Dlamini and another v Principal Secretary Ministry of Information & Technology (856/2015) [2018] SZHC 223 (26 February 2019);

 

IN THE HIGH COURT OF SWAZILAND

                                                                              

   

HELD AT MBABANE                                                                     CASE NO.  856/15 and

                                                                                                            CASE NO. 782/15                                                                                                                               

In the matter between:                       

 

THOKO DLAMINI                                                                          PLAINTIFF                         

 

and

                                     

                                                                             

THE PRINCIPAL SECRETARY

MINISTRY OF INFORMATION AND TECHNOLOGY         1^ST DEFENDANT

ATTORNEY GENERAL                                                               2^ND DEFENDANT

                                                                                               

                                                                                    CASE NO. 856/2015

                     

LOMGCIBELO DLAMINI                                                              PLAINTIFF

 

AND

 

THE PRINCIPAL SECRETARY

MINISTRY OF INFORMATION AND TECHNOLOGY         1^ST DEFENDANT

ATTORNEY GENERAL                                                               2^ND DEFENDANT

                                                                                               

                                                                                    CASE NO. 782/2015

                                 

 

Neutral Citation                    :           Thoko Dlamini and Lomgcibelo Dlamini vs Principal

Secretary, Ministry of Information and technology (856/15 & 782/15) [2018]   SZHC 223 (26 FEBRUARY  2019)

 

Coram                                                :           MABUZA – PJ

Heard                                     :           2017,  2018.

Delivered                                :           26 FEBRUARY 2019

                       SUMMARY

  Civil Law – Evictions and Demolitions  -  Without compensation – The two Plaintiffs who are siblings seek damages from the Government of Eswatini  -

Suffered as a  result of their eviction from their ancestral homes which were subsequently demolished -  Plaintiffs were not compensated.

 

 

JUDGMENT

           MABUZA -PJ

[1]     In this matter the Government of Eswatini through the Ministry of Information, Communication Technology (ICT) initiated a project for the construction of a Royal Technology Park (the Technology Park) at Nokwane in the Manzini District.

 

[2]     The Technology Park was to be constructed on certain immovable property (the Farm) at Nokwane owned by Ingwenyama in Trust for the Swazi Nation under Deed of Donation Transfer No. 176/2005 executed on the 15^th March 2005 (Exhibit D (A)).

 

[3]     The Farm is described therein as:

                   “CERTAIN                 :           Portion 26 (a portion of Portion 1) of Farm

                                                No. 692 situate in the Manzini District, Swaziland.

 

MEASURING                        :           102, 2491 (One Zero Two Comma Two four nine one) Hectares.

 

EXTENDING AS      :           Certificate of Registered Title No. 17/2005 with diagram annexed thereto made in favour of the Crown on the 17^th day of January 2005, will more fully point out.”

 

[4]     The Farm was previously owned by a certain Mr. Owen who was commonly known as Majuluka.

 

[5]     There were many people who resided on the Farm and these had to be removed in order to make way for the Technology Park.

 

[6]     Among these people were Thoko Dlamini and Lomgcibelo Dlamini who are siblings (the Plaintiffs) together with their dependents.

 

[7]     When the many other people who occupied the Farm were removed, the Plaintiffs remained because they believed that the order to leave the Farm was not directed at them.  They believed that they had a right to remain at the Farm by virtue of the fact that they had grown up there and considered it as their home.

 

[8]     More importantly they had in their possession an affidavit (Exhibit A) drawn up by the Court President of the Swazi National Court.  The contents whereof are reproduced hereunder:

 

            “I Thozo Ndzabukelwako, Court President of Manzini District and Chief Mathendeka Fakude’s Induna of Lobamba Lomdzala – Mahlanya area.  I swear under oath that I know Josiah Lomfana Dlamini on his arrival in Swaziland from Barberton in the Republic of South Africa and that it was before the Immigration Proclamation Act was introduced in Swaziland and that his father Mdutshwa Dlamini was born at Ntfonjeni in the Hhohho District of Swaziland and that this information was delivered or given to Chief Mathendeka Fakudze and myself by the late Mntanenkosi Lozinja Dlamini and I solemnly and sincerely declare that Josiah Lomfana Dlamini had kontaed to Chief Mathendeka Fakudze and have been accepted by him (Chief Mathendeka Fakudze) and his Libandla of Lobamba Lomdzala.”

 

[9]     The affidavit is signed by Tozo Ndzabukelwako,  and was sworn to before the District Commissioner on the 20/4/1971 and has the District Commissioner stamp of the 20/4/1971.  It was witnessed by two witnesses.

 

[10]   PW1 and PW2 believed that Exhibit A gave them a right to remain on the Farm in perpetuity because it was executed in favour of their biological father Josiah Lomfana Dlamini who died during 1986.

