In the High Court of Swaziland
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IN THE HIGH COURT OF SWAZILAND HELD AT MBABANE CASE NO. 856/15 and CASE NO. 782/15 In the matter between: THOKO DLAMINI PLAINTIFF and THE PRINCIPAL SECRETARY MINISTRY OF INFORMATION AND TECHNOLOGY 1ST DEFENDANT ATTORNEY GENERAL 2ND DEFENDANT CASE NO. 856/2015 LOMGCIBELO DLAMINI PLAINTIFF AND THE PRINCIPAL SECRETARY MINISTRY OF INFORMATION AND TECHNOLOGY 1ST DEFENDANT ATTORNEY GENERAL 2ND DEFENDANT CASE NO. 782/2015 Neutral Citation : Thoko Dlamini and Lomgcibelo Dlamini vs Principal Secretary, Ministry of Information and technology (856/15 & 782/15) [2018] SZHC 223 (26 FEBRUARY 2019) Coram : MABUZA – PJ Heard : 2017, 2018. Delivered : 26 FEBRUARY 2019 1 SUMMARY Civil Law – Evictions and Demolitions - Without compensation – The two Plaintiffs who are siblings seek damages from the Government of Eswatini - Suffered as a result of their eviction from their ancestral homes which were subsequently demolished - Plaintiffs were not compensated. JUDGMENT MABUZA -PJ [1] In this matter the Government of Eswatini through the Ministry of Information, Communication Technology (ICT) initiated a project for the construction of a Royal Technology Park (the Technology Park) at Nokwane in the Manzini District. [2] The Technology Park was to be constructed on certain immovable property (the Farm) at Nokwane owned by Ingwenyama in Trust for the Swazi Nation under Deed of Donation Transfer No. 176/2005 executed on the 15th March 2005 (Exhibit D (A)). [3] The Farm is described therein as: “CERTAIN : Portion 26 (a portion of Portion 1) of Farm No. 692 situate in the Manzini District, Swaziland. 2 MEASURING : 102, 2491 (One Zero Two Comma Two four nine one) Hectares. EXTENDING AS : Certificate of Registered Title No. 17/2005 with diagram annexed thereto made in favour of the Crown on the 17th day of January 2005, will more fully point out.” [4] The Farm was previously owned by a certain Mr. Owen who was commonly known as Majuluka. [5] There were many people who resided on the Farm and these had to be removed in order to make way for the Technology Park. [6] Among these people were Thoko Dlamini and Lomgcibelo Dlamini who are siblings (the Plaintiffs) together with their dependents. [7] When the many other people who occupied the Farm were removed, the Plaintiffs remained because they believed that the order to leave the Farm was not directed at them. They believed that they had a right to remain at the Farm by virtue of the fact that they had grown up there and considered it as their home. 3 [8] More importantly they had in their possession an affidavit (Exhibit A) drawn up by the Court President of the Swazi National Court. The contents whereof are reproduced hereunder: “I Thozo Ndzabukelwako, Court President of Manzini District and Chief Mathendeka Fakude’s Induna of Lobamba Lomdzala – Mahlanya area. I swear under oath that I know Josiah Lomfana Dlamini on his arrival in Swaziland from Barberton in the Republic of South Africa and that it was before the Immigration Proclamation Act was introduced in Swaziland and that his father Mdutshwa Dlamini was born at Ntfonjeni in the Hhohho District of Swaziland and that this information was delivered or given to Chief Mathendeka Fakudze and myself by the late Mntanenkosi Lozinja Dlamini and I solemnly and sincerely declare that Josiah Lomfana Dlamini had kontaed to Chief Mathendeka Fakudze and have been accepted by him (Chief Mathendeka Fakudze) and his Libandla of Lobamba Lomdzala.” [9] The affidavit is signed by Tozo Ndzabukelwako, and was sworn to before the District Commissioner on the 20/4/1971 and has the District Commissioner stamp of the 20/4/1971. It was witnessed by two witnesses. [10] PW1 and PW2 believed that Exhibit A gave them a right to remain on the Farm in perpetuity because it was executed in favour of their biological father Josiah Lomfana Dlamini who died during 1986. 4 [11] Needless to say their right to reside on the Farm is disputed by the Defendants who obtained an eviction and demolition order (Exhibit F) against them (and others) on the 8th September 2014. [12] Their eviction and demolition of their homes was carried out pursuant to this order. [13] The Plaintiffs gave oral evidence. Thoko Dlamini (PW1) testified that she was born during 1952 on that Farm and grew up there and when she became an adult she built her home there. It was demolished during September 2014. It comprised of a big house with eight (8) rooms, there were houses which belonged to her children, a three room shop, eleven (11) rooms which she rented out, some fruit trees: mango, peaches, avocado, paw-paw and naartjies. [14] The eleven rooms generated income of E600-00 per month each. They were built with brick. Her 8 room house was built with stick and mud and roofed with corrugated iron. During the demolition some furniture was damaged. 