Dlamini v Prince Chief Gasawangwane (93 of 2018) [2019] SZSC 40 (9 October 2019)

# Dlamini v Prince Chief Gasawangwane (93 of 2018) [2019] SZSC 40 (9 October 2019) [ __](https://api.whatsapp.com/send?text=https://eswatinilii.org/akn/sz/judgment/szsc/2019/40/eng@2019-10-09) [ __](https://twitter.com/intent/tweet?text=https://eswatinilii.org/akn/sz/judgment/szsc/2019/40/eng@2019-10-09) [ __](https://www.facebook.com/sharer/sharer.php?u=https://eswatinilii.org/akn/sz/judgment/szsc/2019/40/eng@2019-10-09) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://eswatinilii.org/akn/sz/judgment/szsc/2019/40/eng@2019-10-09) [ __](mailto:?subject=Take a look at this document from EswatiniLII: Dlamini v Prince Chief Gasawangwane \(93 of …&body=https://eswatinilii.org/akn/sz/judgment/szsc/2019/40/eng@2019-10-09) [ Download DOC (532.0 KB) ](/akn/sz/judgment/szsc/2019/40/eng@2019-10-09/source) Toggle dropdown * [Download PDF](/akn/sz/judgment/szsc/2019/40/eng@2019-10-09/source.pdf) Report a problem __ * Share * [ Download DOC (532.0 KB) ](/akn/sz/judgment/szsc/2019/40/eng@2019-10-09/source) * [Download PDF](/akn/sz/judgment/szsc/2019/40/eng@2019-10-09/source.pdf) * * * * * Report a problem __ ##### Dlamini v Prince Chief Gasawangwane (93 of 2018) [2019] SZSC 40 (9 October 2019) Copy citation * __Document detail * __Related documents * __Citations \- / 1 Citation Dlamini v Prince Chief Gasawangwane (93 of 2018) [2019] SZSC 40 (9 October 2019) Copy Media Neutral Citation [2019] SZSC 40 Copy Court [Supreme Court of eSwatini](/judgments/SZSC/) Case number 93 of 2018 Judges [Maphalala CJ](/judgments/all/?judges=Maphalala%20CJ), [Currie AJA](/judgments/all/?judges=Currie%20AJA), [Matsebula AJA](/judgments/all/?judges=Matsebula%20AJA) Judgment date 9 October 2019 Language English Court Roll [Download PDF](/akn/sz/judgment/szsc/2019/40/eng@2019-10-09/attachment/dlamini-v-prince-chief-gasawangwane-2019-szsc-40-9-october-2019.pdf) (635.2 KB) Summary Read full summary * * * Skip to document content IN THE SUPREME COURT OF ESWATINI ···--..............;.........,;;..;............;--=....=.;;;~..;;;.;.;;=-=.;.: JUDGMENT Case No.: 93/2018B In the matter between: ETHEL DLAMINI (BORN GULE) Appellant And " PRINCE CHIEF GASAWANGWANE Respondent In re: ETHEL DLAMINI (BORN GULE) Appellant And PRINCE CHIEF GASAWANGW ANE Respondent :i Neutral Citation: _Ethel_ _Dlamini_ _(Born_ _Gule)_ _vs_ _Prince_ _Chief_ _GasawaNgwa_ _n_ _e_ (93/20 l 8B) [2019] _SZSC_ 40 (_8_ _October_ _2019)._ Coram: M.C.B. MAPHALALA CJ, S.J.K.MATSEBULA AJA AND J.M. CURRIE AJA. Heard: 17th September 2019 Delivered: 9th October 2019 **SUMMARY:**_Civil_ _Procedure_ _-_ _Late_ _filing_ _of_ _the_ _record-_ _-_ _Application_ _for_ _condonation_ _did_ _not_ _meet_ _required_ _threshold_ _-_ _Court_ _mero motu,_ _in the_ _interests_ _o_ _f_ _justice_ _granted_ _Condonation_ _-_ _Costs awarded_ _aga_ _i_ _nst_ _attorney_ _de_ _bonii_ _s_ _propriis_ _for_ _negligence_ _of_ _attorney_ _-_ _appeal_ _for_ _an_ _interdict_ _pending_ _determination_ _of_ _complaint_ _lodged_ _to_ _Regional_ _Administrator_ _-_ _requirements for_ _such_ _an_ _interdict_ _considered_ _-__Held_ _that_ _Appellant_ _had_ _met the_ _requirements_ _of_ _an_ _interim_ _interdict_ _and_ _entitled_ _to_ _same_ _-_ _Court_ _ha_ _s_ _jurisdiction_ _to_ _grant_ _an_ _interim_ _interdict_ _pending_ ., _determination_ _of a_ _dispute_ _by_ _traditional_ _structures._ **JUDGMENT****CURRIE-AJA** **INTRODUCTION** [ 1] The appellant filed an application in the Court _a_ _quo_ for an interim interdict pending the determination of a complaint made by the appellant to the Regional Administrator, Shiselweni Region. The appellant sought the following orders: ( a) That the respondent be interdicted from preventing the appellant from installing a fence around the old Umphakatsi of Qomintaba, Lavumisa where she resides; (b) That the respondent be interdicted and restrained from preventing the appellant from constructing a new toilet at the old Umphakatsi where she resides; ( c) That the respondent: be ordered to restore the field he dispossessed the appellant of and that he re-install the barbed wire fence around the said field. [2] The Court _a_ _quo_ refused to grant the application resulting in the instant appeal. **BRIE****F****FACTUAL** **BACKGROUND** [3] The appellant was married in 1977, to the respondent's brother, the late Prince Lomahasha in terms of Siswati customary law. Since her marriage the appellant lived at Qomintaba Umphakatsi and bore five children. She was given a field by Prince Tsekwane in which to grow crops which she did until 2015 and she enjoyed peaceful and undisturbed possession of the field. The Umphakatsi was fenced and access to the Umphakatsi was through a gate which opened every morning to allow community members to enter. [ 4] After the death of Prince Tsekwane the respondent was installed as Chief of Lavumisa and he constructed his homestead across from the old Umphakatsi and this became the new Umphakatsi where community ) meetings are held. Pursuant to this construction he removed the cattle kraal and the roof of the main hut, and ploughed the field which was in the undisturbed possession of the appellant, without informing the appellant or seeking her consent. [5] The appellant is the only ~me left at the old Umphakatsi where she lives .I alone following the death of her husband, save that occasionally her children or grandchildren stay with her from time to time. In 2016 she began constructing a new toilet on the old Umphakatsi as the old toilet had filled up and had become a health hazard. The respondent, without notice to the appellant, sent men to fill the new toilet. The appellant feels that the respondent is intent on: driving her out of her homestead. ( 6] As a result of the actions of the respondent the appellant lives in a home that is neither safe nor protected. Domestic animals including goats, donkeys and cattle roam around the homestead at will and defecate all over her property. She is also not safe from intruders. [7] The appellant's children commenced fencing the homestead in order to protect her and her property whereupon she was immediately served with an order interdicting her from fencing the homestead. The appellant has 4 also been deprived of her only field in which to plant crops. [8] The appellant has lodged a complaint against the respondent with the Regional Administrator of the Shiselweni district, whose decision is still awaited. In the interim she does not live in a secure or hygienic r environment. It is her case that she has a _prima_ _facie_ right to the homestead in that she has lived there since 1977 including the fields allocated to her by Prince Tsekwane. [9] In the circumstances the appellant felt that she had no alternative remedy but to pursue an interim application in the High Court. I [10] The court _a_ _quo_ dismissed the application, finding firstly, that the relief sought by the appellant was final in nature. Secondly, that to grant such orders would usurp the powers of the Regional Administrator. Thirdly, that there was an alternative to remedy the prayers sought in that when the court _a_ _quo_ held an inspection _in_ _loco_ it was discovered that it was intended to construct a joint perimeter fence which would encompass both the old Umphakatsi and the new Umphakatsi. There was a pit latrine toilet to be shared by both the old Umphakatsi and the new Umphakatsi as well as shared fields. Having discovered these facts the learned judge _a_ _quo_ came to the conclusion that the appellant does not suffer any prejudice pending the decision of the Regional Administrator. **CONDONATON** [ 11] The appellant had noted au appeal against the judgment of the court _a_ _quo_ on the pt November, 2018\. The record was filed on the 12th February 2019, more than two months late and thus out of time in terms of Rule 3 0 ( 1) of this Court. There was no application for an extension of time in terms of Rule 16(1) and in accordance with Rule 30(4), the appeal was deemed to have been abandoned. The appellant filed an application for condonation 1 in terms of Rule 17 for failure to comply with Rule 30 (1). The appellant's counsel sought leave to submit heads of argument in respect of the condonation application from the bar and the application was refused. The appellant's attorney submitted that the file was