Court name
High Court of eSwatini
Case number
3009 of 2010

Dlamini and Others v Ministry of Public Works and Transport and Others (3009 of 2010) [2011] SZHC 96 (30 March 2011);

Law report citations
Media neutral citation
[2011] SZHC 96
Coram
Masuku, J













IN
THE HIGH COURT OF SWAZILAND
HELD AT MBABANE
CASE
NO. 3009/10



In
the matter between:



MDOLI
DLAMINI
…...........................................................1st
Plaintiff



AUDREY
KELLY
…...........................................................2nd
Plaintiff



NTANDWENI
FARMERS' ASSOCIATION
…........................3rd
Plaintiff



SIKHUPHE
FARMERS' ASSOCIATION
…...........................4th
Plaintiff



VINAH
DLAMINI
…...........................................................5th
Plaintiff



ETIKHOVENI
CHURCH IN ZION
…....................................6th
Plaintiff



AMOS
HLATJWAKO

….....................................................
7th
Plaintiff



DUDU
HLOPHE
…............................................................8th
Plaintiff



MANDLA
MALINDZISA

…..................................................
9th
Plaintiff



DANIEL
SUKATI
….........................................................10th
Plaintiff



And







THE
MINISTRY OF PUBLIC WORKS



AND
TRANSPORT
…......................................................1st
Defendant







THE
SWAZILAND GOVERNMENT
…..............................2nd
Defendant







THE
ATTORNEY-GENERAL
….......................................3rd
Defendant











Date
heard: 29 March, 2011



Date
of judgment: 30 March, 2011







Mr.
Attorney O.J. Nzima for the Plaintiffs



Mr.
Attorney V. Kunene for the Defendants











JUDGMENT















CASE
SUMMARY







PRACTICE:
Application for
summary judgment. Plaintiffs' land expropriated by the Government and
claiming payment of compensation agreed upon. Defendants opposing
application on basis of their policy not to give out money but to
build houses for persons to be compensated - whether the said policy
constitutes a defence on the facts to summary judgment in terms Rules
of Court; Issues the Court must consider before granting summary
judgment. Result - application for summary judgment granted as prayed
with interest and costs.











MASUKU
J.







[1]
This is an opposed application for summary judgment. The
dramatis
personae
are various
individuals and voluntary associations of the one hand and the
Swaziland Government of the other.







[2]
The common thread that connects all the plaintiffs is that they
previously occupied parcels of Swazi Nation Land around Mbadlane
area, Lubombo District. This land was expropriated by the 1
st
defendant for purposes of the
construction of the Mbadlane - Sikhuphe Airport (D42) Road. This
expropriation was done in terms of the Roads and Outspans Act, No. 40
of 1931 as read with the Acquisition of Property Act No. 10 of 1961.











[3]
It is common cause that the plaintiffs' various properties were
evaluated by or at the Government's behest and the various plaintiffs
were caused to sign a letter accepting payment of the determined
amount as compensation in full and final settlement for the
expropriated properties.







[4]
For ease of reference, I will quote verbatim the letter signed under
the hand of the erstwhile Principal Secretary of the 1
st
defendant, Mr. Evart Madlopha,
dated 20 November, 2008, in respect of the 1
st
plaintiff by way of example. It
reads as follows:











Ms.
Mdoli Dlamini



Mbadlane







Re:
Expropriation of Main House, Kitchen, Rondavel, 4 rooms. Two toilets,
Diamond Mesh Kraal and 4 Strand barbed wire found on Swazi Nation
land at Mbadlane







Dear
Madam,



In
terms of the Roads and Outspans Act No.40 of 1931 and the Acquisition
of Properties Act No. 10 of 1961 you are hereby notified that your
property as described above is to be expropriated by the Government
of Swaziland for incorporation of the land into the Road Reserve of
the Mbadlane-Sikhuphe Airport (D42) Road.



Further
to the publication of Legal Notice No. 5 of 2001 in the Swaziland
Government Gazette you are hereby notified that the Property Valuer
has determined the total value of your properties to be E670,461-50
(Six Hundred and Seventy Thousand, Four Hundred and Sixty One
Emalangeni and Fifty Cents)



Accordingly
you will receive a cheque in the amount of E670, 461-50 AS Full and
Final Settlement of your compensation for all your properties.



Please
complete and sign the attached "Form of Agreement" and
"Form of Acceptance of Compensation", to be signed in full
by all the parties.



To
enable us to proceed with payment, please return to the Ministry,
within fourteen days of the date of this letter the two forms signed
in full.



