Mkhatshwa v Ntshangase & Others (2104/2016) [2019] SZHC 21 (05 March 2019);

 

IN THE HIGH COURT OF ESWATINI

                                                           

   

                                                           

HELD AT MBABANE                                                                     CASE NO. 2104/16

                                                                                                                

                                                                                                                                     

 

In the matter between:           

 

MAVIS THOKOZILE MKHATSHWA                                                    APPLICANT                                                                     

and

                                                                                                                       

CELUMUSA NTSHANGASE                                                                   1^ST RESPONDENT

THE NATIONAL COMMISSIONER OF POLICE                                2^ND RESPONDENT

THE COMMISSIONER OF CORRECTIONAL SERVICES               3^RD RESPONDENT

THE ATTORNEY GENERAL                                                                  4^TH RESPONDENT

                

                       

Neutral Citation                      :           Mavis Thokozile Mkhatshwa and Celumusa Ntshangase  &

3 Others (2104/16)  [2019]  SZHC 21 (05 MARCH 2019)

 

Coram                                     :           MABUZA – PJ

Heard                                      :           26 JUNE 2018

Delivered                                :           05 MARCH 2019      

 

 

 

SUMMARY

Civil Procedure:                     Applicant seeks order committing the 1^st Respondent to jail

                                                for contempt of an order of this Court.         

 

Swazi Law and Custom:        Applicant has failed to comply with order of Masundvwini

Royal Kraal to which she was an Applicant and under

whose jurisdiction she submitted -  Application for committal fails and is dismissed.  Each party to pay its own costs.

 

JUDGMENT

           MABUZA -PJ

[1]     The Applicant seeks an order inter alia in the following terms:       

 

1. Committing the 1^st Respondent to gaol for a period

of sixty (60) days for contempt of court.

2.         Ordering and directing the 2^nd Respondent to offer

assistance to the Applicant whenever advised of the

violation of the court orders and removal of any

workmen on the land.                     

 

                        3.         Costs of suit at attorney and own client scale.

 

                        4.         Such further and or alternative remedy.                                                                                                                                               

 

[2]     The application is opposed by the 1^st Respondent.

 

[3]     Both the Applicant and 1^st Respondent are residents of kaShali area in the Manzini District where there is a dispute over the ownership of a piece of land.  The Applicant brought this application by way of urgency which forms the subject matter of the 1^st Respondent’s point in limine together with what he terms abuse of court process.                                                                       

 

[4]     The Applicant in her affidavit states that on or about 2^nd December 2016, she obtained an interim order against the 1^st Respondent which was returnable on the 7^th December 2016.  The 1^st Respondent did not oppose the application hence the rule nisi issued on the 2^nd December 2016 was confirmed on the 7^th December 2016.  A copy of the court orders are annexed marked “MTM1” and “MTM2”.  She says that the court orders were accordingly served upon the 1^st Respondent.

 

[5]     The contents of the interim order “MTM1” are:

                   “COURT ORDER

                        Coram: Maphalala P.J.

                        Date: 2^nd December 2016

                       

                        For Applicant: Mr. M.L. Sithole

 

                        Having heard counsel for the Applicant, a rule nisi is to operate with interim    

immediate effect, returnable on the 7^th December 2016 in terms hereof:

 

1. Dispensing with the normal forms, procedure in terms of the manner of service time limits and hear this matter as one of urgency. 
2. Condoning Applicant’s non-compliance with the rules of this court and hear this matter as one of urgency.

 

1. The 1^st Respondent or anyone acting on his authority and instructions is hereby interdicted and stayed from continuing with the construction of the building at the disputed piece of land at Kashali pending finalization of the matter within the Traditional Authorities.

 

1. The members of the community police in conjunction with the members of the Royal Swaziland Police at the Manzini Police Station are directed to ensure that the construction of anything in the disputed land is stopped pending finalization of the matter within the traditional authorities.

