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His Royal Highness Prince Tfohlongwane N.O. and Others v Ntshangase and Others (Civil Appeal No. 25/07) [2007] SZSC 13 (15 November 2007)



IN THE SUPREME COURT OF SWAZILAND

HELD AT MBABANE           CIVIL APPEAL NO. 25/07

In the matter between:

HIS ROYAL HIGHNESS PRINCE
TFOHLONGWANE N.O.                          FIRST APPELLANT
HIS ROYAL HIGHNESS PRINCE
KHUZULWANDLE N.O.                          SECOND APPELLANT
THE HONOURABLE JIM GAMA 
N.O.                                                           THIRD APPELLANT                                     
AND

LINDIMPI WILSON NTSHANGASE       FIRST RESPONDENT
MELLINAH NTSHANGASE (BORN
NKWANYANA)                                           SECOND RESPONDENT
JUMAIMA NTSHANGASE                         THIRD RESPONDENT
LAZARUS JABULANI MASUKU           FOURTH RESPONDENT


CORAM             :        BROWDE JA
                                    TEBBUTT JA
                                    RAMODIBEDI JA


HEARD             :        12 NOVEMBER 2007
DELIVERED        :        15 NOVEMBER 2007




JUDGMENT


SUMMARY
Burial – Application on notice of motion - Dispute concerning place where to bury the deceased – Rule 6 of the High Court Rules - Oral evidence led in the court a quo – The court granting absolution from the instance but in the event ordering that the deceased be buried besides his forebears at Mkhwakhweni – On appeal the order of absolution from the instance altered to one granting the application ? Appeal against the court a quo’s order dismissed with costs.


RAMODIBEDI JA

[1]      Incredibly, the body of the late Muzikayise Andreas Ntshangase (“the deceased”) has been lying at Mbabane mortuary ever since his death as far back as 22 December 2002, a period spanning almost five years. At the outset it must be said that the story which unfolds in this appeal is one which none of the right-thinking people, including the protagonists themselves, can be proud of. It is a story that bears the hallmarks of bringing the country into disrepute.

[2]      The heart of the problem in this matter is none other than unnecessary bickering amongst those concerned over a simple issue concerning a place where the deceased should be laid to rest. The protagonists to the saga are fiercely split into two factions. One faction (“the respondents”) favours the view that the deceased should be buried besides his forebears at Mkhwakhweni Area in the District of Shiselweni. This is admittedly not only his birthplace but also where he lived until his alleged eviction early in 1982. I should here point out that the first respondent is the deceased’s son. Second and third respondents are the deceased’s wives. The other faction (“the appellants”) insist that the deceased should be buried at Mpuluzi Area under Chief Nhloko Zwane.

[3]      Before dealing with the merits of the case, it is necessary to set out a brief chronology of the relevant events since the deceased’s death.

[4]      On 22 December 2002, as pointed out in paragraph [1], the deceased died. Since the deceased had in his lifetime been appointed by His Majesty King Mswati III to the Border Restoration Committee, his death was duly reported to His Majesty. It was also reported to the second and third appellants in their capacities as chairman of the Committee and Governor of Ludzidzini Royal Residence respectively.

[5]      It is not disputed that His Majesty referred the matter to the Swazi National Council Standing Committee (“the SNCS”) headed by the first appellant to prepare for the deceased’s burial.

[6]      The SNCS then directed that the deceased should be buried at Mpuluzi Area under Chief Nhloko Zwane as pointed out earlier. The committee justified their decision by alleging that the deceased had in his lifetime been evicted to Mkhwakhweni Area. The deceased’s family, including the respondents, objected on the ground that no such eviction existed. Hence the two factions reached a stalemate. A further direction by His Majesty referring the matter for deliberation by a joint sitting of the SNCS, Ludzidzini Libandla, the Border Restoration Committee and Prince Mfanasibili as well as Sigombeni Dlamini apparently did not bring about any change to the stalemate.

[7]      On 1 December 2005, the respondents lauched an urgent application on a notice of motion in the High Court for prayers seeking the following relief:-

“1.       Declaring that the late Mzikayise Andreas Ntshangase be buried at Mkhwakhweni Area in the District of Shiselweni.

2.      
Costs in the event of opposition.

3.      
Further and/or alternative relief”.

[8]      When the matter first came before Mabuza AJ (as she then was) in the High Court, on 13 February 2006, the learned Acting Judge ordered that the matter be referred to trial for the hearing of oral evidence.