 

[11]   Needless to say their right to reside on the Farm is disputed by the Defendants who obtained an eviction and demolition order (Exhibit F) against them (and others) on the 8^th September 2014.

 

[12]   Their eviction and demolition of their homes was carried out pursuant to this order.

 

[13]   The Plaintiffs gave oral evidence.  Thoko Dlamini (PW1) testified that she was born during 1952 on that Farm and grew up there and when she became an adult she built her home there.  It was demolished during September 2014.  It comprised of a big house with eight (8) rooms, there were houses which belonged to her children, a three room shop, eleven (11) rooms which she rented out, some fruit trees: mango, peaches, avocado, paw-paw and naartjies.

 

[14]   The eleven rooms generated income of E600-00 per month each.  They were built with brick.  Her 8 room house was built with stick and mud and roofed with corrugated iron.  During the demolition some furniture was damaged.

 

[15]   She testified that her household goods were transported by truck to Bethany and placed out in the open and as it was summer, they were exposed to rains and damaged.

 

[16]   She relocated to Mbhuleni as she had nowhere to go.  She found a room at a Nkambule home for which she had to pay E800.00 per month.  Because the room was expensive, she moved to another one room in the same area which belonged to a Simelane family.  She paid E600.00 per month for this room.

 

[17]   PW1 told a story of how she is now destitute and poor and no longer has a home.  Before her home was demolished she had contact with Mr. Amos Zungu a Government official and explained to him how her parents came to live on the Farm.  She gave Mr. Zungu Exhibit A.  His reaction after reading it was that her father and the Plaintiffs were lawful residents of the Farm.   And that if the Government wanted to remove them it would construct a home for them somewhere else or give them a small portion of land next to their original land.

 

[18]   She says that after the demolitions, Mr. Zungu was no longer with the company, he was replaced by Prince Vumile.   Prince Vumile promised the Plaintiffs that a home would be constructed for them but did not keep his promise.  He also promised them building material.  He instructed them to submit house plans which they did but he failed to keep any of his promises.  He then promised to build two room houses for them but failed to do this.

 

[19]   She stated that after her home was demolished she went to lay a complaint at the Umphakatsi at Lobamba Lomdzala.  They received her and gave her alternate land at Bethany below the mountain.

 

[20]   She had initially accepted the land but later declined it because it was unsuitable.  It has a huge waterfall and a big ditch apart from its unsuitable location under a mountain.  She says that the waterfall spills water directly on to the land and she did not have the money to divert the waterfall and fill up the ditch.  She returned to Umphakatsi to request alternative land but to date they have not responded.

 

[21]   She sued the Defendants for a total sum of E128,850.00 (One hundred and twenty eight thousand eight hundred and fifty Emalangeni) made up as follows:

                        “12.1   Plaintiff’s dwelling house                          E85,000.00

                        12.2     Rent generated by demolished houses

                                    (11) at E6000.00 each =                                E6,600.00

 

                        12.3     Rent paid to date (which is being paid

                                    After being moved)                                      E6,250.00

 

                        12.4     Fruit trees                                                     E1,250.00

                        12.5     Household goods                                        E21,250.00

                        12.6     Relocation                                                     E8,500.00”

 

[22]   She is also claiming interest at 9% per annum, costs of suit and further and or alternative relief.

 

[23]   She made additional claims such as E500.00 (Five hundred Emalangeni) being the cost of transport from Bethany to Mbhuleni and re-imbursement of rent from issuance of summons to whenever this matter gets concluded in the sum of E6,250.00 (Six thousand two hundred and fifty Emalangeni) per year and compensation (damages) in the sum of E6,600.00 (Six thousand six hundred Emalangeni) per year. These additional amounts were not factored into the claim in the summons and there was no amendment of her particulars of claim and must therefore fail.

 

[24]   PW1 was cross-examined by Defence Counsel.  She admitted to Miss Xaba that she was born on the disputed land and that she knew that her father had kontaed in that area during 1971.   That her father had lived on the farm while Majuluka owned it.  That she knew that the King owned the land but that her father had kontaed there.  It was put to her that her father was an unlawful occupant and because of that could not have kontaed.  She responded that she had nothing to say to that.  It was put to her that Exhibit A was not authentic. 

 

[25]   It was put to her that there were numerous meeting between the residents and the Government in respect of the residents having to relocate because they were not the legal occupants of the farm.  She agreed that there were such meetings and that her stay and that of PW2 was lawful because of Exhibit A.

 

[26]   It was put to her that letters from the Attorney General demanding their vacation of the farm followed the meetings.  She agreed that indeed there were such letters.