 

1. The Applicant is hereby granted leave to file such further supplementary affidavit and confirmatory affidavit.”

 

[6]     The contents of the final order “MTM2” state:

 

                   “Before: Principal Judge S.B. Maphalala

                        Date: 07^th December 2016

 

Having heard counsel for the Applicant and there being no papers

filed on record by the 1^st Respondent:

 

IT IS HEREBY ORDERED THAT,  the interim order granted

on the 2^nd December 2016 is hereby confirmed and made final in

the following terms:

 

1. Dispensing with the normal forms, procedure in terms

of the manner of service, time limits and hear this matter

as one of urgency.

     

1.  Condoning Applicant’s non-compliance with the rules of

this Court and hear this matter as one of urgency.

 

1.  The 1^st Respondent or anyone acting on his authority and instruction is hereby interdicted and stayed  from  continuing with the construction of the building at the disputed piece of land at Kashali pending finalization of the matter within the Traditional Authorities.

 

1. The members of the community police in conjunction with the members of the Royal Swaziland Police at the Manzini Police Station are directed to ensure that the construction of anything in the disputed land is stopped pending finalization of the matter within the traditional authorities.

 

1. The Applicant is hereby granted leave to file such further supplementary affidavit and confirmatory affidavit”.

                                                                              

[7]     At around 29^th December 2016, the 1^st Respondent instituted rescission proceedings which were however dismissed by her Ladyship Dlamini J on the 10^th June, 2017.   The effect of the dismissal of the  rescission application was that the final interdict was effective pending the deliberation of the appeal lodged with the Swazi National Court.

 

[8]     It is alleged by the Applicant that despite dismissal of the rescission application, the 1^st Respondent deliberately failed to comply with the order of court.  He proceeded with the construction of the building on the disputed piece of land.

 

[9]     Because of the failure by the 1^st Respondent to comply with the court order, the Applicant instituted contemptuous proceedings and the 1^st Respondent was found to be in contempt of the court order issued on the 7^th December 2016.  The contempt order was issued on the 31^st May 2017 and its contents state as follows:

                     “COURT ORDER

                        Date: 31^St  May 2017

                        Before: Honourable Justice M.D. Mamba

                        Being: Contempt of Court Proceedings

 

                        Having heard counsel for the Respondent,

 

                                                IT IS HEREBY ORDERED THAT:

                       

1.  The 1^st Respondent is in contempt of Court.

 

1. The 1^st Respondent is not to be committed to prison as a result of being candid with the Court should be repeat to be in defiance he will be sent to prison for contempt of Court.

 

1. Costs of suit against the 1^st Respondent on the ordinary scale.”

   

[10]   The 1^st Respondent moved an application to discharge the temporary interdicts which was however dismissed.  A copy of the court order is annexed marked “MTM4” and its contents state as follows:

                  “COURT ORDER

                        Coram: His Lordship J. Magagula

                        Date:   21^st November 2017

 

                        For Applicant:  Mr. D. Hleta

                        For Respondent: Mr. K.Q. Magagula

 

            Having heard counsel for the Applicant and for the Respondent as well as the papers filed before court, the court is of the considered view that the orders sought are incompetent:           

 

                        IT IS HEREBY ORDERED THAT:

 

1. The application is therefore dismissed with costs.
2. The Applicant is ordered and directed to comply with the orders for cost by paying all the taxed bill of costs before coming to court for any other redress”.

 

[11]   The Applicant states that in all the court orders, costs were awarded which to date the 1^st Respondent has failed to pay.  And that the 1^st Respondent is in total disregard to all the court orders issued against him.  He has embarked on erection of fence and proceeding with the building as well as preparing the yard of the disputed piece of land.

 

[12]   In response the 1^st Respondent has raised two points of law namely lack of urgency and abuse of court process.

 

[13]   It appears that from Annexure “R3” authored by the Masundwini Royal Kraal that Mavis Mkhatshwa laid a complaint against Celumusa Ntshangase and Bibi Ntshangase (her late sister’s children) at Masundwini Royal Kraal.  After hearing the parties the Libandla rendered it decision on the 28^th August 2016 to the effect that Mavis should develop her marital home at ka Phoboba and also assist her siter’s children (meaning Celumusa and Bibi) whenever they requested her help and to refrain from disputing the land on which they had constructed their huts.

