9
IN THE SUPREME COURT OF ESWATINI
JUDGMENT
HELD AT MBABANE CASE NO. 61/2023
In the matter between
NJABULISO BANDA APPELLANT
AND
INDVUNA MASOKA MATSENJWA FIRST RESPONDENT
THE NATIONAL COMMISSIONER OF POLICE SECOND RESPONDENT
Neutral Citation: NJABULISO BANDA v INDVUNA MASOKA MATSENJWA & ANOTHER (61/2023) [2024] SZSC (11 JUNE, 2024)
Coram : S. P. DLAMINI, S. B. MAPHALALA et M.D. MAMBA JJA.
Heard : 11 MARCH, 2024
Delivered : 12 JUNE, 2024
[1] Civil law – locus standi in judicio- nature of relief sought –applicant has to establish that he has legal standing to bring the application to court. Legal standing – meaning thereof restated. Lack of legal standing dispositive of application.
[2] Civil law – applicant alleging that he is an Indvuna of the Matsenjwa Umphakatsi. His role disputed. Evidence tending to dispute this tendered and not countered by anything. Real and material dispute of fact exists. Issue cannot be resolved on the papers and matter must either be dismissed or referred to oral evidence- rule 6 (17) of the High Court Rules. Trial court failing to realize dispute or fact- appeal upheld.
[3] Civil law and procedure – application for an interdict. Applicant having no legal standing to bring application- appeal upheld.
MAMBA JA.
[1] The first Respondent is Masoka Matsenjwa, an adult male Liswati of Gamula area, in the Lubombo region. On 26 June, 2023, he filed an urgent application before the High Court seeking inter alia, the following prayers:
‘3. Granting a rule nisi calling upon the [Appellant] to show cause on a date to be determined by the Honourable Court why an order in the following terms should not be made final.
3.1 Interdicting and restraining the [Appellant] and any other person acting on [his] behalf from preventing heavy plant machinery from clearing the land for Sugar Cane Farming Project and Solar Panel Installation Project.
3.2 Directing and ordering the [Appellant] and any other person acting on [his] behalf to allow the heavy plant machinery to enter the piece of land for purposes of completing clearing the land.
3.3 Directing and ordering the [Appellant] and any other person acting on [his] behalf to allow the solar panel installation project to continue without hindrance.
3.4 Directing and ordering the second Respondent or any member of the Royal Eswatini Police to ensure that the order is effectively executed and also assist in the service of the said order and application.
4. Paragraph 3-3.4 to operate with interim and immediate effect pending the return date of this application.
5. Costs of this application in the event that it is unsuccessfully opposed.’
[2] As the first Respondent’s title or appellation indicates, he stated that he was filing this application in his official capacity as the Indvuna of the Matsenjwa Umphakatsi. He stated that he was appointed as such in 2010. Officially, the Chief of the area is the late Mbekwane Matsenjwa.
[3] The Appellant is a resident of Gamula area and is also the subject of or under the jurisdiction of the said chiefdom or Umphakatsi. The first Respondent alleges that he is the Overseer or Indvuna of the said area.
[4] In support of his application, the first Respondent stated that a certain piece of land in Gamula was allocated to the community of the area in order for that community, inter alia, to grow sugar cane and have a solar panel plant erected. This allocation, he stated, was done by the Umphakatsi in 2018 and most of the local people, including the Appellant, were present when this project was officially commissioned on the identified land. The project is funded by the Government of Eswatini and tenders were awarded to certain entities to carry out the development projects.
[5] The first Respondent alleged that in or about June 2023, the Appellant came to the site where the project is earmarked to take place and stopped the people from clearing the area and told them to stop any and every activity in the area. He claimed that the land in question belongs to his family. Notwithstanding numerous efforts by the Umphakatsi and other local authorities to stop the Appellant from interfering with the development project, he has refused to do so. The first respondent stated also that the Umphakatsi had summoned the Appellant to the Umphakatsi over this issue, but he had failed and or refused to attend.