 

[27]   It was put to her that Mr. Zungu had no authority to represent the Government and her response was that she did not know that.  She thought that he had been sent by the Government and that he had the necessary authority because after seeing Exhibit A, he and Umphakatsi deemed their stay on the farm lawful.

 

[28]   It was put to her that the meetings and subsequent letters disputed Exhibit A.  She responded that Umphakatsi gave them the land because they too believed that Exhibit A was lawful.

 

[29]   Asked what she did when she received the letter deeming them illegal occupants and that they should vacate she replied that she did not do anything until the homes were being demolished.  She went to consult her lawyer.

 

[30]   She admitted that the Umphakatsi gave her and PW2 land but because the Government took long to build for them and or to deliver building material or to fix the problem on the new land at Bethany they felt neglected and never occupied that piece of land.

 

[31]   It was put to her that when the application for the demolition of the illegal structures was moved in Court she and PW2 did not oppose it.  She agreed that they did not oppose it because nobody disputed the legality of the contents of Exhibit A and that the Prince had promised that new homes would be constructed for them.

 

[32]   It was put to her that the reason that she and PW2 did not defend the Court application was because they knew that they were illegal occupants.  Her response was to deny that imputation and to reiterate that she was a lawful occupant.

 

[33]   She was informed by learned Counsel that all legal occupants were compensated and houses were built for them but illegal occupants were given alternative land and had to build their own houses themselves.  She replied that she had nothing to say to that.

 

[34]   PW1 had earlier stated that a Maseko man’s home was left undemolished.  It was put to her that that the owner of that home was lawfully there was moved and compensated.

 

[35]   In her evidence in chief PW1 had mentioned that her shop and children’s homes were also demolished.  Learned Counsel pointed out to her that there were no claims on the summons in respect of these claims.  Her response was that the omission was a mistake.

 

[36]   Turning to the claims that appear on the summons Ms. Xaba challenged the amount of E85,000.00 attributed to her home saying that the figures claimed did not emanate from a valuator.  PW1 conceded that she had not consulted a valuator.

 

[37]   PW1 was further challenged about her claim of E1,250.00 for the loss of fruit that there was no formal valuation from an evaluator or from the Ministry of Agriculture.  Her response was that the figure was an estimate based on the proceeds she used to get after selling the fruits.

 

[38]   Told that there were no fruit trees, PW1 responded that when the other homes were demolished, the Defendant counted trees, houses, dogs, chicken, children and livestock but no one came to her house and that of PW2 to do that.

 

[39]   Miss Xaba put to PW1 that there were valuations in respect of the other homesteads because they appeared before the Farm Dwellers Tribunal.  PW2 responded that she was not aware of the evaluations and appearances before the Farm Dwellers Tribunal.

 

[40]   PW1 had said in her evidence in chief that the rental rooms were built of concrete bricks.  Ms. Xaba put to her that there was no structure that was made of brick.  That all of them were stick and mud and were not therefore permanent structures.  PW1 denied this and reiterated that the rooms she rented out were made of brick and cement.  PW1 further confirmed after being asked, that some of her household goods were damaged while the demolitions were taking place and some at the piece of land that they were taken too.  That concluded cross-examination.

         

[41]   Lomgcibelo Dlamini (PW2) is a biological sister to PW1.  She is also the second Plaintiff in this matter.  In her evidence in chief she stated that she had built her home at her parental home at Nokwane (the Farm) where she was born during 1950.  She stated that her parental home was under Lobamba Lomdzala.

 

[42]   Her house built of stick and mud, had eight bedrooms.  She had household goods, fruit trees from which she made a living by selling fruit trees.  She had planted sweet potatoes which she sold in order to make a living.  She used to grow maize.  Her house and fruit trees and unharvested sweet potatoes were all demolished in order to make way for the Technology Park.  She was not compensated.

 

[43]   She too tells a similar story as PW1.  She says that Mr. Zungu asked her how she had acquired the land on which her home is built, she showed him the khonta affidavit (Exhibit A) even though she could not read.  Her father was Josiah Lomfana Dlamini.

 

[44]   She too, states that Mr. Zungu assured her that Exhibit A was a legal document.  He assured her that because the Government needed the land, she would be moved to another location where the Government would build a home for her or the Government would give her a piece of land where she would construct a house.   Neither promise occurred.  Instead her house was demolished and her household goods were taken to Bethany below the mountain.  They were removed by Government truck.

 

[45]   Prior to the demolition of her house, Prince Vumile spoke to her and she showed him Exhibit A.  The Prince assured her that Exhibit A was a legal document.  He asked her to obtain a house plan which she did.  She showed it to him and he told her that he could no longer build the house for her.

 

[46]   She says that some of her things were damaged as they were placed out in the open at Bethany where she was allocated land but it was unsuitable.  It had a big boulder and a deep ditch near which was used as a dumping site.