 

[14]   Further, the Libandla in “R3” which is dated 14/06/2017 reiterated that they stood by their decision rendered on the 28/08/2016 that Celumusa and Bibi should remain on the disputed land where they were left by their parents who are deceased.  On the 14^th June 2017,  Bibi went to Libandla to report that Mavis had instituted proceedings in the same matter against him and Celumusa.

 

[15]   It is my considered view that having lost the matter at Masundwini Mavis should have taken the decision of the Libandla on appeal to Ndabazabantu at Manzini to be processed for hearing by the Kings Advisory Council who deal with disputes of land on Swazi Nation land.  It is not clear that she did that prior to instituting the proceedings in the High Court.

 

[16]   ‘R3’ states that Mavis did not lodge an appeal against their decision as they did not write the letter of appeal for her.

 

[17]   Likewise Ndabazabantu states in annexure ‘R2’ that Mavis attended his offices where she complained about the decision of the Libandla rendered on the 28 August 2016.

 

[18]   For various reasons Ndabazabantu was unable to hear the matter prime of which was for Mavis to alert Libandla of her intention to appeal to enable him to forward the matter to the Kings Advisory Counsel at Ludzidzini.

 

[19]   Ndabazabantu correctly opines that the matter is not formally before him and that the decision of Libandla still stands.   “R2” is dated 30 January 2018.

 

[20]   Between the 28^th August 2016 and December 2016, Mavis instead launched proceedings against Celumusa Ntshangase resulting in the interim and final orders referred to above.  This was done while the Masundvwini order was in place.

 

[21]   It is unfortunate that the 4^th Respondent has not responded to this application nor was the Masundwini Royal Kraal cited as the matter was deliberated upon by them at the instance of Mavis.   The 4^th Respondent would have laid out the correct procedure with regard to matters before the traditional authorities and all this needless process before this Court would have been avoided.

 

[22]   The interim order issued on the 2^nd December 2016 and confirmed on the 7^th December 2016, state inter alia that … “the 1^st Respondent or anyone acting on his authority and instructions is hereby interdicted and stayed from continuing with the construction of the building at the disputed land at Kashali pending finalization of the matter within the traditional authorities.”

 

 [23]  After Mavis obtained the interim and final orders there is no evidence before the Court by her that she pursued the matter with the traditional structures after the 7^th December 2016.  Even now before me is no evidence that she is pursuing the matter before the traditional authorities.  The final order granted on the 7^th December 2016 is not for a permanent stay but was issued to enable her to pursue the matter within the traditional structures.

 

[24]   Both the Masundwini Royal Kraal and Ndabazabantu state that she has not taken the matter any further even after she obtained the interdict against
Celumusa. 

 

[25]   Notably the interim and final order do not deal in anyway with the order of the Masundvwini Royal Kraal.

 

[26]   This means therefore that there is a valid lawful order from the Masundvwini Royal Kraal rendered before the interim and final orders.

 

[27]   The interim and final orders interdicting Celumusa are equally valid and lawful.

 

 

[28]   The interim and final orders deal with the construction on the disputed land.  The decision of the Masundvwini Royal Kraal deals with the ownership of the land which gives Celumusa and Bibi ownership thereof plus the right to construct their huts (lilawu) thereon.

 

[29]   The interim order and final order failed to deal with the status of the order by the Masundvwini Royal Kraal, they do not stay the operation of the said order which was a crucial omission by Mavis bordering on abuse of process.

 

[30]   R4 (p.47) paragraph 2 is not correct.  R2 does not incorporate a decision.  Neither has the High Court order of 7/12/2016 been discharged, it can only be discharged by order of this Court upon application.

 

[31]      Because of the foregoing, this application fails.  Each party is ordered to pay its own costs.