inadvertently archived and that this was the reason for the delay in filing the record. He argued that there are good prospects of success on appeal in that the court _a_ _quo_ held . I that the application was for final relief whereas the appellant had only sought an interim interdict pending the final determination of the dispute by the Regional Administrator. These allegations were merely a re- i statement of the notice of.appeal and the applicant did not deal in detail with the prospects of success as required. [12] The application was opposed by the respondent on the basis that the appellant has failed to demonstrate her prospects of success on appeal and had merely re-stated the ' grounds of appeal in the notice of appeal. Furthermore, the respondent contended that the appellant had not demonstrated that she would suffer irreparable harm if the interdict were not granted. [13] The appellant has simply ignored the well established law in Eswatini and the application has been brought in defiance of the Rules of this Court and at the peril of the appellant. Not only was there not an application for extension of time to file the record in order to ward off a deemed lapse of the appeal but insofar as an application for condonation could be accepted instead, the appellant's application fell short woefully. There is a plethora l of authorities regarding the requirements to be met by a party applying for extension or condonation which the appellant has ignored. The requirements include that a party applying for condonation is required, as soon as becoming aware of the omission or commission, to launch an ,, application for condonation, in which application the party must address fully the prospects of success and must give a reasonable explanation for the omission or commission. See De Barry Anita Belinda and A G Thomas (Ptv) Ltd Appeal Case No 30/2015) and in Maria Ntombi Simelane and Nompumelelo Prudence Dlamini and Three Others in the Supreme Court Civil Appeal 42/2015, the Court referred to the ,: dictum in Supreme Court case of Johannes Hlatshwayo vs Swaziland Development and Savings Bank Case No. 21/06 at paragraph 7 to the following: "It required to be stressed that the whole purpose behind Rule 17 ofthe Rules of this Court on condonation is to enable the Court to gauge such factors as (1) the degree of delay involved in the matter, (2) the adequacy of the reasons given for the delay, (3) the prospects of ' success on Appeal and (4) the Respondent's interest in the finality of the matter." [ 14] The appellant has been dilatory in prosecuting the appeal but has also been negligent in failing to {fle a proper application for extension and/or condonation together with heads of argument. [ 15] The appellant is an elderly widow living on her own in a rural homestead and it appears, amongst others, that her safety and health is at stake and that there is a significant infringement of her dignity. Notwithstanding the defects in the applicant's application referred to above, the Court _mero motu_ and reluctantly granted the application for condonation in the interests of justice, as is set out more fully hereunder and in order that the appellant would not suffer prejudice as a result of the negligence of her attorney. [ 16] This case has extraordinary features and the leniency of this Court in granting the application for condonation in the particular circumstances of this case should not serve as a precedent for the relaxation of the requirements that a party ought to meet in order to be successful in an application for extension orcondonation, See **Mfanukhona** **Maduna and****two** **others** **v** **Junior** **Achievement** **Swaziland** **(105/20170** **(2018]** SZSC **31** **(2018)** Civil appeal No. 105/2017. **APPELLANT'S** **ARGUMENT** [ 1 7] The appellant submitted that the dispute between the parties arose as a result of the respondent removing the appellant's fence, dispossessing the appellant of the field she had enjoyed and occupied for many years, and the respondent's refusal to allow the appellant to construct a pit toilet on the old Umphakatsi. [18] The appellant's counsel further argued that the appellant's safety