Court name
High Court of eSwatini

Fakudze v Commissioner of Police and Others () [2002] SZHC 75 (09 September 2002);

Law report citations
Media neutral citation
[2002] SZHC 75
Coram
Masuku, J









THE
HIGH COURT OF SWAZILAND


CIVIL
CASE NO. 1935/02


In
the matter between:


MADELI
FAKUDZE Applicant


VS


THE
COMMISSIONER OF POLICE 1st Respondent


THE
ATTORNEY-GENERAL 2nd Respondent


SUPERINTENDENT
AGRIPPA KHUMALO 3rd Respondent


CORAM: MASUKU
J.


For
Applicant: Adv. L.M. Maziya (Instructed by B.J.


Simelane
& Associates


For
Respondent: Mr P.M. Dlamini (Attorney-General)


JUDGEMENT


9/09/02


On
the 7th and 10th June, 2002 respectively, the Court of Appeal, per
Steyn J.A. and Zietsman J.A., respectively, issued Orders the effect
of which was that the Applicant was unconditionally allowed to return
to Macetjeni, his home, in the Lubombo District.


Presently
serving before Court is an application by the Applicant, in which he
seeks on an urgent basis certain relief, it being common cause that
the Respondents refused him access to his home, contrary to the
letter and spirit of the above-mentioned Court of Appeal judgements.
The relief sought is in the following terms: -


2


1. Dispensing
with the rules of the above Honourable Court as to form time limits
and manner of service and disposing of this application by may (sic)
of urgency.


2. Committing
the 1st and 3rd Respondents to jail for thirty (30) days each for
contempt of the Appeal Court judgements dated 7th and 10th June 2002,
annexed to the Founding Affidavit.


3. Directing
the Respondents to pay costs jointly and severally the one paying the
other to be absolved on the Attorney and own client scale including
counsel's fees calculated on the same scale.


4. Further
and/or alternative relief.


This
application first served before Court on the 21st June 2002, after
which it was postponed on several occasions and was also removed from
the roll on another until a hearing date was secured before me on the
26th August 2002. I am however not privy to the reasons for such an
urgent matter not being heard earlier.


History.


This
matter has a rather depressing and unsavoury history. It has been the
subject of adjudication by the Appeal Court and this Court on several
occasions, in all of which the Applicant has emerged triumphant but
could not taste the fruits of his triumph. So ungratifying were the
constant visits by the Applicant to the Courts that Steyn J.A. in
Case No.8/2002, referred to above, prefaced the judgement in the
following language: -


"The
judges of the Court of Appeal trust that the judgement delivered in
the two appeals before us at this session of the Court of Appeal,
being the case cited above and Case No. 6 of 2000, will bring to an
end a most regrettable episode in the constitutional development of
this country. This Court has gained the clear impression that the
executive has taken every conceivable step, both legitimate and
illegitimate to delay and ultimately attempt to thwart the orders
issued by the courts arising out of the unlawful ejectment of the
parties involved."


3


The
fact that I am seized with this matter now is clear testimony that
the wise injunctions by the highest Court in the land were regarded
by the Executive as being of no consequence and a total waste of
time. This is, to put it mildly, regrettable.


On
the 3rd August 2000, removal orders were issued against Chief Mliba
Fakudze, the Applicant, Mahawukela Fakudze, Makhuphuka Thwala and
their dependants from Macetjeni and kaMkhweli areas. This Court
granted them an injunction preventing their removal. This injunction
was subsequently erroneously, as found by the Appeal Court withdrawn
by the High Court and on appeal, the Court of Appeal restored the
High Court injunction. The effect of the Court of Appeal Order was to
allow the Applicant, amongst others, to return to Macetjeni, pending
the finalisation of the main matter by the High Court.


On
the 8th June 2001, the Government appealed against the above Order
but later abandoned the appeal. This led to the Court of Appeal
ordering that the Applicant amongst others, be allowed to return to
Macetjeni. In an attempt to exercise his rights to return to
Macetjeni in terms of the Court Order, certain members of the
security forces impeded the Applicant. This culminated in an
application by the Applicant before this Court on the 9th November
2001 in which the Court interdicted and restrained the Commissioner
of Police and/or any member of the security forces from preventing
the Applicant from returning to his home.


