IN THE HIGH COURT OF SWAZILAND DUMA MSIBI
Applicant

And

(Instructed by V.Z. Dlamini
Attorneys)

th

th
and 5 Respondents busy ploughing at his farm. He did not approach them as they have a history of aggression and are prone to violent tendencies and feared that the confrontation could turn into a violent situation. Consequently the Respondents continued with ploughing the land in his farm. At paragraph 13 of his Founding affidavit averments are made to prove urgency and that he has no other remedy save that the Respondents be interdicted. At paragraph 14 averments are made to the effect that he has a clear right on the property and further at paragraphs 15, 15.1, 15.2 and 15.3 averments are made on the balance of convenience. Furthermore at paragraph 16 of the affidavit averments are made to the effect that he cannot be afforded substantial judicial redress at the hearing in due course.

[7] Further, it is contended on behalf of the Applicant that the Respondents cannot rely on having acquired the land through prescription because:

[9] The Applicant fired a final salvo that the right of the owner over the land and disposal by another third party is protected by the Constitution Act No. 2005 in Section 19 (2). That the common law principle has been repealed by the constitutional provisions by clearly providing for the procedure for disposal of land from the rightful owner with due process of the law.

[10] The Respondents as represented by Advocate Maziya contends otherwise. Firstly, it was contended for the Respondents that the Applicant in the present matter has dismally failed in his Founding affidavit to make out a case warranting the granting of a final interdict. The following reasons were advanced in Respondents' Heads of argument in paragraph 4 thereof as follows:

[14] The first issue for decision is the Applicant's argument premised under the Farms Dwellers Control Act to the general proposition that a farm dweller cannot engage in anything within the farm without the consent of the owner who regulates in detail the stay of farm dwellers therein.   The

". ..In order to avoid misunderstanding it should be pointed out here that mere occupation of property "nec vi, nec clam, nec precario" for a period of 30 years does not necessarily vest in the occupier a prescriptive title; such occupation must be a user adverse to the true owner and not occupation by virtue of some contract or legal relationship such as lease or usufruct which recognizes the ownership of another".

[18] Lastly, I have come to the considered view that Section 19 (2) of the Constitution Act of 2005 applies to the facts of the present case.