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IN
THE COURT OF APPEAL OF SWAZILAND
HELD
AT MBABANE Appeal Case No. 31/2000
In
the matter between
VIF
LIMITED Appellant
And
MOSES
MATHUNGWA First Respondent
AMBROSE
MASUKU Second Respondent
PHILIP
MAPHANGA Third Respondent
MPISI
CONFORT
DHLAMINI Fourth Respondent
AARON
KHATWANE Fifth Respondent
SOLOMON
MAGAGULA Sixth Respondent
MTHAKATI
NKAMBULE
Seventh Respondent
ALLETHA
NKAMBULE Eighth Respondent
KELLINAH
NHLANGAMANDLA Ninth Respondent
AGNES
NGWENYA Tenth Respondent
JABULANE
MAGAGULA Eleventh Respondent
Coram
TEBBUTT, J
A,
SHEARER,
J
A
SAPIRE,
J
A
For
Appellant Ms J.M. van DER WALT
For
Respondent Mr. L. Maziya
JUDGMENT
TEBBUTT,
J
A
The
locus standi of the appellant to bring an application in the High
Court for an interdict against the respondents was challenged by the
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respondents.
Matsebula J found the challenge well founded, holding that the
appellant had not established the requisite locus standi and
dismissed the appellant's application. It is against that finding
that the appellant now comes on appeal to this Court.
The
respondents are all farmers on plots of land in Vuvulane, Lubombo
Region, Swaziland. The appellant, (the applicant in the High Court),
is a company, V.
I.
F.
Limited (VIF) with its principal place of business at Farm 860,
Vuvulane. In the founding affidavit on its behalf by its General
Manager, one Arnot, it averred, and I quote :-
"Farm
860, Vuvulane.........has been placed at the applicant's disposal for
the purpose set out above".
That
purpose, according to Arnot, is the following:-
"the
applicant is a company formed with the aim and objectives of
providing certain sugar cane farmers with access to parcels of land
and other resources, to assist and enable such farmers to engage in
productive and environmentally safe sugar cane farming, and the
applicant is the coordinator of the Vuvulane Irrigated Farms Project
under the auspices of Tibiyo Taka Ngwane."
Arnot
went on to aver that the farm was divided into two broad categories,
viz allocated and unallocated land. The former had been subdivided
into 264 plots (generally referred to as "farms") and
unallocated land had not been subdivided and was described as
"Remainder of Farm 860". The respondents each occupy one of
the
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farms
by virtue of leases between them and the appellant. They are all
members of the Vuvulane Irrigation Farmers Association (Public) Co
Ltd (VIFA). Arnot averred that:
"The
allocation of plots to particular persons are (sic) within the
discretion of the applicant as lawful custodian of the land and no
individual may settle on or utilise the land, allocated or
unallocated, unless same has been formally allocated to such person
or such person has obtained express permission to do so. "
It
is the appellant's case that since August 1999 the respondents have
been cultivating sugar cane and other crops and have been engaged in
other activities on unallocated land. Letters were addressed to the
respondents on 3 November 1999 telling them that this was not allowed
but, despite this, says the appellant, they have continued to do so.
In early December 1999 appellant destroyed the sugar cane crops on
the unallocated land but a week later the land was again being
cultivated with sugar cane and other crops. Arnot stated that when
they were destroying the crops adjacent to the farms of three of the
respondents the appellant and its employees were confronted by a
crowd of persons wielding axes, assegais, pangas, knives and sticks
and were threatened with death and injury. The appellant then
withdrew. On 27 January 2000 the respondents issued summonses against
the appellant for damages for destroying their crops. Realising that
the matter could not be amicably resolved, said Arnot, the appellant
decided to apply for an interdict against the respondents. It did so
by Notice of Motion dated 8 May 2000. The appellant alleged that it
was entitled to an interdict in that it had a prima facie or clear
right to do so being "the only person who may occupy, utilise,
cultivate or otherwise make use of the unallocated land";
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that
it had a well-grounded apprehension of irreparable harm were it not
to be granted; and that it had no other satisfactory remedy. It also
alleged that the matter was one of urgency and that the balances of
convenience favoured an interdict being granted. Although Arnot
mentions Tibiyo Taka Ngwane no affidavit from it was filed, Arnot
stating that appellant had not had time to get a properly attested
one from it.