Another
attempt by the Applicant to return was again thwarted by the security
forces. The Applicant, in the face of those developments moved a
fresh application for committing the 1st Respondent herein and one
Abraham Dladla to prison for contempt of the Court Order of the 9th
November 2001 and ancillary relief. Matsebula J. granted this Order
and in the process mulcted the Respondents therein with costs on the
punitive scale.


Dissatisfied
with Matsebula J's judgement, the Government noted an appeal against
this judgement. The appeal was dismissed by Steyn J.A. with other
Honourable Judges of Appeal concurring. It is in that judgement that
the wise injunctions quoted verbatim above were pronounced. The
effect of this judgement was to allow the Applicant to return to his
home unconditionally and unimpeded.


4


It
is worth mentioning that at around the same time, the main matter in
the Macetjeni/KaMkhweli debacle served before the Full Bench of this
Court and which declared that the Swazi Administration Order, 1998
was invalid. The Court further found that in any event, the
provisions of Section 28 (3) of and (4) the Order had not been
complied with in ejecting the Applicant and his compatriots. The
removal orders were therefor declared unlawful. An appeal was noted
to the Court of Appeal against the said judgement and it was
dismissed by the Court of Appeal, upholding the High Court judgement
on setting aside of the removal Orders for non-compliance with
Section 28. The Court of Appeal did not find it necessary to
pronounce upon the validity of the Swazi Administration Order.


The
upshot of this judgement was to also allow the Applicant to return to
Macetjeni as the removal Orders on the basis of which he was ejected
in the first place had been set aside by the High Court Full Bench,
which judgement was endorsed by the Appeal Court.


Applicant's
Depositions.


In
his Founding Affidavit, the Applicant states that armed with the two
judgements of the Court of Appeal referred the above, he proceeded to
his home on Tuesday 18th June 2002. He was accompanied by his legal
team, comprising Attorney Ben J. Simelane and Advocate Maziya. On
arrival at the homestead, they opened the gate and drove in soon
after which they were confronted by Sergeant Fakudze, a police
officer, who was accompanied by three armed members of the security
forces.


Fakudze
enquired as to why the Applicant was inside the premises whereupon
the Applicant informed him that he had returned to his home on the
strength of judgements of the Court of Appeal. Fakudze ordered the
Applicant and his team to leave the premises whilst he (Fakudze) was
communicating with his superiors. The Applicant's team refused to
leave after explaining the implications of the Court of Appeal
judgements. By then, a group of residents had joined the Applicant
and his legal team and one boy had started clearing the yard. He was
asked by Fakudze to stop clearing the yard until he (Fakudze) had
consulted his superiors. The boy obliged.


Fakudze
went ostensibly to contact his superiors. He returned some five (5)
minutes later,


5


intimating
that his superiors were on their way. After a period of thirty (30)
minutes, the 3rd Respondent (Khumalo), came driving, a motor vehicle.
He was in a belligerent and recalcitrant mood. He asked why the
Applicant was in the homestead and when he was told of the Court of
Appeal judgements, he said everyone should leave the premises in
order to discuss the matter further and this was done. He then
ordered a soldier to lock the gate to the Applicant's homestead.


Khumalo
then told the Applicant that his presence was undesirable at
Macetjeni and that the 1st Respondent had not told him to allow the
Applicant or the other evictees to return. When approached about the
Court Judgements and when asked to read them, Khumalo flatly refused
to even look at them. He insisted that every one should leave
immediately. When attorney Simelane explained to Khumalo the
unlawfulness of his actions, he exhibited signs of grave agitation
and remained unswayed in his resolve not to allow anyone to enter and
remain in the premises under any circumstances whatsoever. He
mentioned further that the Applicant's presence would be interpreted
as dereliction of duty on his part. He then called all the security
forces aside and told them that if the Applicant and his team refused
to leave he would sanction the use of force. This threat persuaded
the Applicant's attorneys to suggest that Applicant leaves the area,
which he then did.