 

 

                                            __________________

Q.M. MABUZA

PRINCIPAL JUDGE

 

 

 

          For the Applicant          :         Mr. K. Q. Magagula

          For the Respondent       :         Mr. D.E. Hleta

 

 

 

 

 

 

 

 

 

IN THE HIGH COURT OF ESWATINI

                                                           

   

                                                           

HELD AT MBABANE                                                                     CASE NO. 2104/16

                                                                                                                

                                                                                                                                     

 

In the matter between:           

 

MAVIS THOKOZILE MKHATSHWA                                                    APPLICANT                                                                     

and

                                                                                                                       

CELUMUSA NTSHANGASE                                                                   1^ST RESPONDENT

THE NATIONAL COMMISSIONER OF POLICE                                2^ND RESPONDENT

THE COMMISSIONER OF CORRECTIONAL SERVICES               3^RD RESPONDENT

THE ATTORNEY GENERAL                                                                  4^TH RESPONDENT

                

                       

Neutral Citation                      :           Mavis Thokozile Mkhatshwa and Celumusa Ntshangase  &

3 Others (2104/16)  [2019]  SZHC 21 (05 MARCH 2019)

 

Coram                                     :           MABUZA – PJ

Heard                                      :           26 JUNE 2018

Delivered                                :           05 MARCH 2019      

 

 

 

SUMMARY

Civil Procedure:                     Applicant seeks order committing the 1^st Respondent to jail

                                                for contempt of an order of this Court.         

 

Swazi Law and Custom:        Applicant has failed to comply with order of Masundvwini

Royal Kraal to which she was an Applicant and under

whose jurisdiction she submitted -  Application for committal fails and is dismissed.  Each party to pay its own costs.

 

JUDGMENT

           MABUZA -PJ

[1]     The Applicant seeks an order inter alia in the following terms:       

 

1. Committing the 1^st Respondent to gaol for a period

of sixty (60) days for contempt of court.

2.         Ordering and directing the 2^nd Respondent to offer

assistance to the Applicant whenever advised of the

violation of the court orders and removal of any

workmen on the land.                     

 

                        3.         Costs of suit at attorney and own client scale.

 

                        4.         Such further and or alternative remedy.                                                                                                                                               

 

[2]     The application is opposed by the 1^st Respondent.

 

[3]     Both the Applicant and 1^st Respondent are residents of kaShali area in the Manzini District where there is a dispute over the ownership of a piece of land.  The Applicant brought this application by way of urgency which forms the subject matter of the 1^st Respondent’s point in limine together with what he terms abuse of court process.                                                                       

 

[4]     The Applicant in her affidavit states that on or about 2^nd December 2016, she obtained an interim order against the 1^st Respondent which was returnable on the 7^th December 2016.  The 1^st Respondent did not oppose the application hence the rule nisi issued on the 2^nd December 2016 was confirmed on the 7^th December 2016.  A copy of the court orders are annexed marked “MTM1” and “MTM2”.  She says that the court orders were accordingly served upon the 1^st Respondent.

 

[5]     The contents of the interim order “MTM1” are:

                   “COURT ORDER

                        Coram: Maphalala P.J.

                        Date: 2^nd December 2016

                       

                        For Applicant: Mr. M.L. Sithole

 

                        Having heard counsel for the Applicant, a rule nisi is to operate with interim    

immediate effect, returnable on the 7^th December 2016 in terms hereof:

 

1. Dispensing with the normal forms, procedure in terms of the manner of service time limits and hear this matter as one of urgency. 
2. Condoning Applicant’s non-compliance with the rules of this court and hear this matter as one of urgency.

 

1. The 1^st Respondent or anyone acting on his authority and instructions is hereby interdicted and stayed from continuing with the construction of the building at the disputed piece of land at Kashali pending finalization of the matter within the Traditional Authorities.

 

1. The members of the community police in conjunction with the members of the Royal Swaziland Police at the Manzini Police Station are directed to ensure that the construction of anything in the disputed land is stopped pending finalization of the matter within the traditional authorities.

