Shongwe & Ors v Maziya & Another (37/11) [2011] SZSC 31 (30 November 2011);

Editor Note: Dissenting judgment follows at the end

IN THE SUPREME COURT OF SWAZILAND

 

 

HELD AT MBABANE                   CIVIL APPEAL NO. 37/11

 

In the matter between

 

 

JACKSON SHONGWE                  FIRST APPELLANT

LOMADIBHI MAZIYA                   SECOND APPELLANT

GUME MAZIYA                                     THIRD APPELLANT

 

 

AND

 

 

ZAMCOLO MAZIYA                      FIRST APPELLANT

MBHOKE MAZIYA                        SECOND APPELLANT

 

 

CORAM                   :                   RAMODIBEDI CJ

                                                    EBRAHIM JA                                                                          MOORE JA

                                            DR. TWUM JA

                                            FARLAM JA

 

 

HEARD                   :                    22 NOVEMBER 2011

 

DELIVERED           :                    30 NOVEMBER 2011

 

 

SUMMARY

 

Constitutional law – Constitution – Whether s 151(8) of the Constitution ousts the jurisdiction of the High Court – Appeal against   the court a quo’s judgment that it does so – Appeal dismissed and no order as to costs.

 

 

RAMODIBEDI CJ

 

[1]    This appeal raises a very important constitutional point in this country:  does s 151 (8) of the Constitution oust the jurisdiction of the High Court in matters specified in the section, more specifically the appointment of a Chief?  I should mention at the outset that the High Court emphatically answered this question in the negative.  Hence the appellants have now appealed to this Court.

 

[2]    The background facts giving rise to this appeal lie in a very narrow compass and can be briefly stated.  It is not disputed that on 4 November 2010, and acting in terms of s 233 of the Constitution, His Majesty Ingwenyama Mswati III appointed the first respondent as Chief (Sikhulu) of KaMaphungwane in the Lubombo Region.  The instrument of appointment, annexure “A”, reads as follows:-

“THE CONSTITUTION OF THE KINGDOM OF SWAZILAND (ACT NO. 001 OF 2005)

__________________

 

APPOINTMENT OF A CHIEF

                        (Under Section 233)

 

In exercise of the powers conferred upon me under Section 233 of the Constitution of the Kingdom of Swaziland, 2005, I MSWATI III, INGWENYAMA OF SWAZILAND, hereby appoint –

ZAMCOLO NKOSINATHI MALIWA MAZIYA

 

to be Chief (Sikhulu) of KAMAPHUNGWANE in the LUBOMBO REGION with effect from 3^rd November 2010.

 

DONE UNDER MY HAND ON THIS THE 4^TH DAY OF NOVEMBER 2010.

 

 

 

 

MSWATI III

INGWENYAMA OF SWAZILAND”

 

[3]  It is of fundamental importance to recognise at the outset that in this kingdom the appointment of a Chief is a matter which vests in the Ingwenyama.  He has the power to appoint “any person” to be Chief over any area.  This is so in terms of s 233 (2) of the Constitution.  The section reads as follows:-

 

“(2) The Ingwenyama may appoint any person to be Chief over any area.” 

    

      Section 233 (3) also bears reference.  It reads as follows:- 
       

“The general rule is that every umphakatsi (Chief’s residence) is headed by a Chief who is appointed by iNgwenyama after the Chief has been selected by the lusendvo (family council) and shall vacate office in like manner.”

 

[4]    Aggrieved by the first respondent’s appointment as Chief, the appellants subsequently launched an application in the High Court seeking relief in the following terms:-

 

“1.  Dispensing with the Rules of this Honourable Court in relation to service form and time limits and hearing this matter on the basis of urgency.

 

1. Declaring the provision of Section 151 (8) of THE CONSTITUTION void for vagueness.

 

ALTERNATIVELY

 

• Declaring that Section 151 (8) of THE CONSTITUTION does not oust the jurisdiction of the High Court in the matters stated therein.

 

1. Declaring that the appointment of the 1^st Respondent as Chief of Maphungwane area in the Lubombo Region is improper and unconstitutional.

 

ALTERNATIVELY

 

• Interdicting and restraining the 1^st Respondent from assuming and performing the duties of the office of Chief pending the final determination of the chieftancy dispute between the 3^rd Applicant and the 1^st Respondent by the Ingwenyama.

 

1. Directing the 2^nd Respondent to pay the costs of this Application on the attorney/client scale.

 

1. Further and/or alternative relief.”

 

[5]    It requires to be stated at the outset that both in the court below and in this Court the appellants abandoned prayer 2 of the notice of motion which, as can be seen sought to declare the provisions of s 151 (8) void for “vagueness.”

 

[6]    In a nutshell, the disputed office of Chief as gleaned from the appellants’ founding affidavits in the court below can safely be traced back to the late Chief Saphaza.  He was, however, deposed as such by the late Ingwenyama, King Sobhuza II, in 1951 for misconduct.  Chief Loyiwe was installed in his place in the mid 1960’s.  He died in 2003.

 

[7]    Crucially, the appellants admit that the first respondent is the late Chief Loyiwe’s son.  Be that as it may, they say that upon the Chief’s death in 2003 they “selected” the third appellant as the new Chief to succeed the late Chief Loyiwe.  They allege that the second respondent and his ‘cohorts” took the traditional “route” and reported the matter to the Ludzidzini Committee headed by the Governor, namely, one Jim Gama.  The Committee in turn ruled in favour of the third respondent on two bases, namely, (1) that the late Chief Saphaza, whom the third appellant purported to succeed, had himself been deposed as a Chief and (2) that the third appellant should, as a commoner, give way to the first respondent  in terms of Swazi law and Custom.  This was because the latter had traditionally been adopted by one of the late Chief Loyiwe’s wives who was herself a princess. 

