IN THE HIGH COURT OF SWAZILAND
JUDGMENT
Case No: 101/12
In the matter between
SIKHUMBUZO THWALA APPLICANT
and
PHILILE THWALA RESPONDENT
Neutral citation: Sikhumbuzo Thwala v Philile Thwala (101/12)
Coram: OTA J.
Heard: 31st January 2012
Delivered: 8th February 2012
Summary: Point in limine on the jurisdiction of the High Court over maintenance matters - Held S 2 of the Maintenance Act 1970, did not oust the inheret jurisdiction of the High Court to entertain all civil causes in the land pursuant to section 151 (1) (a) of the Constitution:- Point in limine dismissed.
[1] The Applicant launched an application for an order directing the Respondent to release the Applicant’s minor child, Phindasandze Thwala, to the Applicant’s custody at Maseyisini area in Nhlangano Shiselweni district, so that the child can be enrolled and attend Evelyn Baring Secondary School, when school opens on the 24th January 2012.
[2] Further that the Deputy Sheriff for Shiselweni district be authorized and directed to cause the minor child to be relocated to the Applicant’s custody.
[3] Finally that the Respondent be interdicted and restrained from interfering with the Applicant’s right of custody.
[4] The Respondent’s reaction to the foregoing application was to file a counter application, wherein she sought custody of the minor child, as well as maintenance, both for the minor child and herself.
[5] In the light of the counter application, the Applicant filed a notice of intention to oppose same, simultaneously with notice to raise points of law, on the jurisdiction of the High Court to entertain and determine the issue of maintenance, as well as disputes of fact.
[6] Since the question of jurisdiction is of such paramountcy in any Court proceedings that it is fatal to ignore it, I decided to first determine if I have the requisite jurisdiction to entertain the question of maintenance raised in the counter application, before taking any further steps in the matter.
[7] The parties filed their respective heads of argument and I heard oral argument from both sides on this point on the 31st of January 2012.
[8] It is the Applicants position, that it is the Magistrates Court falling within the district where the Applicant resides that has jurisdiction over the claim for maintenance and not the High Court. In this regard, Mr Simelane who appeared for the Applicant contended, that the Maintenance Act of 1970, confers exclusive jurisdiction on the Magistrates Court to deal with questions of maintenance to the exclusion of the High Court. He submitted that the High Court has only appellate jurisdiction over this issue as demonstrated by statute. Therefore, so goes the argument, Parliament via the Maintenance Act, created a specialist court in the Magistrates Court on questions of maintenance, which is akin to that created by The Industrial Relations Act 2000, as amended, in the Industrial Courts, with respect to industrial matters.
[9] Furthermore, that by the Act an inquiry where oral evidence shall be given has to be conducted in the Magistrates Court before the gazette maintenance officer, to determine the affordability or otherwise of the applicant before a determination of a reasonably affordable maintenance amount can be ordered by the Maintenance Court.
[10] Counsel relied on Sections 2,3,6,of the Maintenance Act, as well as Sections 6(4), 6(5) of the Maintenance Court Rules, and prayed the Court to decline jurisdiction.
[11] On the other hand, Respondent adopts the position that this Court is well within its jurisdiction to determine the maintenance issue before it. Mr Dlamini counsel for the Respondent contended, that this inherent jurisdiction of the High Court has its source in Section 151 (1) (a) of the Constitution Act 2005. He further contended that in as much as the Maintenance Act 1970 creates jurisdiction for the Magistrates Court in matters of maintenance, but the Act did not in the process forbid the High Court from entertaining such matters.
[12] Counsel relied on Section 6(21) (a) of the High Court Rules, Harms, Civil Practice in The Supreme Court page 83 and 94, Monageng V Botswana Telecommunication Cooperation and Another 2002 BCR 196 (HC) at 201 and Botswana Railways Organisation V Sestogo and others (1996) BLR, 763 CA, in contending this question.
