Court name
High Court of eSwatini
Case number
1257 of 2009

Hlatshwaio v Dlamini and Others (1257 of 2009) [2011] SZHC 116 (10 May 2011);

Law report citations
Media neutral citation
[2011] SZHC 116













IN
THE HIGH COURT OF SWAZILAND



HELD
AT MBABANE







Civil
Case No. 1257/09







In
the matter between:







OBED
HLATSHWAYO
….......................................................................APPLICANT



AND



NGANGENYONI
DLAMINI
…........................................................1st
RESPONDENT



VOLOLO
SHABANGU
…..............................................................2nd
RESPONDENT



BEN
PIPI DLAMINI
…..................................................................3rd
RESPONDENT











CORAM:
MCB MAPHALALA, J



For
Applicant: Mr. S. Gumedze



For
Respondents: Mr. B. Tsabedze







Summary







Swazi
Law and Custom - appointment and removal of the Governor of a
Chiefdom - Powers and Functions of the Family Council or Lusendvo on
the death of the Chief.











JUDGMENT



10th
MARCH 2011







[1]
The Applicant instituted legal proceedings challenging his removal
from the position of Governor of Kaliba Chiefdom in the Shiselweni
Region











[2]
The following facts are common cause:



2.1.
During his lifetime, Chief Tholo Dlamini of Kaliba appointed Madibhi
Jele as his Governor. The Chief died in 1990 and his Governor died in
1995; hence, both the offices of Chief and Governor were vacant. The
administration of the area fell under the Family Council; the First
Respondent who is the Senior Prince as well as the Third Respondent
are members of the Family Council.



2.2.
In 1996 the Family Council appointed the Applicant as the Governor of
the Chiefdom. The Council further introduced him to the Shiselweni
Regional Administrator as well as to the Senior Regional Officer for
the Shiselweni Region; the latter inturn introduced him to the
Commissioner of Taxes.



2.3. On the 7th
March 2009, the Third Respondent
demanded from the Applicant the keys to the office of the Governor as
well as an office stamp; the applicant refused to do this and
referred him to the Family Council. On the 21
st
March 2009, the First Respondent
convened a community meeting where he dismissed the Applicant as
Governor and appointed the Second Respondent in his place. On the
29th March 2009, the First Respondent dismissed the Inner Council and
appointed a new one.











[3]
On the 1
st
April 2009, the Applicant in the
company of Enock Dlamini and Mcanjelwa Dlamini reported the removal
of the Applicant and Inner Council to the Ludzidzini Royal Committee;
however, the Committee declined to entertain this matter on the basis
that there is a pending High Court matter between the applicant as
well as the First and Third Respondents being Civil Trial No.
986/2009. In the circumstances, there is no pending matter before the
Ludzidzini Royal Committee as between the parties with regard to the
dismissal of the Applicant and the Inner Council.











[4]
The First Respondent argues that he is the Senior Prince and that by
virtue of his status aforesaid, he is the Acting Chief of Kaliba;
and, that in terms of Swazi Law and Custom, he is the Competent
Authority of the Area, and has the power to dismiss the Applicant
from the position of Governor as well as the Inner Council.







[5]
Both parties agree that the Applicant and Inner Council were
appointed by the Family Council; however, they differ on who has the
authority to remove them. The Applicant argues that it is only the
Family Council who can remove him and the Family Council; and the
First Respondent argues that it is only him as the Senior Prince who
has the power to remove them.











[6]
Section 233 of the Constitution provides that:











"(3)
The general rule is that every Umphakatsi (Chiefs residence) is
headed by a chief who is appointed by Ingwenyama after the chief has
been selected by the Lusendvo (Family Council) and shall vacate
office in like manner.











(4)
The position of a chief as a local head of one or more areas is
usually hereditary and is regulated by Swazi Law and Custom."







[7]
The most important Traditional Structure within a chiefdom is the
Family Council which comprises important princes and princesses from
specific households; their main function is to select the chief
designate to be presented to the Ingwenyama for appointment. Once the
chief has been appointed, he inturn appoints the Governor as well as
the Inner Council. On his death the Family Council takes over the
administration of the chiefdom with the assistance of the Governor
who was left behind by the late Chief. The Governor and the Inner
Council remain in their positions pending the appointment of the new
chief. In the event that the Governor dies, the Family Council
appoints another Governor to hold fort until a new chief is
appointed. However, the Family Council has the power to remove a
Governor they have appointed for a "just cause" such as
ill-health, insubordination or for gross misconduct; similarly, the
Family Council has authority to appoint and remove the Inner Council
they have appointed.











[8]
The Senior Prince of the Umphakatsi is different from the Senior
Prince referred to in Sections 8 and 234 of the Constitution. Both
are appointed in terms of Swazi Law and Custom; however, the one
referred to in the Constitution is the paternal uncle of the
Ingwenyama, and, his function is to perform the functions of the
Queen Regent if she is temporarily out of the country or if for any
reason she is temporarily unable to perform the functions of her
office. In performing those functions, he has to take into account
any specific instructions that she makes. He is advised by Liqoqo in
the performance of his duties and, he is usually a member of Ligunqa
referred to in Section 230 of the Constitution.