is at risk from intruders and her home is not protected from domestic animals which roam around her homestead and defecate on her property. She. does not have a field to plough as the field which was given to her by her father-in- law Prince Tsekwane has been taken away by the respondent. The old pit toilet has filled up, is unsafe and is a health hazard. [ 19] The appellant is aware that her substantive dispute with the respondent is ~; .i to be decided according to Siswati customary law by the traditional structures. All she is seeking is for the orders sought to be granted on an interim basis pending the final determination of the dispute by the traditional structures. Appellant relies on the case of John _Bo_ _v_ _Matsebula_ & _three_ _others_ _v_ _Chi_ _e_ _f_ _Madzandza_ _Ndwandwe_ _and_ _In_ _g_ _ca_ _v_ _izivela_ _Famers_ .I _Assocation_ _Limited_ _-_ _Case_ _no._ _15/2003_ _at_ _p_ _a_ _g_ _e_ _13_ where the learned Judge i stated: _"What_ _has_ _been_ _referred_ _to the_ _King_ _is_ _the_ _determination_ _of_ _the_ _rights_ _of_ _the_ _parties_ _to_ _the_ _disputed_ _land._ _What_ _the_ _Applicants_ _sought_ _to_ _protect was_ _the_ _undisturbed_ _possession_ _(which_ _was_ _clearly_ _established_ _on_ _the_ _papers)_ _pending_ _the_ _determination_ _of_ _the_ _rights_ _of_ _the_ _parties_ _by_ _His_ I _Majesty_ _the_ _King._ _The_ _Applicants_ _did_ _not_ _seek_ _an_ _order_ _from_ _the_ _High_ _Court_ _to_ _determine_ _those_ _rights."_ Appellant's counsel argued that, with respect, the court _a_ _quo,_ was ! incorrect in finding that the orders sought would usurp the powers of the Regional Administrator. -: RESPONDENT'S ARGUMENT [20] The respondent has opposed the appeal and contends that the relief sought \ . , was essentially final in nature. [21] The respondent further submitted that the issue of irreparable harm does not arise. The appellant has the use of a shared toilet within the new Umphakatsi, a joint perimeter fence will be constructed around both the old and the new Umphakatsi and there are shared fields. [22] The Court _a_ _quo_ came to the conclusion that the court _a_ _quo_ had jurisdiction to grant interim interdicts whilst matters are adjudicated upon elsewhere, be it in traditional structures or in other subordinate jurisdictions. [23] The learned Court a _quo_ considered the requirements for an interim interdict and the relevant case law and came to the conclusion that the appellant was seeking a final interdict and not an interim interdict. The Court _a_ _quo_ _'s_ reasoning was that the appellant sought an order granting her the right to (1) install a fence around the old Umphakatsi, (2) construct a new toilet and (3) have the field restored to her and that to grant such an ! order, would usurp the powers of the Regional Administrator and that the effect of the orders sought was final in nature. [24] The learned Court _a_ _quo_ apparently was also of the view that a shared fence and toilet would cure the prejudice complained about by the appellant. **FINDINGS** **OF** **THIS** **COURT** [25] It is clear that the late filing of the record was clearly due to the negligence of the appellant's attorney ..! Furthermore, having discovered that the filing _(_ of the record was out of time, he failed to prepare a comprehensive and detailed application for extension or condonation, the principles of which have been enunciated in this Court in many decisions. Even when he knew the matter was on the roll, he failed to file heads as required in terms of the law. [26] Whilst the Court _mero_ _motu_ granted condonation in the interests ofjustice, it is the view of this Court that the attorney ought to be penalised for the dilatory manner in which he handled the appeal and for his generally cavalier disregard of the Rules. His conduct therefore should be met with an appropriate costs order; · (27] The appellant has sought to protect her undisturbed possession of her homestead and field pending the determination of the rights of the parties by the Regional Administrator. She did not seek an order from the Court _a_ _quo_ for a final determination of these rights. [28] The first ground of appeal is that the