 

[8]    It is the appellants’ case that by letter annexure “LM1”, dated 17 February 2009, they appealed against the aforementioned decision of the Ludzidzini Committee.  The appeal came to naught, as they claim.  Hence their application on notice of motion for relief as fully outlined in paragraph [4] above.  It follows that there is no appeal pending in the matter as Advocate Maziya for the appellants was heard to argue in this Court.  Crucially, in paragraph 21 of the founding affidavit of the second appellant, Lomadibhi Maziya, the appellants say that on 21 January 2011 the Governor, T.V. Mthetwa, communicated to them that the matter had “long been determined by the Ingwenyama and that nothing would change.”

 

[9]    In response to the appellants’ application, the respondents raised several points in limine.  It is strictly not necessary to deal with each of them.  It shall suffice for the purposes of this judgment merely to consider the respondents’ main objection to the application, namely, that the High Court does not have jurisdiction to entertain the matter since it pertains to the appointment of a Chief.  But, before determining the point on jurisdiction it is necessary to observe that insofar as the merits of the case were concerned the respondents denied “wholly” the allegations made by the appellants.  This is contained in paragraph 15 of the answering affidavit of the first respondent.  Therein he deposed as follows:-

 

                “15.  I am advised and verily believe that the issues raised by the Applicants on the merits of the application have been overtaken by events since I have already been appointed by His Majesty Ingwenyama Mswati III.

 

For this reason in as much as all the allegations raised are wholly denied, it shall not be necessary to answer to each and every allegation.”

 

It would, therefore, be incorrect in my view to approach the case on the basis that the facts as deposed to by the appellants are not disputed or that they should simply be admitted as correct.  In any event, I am inclined to the view that the appellants took a risk by proceeding by way of an application.  They should have anticipated disputes of fact.

 

[10]  The respondents rely on s 151 (8) of the Constitution for the proposition that the High Court has no jurisdiction in the matter.  That section reads as follows:-

 

“(8)  Notwithstanding subsection (1), the High Court has no original or appellate jurisdiction in matters relating to the office of Ingwenyama; the office of INdlovukazi (the Queen Mother); the authorisation of a person to perform the functions of Regent in terms of section 8; the appointment, revocation and suspension of a Chief; the composition of the Swazi National Council, the appointment and revocation of appointment of the Council and the procedure of the Council; and the Libutfo (regimental) system, which matters shall continue to be governed by Swazi law and Custom.”

       

[11] In order to appreciate the full import of s151 (8), it is   necessary to reproduce s151 (1) in the first place.  This section provides as follows:-

 

        “151. (1)  The High Court has -

 

1.    unlimited original jurisdiction in civil and 

      criminal matters as the High Court possesses at the date of commencement of this Constitution;

 

(b) such appellate jurisdiction as may be prescribed by or under this Constitution or any law for the time being in force in Swaziland;

 

                         (c)  such revisional jurisdiction as the High Court possesses at the date of commencement of this Constitution; and

 

1.   such additional revisional jurisdiction as may be prescribed by or under any law for the time being in force in Swaziland.”

 

[12]  It is plain, as it seems to me, that by introducing s 151 (8) the framers of the Constitution intended to remove the matters listed in the section from the jurisdiction of the High Court.  In this regard, the words “notwithstanding subsection (1)” appearing in s 151 (8) are decisive in my view.  The ordinary natural meaning of the word “notwithstanding” is “in spite of”, “despite”.  See, for example, Kotze v Santam Insurance Ltd 1994 (1) SA 237 (C).  Construed in this way, what the framers of the Constitution did was, firstly, to recognise the ordinarily unlimited jurisdiction of the High Court and secondly, to expressly remove, in clear and unambiguous terms, the matters listed in s151 (8) from such jurisdiction.  Simple logic dictates, therefore, that s 151 (1) must yield to s 151 (8). 

 

[13] As a matter of first principle, the cardinal rule of construction is that words must be given their ordinary, literal and grammatical meaning.  The court will only depart from such meaning if it leads to “a result which is manifestly absurd, unjust, unreasonable, inconsistent with other provisions, or repugnant to the general object, tenor or policy of the statute.”  See Volschenk v Volschenk 1946 TPD 486 at 487 – 488.    I had occasion to express myself in a similar vein (Kirby JP and Lord Abernethy JA concurring) in the Botswana Court of Appeal in Richard Miles and Another v the South East District Council, Civil Appeal No. CACLB – 058 – 10.  It bears repeating what I said:-

 

“[13]   It is trite that the primary rule in the construction of statutory provisions is to ascertain the intention of the Legislature.  It is also well settled that in carrying o      ut that exercise the courts should give the words used their ordinary and natural meaning.  If in doing that the meaning of the words is plain and unambiguous they should be given that meaning unless it would lead to an absurdity or a result which having regard to the context and purpose of the legislation, the Legislature could not have intended.  See for example, Molomo v Molomo 1980 BLR 250, Hannah J at page 254; Mascom Wireless Botswana (Pty) Ltd v Linda’s Holdings (Pty) Ltd t/a Fones 4 U 2004 (2) BLR 65 (CA).”

 

[14]  Applying these principles to the present matter, it will be seen that the words used in s 151 (8) of the Constitution are plainly clear and unambiguous.  There is no ambiguity.  Indeed, I consider that by abandoning prayer 2 of the notice of motion which sought to declare s 151 (8) void for “vagueness” the appellants must be taken to have conceded that the section is clear and unambiguous.  They cannot have it both ways.    It is thus the duty of the court to give the words in question their ordinary and natural meaning.  That being the case, there is no need to go further.

 

[15]  In a well-written judgment, the learned Judge a quo (MCB Maphalala J, as he then was) was alive to the cardinal rule of construction as highlighted above.  Thus, for example, the learned Judge said the following in the course of his judgment:-

 

“[17] The wording of Section 151 (8) is clear and unambiguous; hence, there is no need to resort to other forms of Statutory interpretation such as the broad, liberal, generous or purposive interpretation.  It is trite law that where the meaning in a statute is clear and unambiguous it has to be given its literal meaning unless such a meaning leads to an injustice, unreasonableness or absurdity.  The literal meaning of Section 151 (8) does not lead to absurdity, manifest injustice or unreasonableness.  When interpreting a statutory provision, regard must be to ascertain the intention of parliament.”