 

[47]   Prince Vumile advised her to build a temporary structure (a shack) which she did; and use the corrugated irons from her demolished home and he would later give her building material, but he never did. 

 

[48]   She stated that she complained to Umphakatsi at Lobamba Lomdzala about the unsuitability of the land allocated to her and they responded that there was no suitable land at the moment.  She says that even if she were allocated suitable land she would be unable to construct a home because she has no money.

 

[49]   After her house was demolished, she moved to Mbhuleni at Kwaluseni where she paid E750.00 per month rent for a bedroom, small kitchen and bathroom.  The accommodation included electricity and E31.00 per person was collected for water.  She lived there for 4 months and because it was too expensive she moved to Fairview Manzini where she currently resides.  She pays E600.00 per month for one bedroom and kitchen.  This includes water and electricity.  She confirmed that she has always been a subject of Lobamba Lomdzala, hence she was allocated the land at Bethany. 

 

[50]   She stated that she recalled that an eviction application was made to court but she did not respond because everyone told her that Exhibit A was legal and so was their homestead at Nokwane.  That when she grew up she knew that the farm was owned by a Mr. Owen commonly known as Majuluka.

 

[51]   Her claim against the Defendants is as follows:

                   “Eight roomed house                        -           E100,000.00

                        Household goods (destroyed)           -           E  43,300.00

Fruit trees                                          -           E  10,000.00                          

Total                                                               E153,300.00”

 

[52]   She was cross-examined by Ms. Xaba.  She acknowledged that the land on which her house was built was a farm because her father was employed by the owner who was a white man.  She also acknowledged that her father had kontaed and that Exhibit A was proof of that.

 

[53]   She acknowledged that she was served with the eviction application.  She could not recall receiving any letters notifying her to vacate.  She admitted that she did not oppose the eviction application because she believed that she had a right to live at the Farm and that both Prince Vumile and Mr. Zungu had assured her that Exhibit A was a legal document and entitled her reside on the Farm.

 

[54]   She was informed that Exhibit A was not authentic as her father was not a farm dweller.  Her response was that she was not aware of this information. 

 

[55]   She stated that her fruit trees comprised of 4 avocado trees, 6 mango trees, 6 or 7 paw-paw trees, 3 naartjie trees and numerous banana trees.  She stated that she arrived at the figure of E10,000.00 (Ten thousand Emalangeni) in respect of the fruit because that is the amount that she made when she sold the fruits.  She was also told that a house built of stick and mud could never cost the amount of E100,000.00 that she was claiming.  She denied this and stated that her house was built with bricks. 

 

[56]   The Plaintiffs closed their case after the cross-examination of PW2.  The defence opened its case with the evidence of DW1.

 

[57]   Sikelela Dlamini (DW1) is a former Principal Secretary (PS) in the Ministry of Information, Communication and Technology.  At the time he gave evidence he had retired from Government’s employ.

 

[58]   DW1 testified that he was the PS when the demolitions took place.  He stated that before the demolitions took place, there were meetings between the Government and the residents of that area.  That is how he came to know the Plaintiffs.

 

[59]   He stated that the Farm from which residents were evicted used to belong to a white man from whom the Government bought it.

 

[60]   He stated that as Government, they engaged the residents who used to provide farm dweller services to the white man.  Some of the residents returned to their original places of residence under their respective chiefs.  This was under the Ministry of Housing.

 

[61]   Under his auspices, the Government had three meetings with the residents at Lobamba Lomdzala Umphakatsi.  He learned that during the earlier talks with the Ministry of Housing, Umphakatsi had allocated land to the Plaintiffs so that they could construct their homes.  What remained was that the Plaintiffs had to pay the beast for kukhonta but failed to do so.

 

[62]   He testified that the Farm from which the Plaintiffs were evicted was first owned by a white man, then the Crown and thereafter by the King.  He handed in the Title Deed (Exhibit DA) indicating that the registered owner since 15 March 2005 was the King.

 

[63]   He stated that he wrote to the Plaintiffs notifying them to vacate the Farm, a letter dated 16/6/2014 (Exhibit DB) the contents of which state:              

                   “Date :  16 June 2014

                       

                        Make Lomgcibelo Dlamini

                        c/o Farm 692

                        Nokwane

 

                        Dear Madam.

 

                        RE: NOTICE TO VACATE FARM 692

 

            Subsequent to our numerous meetings with yourself, the Ministry of Housing and Urban Development and with the Umphakatsi of Lobamba Lomdzala wherein you were informed of your illegal occupation of Farm 692 at Nokwane where the Biotech Park of the Royal Science and Technology Park is being constructed, you are hereby reminded of your illegal stay at the farm and that you should vacate it forthwith.