[9]      The matter subsequently came before Maphalala J, on 17 October 2006. The appellants then raised a point of law in limine to the effect that the matter was “pending before His Majesty the King for a ruling”. They argued, therefore, that it was improperly before the court.

[10]     On 1 December 2006 Maphalala J, upheld the appellants’ point of law in limine with costs.

[11]     On 10 December 2006, the respondents brought an application before this Court seeking an order, inter alia, reviewing and setting aside the order by Maphalala J.

[12]     On 8 May 2007, this Court upheld the respondents’ review application and set aside Maphalala J’s order. The Court restored Mabuza AJ’s order for trial and defined the following issues for the guidance of the court hearing the matter:-

“1. Was any lawful and enforceable eviction order issued by
any recognised authority in terms of which the deceased
was evicted from the Mkhwakhweni area?

2.      
If such order was issued in terms of which the deceased was to be evicted, was it still valid and enforceable at the time of his death?

3.      
In the event of Court finding that such an order was issued and enforceable as aforesaid, did the existence thereof vitiate the right of the appellants to bury the deceased in the Mkhwakhweni area?

4.      
Generally, and in view of the subject matter of the dispute and the substantial lapse of time since the death of the deceased, whether the public interest does not require the Court to make such order concerning the burial of the deceased as it deems fit and proper?”

[13]     I pause there to point out that I have deliberately set out the chronology of events in this matter in some detail in order to demonstrate the tortuous and insensitive manner in which the matter has been conducted by the warring parties. Nobody appears to have given the slightest thought that the deceased deserves to rest in peace.

[14]     I turn then to the proceedings before the High Court. At the close of the appellants’ case Mr. Mabila for the respondents applied for absolution from the instance. On 16 August 2007, Mabuza AJ granted the application but upheld the respondents’ contention to the effect that the deceased be buried at Mkhwakhweni Area after all. The learned Judge a quo’s order in this regard reads as follows:-

                  “[72]     In the circumstances I hold as follows:

(a)     
The application for absolution from the instance is hereby granted.

(b)     
The deceased Mzikayise Ntshangase is to be buried at Mkhwakhweni. May his soul finally find peace and his family closure to this painful episode in their lives.

(c)     
The respondents are hereby ordered to pay the costs hereof. The costs are to be paid on an attorney client scale. The costs order excludes the 2nd Respondent, Prince Khuzulwandle.

(d)     
The Royal Swaziland Police are hereby ordered to provide security herein whenever it is required until the deceased has been buried”.
The present appeal is brought against that order.

[15]     After hearing submissions in the matter, on 12 November 2007, we dismissed the appeal with costs and intimated that reasons would follow. These are the reasons.

[16]     At the outset the parties were agreed that the appellants bore the onus of proof on all the issues raised in the guidelines laid down by this Court as fully set out in paragraph [12] above. The appellants then called four witnesses in support of their case. These were Sam Mkhombe (DW1), Titus Msibi (DW2), Jimson Sithela Shabalala (DW3) and Prince Gabheni Mavumaphi David Dlamini (DW4).

[17]     On the issue of the alleged eviction order against the deceased, it might be convenient to begin with the evidence of Prince Gabheni (DW4). He is a Minister of Home Affairs, a post he held during the early 1980s as well. He repeated the allegation he had made in his affidavit in support of the appellants’ case. This was to the effect that in the early 1980s he was commanded by His Majesty King Sobhuza II to evict the deceased from Mkhwakhweni Area.

[18]     There is a material discrepancy between DW4’s oral evidence and what he stated in paragraph 3 of his supporting affidavit. Therein he deposed as follows:-

“During this period I was commanded by His Majesty King Sobhuza II to issue an order evicting one Muzikayise Ntshangase from Emkhwakhweni Area”. (Emphasis added.)

In his oral evidence, however, DW4 testified that the eviction order was written by His Majesty King Sobhuza II. All that DW4 did was to evict the deceased. I observe at the outset that this discrepancy decidedly casts grave doubt on whether there was in fact a lawful eviction order issued by His Majesty as alleged by the appellants. This doubt is further strengthened by the fact that, according to DW4, the eviction order did not even state where the deceased had to be taken to, contrary to lawful orders of eviction by His Majesty as will be seen shortly.

[19]     Be that as it may, DW4 testified that he then instructed the police Commissioner, Titus Msibi (DW2) to execute the eviction order.

[20]     DW2 confirmed that early in 1982 he received a written “order” from Prince Gabheni to the effect that he should evict the deceased. The order was signed by the Prince himself. DW2 then instructed his subordinates to execute the order and this was done.