 

[16]  In fairness to him, Adv Maziya for the appellants properly conceded that, on a literal construction, s151 (8) ousts the jurisdiction of the High Court in matters listed in the section, including the appointment of a Chief.  In my view that concession decides this matter in favour of the respondents.

 

[17]  But, so contended Adv Maziya, the matter cries out for a liberal and purposive construction in favour of the proposition that s 151 (8) does confer jurisdiction on the High Court in matters listed under the section.  I have no hesitation in rejecting this submission as untenable.  Such a construction is only possible if the court were to rewrite the Constitution, more especially s 151 (8), something which is not the function of this Court.  On the contrary, that is the preserve of Parliament.  It is indeed convenient at this stage to recall the following celebrated statement by Kentridge AJ in S v Zuma 1999 (2) SA 642 (CC) at 653 paragraph 18:-

 

        “We must heed Lord Wilberforce’s reminder that even a constitution is a legal instrument, the language of which must be respected.  If the language used by the law giver is ignored in favour of a general resort to ‘values’, the result is not interpretation but divination.  If I may again quote S v Moagi (supra at 184) I would say that a constitution ‘embodying fundamental rights should as far as its language permits be given a broad construction.”

 

[18]  On another note, Adv Maziya’s submission was in my view, even more startling.  He contended that Parliament had no power to legislate on matters listed under

        s 151 (8).  In reaching this astonishing proposition, counsel relied on the historical background relating to the 1968 Constitution as well as the 1973 King’s Proclamation.  He submitted that when the current 2005 Constitution came into force the High Court had unlimited jurisdiction.  As I understand counsel’s submission, the status quo ante should have been maintained. Once again, counsel ignores the wording of the section which is clear and unambiguous.  It ousts the jurisdiction of the High Court in express terms.  Indeed, it must be stressed that this was by design since the framers of the Constitution must be credited with the knowledge of the history which preceded the Constitution.  Hence they took a conscious decision to move away from the Westminster Model Constitution.  If anyone needs proof for this proposition, it is to be found in the preamble to the Constitution.  This preamble in turn spells out the uniqueness of this Constitution from any other constitution.  Because of its importance, I take the liberty to reproduce it in full even at the expense of overburdening this judgement.  It reads as follows namely:-

 

        “Whereas We the People of the Kingdom of Swaziland do hereby undertake in humble submission to Almighty God to start afresh under a new framework of constitutional dispensation;

 

                Whereas as a Nation it has always been our desire to achieve full freedom and independence under a constitution created by ourselves for ourselves in complete liberty;

 

        Whereas various vusela consultations, economic and constitutional commissions, political experiment and Sibaya meetings have been established and undertaken in the last thirty years in search of a sustainable home-grown political order;

 

        Whereas it has become necessary to review the   various constitutional documents, decrees, laws, custom and practices so as to promote good governance, the rule of law, respect for our institutions and the progressive development of the Swazi society;

 

               Whereas it is necessary to blend the good institution of traditional Law and custom with those of an open and democratic society so as to promote transparency and the social, economic and cultural development of our Nation;

       

      Whereas  it is necessary to protect and promote the    fundamental rights and freedoms of ALL in our Kingdom in terms of a constitution which binds the Legislature, the Executive, the Judiciary and the other Organs and Agencies of the Government;

 

Whereas all the branches of government are the   Guardians of the Constitution, it is necessary that the Courts be the ultimate Interpreters of the Constitution;

 

Whereas as a Nation we desire to march forward progressively under our own constitution guaranteeing peace, order and good government, and the happiness and welfare of ALL our people;

 

        Whereas the Constitution in draft form was circulated to the nation in both official languages, was vetted by the people at tinkhundla and Sibaya meetings;

 

         Now, THEREFORE, WE, iNgwenyama-in-Council, acting together with and on the Approval of the Swazi Nation meeting as the Swazi National Council assembled at Ludzidzini this 4^th day of October 2004, hereby Accept the following Constitution as the Supreme Law of the Land.”

        It follows that constitutions from other jurisdiction which Adv Maziya valiantly urged us to follow are of very little persuasive value, if any.

 

[19]  In pursuit of a liberal and purposive construction, it was further contended on the appellants’ behalf that a literal construction of s 151 (8) would lead to absurdity.  It would leave litigants like the appellants without a remedy.  There is no evidence, however, that the appellants are without a remedy within the Swazi traditional structures as contemplated by s 151 (8).  Reliance for this proposition was made largely on such cases as Minister of Law and Order v Hurley and Another 1986 (3) SA 568 (A).  The appellants also relied on s 252 of the Constitution.

 

[20]  Hurley’s  case was concerned with a construction of an ouster clause in a South African Statute, namely, s 29 (1) of the Internal Security Act 74 of 1982.  In relevant parts, the section in question provided as follows:-

 

        “29 (1)  Notwithstanding anything to the contrary in any law or the common law contained…, any commissioned officer as defined in s 1 of the Police Act 7 of 1958 of or above the rank of lieutenant-colonel may, if he has reason to believe that any person who happens to be at any place in the Republic:

    

   (a)  has committed or intends or intended to commit an offence referred to in s 54 (1), (2) or (4),…; or

   

   (b) is withholding from the South African Police any information relating to the commission of an offence referred to in para (a) … without warrant arrest such person or cause him to be arrested and detained for interrogation in accordance with such directions as the Commissioner may, subject to the direction of the Minister, from time to time issue,…”

  

  “[6]  No court of law shall have jurisdiction to pronounce    upon the validity of any action taken in terms of this section, or to order the release of any person detained in terms of the provisions of the section.”