court _a_ _quo_ erred in fact and in law in holding that the Appellant sought a final interdict. (29] In the case of _David_ _Themba_ _Dlamini_ _v_ _Sylvian_ _Longendo_ _Okonda_ _and Seven Others_ Civil Case No. 1995/2008 the learned judge stated the following: "14. It is well-settled that an applicant who seeks an interim interdict should establish the following essential requirements: firstly, a right which is _thoughprimafacie_ established is open to some doubt, namely, that he has a _prima_ _facie_ right. Secondly, a well grounded apprehension of irreparable injury if the interim relief is not granted. Thirdly, that the balance of convenience favours the grant of an interim interdict. Fourthly, that there is no other satisfactory remedy. ., ;j ,I See cases of _Setlogelo_ _v._ _Setlogelo_ _AD_ _221 at_ _227;_ _Erickson_ _Motors_ _Ltd_ _v.__Protea_ _Moto:s_ _and_ _Another_ _1973_ _(3)_ _SA_ _685_ _(AD)_ _at_ _691_ _.__"_ [30] The Court has jurisdictionto determine an application for an interdict to preserve the _status_ _quo_ pending a determination of a dispute over the :1- ownership of land under 'the jurisdiction of a Chief in terms of Siswati customary law. The appellant has established the prerequisites of an interim interdict and was entitled to the relief sought. See _Elgin_ _Maguduza_ _Makhubu_ _v_ _Donald_ _Mandlakayise_ _Ndlovu_ _and_ _Seven_ _Others,_ Civil Case No. 824/2013 [2014] SZHC 220. [31] The nature of the relief sought is not final in nature. In the event of the Regional Administrator finding in favour of the respondent it would be a simple task to remove the fence and fill up the toilet. ( [32] Furthermore, the appellant is an elderly woman living on her own in a rural area and she is entitled to protect herself and her property from intruders whether they be human or animals. She is also entitled to the protection of her dignity and being forced to use a communal toilet is a violation of this right. The Constitution of 2005 provides as follows: "18. (1) The dignity of every person is inviolable." 19.(1) A person has a right to own property either alone or in association with others. '· (2) A person shall not be compulsorily deprived of property or any interest in or right over property of any description except where the following conditions are satisfied - ...•.... " [33] The appellant has been deprived in an apparent arbitrary fashion of the fields given to her by her father-in-law and is being forced to live in insanitary and degrading conditions whilst the outcome of the decision of the Regional Administrator is awaited. Refer The Government of Swaziland vs Aaron Ngomane Civil Appeal Case No. 25/2013 where it was stated: "It is universally recognised that human dignity is directly the dignity of each human being as a human being. This encapsulates the viewpoint that human dignity includes the equality of human beings. Discrimination infringes on a person's dignity. Human dignity is a person's freedom of will. This is the freedom of choice given to people to develop their own fate. Human dignity is infringed if a person's life ~ or physical or mental welfare is harmed. It is infringed when a person lives or is subjected to humiliating conditions which negate his **humanity.** **It** **envisages** **a** **society** **predicated** **on** **the** **desire** **to** **protect** **the human** **dignity** **of** **each** **of** **its** **members."** **ORDER** [34] I accordingly make the following order: 1\. The appeal succeeds. 2\. The order of the Court _a_ _quo_ is set aside and substituted with the following order: (a) The respondent is interdicted from preventing the Appellant from installing a fence around the old Umphakatsi of Qomintaba in Lavumisa. (b) The respondent is interdicted and restrained from preventing the applicant from constructing a new toilet at the old Umphakatsi of Qomintaba in Lavumisa. (c) The respondent is ordered to restore the field he dispossessed the appellant of and the' Respondent is ordered to re-install the barbed I' wire fence around the field. 3\. No order as to costs. For the Appellant: Z. MAGAGULA For the Respondent: N.J. DLAMINI #### __Related documents ▲ To the top >