[6] The first Respondent stated that the land does not belong to the Appellant or his family but belongs to the Umphakatsi; in other words, the Umphakatsi did not allocate it to anyone, other than the current community allotment and designation.
[7] It was the first Respondent’s further allegation that the development project had already started and a lot of heavy plant machinery and equipment has been assembled at the site. He averred that the interference by the Appellant would cause the community irreparable harm inasmuch as the project may be derailed, or stopped or abandoned all together. He averred further that the financiers of the solar plant were ‘threatening to pull out of the project’. (See paragraph 9 page 12 of the Book). He thus sought the urgent injunction as stated in paragraph 1 above.
[8] It is not clear from the papers before this Court whether the interim Order was granted. The Appellant, however, did file his papers in opposition of the application.
[9] The Appellant raised legal points in limine namely,
8.1 Lack of legal standing to sue by the first Respondent. He asserted that the first Respondent was not the Indvuna of the area.
8.2 There was a dispute of fact in the application on the ownership of the land in question.
8.3 As the land in question was Eswatini Nation Land, an interdict could not be granted by the High Court; and
8.4 The first Respondent had failed to satisfy or establish the legal requirements for an interdict.
[10] All the above preliminary points were refused by the Court a quo in its judgment handed down on 26 July, 2023 (ex tempore). I must say that just a cursory examination of some of these objections would appear to me to be legal issues that can only be properly adjudicated upon based on factual material. For example, one would require evidential material; facts or factual counter allegations to indicate whether the first Respondent is indeed not the Indvuna of the area. Similarly, facts would be necessary to contest the ownership of the piece of land that is in the spotlight in this dispute. I accept that the issue of the injunction sought is a legal point.
[11] On the merits, the Appellant stated that;
11.1 The land in question belongs to his family and was allocated to them by the late King Sobhuza II. This is before the Matsenjwa Umphakatsi was established in the area. The Appellant also exhibited a letter dated 30 March, 2019 where the Umphakatsi allegedly confirmed that the land had been given to the Appellant’s family (See page 27 of Book).
11.2 The Appellant alleged that the land that was originally given to the Sugar Cane Association was not the one under consideration in this appeal and thus he did not object thereto. He, however, asserted that part of that land had subsequently been given to a certain business entity known as FT Garments. Because of this allocation, the Umphakatsi was seeking to compensate the Sugar Cane Association by giving it his family land.
11.3 Mr. Banda denied that he had ever been summoned, but refused to honour a call to the Umphakatsi to deliberate on the land dispute. He also denied having interfered with the construction of the community project. He, however, averred that ‘preventing the solar panel installation project over our family land can never be
described as an unlawful conduct’. (Paragraph 13 at page 23 of Book).
11.4 The Appellant stated that ‘without the land dispute having been determined and a ruling [thereon] made, the [first Respondent] cannot claim the prima facie right to such land. Worse, [first Respondent is not an Indvuna]’. (Paragraph 18 at page 24 of Book).
11.5 Finally, the Appellant argued that a final injunction could not be legally available to the first Respondent before the Umphakatsi could make a pronouncement or ruling as to the real ownership of the land in question.
[12] I have used the word ‘ownership’ in this judgment loosely to describe what is infact a lifelong usufruct over land. This is the case because Eswatini Nation Land is not owned by any individual or group of persons. It belongs to the nation as a single, indivisible entity. Any allotment to any individual or group is for use only.
[13] It is perhaps significant to observe that, in his replying affidavit, the first Respondent made the following assertions, namely:
‘. . . The Appellant seeks an interdict pending finalisation of the matter, as the Matsenjwa Royal Kraal called [Appellant] to deliberate the issue of the land in question’. (See paragraph 10 at page 32 of Book). However, he later stated that;
‘11.2 There is no matter to be determined by traditional authorities as the [Appellant] refused when called several times by the Inner Council of the Matsenjwa Royal Kraal. In that regard, I have no alternative remedy available at my disposal but to seek for an interdict’. Finally, he stated that ‘there is no way the Inner Council could have deliberated or resolved the issue in the absence of the [Appellant].’ (At paragraph 28 at 38).