5 [15] She testified that her household goods were transported by truck to Bethany and placed out in the open and as it was summer, they were exposed to rains and damaged. [16] She relocated to Mbhuleni as she had nowhere to go. She found a room at a Nkambule home for which she had to pay E800.00 per month. Because the room was expensive, she moved to another one room in the same area which belonged to a Simelane family. She paid E600.00 per month for this room. [17] PW1 told a story of how she is now destitute and poor and no longer has a home. Before her home was demolished she had contact with Mr. Amos Zungu a Government official and explained to him how her parents came to live on the Farm. She gave Mr. Zungu Exhibit A. His reaction after reading it was that her father and the Plaintiffs were lawful residents of the Farm. And that if the Government wanted to remove them it would construct a home for them somewhere else or give them a small portion of land next to their original land. [18] She says that after the demolitions, Mr. Zungu was no longer with the company, he was replaced by Prince Vumile. Prince Vumile promised the 6 Plaintiffs that a home would be constructed for them but did not keep his promise. He also promised them building material. He instructed them to submit house plans which they did but he failed to keep any of his promises. He then promised to build two room houses for them but failed to do this. [19] She stated that after her home was demolished she went to lay a complaint at the Umphakatsi at Lobamba Lomdzala. They received her and gave her alternate land at Bethany below the mountain. [20] She had initially accepted the land but later declined it because it was unsuitable. It has a huge waterfall and a big ditch apart from its unsuitable location under a mountain. She says that the waterfall spills water directly on to the land and she did not have the money to divert the waterfall and fill up the ditch. She returned to Umphakatsi to request alternative land but to date they have not responded. [21] She sued the Defendants for a total sum of E128,850.00 (One hundred and twenty eight thousand eight hundred and fifty Emalangeni) made up as follows: “12.1 Plaintiff’s dwelling house E85,000.00 12.2 Rent generated by demolished houses 7 (11) at E6000.00 each = E6,600.00 12.3 Rent paid to date (which is being paid After being moved) E6,250.00 12.4 Fruit trees E1,250.00 12.5 Household goods E21,250.00 12.6 Relocation E8,500.00” [22] She is also claiming interest at 9% per annum, costs of suit and further and or alternative relief. [23] She made additional claims such as E500.00 (Five hundred Emalangeni) being the cost of transport from Bethany to Mbhuleni and re-imbursement of rent from issuance of summons to whenever this matter gets concluded in the sum of E6,250.00 (Six thousand two hundred and fifty Emalangeni) per year and compensation (damages) in the sum of E6,600.00 (Six thousand six hundred Emalangeni) per year. These additional amounts were not factored into the claim in the summons and there was no amendment of her particulars of claim and must therefore fail. [24] PW1 was cross-examined by Defence Counsel. She admitted to Miss Xaba that she was born on the disputed land and that she knew that her father had kontaed in that area during 1971. That her father had lived on the farm 8 while Majuluka owned it. That she knew that the King owned the land but that her father had kontaed there. It was put to her that her father was an unlawful occupant and because of that could not have kontaed. She responded that she had nothing to say to that. It was put to her that Exhibit A was not authentic. [25] It was put to her that there were numerous meeting between the residents and the Government in respect of the residents having to relocate because they were not the legal occupants of the farm. She agreed that there were such meetings and that her stay and that of PW2 was lawful because of Exhibit A. [26] It was put to her that letters from the Attorney General demanding their vacation of the farm followed the meetings. She agreed that indeed there were such letters. [27] It was put to her that Mr. Zungu had no authority to represent the Government and her response was that she did not know that.