Yours
faithfully,



SIGNED



M.
E. MADLOPHA



PRINCIPAL
SECRETARY







[6]
Similar letters, accompanied by the two forms mentioned above, were
written and transmitted to all the other plaintiffs and this is
indeed common cause. There is no dispute that each of these
plaintiffs signed the forms requested of them and returned same to
the defendants as required. I reproduce below a list of the amounts
determined by the valuer as being the amount of compensation due to
each plaintiff:







Mdoli
Dlamini - E670,461.50



Audrey
Kelly - E 610,285.00



Ntandweni
Farmers Association - E 360,000.00



Sikhuphe
Farmers Association - E 368,536.00



Vinah
Dlamini - E 672,914.00



Etikhoveni
Church in Zion - E 462,432.00



Amos
Hlatjwako - E 210,300.00



Dudu
Hlophe - E 185,427.50



Mandla
Malindzisa - E62,340.00



Daniel
Sukati - E38,115.00











[7]
It is common cause that the Government did not pay the various
amounts promised to each of the plaintiffs. By combined summons dated
27 September, 2010, the plaintiffs jointly sued the defendants for
the total amount of compensation due to them from the 2
nd
defendant, namely E4, 921,
669-00, interest thereon at the rate of 9% per annum and costs of the
suit.







[8]
The defendants accordingly signified their intention to defend the
claim, culminating in the present application for summary judgment.
There is no doubt or argument that the claim properly falls within
the provisions of Rule 32 of this Court's Rules, it being for a
liquidated amount, nor is it contended that the application is
formally or procedurally defective in any respect. The only question
requiring determination is whether the defendants have, in their
affidavit resisting summary judgment raised a triable issue that
prima facie carries
a prospect of success at the trial.











[9]
In
National Motor Co.
Ltd v Moses Dlamini
1987-1995
(4) SLR 124 at 127
(a)
- (b),
Dunn J.
succinctly stated the responsibility of a Court faced with the task
of determining whether summary judgment ought to be granted as being:
(a) whether the defendant has fully disclosed the nature of his
defence together with the material facts upon which it is based; and
(b) whether on the facts so disclosed, the defendant appears to have,
as either to the whole or to a part of the claim, a defence which is
both
bona fide and
good in law.











[10]
This requires a consideration of the affidavit resisting summary
judgment. There is no doubt that the defendants have complied with
the first part i.e. they have disclosed the nature and grounds of
their purported defence. The sole question is whether the
requirements stated in (b) above have been met.











[11]
Stripped to the bare bones, it is clear, from a reading of the said
affidavit that the defendants do not contest the claim. That this is
so can be seen from the following words occurring in paragraph 4.3 of
the affidavit of the incumbent Principal Secretary, Mr. Paul
Nkambule, who states:















"Government
does not deny the claim as such
.
Government is only concerned with the long term welfare of the
claimants who are residents on Swazi Nation Land. Government's policy
being to make resettled persons better than before. This policy is
unlikely to be realized where the claimants are given cash as
compensation. Government has the overall responsibility for the
welfare of its citizens." (Emphasis added).







[12]
It would appear that the above paragraph, which in part clearly
states that the claim is not denied, also stipulates the Government
position on this very matter. The question is whether the welfare of
the plaintiffs, as seen by the Government, constitutes a defence or
at least raises a triable issue against the claim launched by the
plaintiffs so as to entitle the defendants to unconditional leave to
defend the matter?











[13]
I say without equivocation that this concern by the Government,
laudable and understandable as it may be, does not amount to a
defence at all in law, let alone a good one. Sight must not be lost
of the fact that it is the defendants, through the instrumentality of
the office of the 1
st
defendant's Principal Secretary,
which, as recorded in the letter set out above, promised to pay the
claimants the amounts stated in their respective cases for loss of
their land and property. They were asked to sign some agreements as
signification of their acceptance of the compensation.







[14]
By way of example regarding the 10
th
plaintiff in the "Agreement",
at paragraph 1, under the heading '
Now
the Parties Agree as Follows:
"
states the following:







"The
Government of Swaziland will pay money in the amount of E38,115.00
(Thirty Eight and One Hundred and Fifteen Emalangeni) to Daniel
Sukati upon receiving:







(i)
Proof of ownership of the
affected property,



(ii)
Legally acceptable
Identification Documents, and



(iii)
The 'Form of Agreement' and
'Form of Acceptance' signed fully and freely. . ."







[15]
There is therefore no doubt in my mind that when the parties appended
their respective signatures on the agreement, and having regard the
terms of the letter quoted earlier and the promise therein contained,
that the Government undertook to pay the amount of compensation
determined to each claimant and by the same token, each claimant
accepted and therefore expected to receive payment from Government,
upon having fulfilled the conditions stipulated in the agreement and
quoted immediately above.











[16]
The defendants do not, in their affidavit, claim that any of the
plaintiffs failed to fulfill any of the undertakings they had made
and which would render them unfit to receive the compensation due in
cash, as opposed to in kind, as undertaken. They simply rely on what
they term to be "policy". This policy, if it be, has not
been furnished to the Court and its terms are unknown i.e. who
prepared it; when; where; and to govern which people; whether there
was any participation by those it was intended to govern,
particularly the plaintiffs herein. These are material issues which
are not placed before Court for scrutiny.