 

Relying on Schernmbrucker v Klindt NO 1965 (4) SA 606 (A), the Appellate Division expressed itself in the following terms at p584 of the judgment:-

 

                “It is a well recognised rule in the interpretation of statutes, it has been stated by this Court, ‘that the curtailment of the powers of a Court of law is, in the absence of an express or clear implication to the contrary, not to be presumed.’  (Schermbrucker v Klindt NO 1965 (4) SA 606 (A) at 618A, per BOTHA JA, citing Lenz Township Co (Pty) Ltd v Lorentz NO en Andere 1961 (2) SA 450 (A) at 455 and R v Padsha 1923 AD 281 at 304).  The Court will, therefore, closely examine any provision which appears to curtail or oust the jurisdiction of courts of law.”

 

[21]  As can be seen, Hurley’s case does not assist the appellants in the present matter.  We are here concerned with a construction, not of a mere statute, but, of the Constitution of the Kingdom of Swaziland.  A constitution is sui generis.  It is no ordinary statute.   See, for example, S v Makwanyane 1995 (3) SA 391 (CC) at paragraph [15] in which the Constitutional Court of South Africa made the following apposite remarks:-

 

                “[15] A constitution is no ordinary statute.  It is the source of legislative and executive authority.  It determines how the country is to be governed and how legislation is to be enacted.  It defines the powers of the different organs of State, including Parliament, the executive, and the courts, as well as the fundamental rights of every person which must be respected in exercising such powers.”

 

[22]  Following Makwanyane’s case, a Full Bench of the Court of Appeal of Lesotho in Millenium Travel and Tours And Others v Director of Public Prosecutions 2007 – 2008 LCA 27 held at paragraph 3 of the judgment that constitutional instruments are to be interpreted “in a very different way to ordinary statutes.”  This is an approach which this Court follows.  See, for example, the Prime Minister of Swaziland and 5 Others v MPD Marketing & Supplies (Pty) Ltd and 3 Others, Appeal Case No, 18/2007 at paragraph 16.4.

 

[23]  The appellants’ reliance on s 252 of the Constitution also requires a close scrutiny.  I observe at the outset that neither in their notice of motion nor in their affidavits have the appellants sought to rely on this section as the basis for their case.  As was said in Imprefet (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A) at p 107, it is in particular wrong to direct the attention of the other party to one issue and then, at the trial, attempt to canvass another.  This is clearly such a case.  Be that as it may, s 252 (1) (2) and (3) of the Constitution reads as follows:-

 

“252. (1) Subject to the provisions of the Constitution or any other written law, the principles and rules that formed, immediately before the 6^th of September, 1968 (independence Day), the principles and rules of the Roman Dutch Common Law as applicable to Swaziland since 22^nd February 1907 are confirmed and shall be applied and enforced as the common law of Swaziland except where and to the extent that those principles or rules are inconsistent with this Constitution or a statute.

 

1.  Subject to the provisions of this Constitution, the principles of Swazi customary law (Swazi law and custom) are hereby recognised and adopted and shall be applied and enforced as part of the law of Swaziland.

 

1.  The provisions of subsection (2) do not apply in respect of any custom that is, and to the extent that it is, inconsistent with a provision of this Constitution or a statute, or repugnant to natural justice or morality or general principles of humanity.”

 

[24]  It was contended on the appellants’ behalf that s 252 (3) limits the scope of s 151 (8).  I do not agree.  Section 252 (3) does not deal with the jurisdiction of the High Court.  That is plainly left to s 151.  What s 252 (3) does is to provide that the principles of Swazi Customary law or Swazi law and custom shall apply except insofar as they are inconsistent with a provision of the Constitution, or a statute, or repugnant to natural justice or morality or general principles of humanity.  As was pointedly put to counsel during argument, jurisdiction in a matter such as the present one, including the right to appeal, is conferred by statute.  It is not something that is derived from general principles of customary law.

 

[25] It follows from these considerations that the court a quo was correct in coming to the conclusion that s 151 (8) of the Constitution ousts the jurisdiction of the High Court in this matter.  That is a conclusion which this Court arrived at in The Commissioner of Police and Another v Mkhondzo Aaron Maseko, Civil Appeal No. 03/2011.  As Mr. Khumalo for the respondents correctly submitted, the construction which the appellants contend for, namely, filling up the gaps in order to accommodate the appellants, would amount to amending the Constitution, an exercise reserved for Parliament.

 

[26]  In the result, the appeal is dismissed.  This being a constitutional case, and there being no exceptional circumstances to consider, there shall be no order as to costs.

 

                                ____________________

                                M.M. RAMODIBEDI

                                CHIEF JUSTICE

 

 

I have read the views expressed by both the learned Chief Justice Ramodibedi and my brother Farlam J.A. 

 

I consider it appropriate, however, that I make certain observations.  I do so by first outlining certain principles which have influenced me in arriving at the conclusion I have reached.

 

I commence by highlighting the following passages of the preamble of the current Swaziland Constitution:

 

“Whereas as a Nation it has always been our desire to achieve full freedom and independence under a constitution created by ourselves for ourselves in complete liberty; emphasis added

 

Whereas various vusela consultations, economic and constitutional commissions, political experiment and Sibaya meetings have been established and undertaken in the last thirty years in search of a sustainable home-grown political order; emphasis added

 

Whereas it has become necessary to review the various constitutional documents, decrees, laws, customs and practices so as to promote good governance, the rule of law, respect for our institutions and the progressive development of the Swazi society; emphasis added

 

Whereas it is necessary to blend the good institution of traditional law and custom with those of an open and democratic society so as to promote transparency and the social, economic and cultural development of our Nation;”emphasis added

 

I also take note of what Magid A.J.A. said in the case of JAN SITHOLE N.O. & ORS v GOVERNMENT OF SWAZILAND - COURT APPEAL 50/2008 at page 19 of the cycloslyted judgment:

 

“[22]  …Democracy is, I would suggest, like beauty, to be found in the eye of the beholder.  Until the fairly recent demise of the Union of Soviet Socialist Republics (“U.S.S.R.”) many of the member states and some satellites of the USSR chose to call themselves “democratic”.  I am under the impression that the entity which, before its merger into what is now called Germany, was formerly known as “East Germany” was then entitled the “Democratic German Republic”, though many such academics and professors would have disputed its right to be called democratic.