On
9 May 2000 the High Court issued a rule nisi, pending the finalising
of the application, interdicting and restraining the respondents:-
(a) from
entering onto any portion of Farm 860 Vuvulane other than those
formally allocated to each of them and
(b) from
hindering or impeding the appellant "in its control over the
said farm".
The
respondents opposed the application. Their opposition amounted, in
essence, to the fact that the appellant had no locus standi to bring
the application; that there were numerous material disputes of fact
of which the appellant was aware and it was therefore not the proper
procedure for appellant to have brought the matter by way of
application but it should have done so by an appropriate action; that
there was no urgency about the matter; and that the requirements for
an interdict had not been satisfied on the papers by the appellant.
In
regard to the appellant's locus standi - or lack of it - the
respondents had this to say:
"the
applicant has dismally failed to show on the papers what authority it
has over the land in question. In fact it is appropriate
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to
clarify the position as follows. At its inception the architects of
the project was the Commonwealth Development Corporation (CDC) which
owned the land in issue. All the farmers who participated in this
project were granted leasehold over the portions of the land
allocated to them. In accordance therewith leases were drawn up at
the instance of CDC and signed by all the farmers. The duration of
the lease period was such that it terminated in 1987."
They
went on to deal with the conditions of the leases laid down by CDC,
including the payment of rental and the fact that each property would
be used exclusively for crop production. They then said:-
"(i) these
leases all expired in 1987 when the Ingwenyama in trust for the Swazi
nation bought back the land from CDC.......
(ii) the
late Ingwenyama, King Sobhuza II had assured farmers in 1981 that
they would continue their farming operations on the land but would no
longer pay rent.....(They would) resent the customary gifts (tetfulo)
to His Majesty ".....
(iii) Save
for providing water services to the farmers on hire, the applicant
has absolutely nothing to do with the operations of the farmers on
the land. " (the Ingwenyama is the King).
Finally
they said:
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"The
applicant has, on the papers failed to show any relationship between
it and the respective respondents. No contractual documents (Deed of
lease) has been filed setting out the rights and duties of the
respective parties especially in view of the averment that the
applicant is a "coordinator" between the respondents and
Tibiyo Taka Ngwane. No affidavit has been filed by Tibiyo confirming
these allegations; nor has the applicant demonstrated how Tibiyo is
involved in issues affecting the rights and duties of Swazis over
natural resource that vests in the Ingwenyama on behalf of the Swazi
Nation. "
The
averments by the respondents prompted the filing by the appellant in
the court a quo of a voluminous affidavit by one Ndumiso Mamba, the
General Manager of Tibiyo Taka Ngwane ("Tibiyo"), which he
described as a Swazi organisation established pursuant to a Royal
Charter in 1968.
Mamba
stated that the land on which Farm 860 Vuvulane is situated "belongs
to Indlovukazi who holds all the shares in the applicant"
(Indlovukazi is the Queen Mother). He said this:-
"The
applicant operates under the auspices of Tibiyo, who was appointed by
the Indlovukazi to protect the interests of the Ingwenyama and the
Indlovukazi in the land in question ".
He
attached a letter dated 21 March 1986 from the Indlovukazi, as Regent
of the Kingdom of Swaziland, in which she directs (I quote the
relevant passages):
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"That
Tibiyo Taka Ngwane has full and sole responsibility for the direction
and financing of the smallholder scheme known as Vuvulane Irrigated
Farms. That Tibiyo Taka Ngwane may establish such companies or other
legal bodies and may enter into such management or consultancy
agreements with companies or other organisations as Tibiyo in its
sole discretion may decide for the proper management and
administration of Vuvulane Irrigated Farms. That Tibiyo Taka Ngwane
shall have power to determine the terms upon which smallholders shall
occupy land at Vuvulane Irrigated Farms ".
Mamba
went on to aver that as Tibiyo was legally responsible for the
appellant and its funding, Tibiyo had locus standi in the matter.