It is, however, plain from the prayers stated in paragraph 1 above that the first Respondent applied for a final interdict. There was no prayer that the injunction be made operative pending some deliberations by the traditional authority over the land in question.
[14] In granting the application, the Court a quo held that there was no merit in the legal points made by the Appellant. First, the Learned Judge concluded that the Appellant had ‘made a mere allegation that the [first Respondent] was not the Indvuna; and maintained that, the Indvuna is the late Joseph Matsenjwa. Clearly an Indvuna should be amongst the living and not the dead.’ In effect, the Court a quo made two findings that are dispositive of
the points in limine and the application on the merits. Secondly, the Court held that there is no material or evidence, other than the mere allegations by the Appellant, to suggest that the first Respondent is not the Indvuna of Gamula. He was therefore such Indvuna and as such Indvuna he had the requisite locus standi to bring the application to Court. Secondly, on the issue of disputes of fact regarding the use of the piece of land in question, the Umphakatsi, in the form of the first Respondent was the rightful authority to make that call or determination and had infact made that determination by allocating it to the Sugar Cane Association and not the Appellant. This finding that the land was in the hands of the Umphakatsi ipso facto meant that the first Respondent had proven that the Umphakatsi had a clear right to the interdict. It is these two findings that have prompted this appeal wherein the Appellant raises three grounds of appeal. These may be summarised as follows:
(a) There was a dispute of fact on the papers regarding the right of use or ownership of the contested land and this dispute could not be resolved on the papers before Court.
(b) The first Respondent failed to establish that he was the Indvuna of the Matsenjwa Umphakatsi, and
(c) The Court was in error in granting the first Respondent a final interdict when he had only prayed for an interlocutory one.
[15] The issue of a dispute of fact in application proceedings before the High Court is regulated by Rule 6 (17) of the High Court Rules. It is not every dispute of fact that would render a matter inappropriate to be dealt with or determined in application proceedings. Where there is an averment that there is a dispute of fact which renders it irresoluble on the papers, and therefore the application ought to be either dismissed or referred to oral evidence on that specific issue, the Court must be satisfied that the alleged dispute is material and genuine. Its materiality must go to the root of the issue in dispute and which is central to or essential for a just decision of the matter. Herbstein and Vaan Winsen The Civil Practice of the Suprerior Courts in South Africa 3rd ed at 62 states as follows;
‘In Peterson V Cuthbert and Co.Ltd 1945 AD 420 at 428 “ In every case the court must examine the alleged dispute of fact and see whether in truth there is a real issue of fact which cannot be satisfactorily determined without the aid of oral evidence”, and it was pointed out that if this were not done the respondent might be able to raise fictitious issues of fact and thus delay the hearing of the matter to the prejudice of the applicant.’
This point was also made by the Court in Nokuthula N. Dlamini v Goodwill Tsela (11/2012) [2012] 28 SZHC (31 May, 2012) in the following terms:
‘[29] The established and the trite judicial practice which now determines the approach of the Courts world wide, to be found in a long line of cases across jurisdictions, is that a court cannot decide an application on the basis of opposing Affidavits that are irreconcilably in conflict on material facts. So where the facts material to the issues to be determined are not in dispute, the application can properly be determined on the Affidavits. It will amount to an improper exercise of discretion and an abdication of judicial responsibility for a Court to rely on any kind of dispute of fact to conclude that an application cannot properly be decided on the Affidavits. The Court has a duty to carefully scrutinise the nature of the dispute with microscopic lense to find out:-
(i) If the fact disputed is relevant or material to the issues for determination in the sense that it is so connected to it in a way, that the determination of such issue is dependent on or influenced by it.
(ii) If the fact being disputed, though material to the issue to be determined, but the dispute is such that by its nature, can be easily resolved or reconciled within the terms of the Affidavits.
(iii) If the dispute of a material fact is of such a nature that even if not resolved does not prevent a determination of the application on the affidavits.
(iv) If the dispute as to a material fact is a genuine or real dispute.
