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IN
THE COURT OF APPEAL OF SWAZILAND
HELD
AT MBABANE Appeal Case No. 30/2000
In
the matter between
VIF
LIMITED Appellant
Vs
VUVULANE
IRRIGATION FARMERS
ASSOCIATION
(PUBLIC) COMPANY
(PROPRIETARY)
LIMITED First Respondent
AMOS
MHLUPHEKI MATHONSI Second Respondent
Coram:
P.H. TEBBUTT, J
A
DL.
SHEARER, J
A
S.W.
SAPIRE, J
A
For
Appellant: Ms J.M. van der Walt
For
Respondent: Mr. L. Mamba
JUDGMENT
TEBBUTT,
J
A
Deciding
that the appellant, who had been granted a rule nisi by the High
Court in an application for an interdict against the respondents, had
no locus standi to have brought the application, Matsebula J
discharged
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the
rule nisi on the return day, with costs. The appellant now comes on
appeal to this Court against that order.
The
appellant is a company V.
I.
F.
Limited (VTF) with its principal place of business at VIF offices on
Farm 860 Vuvulane, Lubombo Region, Swaziland. The first respondent is
Vuvulane Irrigation Fanners Association (Public) Co. Ltd (VTFA) a
company incorporated in 1989 with its principal place of business
also at Farm 860, Vuvulane. The second respondent, to whom I shall
refer as Mathonsi, is its managing director.
In
a founding affidavit on behalf of the appellant, who was the
applicant in the High Court for the relief to which I shall later
refer herein, its general manager, one Arnot stated 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
stated further that Farm 860, Vuvulane had been "placed at
appellant's disposal" and it was "charged with the
responsibility and authority inter alia of leasing portions of land
and/or buildings to other parties. The farm consists of land
allocated for farming, some portions of which have dwellings on them,
the VIF Senior Staff Village which is a residential village and a few
other villages. The first respondent i.e.
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VIFA
was formed by farmers to whom, so Arnot averred, farming land had
been allocated by appellant.
During
1993 VIFA required an office and appellant agreed to let to it for
use as offices, a house described as House 13, in the Senior Staff
Village. Arnot said it was agreed that the premises would be used
only as an office and not for residential or other purposes. It was
further agreed that the lease would terminate once VIFA had obtained
offices elsewhere. In 1995 VIFA obtained offices elsewhere but it was
agreed to renew the original lease, the duration thereof being
subject to the decision of the VTF Libandla, a committee appointed by
the King to prepare a report on the future of the farms project. In
November 1999 the Libandla advised that VIFA should cease its
operations in House 13 but, said Arnot, attempts to get VTFA to move
proved fruitless.
Arnot
averred that over the years appellant had experienced difficulties
with VIFA as a tenant including non-payment of rental and use of the
premises for purposes other than an office. It was storing and
allowing to be manoeuvred in the yard of the premises which was only
25 by 25 metres large, crane haulage rigs, loaders, including road
digger front loaders, tractors, trucks, and trailers as well as a
steel diesel storage tank with a capacity of about 10 000 litres and
a fuel pump. The yard was being used to refuel vehicles and machines,
with no fire precautions in place, with attendant security, accident
and health risks. Letters addressed to VIFA requesting it to desist
had been ignored. VIFA was advised that the gates to the village
would be closed from 1 May 2000 and apart from permitting the removal
of VTFA's vehicles, machinery and equipment, no further access by
VIFA to the village would be allowed. On 2 and 3 May 2000, said
Arnot, Mathonsi and others barricaded the
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access
road to the village, with threats of violence to appellant and its
employees. The barricade was removed on 3 May 2000 but the vehicles
simply returned to the premises. On 5 May 2000 VIFA applied for a
spoliation order against the appellant. This was, however, withdrawn
on 8 May 2000. Appellant on the same day applied to the High Court
for an interdict, the gist of it being as follows:
(a) restraining
the respondents from entering the VIF Senior Staff Village for any
purpose other than to proceed directly to House 13 or to remove their
vehicles, equipment or other items from the premises.
(b) Restraining
the respondents from bringing any further vehicles, equipment or
other items on the premises;
(c) Restraining
the respondents from causing any interference, obstruction or
disturbance in the immediate vicinity of the village or hindering or
impeding the appellant "in its control over the village ".
It
also claimed in the same application an order.
(i) that
the lease agreement between the parties in respect of the said
premises be declared to be cancelled;
(ii) that
the first respondent and all its office holders, staff,employees and
representatives be ejected forthwith from the premises;
(iii) that
the first respondent be directed to remove all its vehicles,
equipment or other items from the premises.
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On
9 May 2000 the High Court granted a rule nisi, returnable on 19 May
2000, that pending finalisation of the appellant's application, the
respondents be interdicted and restrained from bringing any further
vehicles or other items on to the premises, from refuelling any
vehicle on the premises and from hindering or impeding the appellant
in its control over the village.
The
Court did not make any order in respect of the issue of the lease or
the ejectment of the respondents from the premises.
On
the return day the respondents opposed the making final of the rule
nisi and asked that it be discharged.
In
essence their opposition was that the appellant had no locus standi
to bring its application as the property in question was "held
by the Ngwenyama in trust for the Swazi Nation" (The Ngwenyama
is the King). They averred that "the Commonwealth Development
Corporation had leased land to individual farmers, when it
transferred the land to the Ngwenyama in trust for the Swazi Nation,
the farmers continued in occupation of this land. Applicant was
formed after the farmers were already in possession of the land in
question".
