1
IN
THE APPEAL COURT OF SWAZILAND
HELD
AT MBABANE Appeal Case No. 34/2000
In
the matter between:
CHIEF
MDVUBA MAGAGULA Appellant
And
CHIEF
MADZANGA NDWANDWE 1st Respondent
HLAMBANI
FARMERS ASSOCIATION 2nd Respondent
MABHUDLU
FARMERS ASSOCIATION 3rd Respondent
LUBISANA
FARMERS ASSOCIATION 4th Respondent
Coram
LEON, JP
STEYN,
J
A
VAN
DEN HEEVER, J
A
SHEARER,
J
A
BECK,
J
A
For
Appellant Adv. Thwala
For
Respondents Mr. J. Henwood
JUDGMENT
THE
COURT
This
is an appeal against a decision of the High Court in which it
dismissed the Appellant's claim for an interdict and certain
ancillary relief.
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The
Appellant describes himself as the Chief of the Mandlangempisi
Chiefdom in the Hhohho, although his status as a chief is in dispute.
The first Respondent is the Chief of the Ebulandzeni area. His status
is not in dispute. The second, third and fourth Respondents are
respectively farmers' associations duly registered in terms of the
Law of Swaziland each of them having its principal place of business
at Ebulandzeni also in the Hhohho District.
In
the founding affidavit the Appellant says that it has come to his
attention that certain people were tilling land under his chiefdom.
He was told that this was being done by 2nd, 3rd and 4th Respondents
in terms of an allocation made by the 1st Respondent. The 1st
Respondent contended that he could make such allocation "rightfully
and lawfully" as his chiefdom included land across the
"Nkomati".
Appellant
averred that the Mandlangempisi chiefdom covered these areas and his
Ndvunas would confirm this. He therefore sought the eviction of 2nd,
3rd and 4th Respondents and an interdict, restraining the 1st
Respondent from allocating land within the Mandlangempisi Chiefdom
Umphakatsi.
However,
a much more fundamental dispute of fact has been raised in the
Papers. The Respondent in his answering affidavit, denies that the
Appellant is a Chief; he is an Indvuna. The matter being before the
Court a quo on notice of motion it had to be decided on the
acceptance of the Respondent's averments. See Plascon Evans Paints
Ltd vs Van Riebeeck Paints (Pty) Ltd 1984(3) SA 623(A).
It
follows that this is a matter which in terms of Section 14 of the
Constitution was to be regulated by Swazi Law and Custom. This
Section reads as follows:
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"14. The
following matters shall continue to be regulated by Swazi Law and
Custom -
(a) the
office of
Ngwenyama;
(b) the
office of
Ndlovukazi
(the Queen Mother);
(c) the
authorization of a person to perform the functions of Regent for the
purposes of section 30 of the repealed Constitution;
(d) the
appointment, revocation of appointment and suspension of Chiefs;
(e) the
composition of the Swazi National Council, the appointment and
revocation of members of the Council and the procedure of the
Council;
(j) the
Ncwala ceremony; (g) the Libutfo (regimental) system. (Added D.1
/1981.)"
The
Swazi administration Order No. 6 of 1998 (the Order) has created the
procedural framework within which chieftainship disputes have to be
adjudicated.
It
was contended on behalf of the Appellant that this Order is
unconstitutional as being in conflict with Section 104(1) of the
Constitution which decrees that the High Court shall have unlimited
original jurisdiction in civil and criminal matters. This contention
cannot be upheld. The Order is not inconsistent or incompatible with
the Constitution. See in this regard the judgment of this Court in
the case of Professor Dlamini vs Rex delivered simultaneously with
this judgment.
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What
the Order does is to give flesh to the bones of the provisions
contained in Section 14 of the Constitution. It must also be noted
that an appeal to the High Court is specifically reserved in Section
25(6) of the Order. In addition the right of review by the High Court
on the wellknown common law grounds cannot lawfully be excluded and
an aggrieved party who has been subjected to a decision which is
arbitrary or procedurally flawed will always retain the right to have
such decision reviewed by the High Court.
In
this regard we also point out that no facts were deposed to which
could bring the dispute within the ambit of Section 24(1) of the
Order of 1998, such as that the applicant had been deprived of rights
to which he was entitled by Swazi Law and Custom, particularly Swazi
Law and Custom as set out in the Order itself. An example would be
that such an applicant was denied an impartial hearing by the
properly constituted body empowered to deal with the matter or;
passed on to a body which in fact had not been properly constituted;
or not granted an opportunity to be heard at all. In such event the
Appellant may well have had the right to approach the High Court for
relief.
This
is clearly not such a case. As indicated above the dispute is, on
these papers, one of chieftainship which in terms of Section 41 (1)
of the Order fell to be resolved in accordance with Swazi Law and
Custom and in accordance with the procedural framework enacted in the
Order.
It
follows that the High Court was correct in finding that it had no
jurisdiction to determine the dispute between these parties on these
papers.
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For
these reasons the appeal is dismissed with costs.
LEON,
JP
I
AGREE
STEYN,
J
A
I
AGREE
VAN
DEN HEEVER, J
A
I
AGREE
BECK,
J
A
I
AGREE
SHEARER,
J
A