 

            Your continued stay as an illegal occupant (squatter) on Farm 692 is not protected under the Farm Dwellers Act, 1982 and the Constitution of the Kingdom of Swaziland Act, 2005.  You are hereby given notice to vacate the farm within (14) calendar days of receipt of this letter failing which we shall approach the courts for an order evicting yourself from the farm.

 

                   Thanking you for your co-operation

                       

Yours faithfully,

 

 

                        S.F. DLAMINI

                        PRINCIPAL SECRETARY           ”

 

 

[64]  Thereafter the Attorney General (AG) of eSwatini wrote to the Plaintiffs informing them to vacate the Farm a letter dated 21/7/2014 (Exhibit DC):       

                                   

                        “16 June 2014

                       

                        Make Lomgcibelo Dlamini

                        c/o Farm 692

                        Nokwane

 

                        Dear Madam

 

                        RE: EVICTION NOTICE ON FARM 692 NOKWANE

 

1.  Reference is made to the above matter and in particular a letter dated 16^th June 2014 from the Ministry of Information Communication and Technology to yourself, in that letter you were informed of your illegal occupation of Farm 692 at Nokwane and requested to vacate same within 14 days from receipt of that letter, which you have failed to do.

 

1. Be advised that your conduct and your continued stay on the farm is illegal, you are accordingly given notice to vacate within 21 day from receipt of this letter.

 

1. This is a final request, your failure to vacate the said Farm within the period stated herein will lead to eviction proceedings being commenced against you, without further notice.

 

1. Kindly cooperate.

 

Yours faithfully,

 

 

Nkambule N. Crown Counsel

FOR: ATTORNEY GENERAL”

 

 

[65]   He stated that the Plaintiffs did not leave after receipt of the letter from him and the A.G.  He instructed the A.G. to issue eviction summons against the Plaintiffs.  This was because the contractor wanted to proceed on site and was charging close to E1 Million for 4.2 days that the project was delayed.  He handed in the eviction order (Exhibit DF).

 

[66]   He stated that the Plaintiffs did not oppose the eviction application.  He further stated that he was physically present on site when the Plaintiffs’ homes were demolished.

 

[67]   It was put to him that the Plaintiffs complained that their possessions were inside their houses during the demolitions and that they were not given a chance to take them out.  He replied that there were police officers on site who were supervising that nothing inside was damaged and that occupants were requested to remove their things before the demolitions took place.

 

[68]   He stated that the residents who had kontaed were offered building sand etc. but the Plaintiffs did not avail themselves of this assistance, for example the Government constructed a basic structure for a certain Mr. Maseko and helped him move into it.  The structure was not as good as the Sikhuphe structures.  Residents at Sikhuphe were moved when the KMIII International Airport was constructed.  He was shown the Plaintiff’s Exhibit A and his response was that a person cannot konta on a farm.

 

[69]   Mr. Magagula cross-examined DW1.  He was reminded that in his letter to the Plaintiffs he had given them 14 days to vacate and asked what law he had used as the basis for the 14 days’ notice.  His response was he did not know, he was advised by the AG.

 

[70]   It was put to him that he had informed the Plaintiffs that their stay was not protected by the Farm Dwellers Act 1982 and asked why he had told them that.  His response was that he thought that when the Act was passed, it meant the dwellers were performing a service to the owner and hence they were farm dwellers but not the Plaintiffs.

 

[71]   He was asked why Maseko was treated differently from the Plaintiffs? Was there a service that he was performing for the farm owner?  His response was that it was because Maseko was the only one that had kontaed but was not performing any service at the time.

 

[72]   He admitted that he never asked the Plaintiff how they got to live on the Farm nor did he ask them to provide proof as to what right entitled them to live on the Farm.

 

[73]   DW1 clarified that the structure that the Government built for Maseko comprised of two rooms and a small rondavel.  He was unable to tell the Court how much these structures cost.

 

[74]   DW1 informed the Court that the Ministry constructed the home for Maseko, moved him in, then demolished his old home.

 

[75]   When asked why Maseko’s old home was not demolished first like the other homes, his response was that Maseko’s home was not in the way of the new project like the other homes, that is why it was possible to complete his new home before he moved.

 

[76]   It was put to him that Maseko’s home was nearer the Technology Park than the other homes.  His response was that was not true Maseko’s home was nearer to the offices and up to now nothing had been done on the land where his home was.

 

[77]   It was put to him that the Plaintiffs’ homes were nearer to the restaurant and that nothing had been done where their homes used to be 4 years later.  His response was that the eviction application was made so that all of them be evicted and that nobody remained behind.