[21]     DW2 further confirmed that the eviction order did not indicate where the deceased was supposed to be evicted to. Significantly, for that matter, DW2 agreed that in terms of Swazi custom when the King evicts a person from one place, he designates another place for him. This, as will be seen shortly, is corroborative of DW1’s evidence.

[22]     DW3 in turn is the Indvuna at Mgazini in Mkhwakhweni Area. His evidence in connection with the eviction order was based on what he had been told. It was, therefore, inadmissible as hearsay. Nothing further need be said about him.

[23]     DW1 is the Secretary to His Majesty King Mswati III. Between 1999 and 2003 he was the Secretary to the NCSC.

[24]     As indicated earlier, DW1 testified that in terms of Swazi custom an eviction order would specify the place to which the evicted person was to be taken. He conceded that the eviction order in respect of the deceased did not specify the place where he was to be taken to.

[25]     DW1’s evidence was to the effect that the Libandla advised His Majesty the King that the deceased should be buried at Mlindazwe in the Mpuluzi Area under Chief Nhloko. This was accepted. The deceased’s people, however, objected to this proposal. Prince Mfanasibili and Sigombeni undertook to appeal to His Majesty the King on behalf of the deceased’s family. It was at this stage that a joint sitting of the SNCS, Ludzidzini Libandla and the Border Restoration Committee advised His Majesty that the deceased should be buried at Mkhwakhweni. This was a majority decision.

[26]     In cross-examination DW1 conceded that he was unable to prove that a removal order was issued against the deceased in 1982. He could not deny that even the eviction order which had been issued by the Magistrate against the deceased was subsequently set aside.

[27]     DW1 further made the following concessions which would seem to favour the respondents’ case:-

(1)      That in terms of Swazi law and custom the King cannot just evict a person from his place of birth without any reason. In respect of the deceased no reason was given for his alleged eviction by anyone.

(2)     
That, similarly, in terms of Swazi law and custom when the King evicts a person from his area the King gives such a person a new chief. Again this was not done.

(3)     
That the deceased was not given shelter. Instead he was put in someone’s homestead. He adds that, “normally, you are given shelter when you are evicted, so you can start a new home”.

(4)     
That the deceased was just “dumped” at Mlindazwe in Mpuluzi Area but that he left the area “the very next day.” Significantly, DW1 stressed that the “dumping” of the deceased was “new”. It was thus contrary to Swazi law and custom.

(5)     
Finally, DW1 agreed that he had never seen the original eviction order against the deceased.

[28]     It will be recalled that after the appellants had closed their case the respondents’ counsel applied for absolution from the instance. Before the learned Judge a quo could conduct an inspection in loco, as she had intimated to the parties she intended to do, and before she handed down her ruling, the appellants sought and were granted leave to hand in the documents which they submitted were the eviction orders against the deceased. These were handed in by consent as Annexures “AG1” and “AG2” respectively. Both annexures are photocopies.

[29]     Because of their importance to the appellants’ case, on their own version, these documents are reproduced. Annexure “AG2” reads:-

“In exercise of the powers conferred upon me by virture of Swazi Law and Custom and by section 20 of the Swazi Administration Act, 1950, I SOBHUZA II Ngwenyama of Swaziland, hereby authorise Prince Gabheni, Minister of Home Affairs to sign a removal order of the under mentioned person: under the said Act:

Mzikayise Ntshangase – Chief Salebona of Mkhwakhweni Area.

SOBHUZA II
I NGWENYAMA OF SWAZILAND”

As correctly found by the court a quo, the signature above the typed name Sobhuza II is illegible. There is no dispute about this fact. Accordingly, this annexure does not assist the appellants. Moreover, it seems highly unlikely that His Majesty the King would grant an eviction order without designating the place where the deceased was to be taken to. This, it would seem, would be against established practice.

[30]     But perhaps more important is the fact that section 20 of the Swazi Administration Act 1950 quoted in annexure “AG2” had nothing to do with eviction orders by His Majesty the King. That section, which has since been repealed, provided as follows:-

“20.      Any Swazi who contravenes or fails to comply with any provision of this Act or any regulation or rule made thereunder in respect of which no special penalty is provided shall be guilty of an offence and liable on conviction to a fine not exceeding one hundred rand or to imprisonment for a period not exceeding one year or both.”


[31]     The court a quo rejected annexure “AG2” on the ground that it failed the admissibility test in the sense that:-

(1)     
It was not the original document.