 

 

[23]   Similarly, I suggest, with Swaziland.  The mere fact that it calls itself democratic does not mean that every part of its body politic must match up to every rule laid down either by law or tradition by which, say, the greater Western democracies are governed.  If that be the result of its Constitution, so be it.  That is the form of state, whether or not the academics approve thereof, which Swaziland wants.”

 

See also the wise counsel of Tebbutt J.A. where he outlined in great detail on how the Constitution of this country came to be formulated in JAN SITHOLE N.O. & ORD v GOVERNMENT OF SWAZILAND – COURT OF APPEAL 35/2007.

 

Regard is also had to what Mahomed A.J. said in S. v ACHESAN 1991 (2) SA 805 (NM HC) at 813.

 

“The Constitution of a Nation is not simply a Statute which mechanically defines the structures of government and the governed.  It is a mirror reflecting the national soul, the identification of the ideals and aspirations of a nation; the articulation of the values bonding its people and disciplining its government.   The spirit and the tenor of the Constitution must therefore preside and permeate the processes of judicial interpretation and judicial discretion.” emphasis added

 

I also have regard to what Browde JA stated in the case of ATTORNEY GENERAL AND THE PROSECUTOR GENERAL 1995(8) BCLA 1070 (NMS)

 

“One of the great and irreversible truths yielded by the ethos of human rights generated after the Second World War is that Parliament is not Sovereign only the Constitution is.”

 

Then, I take into account of the provisions of section 151(8) of the Constitution of Swaziland which provides as follows:

 

“(8)    Notwithstanding subsection (1), the High Court has no original or appellate jurisdiction in matters relating to the office of iNgwenyama; the office of iNdlovukazi (the Queen Mother); the authorization of a person to perform the functions of Regent in terms of section 8; the appointment, revocation and suspension of a Chief, the composition of the Swazi National Council …emphasis added

 

I am also mindful, that in interpreting legislation, where the words are clear and unambiguous one should give them their literal meaning.

 

My reading of the Swaziland Constitution leads me to the inevitable conclusion that Swazi custom and practices play a significant part in the ethos in which this country sought to govern itself.  There is a significant “line” of thought in the wording of the Constitution which runs through the tenor of the Constitution which leads me to this conclusion.

 

Whilst I recognize the wisdom contained in the authorities cited by my Brother Farlam J.A. they do not sway my thinking given the special circumstances pertaining in this country.

 

Be that as it may, I am mindful of the fact that the conclusion reached by all my brothers is to dismiss the appeal.  I too would dismiss the appeal: and, in doing so, I would underscore the judgment of the learned Chief Justice that section 151(8) of the Constitution does oust the jurisdiction of the High Court in the matters enumerated in subsection (8).

 

 

 

 

I agree                                              _____________________

                                                        A.M. EBRAHIM

                                JUSTICE OF APPEAL    

           

 

I have had the benefit of reading the judgment prepared by my esteemed brethren the Honourable Chief Justice and the Honourable Justice Farlam.  Paragraph 16 of Justice Farlam’s judgment reads:

 

“For all these reasons I am of the view that section 151 (8) does not oust these proceedings”.

 

My understanding of that paragraph is that the non-ouster of the High Court’s jurisdiction would apply only to the case before us. 

 

Agreeing as I do with the reasoning and conclusions of the Honourable Chief Justice, I am in respectful disagreement with my learned Brother Farlam if his findings are that the High Court’s jurisdiction is not ousted by section 151 (8) of the Constitution in the instant case. 

In any event, I do not think that the judgment of Farlam J.A. can be read to mean that the High Court’s jurisdiction cannot be ousted in any circumstances whatsoever under section 151 (8) of the Constitution. 

 

 

I agree                                              _____________________

                                                        S.A.MOORE

                                                        JUSTICE OF APPEAL    

 

I have had the benefit of reading the judgment prepared by His Lordship the Chief Justice.  I agree entirely with the reasoning and conclusions of the learned Chief Justice.

 

 

[1]    I have had the privilege of reading the judgment which His Lordship the Chief Justice has written on this case.  I have also been given a copy of the partial or semi-dissenting judgment of my brother, Farlam, J.A.  Ordinarily, that should not have evoked any further input from me.  But it is important in constitutional adjudication of the nature undertaken by this Court that all judges should at least show where they stand in the quintessential issue of whether or not section 151 (8) of the Constitution of the Kingdom ousts the jurisdiction of the High Court in the matters enumerated therein.  My vote is in favour of the decision by the Lord Chief Justice that the High Court’s jurisdiction is ousted by s 151 (8) of the Constitution.

 

[2]    In the case of Swaziland Coalition of Concerned Civil Organisations Trust and 5 others v The Elections and Boundaries Commission and 9 others Civil Appeal Case No. 26/08 (unreported), writing the judgment of the Court, I quoted the following from the consolidated cases of Khanyakwezwe  Alpheus Mhlanga and One other and the The Commissioner of Police and 3 others, etc, case No. 12/2008 and SwazilandCorrectional Services Union and The Commissioner of Correctional Services and 5 others (unreported) “What is important is the wording of our Constitution.  A proper interpretation must be given to the language as it appears in that document.  A broad, generous and liberal interpretation must be given to the sections pronouncing human rights and freedoms, and any section that limits such rights and freedoms must be given a strict and narrow interpretation. What the court cannot do is to re-write the Constitution.  The Court referred to the case of S. v. Zuma & Others 1995 (2) S.A., 642 (CC) where Kentridge A.J.A. delivering the judgment of the South African Constitutional Court stated as follows: at page 653 A-B:

 

“We must heed Lord Wilberforce’s reminder that even a constitution is a legal document, the language of which must be respected.  If the language used by the lawgiver is ignored in favour of a general resort to “values” the result is not interpretation but divination.”