[17]
More importantly, if it was the defendants' intention to subject the
claimants to this policy, they should have stated so in clear terms
in the agreement, considering that they, the defendants were the
prof
evens
and as such,
the
contra proferentem
rule comes back to
haunt them. They cannot be allowed, however honourable their
intentions may be, to seek, at this late stage, to impose new
conditions and shift the goal posts as it were, regarding the payment
and seek to rely on a policy which runs contrary to their written
undertakings. No such material change in the agreement can be made
unilaterally by the defendants.











[18]
It must also not be forgotten, if the policy is indeed operational
and binding, that not all the claimants are individuals. Two are
voluntary associations and one is a church. It is unfair to tar them
with one brush together with irresponsible natural persons. They are
not natural persons, who would ordinarily be suspected (if there be
good reason), to spend the money paid out as compensation with both
hands in riotous living, like the proverbial prodigal son referred to
in the Scriptures and be without a roof over their heads once the
"party" is over. It would therefore seem to me that the
protective sheath of the policy was not meant for the organizations
and churches.











[19]
In any event, even the claimants who are natural persons, are adults
in their own right and have the requisite legal and mental capacity,
there being nothing to suggest or indicate otherwise. They must
therefore be allowed to decide what they want to do with the
compensation received for the expropriation of their property which
they appear to have developed themselves without the intervention or
assistance of the defendants.











[20]
What they do with the compensation is, in my view, a private matter
that should, as far as possible, be left to them as the individuals
concerned to decide. Government may well offer them advice in this
regard but cannot, in the circumstances of this case, particular
regard had to the written agreement, prescribe for them what is to be
done or foist her will on adults, who are assumed to be responsible
persons in any event.











[21]
The 1
st
plaintiff has, for instance,
stated on oath that she has already built herself a home and it would
appear, from other resources. It would be preposterous, in the
circumstances, for a house to be built for her by the Government when
she already does have one. Furthermore, it is also clear that the
amount of compensation offered in each case, took into account other
features of the properties expropriated including fruit trees, kraals
e.t.c. It would be grossly wrong for the defendants to then withhold
the money and expend it on building a house or houses when the one
compensated is alive and in full and sober senses and well placed to
decide what will best suit him or her in the new environment.











[22]
Whichever angle ones looks at this matter, it would seem to me that
the defendants, laudable and praiseworthy as their concerns and
remedial policy may generally speaking be, do not, unfortunately,
constitute a defence in the instant matter. The defendants crafted
agreements which they requested the plaintiffs to sign. Included was
an undertaking to pay to the plaintiffs compensation duly determined.
For that reason, the maxim
pacta
sunt servanda
i.e.
that agreements must be kept should apply in this case.











[23]
The compensation has been due for some time and the defendants are
reluctant to comply with the very agreement they crafted. This they
cannot be allowed to do. They simply have no leg to stand on (or to
run away with), as the summary judgment hovers precariously over
their heads, like the sword of Damocles, seeking to make them prey.











[24]
Mr. Kunene, for the defendants, implored the Court, relying on the
judgment of Tebbutt J.A. in
Musa
Magongo u First National Bank of Swaziland
Appeal
Case No. 38/99, to the effect that the Court has to exercise great
circumspection before granting summary judgment for the reason that
it is a drastic and stringent remedy that may cause an injustice.











[25]
I am well alive to these concerns and have taken them on board in
reaching the decision to be pronounced shortly. The question to be
asked is whether there is any injustice that may be sustained by the
defendants in the present case as a result of granting summary
judgment. The answer, in my view is very plain.











[26]
The plaintiffs' claim is liquidated; all the necessary allegations
that mandatorily have to accompany the affidavits in support thereof
have been made; the defendants do not deny that the plaintiffs are
entitled to the money but attempt to raise the issue of a policy
which, for reasons advanced above, cannot preclude this Court from
granting summary judgment in this very deserving case. Justice in
this case actually demands that summary judgment be granted.
Injustice would result from the opposite - granting the defendants
leave to defend, which they do not even with great benevolence, on
their very papers, deserve.







[27]
In the premises, I have no option but to grant summary judgment as
prayed, as I hereby do. I therefore issue the following Order:







(1)
Summary judgment be and is hereby granted to each of the above-named
plaintiffs, in the respective amounts set out in paragraph [6] above.



(2)The
defendants be and are hereby ordered to pay the



sums
claimed with
interest at the rate of 9% per annum



a
tempore morae.



(3)
Costs of the suit are hereby granted to the plaintiffs as prayed in
the application for summary judgment, jointly and severally, with the
one defendant paying for the other to be absolved.







DELIVERED
IN OPEN COURT IN MABABANE ON THIS 30
th
DAY OF MARCH, 2011.



T.S.
MASUKU



JUSTICE
OF THE HIGH COURT







Messrs.
Nzima and Associates for the Plaintiffs



The
Attorney-General's Chambers for the Defendants