The
Applicant states further that he has tried all the means at his
disposal to return to his home but the Government is hell-bent on
frustrating his return, Orders of Court in his favour
notwithstanding. The Applicant contends further that the 1st and 3rd
Respondents are aware of but are wilfully disobeying the Court
judgements. The allegations of the events of the 18th June 2002 are
confirmed by Attorney Simelane in supporting affidavit.


Respondents'
case


The
Respondents have joined issue and have raised points in limine.
Furthermore, they have raised issues in opposition to the grant of
the relief sought by the Applicant. The points in limine raised are
the following :-


(a) that
this application has been brought prematurely, in view of application
No. 1847/02 in which the Attorney-General seeks a declaratory Order.
It is contended, on the Respondent's behalf that that application has
to be disposed


6


of
first as it seeks amongst other things to stay the return of the
evicted families, pending its finalisation.


(b) that
prayer 2 cannot be granted because the officers in question, i.e. the
1st and 3rd Respondents were actually doing what is complained of in
their official capacities. They cannot therefor, be committed in
their personal capacities as the Respondents are unaware of any
principle in terms of which a public officer could be arrested.


On
the merits, the Respondent's main contentions are the following: -


(a) that
there is a high likelihood of anarchy arising in the area if the
Applicant were to be allowed to return and further, that there is a
well-founded apprehension of violence and bloodshed in both Macetjeni
and kaMkhweli areas all emanating from the return of the Applicant
and the other evictees. A memorandum containing a catalogue of
incidents of violence allegedly reported has been annexed in support
of the expressed fears and apprehensions. It is marked annexure
"AG4".


(b) that
the King has declared that the return of the evictees to the
respective areas will pose a threat to national security in light of
the contents of annexure "AG4" referred above.


(c) hat
a certificate made in terms of the provisions of Section 2 of the
Evidence (State Interest) Order No.22 of 1976, which permits the
members of the Royal Swaziland Police to act in the manner they have
done was to be prepared by the Attorney-General for the King's
signature.


(d) that
the requirements for committing the 1st and 3rd Respondents for
contempt have not been satisfied, in as much as it has not been shown
that the Respondents harboured an intention to deliberately flout the
Court judgements.


I
must however point out that the last issue was not raised in the
papers but only in argument. It now behoves me to consider these
points and the various arguments raised by the parties' legal
representatives. I propose to deal with the points in limine first.


7


A.
POINTS IN LIMINE


(a) Stay
of this application pending finalisation of Case No.1842/02


It
was urged on the Respondents' behalf that this application has been
brought prematurely in view of the fact that Case No. 1842/02 has not
been determined and that the Applicant and the other returnees can
safely return once the rightful chief or chiefs of the two areas have
been declared by this Court.


Mr
Maziya strongly opposed this prayer arguing that that application is
not before Court and that it does not seek to secure any interim
relief that would have a bearing on this matter. Mr Maziya further
argued quite forcefully, that in any event, the Applicant herein is
not a party to those proceedings and that it would therefor be a
travesty of justice for his matter to be stayed pending the
finalisation of a matter in which he does not appear to have an
interest.

In
considering the sustainability of this point in limine, it is in my
view necessary to advert to the prayers sought therein. In that
application, the Attorney-General and the Minister for Home Affairs
pray for an Order: -


(1) Staying
the execution of the Court of Appeal judgements on cases 6/2002 and
8/2002 respectively, on an interim basis pending the outcome of these
proceeding in order to facilitate expeditious, peaceful and effective
compliance there with.


(2) Declaring
that the Swazi Administration Order, 1998 is a valid law of full
legal force and effect.


(3) Declaring
the rightful chief of Ka-Mkhweli and Macetjeni among the Respondents
herein


(4) Further
and/or alternative relief.


8


The
Respondents in that matter are Mliba Fakudze, Mtfuso Dlamini and
Maguga Dlamini. I called for that file to be brought to me and
established that the matter was removed by consent from the roll on
the 19th July 2002. There appears to be difficulty with service of
the papers, particularly on the 1st and 2nd Respondents Mliba Fakudze
and Mtfuso Dlamini, who were evicted and are said to be somewhere in
the Republic of South Africa, Their papers were served on their
erstwhile attorneys Mr B.J. Simelane and P.R. Dunseith who have filed
affidavits in which they declare that they have no mandate to receive
the process nor to act for the aforesaid Respondents. It is clear
therefor that there was no service of the papers on those
Respondents, which may have led to the removal of the matter from the
roll. It is also worth noting that no interim or any Order for that
matter was granted on this application.