 

1. The Applicant is hereby granted leave to file such further supplementary affidavit and confirmatory affidavit.”

 

[6]     The contents of the final order “MTM2” state:

 

                   “Before: Principal Judge S.B. Maphalala

                        Date: 07^th December 2016

 

Having heard counsel for the Applicant and there being no papers

filed on record by the 1^st Respondent:

 

IT IS HEREBY ORDERED THAT,  the interim order granted

on the 2^nd December 2016 is hereby confirmed and made final in

the following terms:

 

1. Dispensing with the normal forms, procedure in terms

of the manner of service, time limits and hear this matter

as one of urgency.

     

1.  Condoning Applicant’s non-compliance with the rules of

this Court and hear this matter as one of urgency.

 

1.  The 1^st Respondent or anyone acting on his authority and instruction is hereby interdicted and stayed  from  continuing with the construction of the building at the disputed piece of land at Kashali pending finalization of the matter within the Traditional Authorities.

 

1. The members of the community police in conjunction with the members of the Royal Swaziland Police at the Manzini Police Station are directed to ensure that the construction of anything in the disputed land is stopped pending finalization of the matter within the traditional authorities.

 

1. The Applicant is hereby granted leave to file such further supplementary affidavit and confirmatory affidavit”.

                                                                              

[7]     At around 29^th December 2016, the 1^st Respondent instituted rescission proceedings which were however dismissed by her Ladyship Dlamini J on the 10^th June, 2017.   The effect of the dismissal of the  rescission application was that the final interdict was effective pending the deliberation of the appeal lodged with the Swazi National Court.

 

[8]     It is alleged by the Applicant that despite dismissal of the rescission application, the 1^st Respondent deliberately failed to comply with the order of court.  He proceeded with the construction of the building on the disputed piece of land.

 

[9]     Because of the failure by the 1^st Respondent to comply with the court order, the Applicant instituted contemptuous proceedings and the 1^st Respondent was found to be in contempt of the court order issued on the 7^th December 2016.  The contempt order was issued on the 31^st May 2017 and its contents state as follows:

                     “COURT ORDER

                        Date: 31^St  May 2017

                        Before: Honourable Justice M.D. Mamba

                        Being: Contempt of Court Proceedings

 

                        Having heard counsel for the Respondent,

 

                                                IT IS HEREBY ORDERED THAT:

                       

1.  The 1^st Respondent is in contempt of Court.

 

1. The 1^st Respondent is not to be committed to prison as a result of being candid with the Court should be repeat to be in defiance he will be sent to prison for contempt of Court.

 

1. Costs of suit against the 1^st Respondent on the ordinary scale.”

   

[10]   The 1^st Respondent moved an application to discharge the temporary interdicts which was however dismissed.  A copy of the court order is annexed marked “MTM4” and its contents state as follows:

                  “COURT ORDER

                        Coram: His Lordship J. Magagula

                        Date:   21^st November 2017

 

                        For Applicant:  Mr. D. Hleta

                        For Respondent: Mr. K.Q. Magagula

 

            Having heard counsel for the Applicant and for the Respondent as well as the papers filed before court, the court is of the considered view that the orders sought are incompetent:           

 

                        IT IS HEREBY ORDERED THAT:

 

1. The application is therefore dismissed with costs.
2. The Applicant is ordered and directed to comply with the orders for cost by paying all the taxed bill of costs before coming to court for any other redress”.

 

[11]   The Applicant states that in all the court orders, costs were awarded which to date the 1^st Respondent has failed to pay.  And that the 1^st Respondent is in total disregard to all the court orders issued against him.  He has embarked on erection of fence and proceeding with the building as well as preparing the yard of the disputed piece of land.

 

[12]   In response the 1^st Respondent has raised two points of law namely lack of urgency and abuse of court process.

 

[13]   It appears that from Annexure “R3” authored by the Masundwini Royal Kraal that Mavis Mkhatshwa laid a complaint against Celumusa Ntshangase and Bibi Ntshangase (her late sister’s children) at Masundwini Royal Kraal.  After hearing the parties the Libandla rendered it decision on the 28^th August 2016 to the effect that Mavis should develop her marital home at ka Phoboba and also assist her siter’s children (meaning Celumusa and Bibi) whenever they requested her help and to refrain from disputing the land on which they had constructed their huts.