They
stated that appellant and respondents had entered into a written
lease agreement on 16 July 1990 in respect of House 13 and took
occupation of it during July 1990. They denied that it was to
terminate when they obtained offices elsewhere. Respondents admitted
keeping the vehicles, machinery and other equipment on the premises
but denied that it was contrary to the lease agreement to do so,
especially farm implements such as tractors. They denied having
committed any breach
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of
the lease agreement, or that the Libandla had advised VIFA to cease
operations on the premises either during November 1999 or at any
other time. The appellant had, they said, unilaterally and without
just cause decided to evict them from the premises notwithstanding
that the Libandla set up by the King was still preparing its report
as to how the scheme was to be run. Respondents also denied erecting
any barricades. They said that the appellant had locked the gates and
the tractors on their return from the fields could not get back to
House 13 and had to stop at the gates. There was a lot of confusion
as to where the drivers should park them. It was this which had
prompted respondents to apply for a spoliation order which they
withdrew when appellant opened the gates.
The
respondents went on to aver that their members had not harmed or
threatened harm to anyone; that appellant's apprehended injury was
imagined; and that there was no urgency about the matter. Moreover
there was a considerable dispute of fact which the appellant should
have anticipated and have proceeded by way of action rather than
notice of motion.
In
response Arnot on appellant's behalf filed a lengthy replying
affidavit dealing with the respondent's denial that appellant had
locus standi to bring the application and filed, in support of his
allegations in regard thereto, a voluminous affidavit by one Ndumiso
Mamba, the general manager of Tibiyo Taka Ngwane, which he described
as a Swazi organisation established pursuant to a Royal Charter in
1968.
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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):
"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 ".
He
contended that on the basis of the aforegoing, the appellant had the
requisite locus standi. Mamba went on to aver that as Tibiyo was
legally responsible for the appellant and its funding, Tibiyo had
locus standi in the matter.
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Mamba's
affidavit was one which VIF had filed in a related matter viz case
no. 1270/2000, being V.
I.
F.
Limited vs Moses Mathungwa and 10 others. Much of it related to that
matter and not to the present one. It is accordingly not necessary
for the purposes of this judgment to refer to the detailed
allegations set out therein.
At
the hearing of the matter on the return day of the rule nisi, the
respondents raised a number of points in limine. the main ones being
that the appellant had not established its locus standi. that the
appellant had not established a clear right which was one of the
pre-requisites for a final interdict and that there was a serious
dispute of fact which was a bar to the relief being granted.
Matsebula. J who heard the matter found that the points in limine
were well taken and discharged the rule, with costs.
That
rule, as set out above, did not refer to the ejectment application or
the issues in regard to the lease between the appellant and VIFA. The
learned judge added in his order the following:-
"It
is left to the litigants what the next step will be ".
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 1182 C
at
118 - 1189: Tittv'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 a final interdict should only be granted on notice of
motion
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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 (see Setlogelo v Setlogelo 1914 AD 221) in order to
obtain the relief. This must be a legal right (see Lipschitz v
Wattrus 1980(1) SA 662(1) at 673D). It must do so in its founding
papers. What it has tried to do by filing Mamba's affidavit on behalf
of Tibiyo is to make out an entirely-new case in regard to its locus
standi to bring interdict proceedings. The respondent's affidavits
have raised disputes of fact as to appellant's entitlement to the
land and to the exercise by it of any rights in regard thereto as
contained in the founding papers and the Court cannot in the light of
these find that it has the necessary locus standi. Moreover there are
indeed serious disputes of fact as to whether VIFA or its members are
committing any transgressions which would entitle the appellant to
the relief sought. In other words, it has not established a clear
right.
The
learned Judge a quo was therefore perfectly correct in holding that
the appellant had failed to establish any locus standi or entitlement
to the relief claimed by it and, accordingly, was also correct in
discharging the rule nisi, with costs.
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As
mentioned, the matter before the Court a quo did not concern the
lease or ejectment issues.
In
regard to them it would appear that the appellant had the requisite
locus standi. Appellant avers that it had let to VIFA House 13 in
terms of a valid lease agreement. VIFA admits that. Since a landlord
warrants to his tenant no more than vacuo possessio the tenant is not
permitted to challenge the landlord's title (see Clarke v Nourse
Mines Ltd
1910
TPD 512 at 520 - 521).
The
appellant claims in its notice of motion an order that the lease
agreement be declared cancelled and that VIFA be ejected from the
premises. That relief has not been the subject of a rule nisi or of
the subsequent Court order and accordingly the notice of motion
containing the application for such relief stands unaffected in the
High Court. The High Court must therefore deal with it. It must be
observed, however, that, once again, there are serious disputes of
fact in respect of that application. It will be for the High Court in
the circumstances to determine what order it should make i.e. to
refer the matter for oral evidence or to make such other appropriate
order as it may deem fit, including an order as to costs.
The
following order is therefore made:-
1. The
appeal against this decision of Matsebula J in Appeal No. 30/2000
discharging the rule nisi, with costs in case no. 1269/2000 is
dismissed, with costs.
2. The
application in Case No. 1269/2000
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(a) that
the lease agreement between the parties in respect of the said
premises be declared to be cancelled; and
(b) that
the first respondent (VIFA) and all its office holders, staff,
employees and representatives be ejected forthwith from the said
premises, is referred back to the High Court for determination.
TEBBUTT,
J
A
I
AGREE
SHEARER,
J
A
I
AGREE
SAPIRE,
J A
DATED
AT MBABANE THIS.....13th......DAY OF DECEMBER, 2000