 

The history of the making of the 2005 Constitution of the Kingdom of Swaziland is succinctly chronicled in the judgment of Tebbutt J.A. in the Appeal case No. 35/2007 – JAN SITHOLE N.O. (in his capacity as a Trustee of the National Constitutional Assembly Trust and 7 others and THE PRIME MINISTER and 6 others in which the appellants in the appeal sought among others, an order to strike down and declare null and void the entire Constitution of the Kingdom of Swaziland.  Prior to the said Constitution, the supreme law of the Kingdom was then the King’s Proclamation of 1973.  This Proclamation repealed the previous Constitution which had commenced when Swaziland achieved its independence from Britain on 6^th September, 1968.  The processes for promulgating the present Constitution were arduous, painstaking and sometimes acrimonious. The preamble to the King’s Proclamation of 1973 stated that he had come to certain conclusions.  These included the fact that the 1968 Constitution had failed to provide machinery for good government and for the maintenance of peace and order that it had permitted the importation into Swaziland of highly undesirable political practices “alien to and incompatible with the way of life in our society….”

 

[3]    The King’s Proclamation envisioned, (after a long constitutional struggle), the achievement of full freedom and independence “under a constitution created by ourselves for ourselves in complete liberty without outside pressures; as a nation we desire to march progressively under our own constitution guaranteeing peace, order and good government and the happiness and welfare of all our people”.  The various steps set in train to achieve the present Constitution may be read in that judgment referred to above.

 

It is in the light of the Kingdom’s experiences that the people of this nation enacted for themselves the new Constitution.”

 

[4]    For somebody coming from Ghana, I have personal experience of how important it is to entrust our customs affecting chieftaincy to an indigenous body of wise men.  There are provisions in the Ghana Constitution of 1992 which articulate this ideal.

 

(1)    Article 270 insulated chiefs from participating in partisan politics.

(2)    There is a special Chieftaincy Act of 1971 (Act 370); Section 63 whereof defines “a cause or matter affecting chieftaincy.”  These include

 

(a)    the nomination, election, installation and destoolment of Chiefs.

(b)    the right of any royal to be considered for nomination, etc.

(c)    the right of any royal to take part in the nomination process.

 

(3)    S.52 of our Courts Act (Act 459 of 1993) ousts the jurisdiction of the High Court and the Court of Appeal (but not the Supreme Court) in any cause or matter affecting chieftaincy. 

 

[5]    The Chieftaincy Act sets up Traditional Councils, Regional Houses of Chiefs and National House of Chiefs.  These are the institutions that have jurisdiction to adjudicate on causes or matters affecting chieftaincy. 

 

        S. 28 of the Chieftaincy Act provides that the Traditional Councils, the Regional Houses of Chiefs and the National House of Chiefs should have Judicial Committees to adjudicate causes or matters affecting chieftaincy.

        Appeals travel from the Traditional Councils to the Regional Houses of Chiefs; thence to the National House of Chiefs.  Ultimately, an appeal may be lodged in the Supreme Court, with the leave of the National House or with the Supreme Court itself.

 

[6]    These provisions are reinforced by the provision that the High Court has supervisory jurisdiction over any lower court or other adjudicating body on any of the common law grounds of :-

 

        (i)     error of law on the face of the record,

        (ii)    breach of the rules of natural justice,

1. lack of or excess of jurisdiction, etc.

 

        The Judicial Committees, are lower courts. These structures have succeeded in preserving the customs and practices pertaining to chieftaincy in Ghana.

 

[7]    My reading of the Constitution of this Kingdom persuades me that the choices made therein are not dissimilar to what obtain in Ghana, particularly, sections 151(3) (b), s.151 (8) and s.152.

 

[8]    One other important principle in constitution adjudication (more than any statute, or for that matter any written document) is that the document should be read as a whole in order to come to a conclusion on the meaning of any section.  In my view, it is unprofitable to read Article 151 (8) in isolation or import other rules extraneous to it and decide that there is uncertainty.  A fair reading of the Swazi Constitution in its entirety persuades me that there is no ambiguity.  Further, the Anisminic case decided that Parliament cannot have intended such lower courts or customary bodies to make and act upon mistakes of law. Hence any mistake of law made by them goes to jurisdiction and obviously that decision may be quashed by way of judicial review.  These structures are coherent and sustain the constitutional dispensation.

 

[9]    What I have written here is not to derogate from the very well-reasoned judgment of the Lord Chief Justice.  I agree with his reasons and conclusions.  What I have said here is intended to show that my concurrence is not just a matter of show of hands.

 

I agree                                      _____________________

                                                        DR S. TWUM                                                                   JUSTICE OF APPEAL    

 

 

For Appellants         :       Adv M.L.M. Maziya

For Respondents      :       Mr. S. Khumalo

 

 

Editor Note: Dissenting judgment begins

 

IN THE HIGH COURT OF SWAZILAND

 

HELD AT MBABANE                                 CASE  NO. 37/2011

 

 

In the appeal between:

 

 

JACKSON SHONGWE                                1^ST APPELLANT

LOMADIBHI MAZIYA                                 2^ND APPELLANT

GUME MAZIYA                                           3^RD APPELLANT

                                                         

And

 

 

ZAMCOLO MAZIYA                                    1^ST RESPONDENT

MBHOKE MAZIYA                                     2^ND RESPONDENT

 

 

CORAM                                   :                  M.M. RAMADIBEDI, CJ

                                                                   A.M. EBRAHIM, JA

                                                                   S.A. MOORE, JA

                                                                   DR. S. TWUM, JA

                                                                   I.G. FARLAM, JA

                                                                  

                  

                                                         

FOR APPLICANTS                  :                  ADV. M.L.M. MAZIYA

 

FOR RESPONDENTS             :                  MR. S. KHUMALO                  

                  

SUMMARY

 

Constitutional law ? Section 151 (8) of Constitution, interpretation of ? appointment of chief, whether invalid.