[9]
The Senior Prince of a Chiefdom is a member of the Family Council. He
summons and chairs meetings of the Family Council. He is not
automatically an Acting Chief by virtue of his Status as Senior
Prince. He does not take unilateral decisions in the absence of the
Family Council; he does not have a veto power over the
decision-making process. The Family Council can appoint any person
within the Senior Royal Households as an Acting Chief of the Area;
the Senior Prince is also eligible to this appointment.











[10]
The Kaliba Family Council did appoint the Applicant as the Governor
of the chiefdom; and soon thereafter, the Family Council split into
two factions over the candidate to be selected as chief of the Area.
The applicant was perceived by the First Respondent and his faction
to be siding with the other faction; hence, he dismissed him for
insubordination and lack of loyalty to him. However, the other
faction still regards him as the legitimate Governor for the Area. As
I have stated above, the First Respondent does not have authority to
dismiss the Applicant or the Inner Council. He alleges that before
dismissing him, he consulted with his faction.











[11]
Furthermore, there is no evidence that the Family Council before the
split selected the First Respondent to be the Acting Chief of the
Area; hence, he cannot be regarded as the Competent Authority of the
Area in accordance with Section 10 bis (2) of the Swazi
Administration (Amendment) Act No. 6 of 1979. This Section defines a
"Competent Authority" as a person appointed by the
Ingwenyama in Libandla for the purpose of administration in a Swazi
area and includes a chief appointed under Section 1 of this Act or
any person holding such office. From this definition, it is apparent
that the competent authority at Kaliba is the Family Council.











11.1.
The Swazi Administration Act No. 79 of 1950 does not provide for the
appointment of an Acting Chief. However the Swazi Administration
Order No. 6 of 1998 did provide for the appointment of an Acting
Chief. Section 8 of the said Order provided that:







"(1)
Where a person to be appointed as a chief under Section 7 is below
the age of eighteen (18), then such person shall not for the time
being be appointed as a chief, and it shall be the duty of the
Lusendvo so assembled to designate another person to act as a Chief.



(2)
The Ingwenyama shall, by notice published in the gazette, appoint the
person designated in terms of subsection (1) to be the Acting Chief
and shall specify the period of such acting appointment.



(3)
An Acting Chief shall, pending the appointment of the rightful chief
and with the approval of Lusendvo, exercise and perform the functions
of the chief."



11.2
The Swazi Administration Act of 1950 did not provide for the
appointment of Indvuna; however, Section 38 (1) of the Swazi
Administration Order of 1998 provided that:











"A
Chief may, in accordance with Customary Law, appoint any person as an
Indvuna in respect of his chiefdom and may in like manner terminate
the appointment."







11.3.
The Swazi Administration Order of 1998 was declared invalid by a full
bench of the High Court in the case of
Chief
Mliba Fakudze and three others v Minister of Home Affairs and three
Others
High Court
Case No. 2823/2000. The Respondents appealed to the
Court
of Appeal of Swaziland,
as
it then was, in the case of the
Minister
of Home Affairs and Three Others v Chief Mliba Fakudze and three
Others
Appeal Case
No. 6 of 2002. The appeal was dismissed with costs; hence, the Swazi
Administration Act of 1950 is the applicable law with all its
short-comings.







11.4.
There is an urgent need for Parliament with the assistance of the
Attorney General to revisit the Swazi Administration Act No. 79 of
1950 as well as the Swazi Administration (Amendment) Act No. 6 of
1979 with a view of effecting necessary amendments that are in
accordance with the Constitution. In so doing, they have to
incorporate those provisions of the invalidated Swazi Administration
Order No. 6 of 1998 which are not inconsistent with the Constitution.
Such an exercise will culminate in a unified and Consolidated Swazi
Administration Act which will make this area of the law certain.







11.5.
However, Section 10 bis (2) of the Swazi Administration (Amendment)
Act No. 6 of 1979 does provide for the Acting Chief or Family Council
in its definition of "Competent Authority", "as a
person appointed by the Ingwenyama in Libandla for the purpose of
administration in a Swazi area and includes a chief appointed under
Section 1 of this Act or any person holding such office".











[12]
In the circumstances I make the following order:











(a)
The dismissal of the Applicant
by the First
Respondent in March 2009 is hereby set aside as
being
of no force or effect.



(b)
The Respondents are hereby
interdicted and restrained from interfering with the Applicant in the
performance of his functions as Governor of Kaliba Chiefdom.















(c)
The dismissal of the Inner
Council by the First Respondent in March 2009 is hereby set aside as
being of no force or effect.







(d)
The appointment of the Second Respondent as Governor of Kaliba by the
First Respondent in March 2009 is hereby set aside.







(e)
The appointment of the New Inner
Council by the First Respondent in March 2009 is hereby set aside.







(f)
The Respondents are directed to
pay costs of suit on the ordinary scale.











M.C.B.
MAPHALALA



JUDGE
OF THE HIGH COURT