(2)     
The appellants failed to prove its authenticity. They failed to call the evidence of someone who saw the author thereof write or sign it. Nor did they call someone who could identify the author’s handwriting. See the South
African Law of Evidence – 4th Edition: Hoffman and Zeffert.

(3)     
The document was “so illegible that it [was] virtually impossible to identify”.

(4)     
The document did not comply with the Stamp Duties Act 37/1970.

[32]     Annexure “AG1” is in turn entitled “Removal Order”. It reads as follows:-

“In exercise of the rights and powers in me vested by King, Sobhuza II, Ngwenyama of Swaziland under the Swazi Laws and Customs, and by section 20 of the Swazi Administration Act, 1950. MZIKAYISE NTSHANGASE of Chief SALEBONA is hereby ordered to leave MKHWAKHWENI AREA together with his dependants, on or before the 31st August, 1982.

(PRINCE GABHENI)
MINISTER FOR HOME AFFAIRS

cc.      Permanent Secretary, Ministry of Home Affairs, Commissioner of Police, Officer In charge, Shiselweni district. District Commissioner, Shiselweni.”

         The fact that annexure”AG1” bears DW4’s signature in his capacity as a Minister is, to say the least, strange. This is so because he testified that His Majesty the King did not give him the command concerning deceased’s eviction in DW4’s capacity either as a Minister or as one of the royal blood.

[33]     In these circumstances, the learned Judge a quo,
after carefully analysing the evidence, came to the conclusion that there was no lawful and enforceable order issued by any recognised authority in terms of which the deceased was evicted from Mkhwakhweni Area. In the event, the Judge held that it was not necessary for her to pursue guidelines 2 and 3 of this Court as fully set out in paragraph [12] above. I consider that the learned Judge a quo’s finding that there was no lawful and enforceable order of eviction against the deceased is fully justified on the facts, as I have endeavourd to highlight them above. The probabilities, as pointed out in paragraphs [26], [27], [29] and [30 – 32] above, coupled with lack of proof concerning the authenticity of annexure “AG2”, favour the respondents’ version in this regard. In my view this conclusion disposes of the matter in favour of the respondents.

[34]     In his able argument, Adv. Sutherland S.C. for the appellants sought to persuade the Court, however, that the provisions of section 10 (3) of the Swazi Administration Act (as amended) are not peremptory. It is not mandatory, so he submitted, that His Majesty the King should designate a place where a person he evicts must go to. I do not agree. The section in question reads as follows:-

“10 (3)   The Ngwenyama in Libandla may at any time make an order, containing such conditions as he may consider appropriate for the removal of any person or any of his dependants living with him from one Swazi area to another Swazi area”.

The plain language used in the section points to the contrary. In this regard one must give effect to the words “from one Swazi area to another” which mean exactly what they say and therefore require no further elaboration. This much is clear, however. Eviction is a drastic step which impinges on a citizen’s rights. Section 10 (3) must therefore be construed strictly and restrictively. It must only be resorted to where an alternative place has been designated for the evicted person. His Majesty the King has always recognised this factor as evidence shows.

[35]     But perhaps there is a more fundamental reason why counsel’s submission must fail. The section he relies upon is apparently an amendment to the Swazi Administration Act, 1998. It has nothing to do with the position at the material time in 1982 when the deceased was allegedly evicted.

[36]     It follows from the aforegoing considerations that the court a quo was justified in accepting the respondents’ version as opposed to that of the appellants. In this context the order of absolution from the instance needs to be corrected. In my view the facts justify the granting of respondents’ application in the court below. In any event, I venture to suggest that, in terms of the High Court Rules, absolution is not a proper remedy for applications. On the contrary, it is a remedy specifically designed for trial actions in terms of sub-rule 39 (6). In its relevant parts, this sub-rule reads as follows:-

“(6) At the close of the case for the plaintiff, the defendant may apply for absolution from the instance, in which event the defendant or one counsel on his behalf may address the court and the plaintiff or one counsel on his behalf may reply. The defendant or one counsel on his behalf may thereupon reply on any matter arising out of the address of the plaintiff or his counsel”.

         Applications on the other hand are governed by Rule 6 of the High Court Rules. In relevant parts, sub-rules (4), (8), (17), (18) and (19) provide as follows:-

“(4)      Every application brought ex parte by way of petition or notice of motion shall, save in matters of urgency, be filed with the Registrar and set down not later than midday on the court day preceding the day on which the application is to be heard.
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