IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE
Civil Case No. 1980/2000
MAD ALA SHONGWE 1st Applicant
FOHLOZA ZWANE 2nd Applicant
And
ISAAC MAVIMBELA 151 Respondent
JOEL MAVIMBELA 2nd Respondent
THISHELA NDZIMANDZE 3rd Respondent
AMOS NDZIMANDZE 4th Respondent
Coram: S.B. MAPHALALA – J
For the Applicants: IN ABSENTIA
For the Respondents: MR. S. DLAMINI
JUDGMENT
18th June 2008
[1] This matter being Civil Case No 1980/2000 was called with another being Civil Case No. 3028/2006 where Mr. Magongo appeared in the latter. It appeared that the former case appeared before Shabangu J (as he then was) where judgment was never delivered until the demise of the learned Judge. Mr. Dlamini for the Respondent urged the court that it proceeds with both matters as they are substantially the same. Mr. Magongo for the Applicant in Civil Case No. 3028/2006 objected that Case No. 1980/2000 ought to be disposed first. I agreed with him and I ordered that Case No. 3028/2006 be postponed sine die and I heard arguments from Mr. Dlamini relating to Civil Case No. 1980/2000.
[2] The Applicants in Case No. 1980/2000 moved an application on Notice of Motion for an order in the following terms:
1. Interdicting and/restraining the respondents and their agents or employees from removing, disturbing or interfering and/or damaging any of the houses, buildings or property which forms an intergral part of the Applicants' property a farm No. 474.
2. Interdicting and/or restraining the Respondents and/or their agents or employees from harassing, threatening and/or evicting the Applicants from farm No. 474.
3. Directing the Respondents to remove and/or destroy the barbed wire they have erected on farm 474.
4. An order declaring that the Applicants are the lawful occupiers of farm 474.
5. Declaring that the Respondents are not the lawful owners of farm 474.
6. Costs of suit.
7. Further and/or alternative relief.
[3] The application is founded on the affidavit of the 1st Applicant where he relates all the material facts in the dispute. The 2nd Applicant Fohloza Zwane has filed a supporting affidavit to 1st Applicant's Founding Affidavit. A number of annexures are filed including annexure "MSI", "MS2".
[4] The Respondents oppose the granting of the above cited orders in paragraph [2]. In this regard the opposing affidavit of the 3rd Respondent Thishela Ndzimandze is filed thereto. A further supporting affidavit of Humphrey Horseman Henwood is filed by the Respondents. The Respondents have also filed a Deed of Sale as annexure "A". Receipts from the offices of William F. Mthembu are also filed thereto.
[5] When the matter was called on the 8th April 2008, there was no appearance for the Applicants. I was informed by Counsel for the Respondents that Applicants were served with a Notice of Set-down way back but have not appeared before court to argue the matter. I allowed Counsel for the Respondent to proceed with the matter as I was satisfied that Applicant had knowledge of the proceedings that day.
[6] In arguments before me Counsel for the Respondents argued that the Applicants have not proved the requirements of a permanent interdict as they have failed to prove that they have a clear right. Secondly, that in casu there are disputes of fact which cannot be reconciled on the papers.
[7] The legal authority of Prest, The Law and Practice of Interdicts, Juta, 1996 at page 42 states the requirements of a final interdict comprehensively. I have considered the arguments advanced by Counsel for the Respondents and I have come to the considered view that Applicant's have not proved a clear right as stated by the above-cited legal authority.
[8] I also find that in casu there are disputes of fact as stated by Counsel for the Respondents.
[9] In the result, for the afore-going reasons the application is dismissed with costs.
S.B. MAPHALALA
JUDGE