[30] A fact is material or relevant where the determination of a claim is dependent on or influenced fundamentally by it. Not all facts in a case are material. So it is only those that have a bearing on the primary claim or issue for determination in a way that they influence the result of the determination of the claim one way or the other. It is conflicts or disputes on such facts that are relevant in determining whether an application can be decided on Affidavits. If the conflict or dispute is not a material fact, the application can be decided on the Affidavits. If the dispute or conflict on a material fact but the dispute is of such a nature that it is reconcilable or resolvable on the Affidavits, then the application can be decided on the Affidavits. If the dispute on the material fact is of such a nature that it cannot prevent the proper determination of the application on the Affidavits, then the Court will decide the
application on the Affidavits. If the dispute on a material fact is not genuine or real, then the application can be determined on the Affidavit. This can arise where the denial of fact is vague, evasive or barren or made in bad faith to abuse the process of court and vex or oppress the other party. A frivolous denial raised for the purpose of preventing a determination of the application on the Affidavits or to instigate a dismissal of the application or cause a trial by oral or other evidence thereby delaying and protracting the trial as a stratagem to discourage or frustrate the applicant is a gross abuse of process. We cannot close our eyes to the high incidence of abuse of court processes. Parties often times do not show readiness to admit liability even when it is obvious that they have no defence to an application or a claim. Such a party, if he or she is a defendant or respondent, tries to foist on the plaintiff or applicant through the frivolous denials. The objective of Rule 6 is to avoid a full trial when there is no basis for it and avoid delayed and protracted trials in such cases. It is the duty of a Court to ensure that a law meant to facilitate quicker access to justice through the expeditious and economic disposal of obviously uncontested matters is not defeated by frivolous denials or claims.’’
These remarks are apposite in this appeal and are hereby repeated.
[16] The conclusion by the Court a quo regarding the issue of the Indvuna is, with due respect not entirely correct. The Appellant did exhibit the letter already referred to above, which letter was written by the Acting Chief in March, 2019. That letter specifically states that the Indvuna of Gamula is Joseph Matsenjwa. So, clearly there is at least material suggesting that the first Respondent, at least in 2019, was not the Indvuna of Gamula. But of course one should also bear in mind that the first Respondent alleged that he was appointed as the Indvuna in 2010. Again, the Court a quo reasoned, incorrectly in my view, that because the first Respondent was represented by the office of the Attorney General, which generally represents chiefs in Court proceedings, he was the rightful Indvuna. To my mind, an Indvuna is not appointed by the office of the Attorney General; let alone by mere legal representation. That the Attorney General may represent ‘anyone’ was indeed decreed by this Court in Swaziland Building Society v The Attorney General & 3 Others (7/2015) [2016] SZSC 16 (30 June, 2016), but again this does not mean that because a litigant claims to be acting on behalf of an Umphakatsi and is represented by the said office, that litigant has the requisite mandate to do so. (That the office of the Attorney General has a right to represent or act for any person in legal proceedings, seems, with respect, a bit doubtful to me).
[17] The issue of locus standi was defined by the court in Swaziland National Sports Council v Minister of Sports, Culture and Youth Affairs and 5 others (1455/13)2013SZHC214 (27September 2013) as follows;
‘[28] locus standi simply put is the right of a party to appear and be heard on the question before any court or tribunal. It is the right or competence to institute proceedings in a court for redress or assertion of a right enforceable at law. It is the legal capacity to institute proceedings in a court of law and is often used interchangeably with terms like “standing “ or “title to sue.”
[29] The question of locus standi is usually steeped in the atmosphere of the essential facts of a cause of action which are the constituent ingredients of an enforceable right. A person in whom this enforceable right is vested, is the person that has the locus standi to sue.
…
[31] The take home message from the aforegoing, is that the question of locus standi..is tied to the applicant’s pleading which must disclose a cause of action vested in it. The pleading should indicate the injury which the applicant suffered or it’s right which has been violated by the conduct of the respondents. The issue of locus standi therefore does not depend on the success or merits of the case, but on whether the applicant has sufficient interest in the subject matter of the dispute.’