 

 

JUDGMENT

_____________________________________________________________

 

 

FARLAM, JA

 

 

[1]    I have had the opportunity of reading the judgment prepared in this matter by the Chief Justice.   Although I have come to the conclusion that the appellants’ case can not succeed on the merits of the matter, I do not agree that the provisions of section 151 (8) of the Constitution outst the jurisdiction of the Court to deal with it.   My reasons for coming to this conclusion are set out below.

 

[2]    The facts of the matter are summarised in the Chief Justice’s judgment and it is not necessary for me to repeat them.  The Chief Justice also sets out in his judgment the wording of section 151 (8) of the Constitution and the Preamble thereto

 

[3]    In his judgment in the Court a quo M.C.B. Maphalala  J upheld the respondents’ argument that  section 151 (8) ousted the court’s jurisdiction to deal with the matter and also held that, even if the court’s jurisdiction was not ousted, the appellants had to fail on the merits.   As I have said, I agree with the latter conclusion but not the former.

 

4]     In discussing the merits of the matter M.C.B. Maphalala  J stated that the Ingwenyama  had referred the matter to the Ludzidzini  Committee, which had advised him not to appoint the third appellant.  This statement was not in accordance with what had been set out in the affidavit deposed to by the second appellant, who said that the matter had been referred to the Committee by the second respondent I do not think that the factual mistake made in the judgment takes the matter further.

 

 [5]   Mr. Maziya, who appeared for the appellants, devoted most of his efforts to an endeavour to persuade the Court not to uphold a literal interpretation of section 151 (8) but instead to give it what he called a ‘liberal, generous and purposive interpretation’. When asked what interpretation he said should be given to the sub-section, he said that all that the subsection excluded was the process of lawmaking from being dealt with in respect of the matters set out  therein (including the appointment of chiefs).  This so called ‘interpretation’ is so far removed from the words used, that it clearly has to be rejected without more.  As Kentridge AJ said inS v Zuma 1995 (2) SA 642 (CC) at 653 A-B:

 

‘We must heed Lord Wilberforce’s reminder [in Minister of Home Affairs (Bermuda) v Fisher [1979] 3 All ER 21(P.C) at 26d-e] that even a constitution is a legal instrument, the language of which must be respected.  If the language used by the lawgiver is ignored in favour of a general resort to “values”, the result is not interpretation but divination.’

                  

It follows that in order to decide whether section 151 (8) ousts the Court’s jurisdiction to adjudicate in the matter it is necessary to construe the words used in the section.  That is the task to which I now turn.

 

[6]    Ouster clauses are not new and there are numerous decisions in which the principles to be applied in interpreting them are set out.  For present purposes it is only necessary to refer to three of them.  In Schermbrucker v Klindt NO 1965 (4)SA 606 (A)the court was concerned with an ouster contained in section 17 (3) of the (South African) General Law Amendment Act 37 of 1963, which read as follows:

 

‘No Court shall have jurisdiction to order the release from custody of any person so detained [i.e., under section 17 (1) of the Act].’

 

[7]    The court held that the court’s jurisdiction was only ousted to the extent that it could not order the release of a person lawfully arrested and detained.

 

[8]    This view of the legal position was accepted in Swaziland as being applicable to the ouster contained in the Second Decree in the King’s Proclamation of 12 April 1973, which provided:

 

‘No Court shall have power to enquire into or make any order in connection with such detention [i.e., a detention ordered by the King- in Council under the Decree].’

 

See Walkerand Another v the Commissioner of Police and Others 1977 – 1978 SLR 113 (HC) at118 E -8, where Nathan   CJ said:

 

 

 

‘For the sake of completeness I should mention that it was common cause that the provisions of the Second Decree in the Proclamation of 12 April 1973 do not operate to prevent the court from enquiring into the question whether the detentions have been made in accordance with the Decree.  In fettering the power of the court the Second Decree presupposes that the detention has been legally and validly made.  See Singh v Attorney-General, Transvaal, and Another 1967 (2) SA 1 (T) at p 3A-C; Schermbrucker v Klindt NO 1965 (4) 606 (A) at p 623F.’

 

[9]     The last case to which I wish to refer is Anisminic Ltd v The Foreign Compensation Commission and Another [1969] 1 All ER 208 (H.L.) This caseconcerned an attack on a determination purportedly made by the Foreign Compensation Commission.  Section 4 (4) of the (British) Foreign Compensation Act, 1950, read as follows:

 

‘The determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.’

 

[10]  A claim for compensation under an Order – in – Council made under powers contained in the Act which had been brought by Anisminic Ltd was purportedly dismissed by the Commission.  The House of Lords held that an application brought in the High Court by Anisminic Ltd for a declaration that the determination was a nullity was not ousted by the section.

 

[11]  In his opinion Lord Reid said (at 212 G – 213 D):

               

        ‘Section 4(4) is in these terms:

 

“The determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.”

 

The commission maintain that these are plain words only capable of having one meaning.  Here is a determination which is apparently valid; there is nothing on the face of the document to cast any doubt on its validity.  If it is a nullity, that could only be established by raising some kind of proceedings in court.  But that would be calling the determination in question, and that is expressly prohibited by the statute.  The appellants maintain that that is not themeaning of the words ofthis provision.  They say that “determination” means a real “determination” and does not include an apparent or purported determination which in the eyes of the law has no existence because it is a nullity.  Or, putting it in another way, if one seeks to show that a determination is a nullity, one is not questioning the purported determination ? one is maintaining that it does not exist as a determination.  It is one thing to question a determination which does exist; it is quite another thing to say that there is nothing to be questioned.

