person is inviolable.

(2)      A person shall not be subjected to torture or inhuman or degrading treatment or punishment.

 

                   On the other hand Section 29 reads as follows:-

 

Rights of a Child

29.      (1)        A child has the right to be protected from engaging in work that constitutes a threat to the health, education or development of that child.

           

1. A child shall not be subjected to abuse or torture or other cruel inhumane and degrading treatment or punishment subject to lawful and moderate chastisement for purposes of correction.”

 

[34]  It shall be noted that whilst the child undoubtedly has a right to education expressly stated in Section 29 (1) of the Constitution and also by necessary inference in terms of Section 29 (2), I cannot see anywhere, in the same Section or even the Constitution at large any other Section where it is stated if not expressly, at least by necessary inference that the said right of the child has to supersede the right of property owners who are acting lawfully and in enjoyment of such a right.  The Constitution as it stands, and this is my considered view, does not make the right of the property owners subservient to that of the child to education.  I agree that the rights in question are horizontal and not vertical as contended by Counsel for the 2^nd to 5^th Respondents.

 

[35]  The Constitution, to the contrary, expressly protects the right to ownership of property including a prohibition against unlawful deprivation of same.  Section 19 of the Constitution provides as follows in this regard:-

                        Protection from Deprivation of Property

“19      (1) A person has a right to own property either alone or in association with others.

(2)        A person shall not be compulsorily deprived of property or any interest in or right over property of any description except where the following conditions are satisfied:-

 

1. the taking of possession or acquisition is necessary for public use or in the interest of defence, public safety, public order, public health or public morality;

 

1. the compulsory taking of possession or acquisition of the property is made under a law which makes provision for:-

 

1. prompt payment of fair and adequate compensation; and
2. a right of access to a Court of Law by any person who has an interest or right over the property;

 

(c)        the taking of possession or the acquisition is made under a Court Order.”

 

[36]  It becomes difficult for one in light of the provisions of the foregoing Section to possibly conclude that the right of the child to education should run superior to that the property owner.

       

[37]  It is however clear that the matter is about competing rights.  Notwithstanding my several enquiries from Applicant’s Attorney Mr. Gumedze on why the right of the child to education has to supersede that of the First Respondent to the enjoyment of its right to its property, particularly where a competent Court has already determined the unlawfulness of the children’s parents occupation of the farm to the point of ordering that they vacate same, I could not get a clear answer.

 

[38]  The nearest to an answer I got was a reference to the South African Case of Governing Body of the JumaMusjid Primary Schooland Others v Ahmed Asruff Essay N.O. and Others, Case No. CCT 29/10, where the following was stated:-

 

“The right to education is both a human right in itself and an indispensable means of realizing other human rights.  As an empowerment right, education is the primary vehicle by which economically and socially marginalised adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities.  Education has a vital role in safeguarding children from exploitation and hazardous labour and sexual exploitation.”

 

[39]  The accuracy and importance of the foregoing observation by the Court in the said matter cannot be doubted.  As I understand it, however, it did not suggest that in order to afford children an education, obligations or duties have to be sub-planted on parties who do not have such legal duties.   I am supported in this view by what was stated at paragraph 57 of the same judgment by the Court:-

 

“It is clear that there is no primary positive obligation on the trust to provide basic education to the learners.  That Primary positive obligation rests on the MEC.  There was also no obligation on the trust to make its property available to the MEC for use as a public school.”

 

[40]  It becomes apposite that I now sum up the facts of this case which in my observation the present matter was modelled upon:-

 

 A certain Trust owned land on which was established a school.  The Member of the Executive Counsel (MEC) for education in KwaZulu-Natal was required to conclude a lease agreement and pay rentals for the school to the Trust which owned the land.  This, the MEC failed to do for a considerable period which prompted the Trust concerned to apply to Court for an Order evicting the school from its land.  There was no doubt that the MEC for Education was legally obliged to conclude the agreement and pay the rentals in execution of a Constitutional duty to ensure that the children at that school received education.  The High Court issued an order evicting the school from the said land as a result of which an unsuccessful application for leave to appeal to the Supreme Court was made.  Following the dismissal of those proceedings in the Supreme Court, an application for leave to appeal to the Constitutional Court was made. Whilst acknowledging the right of the Trust to eject the school from its land and the reasonableness of such action, the Constitutional Court however set aside the decision of the High Court on the grounds that the reasonableness of the eviction sought by the Trust alone did not justify the Order in the absence of calling upon the MEC to provide the steps she had taken to ensure that the children would have a school for the remainder of that year.  This resulted in an interim order being granted calling upon the MEC and the Trust to endeavour to conclude an agreement as envisaged by the relevant Act.

 

[41]  As I see it, the facts of this matter are clearly distinguishable from the facts of the current matter. 

 

• Firstly, that matter was about the eviction of a school from a land concerned, which was necessitated by the failure of the MEC for Education to sign the required lease agreement as well as to pay the relevant rentals.  Had these actions been performed the issue of the eviction of the school from the land would not have arisen. 