He
also dealt in detail with the respondents' averments as to the
non-payment of rental. He set out that the water services are not
provided by appellant but the Inyoni Yami Swaziland Irrigation
Scheme, although appellant coordinates the water flow. He also dealt
with other aspects put in dispute by respondents. It is not necessary
for the purposes of this judgment to refer to them.
At
the hearing of the matter on the return day of the rule nisi the
respondents applied to strike out thirteen paragraphs in Mamba's
affidavit and the Indlovukazi's letter as constituting new matter
which should have appeared in the founding affidavit or was
irrelevant or was vexatious and prejudicial to respondents. Matsebula
J, who heard the matter, did not come to any conclusion on the
striking out application but said that
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"the
court had to partly focus its mind to it as it is i.e. the
application to strike out intricably (sic) interwoven with the
question of applicants locus standi."
In
the view I take of this matter it is also not necessary for this
Court to deal with the striking out application.
It
is well established that an applicant must make the appropriate
allegations in its launching or founding affidavit to establish its
locus standi to bring an application and not in the replying
affidavits (see Scott And Others v Hanekom 1980 (3) SA 1182c at 118 -
1189; Titty"s Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty)
Ltd and Others 1974(4) SA 362(T) and c.f. Ben M. Zwane v The Deputy
Prime Minister and Another, Swaziland High Court case No. 624/2000).
It
is equally well established that where there is a dispute of fact on
the papers in an interdict application a final interdict should only
be granted on notice of motion proceedings if the facts as stated by
the respondent together with the admitted facts in the applicant's
affidavits justify such an order. (see Stellenbosch Farmers Winery
(Pty) Ltd v Stellenvale Winery (Pty) Ltd 1957(4) SA 234(C), a
decision of a full bench of the Cape Provincial Division of the South
African Supreme Court which has been followed consistently and
applied in numerous cases both in South Africa and Swaziland.) What
the appellant was claiming in the Court a quo was a final interdict.
One of the requirements for a final interdict is that the applicant
for such relief must have the necessary locus standi to bring such
application. Another is that it must establish a clear right in order
to obtain the relief. (See Setlogelo v Setlogelo 1914 AD 221) This
must be a legal right (Lipschitz v Wattrus 1980(1) SA 662(T) at
673D.) It must do so in its founding papers. What
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it
has tried to do by filing Mamba's affidavit on behalf of Tibiyo is to
make out an entirely new case in its replying papers.
The
appellant has in my view not established a clear right. It says in
the founding affidavit, as set out above, that it is a company formed
"with the aims and objectives of providing certain sugar cane
farmers with access to parcels of land.......to assist and enable
such farmers to engage in productive sugar cane farming". It
does not say that it allocated the farms to the respondents. The
respondents say this was done by the Commonwealth Development
Corporation. They say the land now is owned by the King in trust for
the Swazi Nation. The respondents say that save in regard to the
water services the applicant has nothing to do with the operations of
the farmers on the land. The appellant does not say that it has any
rights whatsoever over the unallocated land. The appellant merely
says that it is the "coordinator" of the Vuvulane Irrigated
Farms Project "under the auspices of Tibiyo Taka Ngwane".
What being "the coordinator" means is nowhere set out by
the appellant nor what "under the auspices" means and
whether it involves anything more than Tibiyo keeping a fatherly eye
over its activities. These aspects are made clear in the passage from
the respondents' affidavit cited above.
Appellant
avers that it is the "legal custodian of the land". It is
nowhere set out by appellant how or why it makes such averment, and
it can therefore have no probative value for the purposes of the
appellant's application. Moreover, that averment is expressly denied
by the respondents. The appellant has failed to show in its founding
papers any nexus between it and the relief claimed.
The
learned judge a quo was therefore perfectly correct in holding that
the appellant had failed to establish any locus standi or entitlement
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to
the relief claimed by it and, accordingly, was also correct in
discharging the rule nisi, with costs.
The
appeal is dismissed, with costs.
P.H.
TEBBUTT, J
A
I
AGREE
D.L.
SHEARER, J
A
I
AGREE
S.W.
SAPIRE, J
A
DATED
AT MBABANE THIS.
13th.DAY
OF DECEMBER, 2000