 

[14]   Further, the Libandla in “R3” which is dated 14/06/2017 reiterated that they stood by their decision rendered on the 28/08/2016 that Celumusa and Bibi should remain on the disputed land where they were left by their parents who are deceased.  On the 14^th June 2017,  Bibi went to Libandla to report that Mavis had instituted proceedings in the same matter against him and Celumusa.

 

[15]   It is my considered view that having lost the matter at Masundwini Mavis should have taken the decision of the Libandla on appeal to Ndabazabantu at Manzini to be processed for hearing by the Kings Advisory Council who deal with disputes of land on Swazi Nation land.  It is not clear that she did that prior to instituting the proceedings in the High Court.

 

[16]   ‘R3’ states that Mavis did not lodge an appeal against their decision as they did not write the letter of appeal for her.

 

[17]   Likewise Ndabazabantu states in annexure ‘R2’ that Mavis attended his offices where she complained about the decision of the Libandla rendered on the 28 August 2016.

 

[18]   For various reasons Ndabazabantu was unable to hear the matter prime of which was for Mavis to alert Libandla of her intention to appeal to enable him to forward the matter to the Kings Advisory Counsel at Ludzidzini.

 

[19]   Ndabazabantu correctly opines that the matter is not formally before him and that the decision of Libandla still stands.   “R2” is dated 30 January 2018.

 

[20]   Between the 28^th August 2016 and December 2016, Mavis instead launched proceedings against Celumusa Ntshangase resulting in the interim and final orders referred to above.  This was done while the Masundvwini order was in place.

 

[21]   It is unfortunate that the 4^th Respondent has not responded to this application nor was the Masundwini Royal Kraal cited as the matter was deliberated upon by them at the instance of Mavis.   The 4^th Respondent would have laid out the correct procedure with regard to matters before the traditional authorities and all this needless process before this Court would have been avoided.

 

[22]   The interim order issued on the 2^nd December 2016 and confirmed on the 7^th December 2016, state inter alia that … “the 1^st Respondent or anyone acting on his authority and instructions is hereby interdicted and stayed from continuing with the construction of the building at the disputed land at Kashali pending finalization of the matter within the traditional authorities.”

 

 [23]  After Mavis obtained the interim and final orders there is no evidence before the Court by her that she pursued the matter with the traditional structures after the 7^th December 2016.  Even now before me is no evidence that she is pursuing the matter before the traditional authorities.  The final order granted on the 7^th December 2016 is not for a permanent stay but was issued to enable her to pursue the matter within the traditional structures.

 

[24]   Both the Masundwini Royal Kraal and Ndabazabantu state that she has not taken the matter any further even after she obtained the interdict against
Celumusa. 

 

[25]   Notably the interim and final order do not deal in anyway with the order of the Masundvwini Royal Kraal.

 

[26]   This means therefore that there is a valid lawful order from the Masundvwini Royal Kraal rendered before the interim and final orders.

 

[27]   The interim and final orders interdicting Celumusa are equally valid and lawful.

 

 

[28]   The interim and final orders deal with the construction on the disputed land.  The decision of the Masundvwini Royal Kraal deals with the ownership of the land which gives Celumusa and Bibi ownership thereof plus the right to construct their huts (lilawu) thereon.

 

[29]   The interim order and final order failed to deal with the status of the order by the Masundvwini Royal Kraal, they do not stay the operation of the said order which was a crucial omission by Mavis bordering on abuse of process.

 

[30]   R4 (p.47) paragraph 2 is not correct.  R2 does not incorporate a decision.  Neither has the High Court order of 7/12/2016 been discharged, it can only be discharged by order of this Court upon application.

 

[31]      Because of the foregoing, this application fails.  Each party is ordered to pay its own costs.

 

 

                                            __________________

Q.M. MABUZA

PRINCIPAL JUDGE

 

 

 

          For the Applicant          :         Mr. K. Q. Magagula

          For the Respondent       :         Mr. D.E. Hleta