 

• Secondly, the MEC for Education had both the statutory and the constitutional duty to ensure that the children’s right to education is not hindered and is fulfilled.

 

[42]  The point here is that, Applicant’s Counsel could not point me to the duty the 1^st Respondent has towards the education of the children who happened to be on his farm illegally resulting in an order of Court issuing for their eviction or ejectment therefrom.  This can only mean that the 1^st Respondent has no such duty towards the education of the children.  In fact in the Governing Body of the Juma Musjid Primary School and Others v Ahmed Asruff Essay N.O. and Others case (supra) relied upon by the Applicants, it was made clear that the equivalent of our Section 14 (2) of the Constitution, (Section 8 (2) of the South African Constitution) is not to obstruct private enjoyment of property rights by property owners.  This was expressed in the following terms at page 58 of the judgment:-

 

“It needs to be stressed however that the purpose of Section 8 (2) of the Constitution is not to obstruct private autonomy or to impose on a private party the duties of the state in protecting the Bill of Rights.  It is rather to require private parties not to interfere with or diminish the enjoyment of a right.”

 

[43]  I have no hesitation therefore that the reliance by the Applicants on the case aforesaid as authority that education would take precedence in a case like the present one where the 1^st Respondent is not shown as having a duty to guarantee such education, or put differently is not shown as having interfered with or diminished the rights of the said children to education, is misplaced.

 

[44]  In this jurisdiction the duty to guarantee education to the children is placed on the parent in terms of Section 29 (3) of the Constitution which provides as follows:-

 

        “The child has the right to be properly cared for and brought up by parents or other lawful authority in place of parents.”

 

[45]  In Government of the Republic of South Africa and Others vs Grootboom and Others 2001 (1) SA 46 it was emphasized them that Section 28 of the South African Constitution ensured that children were properly cared for by their parents or families.  I have therefore failed to find the right to education that the children have against the 1^st Respondent, who is shown by the foregoing authorities not to be owing a duty to them in that regard as opposed to their own parents.

 

[46]  Having reached the conclusion I have on the right of the right of the child to education and the lack of the correlated duty by the 1^st Respondent, I will not go on to consider the contention whether the other requirements of an interdict are met or not as that can only be academic. 

 

[47]  I must however point out that one glaring requirement of an interdict which does not seem to have been met is the availability or otherwise of an alternative remedy.  It is common cause and judicial notice ought to be taken of this point; that in Swaziland one can obtain land through the traditional allocation of land method (khonta) like the Applicants claim to have initially done to the Emnyenyweni Royal Kraal.  It has not been alleged that they have not been able to secure land within areas where it would be possible for their children to pursue or continue with the schools they are currently attending.  In fact Mr. Gumedze indicated that his clients had not done so and that they could do so even by asking the same Malangeni Dlamini to provide them with alternative land in the portion where his authority is not in doubt.  It seems to me that even on this point alone the Applicants would not be entitled to the Order they are seeking. 

 

[48]  I am now required to deal with the enquiry whether or not there is a duty on the 2^nd to 4^th Respondents to perform the duties I am being asked to direct them to perform.

 

[49]  The starting point in this regard is the observation that I have not been referred to any source of such an obligation against the said Respondents.  It was contended by Mr. Gumedze that the duty against the said Respondents stems from the fact that the evictions and demolitions, already found appropriate by this Court, were cruel, inhuman and degrading treatment  as they would disrupt the children’s education.

 

[50]  Other than to observe that the Applicant’s case seems to have been an attempt to implant in this matter the circumstances in the Governing Body of the Juma Musjid Primary School and Others v Essay N. O. and Others (supra) case, I cannot see the basis of the duty these Respondents have to perform what I am asked to direct them to do. 

 

[51]  I am aware of the duty this Court has at times to fashion new Constitutional remedies so as to obtain justice as was stated in the case of Fose v Minister of Safety and Security 1997 (3) SA 786 CC but I am notpersuaded this is a case where I can direct the Respondents to do what I am asked to.   As indicated above the duty of the MEC in the South African case referred to namely the Governing Body of the Juma Musjid Primary School and Others v Essay N. O. and Others (supra) was statutorily created which is not the case in this jurisdiction.

 

[52]  Owing to the decision to which I have come in this matter and which is as expressed above, I do not find it necessary to determine whether or not in the exercise of its right to fashion out new Constitutional remedies this Court can order the performance of the duties I am asked to direct the 2^nd to 4^th Respondents herein. 

 

[53]  For the foregoing reasons and considerations, I have come to the conclusion that the Applicants have failed to establish their entitlements to the orders sought.  Consequently this application is dismissed with costs having to follow the event.

 

[54]  Owing to the conclusion I have come to as expressed above which is to dismiss the application on the issues considered, I do not find it necessary to determine whether or not this Court has power to grant a declaratory order as I was being asked to do.  I have no doubt it is an issue that will have to be dealt with in a matter where the determination of same will be germaine.

 

[55]  Consequently I have come to the conclusion that the Applicants’ application be dismissed with costs.

 

Delivered in open Court in Mbabane on this 13^th day of June 2011.

 

_____________________

N. J. Hlophe

JUDGE