Let me illustrate the matter by supposing a simple case.  A statute provides that a certain order may be made by a person who holds a specified qualification or appointment, and it contains a provision, similar to s. 4 (4), that such an order made by such a person shall not be called in questionin any court of law.  A person aggrieved by an order alleges that it is a forgery or that the person who made the order did not hold that qualification or appointment.  Does such a provision require the court to treat that order as a valid order?  It is a well established principle that a provision ousting the ordinary jurisdiction of the court must be construed strictly ? meaning, I think, that, if such a provision is reasonably capable of having two meanings, that meaning shall be takenwhich preserves the ordinary jurisdiction of the court.  Statutory provisions which seek to limit the ordinary jurisdiction of the court have a long history.  No case has been cited in which any other form of words limiting the jurisdiction of the court has been held to protect a nullity.  If the draftsman or Parliament had intended to introduce a new kind of ouster clause so as to prevent any enquiry even whether the document relied on was a forgery, I would have expected to findsomething much more specific than the bald statement that a determination shall not becalled in question in any court of law.  Undoubtedly such a provision protects every determination which is not a nullity.  But I do not think that it is necessary or even reasonable to construe the word “determination” as including everything which purports to be a determination but which is in fact no determination at all.  And there are no degrees of nullity.  There are a number of reasons why the law will hold a purported decision to be a nullity.  I do not see how it could be said that such a provision protects some kinds of nullity but not others; if that were intended it would be easy to say so.’

 

[17]  What Lord Pearce said in his opinion (at 237 F – I) is also instructive.  He said:

 

‘It has been argued that your Lordships should construe “determination” as meaning anything which is on its face a determination of the commission including even a purported determination which has no jurisdiction.  It would seem that, on such an argument, the court must accept and could not even enquire whether a purported determination was a forgery or inaccurate order which did not represent that which the commission had really decided.  Moreover, it would mean that, however far the commission ranged outside their jurisdiction or that which they were required to do or however far they departed from natural justice, their determination could not be questioned.  A more reasonable and logical construction is that by “determination” Parliament meant a real determination, not a purported determination.  On the assumption, however, that either meaning is a possible construction and that, therefore, the word “determination” is ambiguous, the latter meaning would accord with a long established line of cases which adopted that construction  One must assume that Parliament in 1950 had cognisance of these in adopting the words in s. 4 (4)’

 

 

[18]  It follows, in my view, that the court a quo was not correct in holding that the wording of section 151 (8) is ‘clear and unambiguous’.  On Lord Pearce’s alternative approach, the section is ambiguous, the ambiguity arising from the fact that the word ‘appointment’ can either mean any purported appointment, even if it is in fact invalid, or a  valid appointment.  And I agree that in line with what Lord Pearce called a long established line of cases the latter was meant.  This view had been accepted in Swaziland in 1978, a fact which must have been present to the framers of the Constitution when section 151 (8) was drafted.  Furthermore it is in accordance with the passages in the Preamble to the Constitution which talk of the necessity ‘to review the various constitutional documents, decrees, laws, customs and practices so as promote good governance, the rule of law, respect for our institutions and the progressive developments of the Swazi society’ and ‘ to blend the good institutions of traditional law and custom with those of an open and democratic society so as to promote transparency’ and the desire of the Swazi Nation ‘to march forward progressively under our own constitution guaranteeing peace, order and good government and the happiness and welfare of ALL our people.’

 

[19]  I do not think that the adoption of the construction contended  for by the respondents would promote good governance, the rule of law, transparency or order and good government to mention just some of the factors listed in the Preamble.

 

[20]  Mr. Khumalo, who appeared for the respondents and contended for the more restrictive construction, sought to rely on the fact that in terms of section 11 of the Constitution the King and Ingwenyama is immune  from ‘suit or legal process in any cause in respect of all things done or omitted to be done by him.’  The short answer to that submission is that this is not a suit or legal process against the Ingwenyama.

[21]  For all these reasons I am of the view that section 151 (8)   does not oust these proceedings.

 

[22]  Turning to the merits of the case, I do not think that the appellants have made out a case for an order declaring the first respondent’s appointment invalid.

 

[23]  In coming to this conclusion I do not rely on the fact that the first respondent in his affidavit ‘wholly denied’ all the allegations raised in the appellants’ papers.   It is trite law that a general denial of this kind does not give rise to a genuine dispute of fact:  See Room Hire Co (Pty) Ltd v Jeppe Street Mansions Ltd 1949 (3) SA 1155 (T) at1162, a passage often cited with approval in Swaziland: see, e.g., Nonhlanhla Ndlangamandla v Motor Vehicle Accident Fund and Sophie D. Shongwe, an as yet unreported judgment of the Court of Appeal of Swaziland, Case No. 12/2006, delivered on 18 May 2006. Furthermore it is clear that the first respondent is not able from his own knowledge to deal with most of the factual averments made by the second  appellant in her affidavit. 

 

[24]  The Ingwenyama has the power under section 233 (2) of the Constitution to ‘appoint any person to be a chief over any area’.  The Ludzidzini Committee had ruled that the person selected by the Lusendvo should not be appointed and the second respondent should be appointed instead.    The appeal to the Liqoqo was not filed and it is not suggested that the Ingwenyama knew or even had reason to know of the appeal.   In the circumstances no basis exists for interfering with the appointment he made. 

 

[25]  For the reasons stated I am of the opinion that the appellants were entitled to an order declaring that section  151 (8) of the Constitution does not oust the jurisdiction of the High Court to entertain their application

 

 but that their prayer for an order declaring the first respondent’s appointment to be invalid was correctly dismissed.

 

 

                                                        ______________________

I.G. FARLAM

JUDGE OF APPEAL