 

[78]   DW1 agreed that Maseko was treated differently because he was able to prove that he was a legitimate subject of Lobamba Lomdzala.  And also because he knew that the land was a farm and he agreed to move.  And that had the Plaintiffs proved that they were legitimate subjects of Lobamba Lomdzala they would have been treated like Maseko.

 

[79]   DW1 further disclosed that the Technology Park management provided assistance to those that showed that they would work hand in hand with it.  He was personally no longer involved.

 

[80]   He added further that after the homesteads were demolished some owners of those homesteads requested transport and the Technology Park management obliged.  He was not aware if the Plaintiffs requested any assistance.  And in any event only transport was being provided.

 

[81]   DW1 further confirmed that he gave the order for the demolition of the homesteads based on the court order and that he was present when the demolitions took place.

 

[82]   He informed the Court that Mr. Zungu used to be the Manager of that project having been seconded by the Government.  And that Prince Vumile Dlamini was the Chief Executive Officer (CEO) of the project.

 

[83]   He could not confirm whether or not Mr. Zungu and Prince Vumile had promised that the Plaintiffs would be treated differently because they showed Exhibit A as proof of ownership of their homesteads.

 

[84]   He was unable to confirm whether or not Prince Vumile had told the Plaintiffs to provide building plans and that after they had provided the plans, Prince Vumile declined to accept the plans because they were too expensive.  Nor that the Plaintiffs were then told to make a shelter where the building material would be delivered in preparation for clearing and building. 

 

[85]   He confirmed that none of the 19 Respondents including the Plaintiffs’’ opposed the application for eviction and demolition.  He was unable to confirm that the Plaintiffs did not oppose the application because Mr. Zungu, Indvuna and Prince Vumile had assured them that they would be treated differently because of Exhibit A.

 

[86]   DW1 confirmed that he used the High Court order to evict and demolish the peoples’ homes.  He was not aware that the matter had gone as far as the Supreme Court.

 

[87]   It was put to him that the demolitions were unlawful as the Defendants had not approached the matter through the Farm Dwellers Act before approaching the High Court.

 

 

[88]   His response was that the matter had taken a long time while using other methods of mediation and that is why Defendants had approached the High Court because the people (including the Plaintiffs) had been given a reasonable time to leave on their own.

 

[89]   It was put to him that in the case of the Plaintiffs, the roofs, doors, door frames and window frames were not removed before their homes were demolished.  He denied this and responded that all these things were removed before the structures were demolished including the household items inside the houses.

 

[90]   When confronted with the fact that the Plaintiffs household goods were dumped on an open field and left there, he responded that they were placed in the open field on the instructions of the owners.

 

[91]   Prince Vumile Dlamini (DW2) next gave evidence.  He testified that he was the CEO for the Technology Park as from 2013.   He knew the Plaintiffs.  He had seen them at the offices of the Technology Park at Nokwane.  Phase 1 of the project had already started that is, clearing up the area but there were still homes scattered all over the Farm.

 

[92]   The owners of the homes told him that they lived on the Farm.  He then reported to the Umphakatsi at Lobamba Lomdzala that some people still remained on the Farm not withstanding that they had been told to leave Umphakatsi called a meeting of all the people that remained on the Farm and DW2 also attended the meeting.  The Plaintiffs were there too. 

 

[93]   During the meeting the people agreed to leave the Farm after two months.  They requested transport in order to relocate.

 

[94]   Sometime later a group of people from the Farm (who included the Plaintiffs) requested to see him.  They advised him that they had a right to reside on the Farm and that only a court order would make them leave.  He says that he advised them that obtaining a court order was not within his jurisdiction and referred them back to Umphakatsi.

 

[95]   He says that he reported the results of this meeting at Umphakatsi who in turn went to instruct the Attorney General to process the evictions.

 

[96]   He says that Phase1 did not stop because there were cost ramifications and time limits.  Mr. Moses Zungu was in charge of Phase 1 because at the time he was with the ICT Ministry.  He left after Phase 1.

 

[97]   DW2 denied having advised the Plaintiffs that they would be compensated by the Government.  He denied that he advised the Plaintiffs to submit house plans in order to construct them new houses.  He further denied any knowledge of stick and mud flats worth E100,000.00.  He did not see any 8 room house but temporal structures made of stick and mud.

 

[98]   He did admit to seeing fruit trees.  He stated that he was there when the demolitions took place and that the people including the Plaintiffs removed their belongings from the structures before they were demolished.  He denied that Maseko’s home was not demolished, it was also demolished.

 

[99]   He testified that the Umphakatsi at Lobamba Lomdzala allocated land to Maseko being a resident there.  He admitted that the Technology Park Management constructed a two room house for Maseko because the Umphakatsi had identified him as their resident.  And also because his father had kontaed under Lobamba Lomdzala and Maseko continued to pay allegiance to Lobamba Lomdzala Umphakatsi.  He stated that they did not build for anyone else because they were not able to prove their residency at Lobamba Lomdzala.