[18] This Court also observes that inspite of the fact that the Locus standi of the first Respondent to prosecute the application was raised as a point in limine by the Appellant, the first Respondent was unable to substantiate his status as the Indvuna, in his replying affidavit. One would have expected some form of confirmation of this fact from the Umphakatsi. The issue remained disputed and the dispute was real and genuine in my view. For the above reasons, I am of the considered view that the Court a quo was in error in concluding that the first Respondent had satisfied the Court that he had the requisite locus standi to sue on behalf of the Matsenjwa Umphakatsi. Without legal standing to sue, the first Respondent fell and failed at the first hurdle and his application ought to have been dismissed or referred to trial.
[19] On the question of the ownership of the land, the Court a quo held that;
‘[11] . . . There is also no doubt that the Umphakatsi as the only structure responsible for the allocation of land in its Chiefdom, has the final say regarding who was allocated land in its Chiefdom.’
Whilst this may be a correct statement of the relevant law, this is subject to due process – in terms of Eswatini Law and Custom – having been followed. (The observations made by the Court in Bhekwako Dlamini and 5 Others v Chief Zulwelihle Maseko (33/2014) [2014] SZSC 84 (03 December, 2014) at Para 2-5 are instructive in this regard). Indeed the first Respondent repeatedly stated that the Umphakatsi had not had the chance to deliberate on the issue with the Appellant, as the latter had not made himself available for such deliberations. There was therefore, a real and live dispute of fact on whether the land in issue had been allocated to the family of the Appellant or whether it was firmly in the hands of the Umphakatsi. This conclusion logically and inevitably leads to the further conclusion that the first Respondent had failed to meet or establish the requirements of an interdict; a prima facie or clear right that was being or about to be violated. (See Indvuna Gangile Hlatshwayo N.O. and Another v Andreas Dingane Makhathu and Another (41/2020) [2020] SZSC 31 (30 September, 2020) at paragraph 19-20).
[20] In conclusion, the Court a quo observed that
‘Swazi Nation Land is allocated to individuals and families for use and not for ownership. Should the land in question not be used or cease to be used, it automatically reverts to the Umphakatsi for further allocation or use as the Umphakatsi deems fit. . . . since the land in question is vacant, I was satisfied that it has since reverted to the Royal Kraal for use by it as it deems appropriate.’
I am unable to agree with the submission by Counsel for the Appellant that the Court a quo made a finding as to who owns the disputed piece of land. The Court merely held that the Umphakatsi had the authority to make that finding. The automatic disinvestiture or reversion referred to above was the Learned Judge’s opinion of the applicable principles of Eswatini law and Custom.
As a general rule, the tenets of Eswatini Law and Custom must be proven as a fact by way of expert evidence in Court. It is for this reason that the Courts normally enlist Assessors in the determination of such issues. I can only say that the correctness of the automatic reversion referred to herein is doubtful.
[21] For the above reasons, I agree entirely with the Appellant’s submission that:
21.1 The first Respondent failed to show that he had the necessary legal standing to file the application on behalf of the Matsenjwa Umphakatsi.
21.2 Because of 21.1 above, that he had established a clear right for the interdict sought. And, that there was a real dispute of fact over the right of use of the piece of land in question. This dispute of fact was material and was irresoluble on the papers before the Court.
[22] For the above reasons, I would uphold the appeal and make the following order. Accordingly;
(a) The appeal is upheld and the order of the Court a quo is substituted with the following order:
‘The points raised in limine by the Respondent are upheld and the application is dismissed with costs.’
(b) The Respondents are ordered, jointly and severally, one paying the other to be absolved, to pay the costs of the appeal.
M.D. MAMBA
JUSTICE OF APPEAL
I AGREE
S. P. DLAMINI
JUSTICE OF APPEAL
I ALSO AGREE
S. B. MAPHALALA
JUSTICE OF APPEAL
FOR THE APPELLANT: MR. B. XABA
FOR THE RESPONDENTS: V. N. GUMEDE WITH HIM B. NKAMBULE
(Attorney General’s Chambers)