[13] Now, it is the cardinal duty of every superior court of record to guard its jurisdiction jealously. It is thus a trite principle of law, that a statute purporting to oust or restrict the jurisdiction of the court must demonstrate such ouster in clear and unambiguous language. Once it is apparent from the language of such a statute, when juxtaposed with the facts of the case, that such an ouster was intended, then it is imperative for the Court to decline jurisdiction. This is due to the fact that, in as much as the Court has the duty to guard its jurisdiction jealously, it is not however the duty of the Court to expland its jurisdiction, that lies within the province of legislation. I had the occasion very recently, in the case of Big Games Park Trust t/a Mlilwane Wildlife Sancturay and another and Fikile Zandile Mabatha and others Case No. 2382/2009, judgment of the 6th of February 2012, to deal with the principles that must guide the Court in ascertaining whether a statute ousts the jurisdiction of the Court. In that case, I made references to several English authorities which demonstrate this principle, in pages 10 to 13 as follows:-
[14] ‘‘In Re Boaler (1915) 1KB 21 at 36 Scrutton J, demonstrated this position of the law in the following language:-
‘‘ One of the value rights of every subject of the King is to appeal to the King in his Courts if he alleges that a civil wrong has been done to him or if he alleges that a wrong punishable criminally has been done to him, or has been committed by another subject of the King. This right is sometimes abused and it is, of course, quite competent to parliament to deprive any subject of the King of it either absolutely or in part. But the language of any such statute should be jealously watched by the Courts and should not be extended beyond its least onerous meaning unless clear words are used to justify such an extension’’
[15] Furthermore, in Goldsack V Shore (1050) 1KB 708 at 712, Evershed MR, declared thus:
‘‘----the jurisdiction of the Kings Courts must not be taken to be excluded unless there is quite clear language in the Act alleged to have that effect’’
[16] Similary in Commissioner of Customs and Exercise V Cure & Deeley Ltd (1962) IQB 340 at 357, the Court held that:
‘‘ It is an important rule of interpretation of statute that a strong leaning exists against construing statute so as to oust or restrict the jurisdiction of the superior courts. It is also well known rule that a statute should not be construed as taking away the jurisdiction of the Courts in the absence of clear and unambiguous language to that effect’’
[17] Then there is the case of Anisminic V Foreign Compensation Commission (1969) I All ER 208, where Lord Reid stated as follows:-
‘‘ It is well established principle that a provision ousting the ordinary jurisdiction of the Court must be construed strictly-----meaning I think that, if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the Court’’.
[18] The foregoing position was amplified by Halsbury’s Laws of England Vol 9, 3rd edition, as follows:-
‘‘ The right of the subject to have access to the Courts may be taken away or restricted by statute but the language of any such statute will be jealously watched by the Courts and will not be extended beyond its least onerous meaning, unless clear words are used to justify such extension’’.
[19] It cannot therefore be gainsaid from the totality of the foregoing authorities, that the Courts jurisdiction can only be ousted by clear and unambiguous words of statute.
[20] In casu, the Applicant urges the Maintenance Act 1970, as having ousted the jurisdiction of the High Court, in Maintenance matters. His position is that the object of the legislature in enacting the Maintenance Act was to confer exclusive jurisdiction on the Magistrates Court over maintenance matters, thus establishing a specialized court in this wise. I have taken the liberty of closely and carefully scrutinizing the maintenance Act, and I find that I cannot agree with the Applicant on this proposition.
[21] There is no doubt that Section 2 of the Maintenance Act specifically details that a ‘‘court’’ in terms of the Act means
‘‘Magistrates Court of the first class presided over by a judicial officer nominated by the Chief Justice by notice in the Gazette to preside over such courts for the purposes of this Act’’
[22] There is also no doubt that Rule 6(4) of the Maintenance Court Rules, confers appellate jurisdiction on the High Court over the decisions of a Magistrates Court in maintenance matters, I do not however agree with the Applicant, that implicit from the combined effect of these two legislation, is that Parliament intended to confer exclusive original jurisdiction on the Magistrates Court over maintenance matters to the exclusion of the High Court. To hold such a restricted and myopic view would defeat the objects of the legislature. I say this because the High Court has inherent jurisdiction over all civil and criminal matters in the land except where such jurisdiction is expressly excluded by statute. This jurisdiction of the High Court derives from statute. The relevant statute is Section 151 (1) (a) of the Constitution Act No. 001 of 2005, which provides as follows:-
‘‘ 151 (1) The High Court has:-
unlimited original jurisdiction in civil and criminal matters as the High Court possesses at the date of commencement of this Constitution’’.