 

[100] He stated that the people were all given sufficient notice to vacate and indeed some of them did so before the demolitions were carried out.  He confirmed that the Plaintiffs had been allocated land by Lobamba Lomdzala Umphakatsi.  He further confirmed that he had promised to give the Plaintiffs building material but he did not deliver it because the Plaintiffs advised him that they were taking the matter to Court and declined DW2’s help.

 

[101] DW2 was cross-examined by Mr. Magagula. H stated that at the meeting with the people at Umphakatsi he got to know how the Plaintiffs had got to live on the Farm.  And that they were Josiah Dlamini’s daughters.  That their father was originally from South Africa and had come to work in Eswatini for the then owner of the farm in dispute a Mr. Owen commonly called Majuluka.

 

[102] He denied any knowledge of their chief and that of their father being Mlobokazane.  He denied asking the Plaintiffs to submit building plans and that when they did so, he rejected their plans and instead offered to build two roomed houses for them.  He further denied instructing the Plaintiffs to use the galvanized zincs from their demolished houses.  He denied offering to deliver building material to them.  He denied having advised the Plaintiffs to withdraw a letter of demand they had written to the Government if they wanted his assistance.  He stated that the Plaintiffs advised him that they no longer needed his help as they had decided to approach a court of law.

 

[103] It was put to him that the Plaintiffs were classified as farm dwellers and that any disagreement and eviction between them and the farm owner had to be resolved by the District Farm Dwellers Tribunal in terms of the Farm Dwellers Control Act of 1982.  Asked if this was done, he stated that he did not know and that the Attorney General’s office would have known because Umphakatsi referred the matter to them.  He further stated that there was no dispute reported and nobody opposed leaving the farm at the meeting held at Umphakatsi.

 

[104] On another note, DW2 confirmed that he was physically present when the demolitions were carried out and that he did not carry out any valuation of the houses that were demolished.  He did not physically assist in removing articles from inside the homes that were being demolished but the deputy sheriff and Umphakatsi did so.

 

[105] He confirmed that a truck to assist the Plaintiffs remove their things was made available to them.  He was not aware that some of the Plaintiffs things were damaged upon removal from their homes.  He did not inspect the number of rooms each house had because he was aware that their houses were small.  Informed that the Plaintiffs’ things were offloaded at an open place at Bethany his response was each person indicated where they wanted their things delivered.  He confirmed that there was no structure at Bethany where the Plaintiffs’ things were delivered.  He stated that it was the Plaintiffs who rejected his offer of assistance.  He denied that Thoko’s house had 8 rooms.  He denied any knowledge of and liability of all the money claims that were put to him in respect of both Plaintiffs.  He re-iterated that the structures that were demolished were temporary and were made of plastic and mud because the Plaintiffs knew that they were illegally on the farm.

 

[106] Magingidane Jacob Dlamini (DW3) was the next defence witness.  He stated that he was an Indvuna at Lobamba Lomdzala.  That he knew the Plaintiffs from the meeting called by Umphakatsi for the people who resided on the Farm.  That Mr. Zungu had requested Umphakatsi to vacate all the residents from the Farm as it was required to construct the Technology Park.  The residents were informed of this request at the meeting.  He stated that all the aforesaid residents were requested to return to their respective Chiefs.  Only a Mr. Maseko was a subject of Lobamba Lomdzala Umphakatsi who was able to produce a graded tax certificate which confirmed his status. 

 

[107] He stated that the Plaintiffs instead produced Exhibit A which was rejected because it was not a graded tax certificate.  Later on, the Plaintiffs returned and requested land because their homes had been demolished.  The Umphakatsi allocated land to them.  He says that this land was not in good condition but it was a place where they could stay or go and konta elsewhere as Umphakatsi no longer had any land.  He says that the Plaintiffs left without utilizing the land or bidding farewell.

 

[108] He stated that he knew the Plaintiffs’ father by sight as he lived on the Farm and was not a resident of Lobamba Lomdzala.  Their father was employed by the white owner of the farm having arrived in Eswatini during the early 1950’’s from the Transvaal.  He was unaware whether or not their father had kontaed at Lobamba Lomdzala as he was not aware of his Lincusa.  DW3 says that he checked the register of the residents as it is under his control but did not find the name of the Plaintiff’s father.  He also sent umgijimi to the revenue offices to look for their father’s graded certificate but found no evidence there either.   He stated that Exhibit A was not sufficient proof that the Plaintiffs’ father had kontaed at Lobamba Lomdzala Umphakatsi.

 

          He stated that from the time the residents were first engaged to their eviction took a period of about three months.

