Court name
High Court of eSwatini

Ntshangase v Mahlaba and Others () [2000] SZHC 87 (16 October 2000);

Law report citations
Media neutral citation
[2000] SZHC 87
Coram
Maphalala, J









1


IN
THE HIGH COURT OF SWAZILAND


CIV.
CASE NO. 71/2000


In
the matter between


JETHRO
PHALESA NTSHANGASE APPLICANT


VS


JOSEPH
MAHLABA VETERINARY ASSISTANT/FOBOBO TANK


ATTORNEY
GENERAL

RESPONDENTS


Coram
S.B. MAPHALALA - J


For
Applicant MR.

NZIMA


For
Respondent MR.

SIMELANE


JUDGEMENT


(16/10/2000)


Maphalala
J:


The
applicant
moved an ap
plication
on
th
e
fo
llowing
gro
unds:


1. Waiving
the usual requirements regarding service and notice of the
application and dealing with the matter urgently;


2. Directing
the Deputy Sheriff for the District of Lubombo to search and seize
and attach forty nine (49) herd of cattle in the first respondent's
possession and return them to the applicant;


3. Interdicting
and restraining the first respondent from interfering with the
applicant's possession of the said herd of cattle;


4. Directing
the second respondent to deregister forty nine (49) herd of cattle
from the

nam
e
of the first respondent and register them under the name of the

applicant;


5. That
prayer 2, 3 and 4 hereof operate as an interim relief pending the
return date of the rule nisi to be determined by this court;


2


6. That
a rule nisi do issue calling upon the respondents to show cause, if
any, why;


a) Rules
2, 3 and 4 hereof should not be made final;


b) The
first respondent should not be ordered to pay costs;


7. That
pending the return date the first respondent be interdicted and
restrained from disposing and/or alienating the cattle in any way.


The
application is supported by an affidavit of the applicant, which
spells out all the facts he relies upon. The founding affidavit is
supported by the affidavits of one Mabilisa Ndzimandze and that of
Sipho Ntshangase.


The
respondent opposes this application and has in turn filed an
affidavit of the respondent supported by that of Simeon Mngomezulu.


The
matter came before the learned Chief Justice on the 19th January
2000, where an order was entered as follows:


"Having
heard counsel for the applicant and respondents. It is hereby ordered
that;


a) The
first respondent is hereby interdicted and restrained from alienating
and/or disposing of the cattle, which are the subject matter of these
proceedings pending finalization of this matter.


b) That
the application will proceed

in
the
n
ormal
cause according to the rules".


Subsequently
the matter was postponed a number of times and finally argued on the
17th March 2000.


Applicant
avers that sometime in 1990 his natural father Enock Ntshangase died
and was survived by his natural mother, Sarafinah Ntshangase (born
Mngomezulu) and six (6) children. After his death his father left
behind eighty five (85) herd of cattle under the care and control of
his mother. Sometime in 1992, his mother sisaed twenty nine (29) herd
of cattle to his uncle Simeon Mngomezulu who is still alive. In 1994
applicant left Lubuli area to settle at KaShoba area under Chief
Sibengwane and his mother gave him ten (10) herd of cattle, which
subsequently gave birth to fourteen (14) progenies.


This
brought the number to twenty four (24) herd of cattle. As he was
making arrangements to settle at KaShoba area, the said cattle were
registered in the name of the first respondent and he was using his
dipping number 53 at Fobobo dipping tank.


Sometime
in 1996, his mother fetched the cattle that were sisaed to his uncle
and they were now thirty-eight (38) in number and sisaed them to one
Joseph Mahlaba the first respondent. In October 1998 his mother
passed away leaving the said cattle under his care and control in
conjuction with his brother Sipho Ntshangase.


After
the finalization of his khonta arrangements he then advised the first
respondent to return to him all the cattle which were sisaed to him
to be registered under his name


3


and
to use his dipping number 82 and he refused to do so. The matter was
then reported to the chief's court wherein an order directing the
first respondent to return all the cattle to him was issued sometime
in October 1999, which order first respondent failed to follow.


The
first respondent in opposition avers in limine that applicant has no
locus standi to move the application in so far as the cattle forming
the subject matter of the proceedings form part of assets of a
deceased estate and applicant is neither the executor nor curator of
the deceased

estate.


Secondly,
a preliminary point was made that the applicant has failed to join
the Master of the High Court in the matter, notwithstanding that the
law requires him to do so in all cases involving the interest of a
deceased estate.


On
the merits the first respondent denies most of the averments made by
the applicant in his papers. More importantly he places a number

o
f
iss
ues
in dispute.
The
first issue he places in dispute

is that he den
ies
that
the
applicant's cattle bore fourteen(14)
progenies.


Secondly,
he admits that the applicant registered the ten (10) herd of cattle
he came with under his dip tank number. He however avers that such
arrangement was only for dipping purposes

an
d
the
cattle
were always kept apart from his. To add on the number

of cattle given to the applicant he. Then
sisacd
seven(7) herd of cattle of his
own
to the applicant. However, even the seven (7) held of cattle remained
registered
under
his
dip tank number.