[23] This is the inherent jurisdiction of the High Court which entitles it to hear any matter, whether criminal or civil, except where it is expressly forbidden from doing so by clear and unambiguous words of statute.
[24] To buttress my stance on this subject matter, I call in aid the position of some of the authorities ably urged by the Respondent herein: one of which is Harms: Civil Practice in The Supreme Court, page 83, where it is stated as follows:-
‘‘Apart from powers specifically conferred by statutory enactments and subject to any specific deprivations of power by the same source, a Supreme Court can entertain any claim or give any order which at common law would be entitled to entertain or give. It is this reservoir of power which is referred to when one speaks of inherent jurisdiction of the Supreme Court, and which distinguishes the Supreme Courts from inferior Courts’’.
[25] Furthermore, is the case of Monageng V Botswana Telecommunication Cooperation and Another 2002 (supra) at page 201, where Mosjane J, declared as follows:-
‘‘-----this Court has unlimited jurisdiction in terms of S 95 (1) of the Constitution to ‘‘hear and determine any civil and criminal proceedings under any law and such other jurisdiction and powers as may be conferred on it by this Constitution or any other law’’ ---- ‘a court may----- dismiss the case as abuse of process or for other appropriate reasons’----- but it cannot refuse to exercise its jurisdiction in favour of another court’’
[26] It is worthy of note that Section 95 (1) of the Constitution of Botswana, confers unlimited jurisdiction on the High Court of Botswana in similar fashion as Section 151 (1) (a) of our Constitution.
[27] Then there is the pronouncement of Amissah JP, in the case of Botswana Railways organization V Setsogo and Others (1966) BLR (supra), where his Lordship said the following:-
‘‘ --------in my view, the unlimited jurisdiction conferred by the Constitution on the High Court must mean that the parties can take their dispute to the High Court, if they desire, and if they think the dispute is of a nature which is susceptible to settlement by the process of that Court.
[28] It is therefore overwhelmingly evident, that the High Court has unlimited original jurisdiction over criminal and civil cases, which jurisdiction can only be taken away by clear words of statute.
[29] This inherent jurisdiction of the High Court was clearly ousted in industrial matters, by the combined effect of Section 8 (1) of The Industrial Relations Act, of 2000 as amended, which expressly conferred ‘‘exclusive’’ original jurisdiction on the Industrial Courts in matters provided for under the Act, as well as Section 151 (3) (a) of the Constitution, which states in clear and unambiguous words that ‘‘the High Court has no original or appellate jurisdiction in any matter in which the Industrial Court has exclusive jurisdiction’’
[30] The legislative intent therefore which is beyond dispute was to create a specialist Court in Industrial Courts over industrial matters.
[31] In casu, there is no such provision either in the Maintenance Act or the Constitution which confers exclusive jurisdiction on the Magistrates Court in maintenance matters to the exclusion of the High Court. This fact was conceded by Mr Simelane in oral argument. I find his reliance on the situation of the Industrial Courts, in the circumstances, completely misconceived.
[32] It would appear to me therefore, that the Maintenance Act did not expressly or by necessary implication oust the jurisdiction of the High Court in maintenance matters, nor can the Act be read or extended to include such. If this was the intention of Parliament, it would have said so in clear and unambiguous language. What the Maintenance Act simply achieved was to confer jurisdiction in the Magistrates Court in maintenance matters, which jurisdiction is to be exercised concurrently with the High Court.
[33] It is therefore open to a party to a maintenance dispute to elect which court, whether the High Court or the Magistrates Court, to settle the dispute, taking into consideration the monetary jurisdictional limits of the Magistrates Court, which is any claim not exceeding E 30,000-00. My understanding of this monetary limit of the jurisdiction of the Magistrates Court, contrary to
Mr Simelane’s contentions, is that a Magistrates Court has no jurisdiction over monetary claims exceeding E30,000-00. This fact does not remove the inherit jurisdiction of the High Court over all civil causes in the land including monetary claims of E30,000-00 and below.