 

[109] He was cross-examined by Mr. Magagula.  He stated that Tozo Ndzabukelwako was an Indvuna at Lobamba Lomdzala and had passed away during 1978.  He stated that the said Tozo would have known the Plaintiffs’ father as he had written Exhibit A for him.

 

[110] He was not aware of the nature of the claim against the Government by the Plaintiffs.  He had come to give testimony about the events relating to Umphakatsi.  He says that the Umphakatsi allocated land to the Plaintiffs because they felt sorry for them after they produced Exhibit A.

 

[111] He was asked by the Court if the land that had been allocated to the Plaintiffs was still available for them.  His response was that it was if they wanted it but because they had said that it was unsuitable the Umphakatsi would allocate it to other people and he would see if those people would not live on it.  Thereafter the defence closed its case.

 

[112] DW3 testified that the Plaintiffs’ father arrived at the Farm during the early 1950’s.  PW2 testified that she was born at the Farm during 1950.  PW1 is a younger sister.  They both testified that they grew up on the Farm and later built their homes on the Farm.  Even their children built their homes there.

 

[113] The facts as set out above speak for themselves.  I need not repeat them.

 

[114] The repeated refrain from the Defendants’ witnesses was that the Plaintiffs’ homes were not permanent structures because they were built with stick and mud.  I do not know what to make of this attitude as it borders on looking down on those who live in stick and mud houses.

 

[115] Most Emaswati especially in rural areas live in structures built of stick and mud.  And they consider these homes to be permanent structures.  Indeed most of us including myself took pride in living in such homes by polishing the floors with cow dung (kusindza) replacing old straw on the roof (kufulela) and renewing the mud on the walls inside and outside (kubhaceka).  There was nothing temporal about such abodes.

 

[116] The Plaintiffs were asked if they had based their claims on valuations.  They obviously could not afford the services of a valuator.  In such instances it is the government who should have provided for the services of a valuator.  This was not done.  As a result families were destroyed and it is not known where they are and how they live.  A government cannot visit a state of poverty upon its own people. Children and other dependents were not represented in the applications for evictions and demolitions.  The Court was not informed as to how many people, old and young people, children and general dependents were displaced even among the Plaintiffs’ families.  And what provisions if any was made for them.

 

[117] The Plaintiffs have detailed their plight and what they endured when their homes were demolished and having nowhere to sleep that night and the days that followed.

 

                  

 

 

[118] I am very sorry that they found themselves so destitute and poverty stricken without any empathy from the Defendants.  The Defendants informed the Court that they had meetings at Umphakatsi at Lobamba Lomdzala to ascertain whether the people that were living on the Farm were subjects of Lobamba Lomdzala.  It was discovered that only Maseko was a subject of Lobamba Lomdzala.  The Umphakatsi felt sorry for the Plaintiffs because they produced Exhibit A which showed that their father was a subject of Lobamba Lomdzala.  Even so, the Plaintiffs were still expected to produce a cow to enable them to khonta.

 

[119] The outcome of the meetings was that the people who were living on the Farm should return to their various chiefs within Eswatini.  For those who failed to move, applications were made to Court for eviction orders and demolition orders under the auspices of the Attorney General’s offices.

 

[120] Eswatini is a member of the United Nations (UN).  There are UN Guidelines on evictions that should be observed when evictions are to be carried out.  It is the duty of the Attorney General to advise the Government of these guidelines.  The Government in turn is expected to follow these guidelines whenever evictions are to take place.  In this case this was not done and the result of that failure is that many Emaswati were left homeless, poor, traumatized and displaced bringing the country into disrepute that it fails to take care of its citizens.

 

[121] It is hoped that the Defendants will rise to the occasion and put right this wrong.  And also to familiarize themselves with the UN Guidelines for evictions and to apply these in all such cases.

 

[122] I am satisfied that the Plaintiffs have proved their claims on a balance of probabilities as was required of them.

 

[123] In the circumstances the Plaintiffs’ claims against the Defendants succeed as follows:

                             re: Thoko Dlamini is awarded:

1.       Payment of the sum of E128,850.00 (One hundred and twenty

eight thousand eight hundred and fifty Emalangeni).

 

1.       Interest at the rate of 9% per annum.

 

1.       Costs of suit.

 

 

                                   

                             re: Lomgcibelo Dlamini is awarded:

1.       Payment of the sum of E153,300.00 (One hundred and fifty three

thousand Emalangeni three hundred Emalangeni).

1.       Interest at the rate of 9% per annum
2.       Costs of suit.

 

____________________

Q.M. MABUZA

PRINCIPAL JUDGE

 

 

         

          For the Plaintiffs            :         Mr. Z. Magagula

          For the Defendants                  :         Ms. L. Xaba