Both
counsel argued at length filing detailed Heads of Arguments. Mr.
Nzima
submitted
on behalf

of
the
applicant that the said cattle were obtained through a" court
order, which was issued by the chief's court at KaShoba area after
the matter had been only heard and decided upon by the court in
October 1999. The applicant was in lawful

and
peaceful
possession of

the
said ca
ttle
after

he
had
obt
ained
them

throu
gh
a
court order in terms of the Swazi Administration Orcter. The
respondents decided to take the law into his own hands and disobeyed
the order of KaShoba chief's court irrespective of the avenues that
were open to him. He did not appeal against the decision of the
chief's court in terms of Section 25 of the Swazi Administration
Order of 1998. He did not report the matter and/or transfer it to the
Swazi Court if he had reason to believe that it was not going to be
equitably adjudicated upon by the chief's court in terms of Section
24 of the said Act. He did not approach even this court for relief if
he had reason to believe that he was unfairly treated by the chief's
court.


On
the point that applicant has not complied with Rule 6 (23) it was
argued that applicant in the present case is not representing a
deceased estate and no estate of a deceased person was ever reported
to the Master of High Court in relation to this matter. Therefore,
the applicant is entitled to approach this court in his personal
capacity as the person who was responsible to look after the cattle.
The applicant moved the application on the basis that the herd of

cuttle were
taken
away from him unlawfully and by a person who disobeyed and 1ooked

down upon a d
ecision
of court, which is established in terms of the laws of this country.
Moreover, that person is a Swazi and is aware of the different
avenues available to him if aggrieved by a decision of the court and
nevertheless he took the law into his own hands without


4


respect.
Mr. Nzima argued that this court cannot be expected to rally behind
such disobedient person lest it create a bad precedent that people
can take the law into their hands with impunity. He submitted further
that respondent does not dispute that an order of the chief's court
was issued to the effect that he was ordered to return the cattle to
the applicant.


The
respondent as represented by Mr. Simelane argued in the contrary. He
submitted that applicant should have pursued the matter in terms of
Rule 6 (23), which requires that all application in connection with
an estate shall be served upon the Master of the High Court for
consideration and report before they are filed with the Registrar.


On
the merits it was argued on behalf of the respondent that the
applicant has failed to set out his basis of ownership of the said
cattle, which would have been the basis upon which he claims the
cattle. To succeed on the basis of res vindicatio it is essential for
a litigant to prove that he is the owner of the property in issue.


The
fact that the chief's court issued an order that the cattle be given
to the applicant does not take the matter further, and the applicant
still has to prove that he is entitled to be given the cattle and
that the chief's court was correct in deciding likewise. This is
particularly so in view of the fact that, in dealing with this
matter, the chief's court flouted well established principles of
natural justice, especially the doctrine ad alterant partem. This
court may not be used to rubberstamp the decision of the chief. It
was further argued that applicant has failed to

establish
the jurisdiction of the chief's court in terms of Section 14 and 16
of Swazi Administration Order.


Further,
it was argued on behalf of the respondent that the application as it
stands has got a number of disputes of fact such that it cannot be
decided on the papers per se. The application must therefore be
dismissed with costs. To highlight this point the court was referred
to the often-cited case of Room Hire Co. (Pty) Ltd vs Jeppe Street
Mansions (Pty) Ltd 1949 (3) S.A. 1155 at 1162.


These
are the issues before court. I have considered the papers before me
and also the able submissions made by counsel. It appears to me
without determining other aspects of this case that this matter
cannot be decided on the papers as they stand, as they are a number
of disputes of facts.


The
central one being the issue of the ownership of the cattle. The law
has been settled in this regard.


The
case of Room Hire Co. (Pty) (supra) is in instructive at page 1163
were Murray A.

J.
P.
had this to say:


"It
is certainly not proper that an applicant should commence proceedings
by motion with the knowledge of the probability of a protracted
enquiry into the disputed fact not capable of easy ascertainment".


In
the present case two disputes of fact arose in the respondent's
opposing affidavit. These I have already outlined in the body of this
judgement. The applicant has not even attempted to file a replying
affidavit to challenge these averments by the respondent. The purpose
of replying is to reply to averments made by the respondent in his
answering affidavit (see Bayat & others vs Hansa & others
1955 (3) S.A. 547 (N), per Caney J at 553). The applicant, naturally,
must answer those statements of facts which he denies, or he may
place on record further facts which would show that


5


the
respondent's allegations are false, are incomplete or do not give a
true reflection of the actual position.


That
as it may. It is my considered view that in the interest of fairness
and justice and in exercise of my discretion I direct that viva voce
evidence be led to ascertain the disputed facts.


Costs
to be costs in the cause.


S.B.
MAPHALALA


JUDGE