[34] Now, quite apart from the inheret jurisdiction of the court pursuant to the Constitution Act, the High Court is the custodian of all custody cases, and the natural fall out of such cases is the question of maintenance. I apprehend that this is why Rule 43 (1) of the High Court Rules, gives the High Court the authority to grant maintenance pendente lite. This is in appreciation of the fact that maintenance is in the best interest of the child, as every child has a right to the basic necessities such as food, shelter, clothing, medical care, education etc. The mere fact that the High Court has powers to grant maintenance pendente lite, presupposes that it has powers to grant substantive orders in these respects.
[35] I find it apposite at this juncture, to demonstrate one of the very recent cases in which the High Court exercised jurisdiction over the issue of maintenance pending a custody and divorce proceedings, with a nod of approval from of the Supreme Court. The case in point is the case of Millicent Nomalungelo Fakudze (nee Ngwekazi) V Mvuselelo Fakudze In re Millicent Nomalungelo Fakudze (nee Ngwekazi) V Mvuselelo Fakudze Case No. 788/2008, judgment of the 19th December 2011 per Sey J.
[36] A brief history of this case as depicted in paragraphs 2,3and 4 of the said judgment will help forster a better understanding of its nexus with the case instant. These paragraphs state as follows:-
‘‘ (2) On the 4th day of March 2008, the Applicant herein, Millicent Nomalungelo Fakudze (nee Ngwekazi), brought on application under Civil Case No. 788/08 in terms of Rule 43 (1) of the High Court Rules which provides as follows:-
‘‘ This rule shall apply whenever a spouse seeks relief from the Court in respect of one or more of the following matters:-
a) maintenance pendent lite
b) a contribution towards the costs of a pending matrimonial action
c) interim custody of any child
d) interim access to any child ’’
(3.) The Applicant sought an order in the following terms:-
‘‘ 1. The Respondent be directed to pay E1,500-00 (One Thousand Five Hundred Emalangeni ) per month in respect of maintenance of the Applicant pending finalization of the main action.
2 The Respondent be directed to pay E5,000-00 (Five Thousand Emalangeni) in respect of maintenance of his two (2)children.
3. The Applicant be granted custody of two (2) minor children namely Bonginkhosi Fakudze and Siphesihle Fakudze.
4. Further and/or alternative relief.
(4) The aforesaid application was heard by Mabuza J and determined in her judgment dated 6th August 2010. However the Respondent herein, being dissatisfied with the said judgment lodged an Appeal in the Supreme Court of Swaziland. ’’
[37] It is worthy of note that the Supreme Court in paragraphs (13) (14) and (15) of it’s decision in Civil Appeal Case No. 37/2010, delivered on 31st May, 2011 referred the matter back to the High Court for an urgent proper determination of the amounts of interim maintenance to be paid to the Respondent in her personal capacity, as well as the amounts of interim maintenance to be paid for the minor children of the parties, pending final determination of the main action. The matter proceeded back to the High Court and was disposed of by Sey J, in her judgment of 19th December, 2011.
[38] It is beyond any per adventure therefore, that this Court does have original juridsdiction over maintenance matters. Since the question of custody is also pending before this Court, the Respondent was thus within her rights to pursue maintenance before this forum. To have proceeded with the issue of maintenance at the Magistrate Court in the circumstances, would tantamount to piecemeal litigation, which is abhorred by the Courts.
[39] It is for the totality of the foregoing reasons that I find the point in limine on the jurisdiction of this Court, as lacking in merits. It accordingly fails in it’s entirely. In the circumstances, I make the following orders:-
That the point in limine on the jurisdiction of the High Court to entertain and determine the issue of maintenance herein, be and is hereby dismissed.
No order as to costs.
For Applicant: Mr S. Simelane
For Respondent: Mr M. S. Dlamini
DELIVERED IN OPEN COURT IN MBABANE ON THIS
THE ……………………..DAY OF …………………….2012
OTA J.
JUDGE OF THE HIGH COURT
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