I
agree with Maziya that this point of law ought to be dismissed.
Firstly, as recounted above, there is no such application pending
before this Court as it was removed from the roll. There is no
indication at all as to whether it will be reinstated and if so when.
Secondly, there was no attempt to obtain any interim relief and none
was granted. It is also doubtful whether it would be proper for this
Court to stay the execution of Orders of a higher Court. Thirdly, the
present Applicant has not laid any claim to chieftainship and he is
not a party to the proceedings, whereas the Order sought for stay
would affect his interests.


Fourthly,
there is in my view no sound reason for attempting to create a nexus
between the Applicant's right to return to his rightful home and the
declaration of the rightful chiefs. The Applicant's return as far as
I can ascertain has nothing to do with who is declared Chief of
Macetjeni. The Court of Appeal Orders reflected that his return was
clearly unconditional and it would be folly for this Court to attempt
to set down prerequisites for his return. Without deciding this
issue, it is very doubtful whether this Court or any other for that
matter is the proper forum to decide on the rightful chiefs as these
are matters ordinarily for Swazi customary law.


The
question of balance of convenience appears to be pertinent in this
wise. The Applicant has suffered untold harm in being refused by the
Respondents to return to his home on several occasions. He states
that his home is in a serious state of disrepair and that he is

leading
a nomadic life which translates itself in part, in the Applicant
having no means of


9


sustenance
as the access to his ploughing fields is also denied. There is in my
view no harm whatsoever that the Respondents or the Government for
that matter would suffer if the Applicant were immediately allowed to
return. He has not been linked to any violence or improper conduct in
the area. Every passing day during which the access to his home
remains denied brings untold trauma and suffering, particularly in
the face of favourable Orders of the High Court and the Appeal Court.


I
am of the view, in light of the foregoing that this point should be
dismissed and I so order.


(b) Is
it proper to arrest public officials for contempt in respect of
defiance of Orders of Court done in their official capacities?


The
Attorney-General strenuously argued that the 1st and 3rd Respondents
committed the actions complained of in the official and not in their
personal capacities such that it would be improper to arrest them
therefor. It was further argued that they derived no personal benefit
by acting in the manner they did and that they should not be punished
therefor. This appears to me to be a novel proposition and in support
of which no authority was cited.


In
opposition, Mr Maziya referred the Court to a recent Court of Appeal
judgement in ELIAS VONKO DLAMINI VS THE COMMISSIONER OF TAXES AND TWO
OTHERS CIV. APPEAL CASE NO.15/01. In that case the Senior Regional
Officer (Pigg's Peak) one Gcokoma A. Dlamini, the 3rd Respondent
therein, had been ordered by this Court to furnish certain
information in his aforesaid capacity to the Commissioner of Taxes
and he did not. Contempt proceeding for his defiance were instituted
and these were set aside by this Court. The Court of Appeal
overturned this Court's order and upheld the Appellant's appeal.


In
the course of the judgement, Zietsman J.A. stated the following at
page 3 of the judgement:-


''The
fact that the State may be indemnified against execution or
attachment to satisfy a judgement does not mean that an official of
the State cannot be committed for contempt of court if he fails to
comply with a Court Order. A committal for contempt is not an
attachment. "


10


This
was recognised by Jafta J. in MJENI VS MINISTER OF HEALTH AND WELFARE
2000 (4) SA 446 (Tk HC) at 452, C, G-H in the following language:-


"
Quite clearly and just like any other party, the State is bound to
comply with orders of the courts. It has a duty to honour them
whenever it is directed to do something. A deliberate non-compliance
or disobedience of a court order by the State through its officials
amounts to breach of that constitutional duty. Such conduct impacts
negatively upon the dignity and effectiveness of the Courts. An
effective judiciary is an indispensable part of any democratic
government. "


It
is clear from the foregoing that there is nothing untoward in
committing public or other officials for disobeying or refusing to
comply with Court Orders. Public Officials are the hands and feet of
the State and if they refuse to comply with Orders of Court, then the
State cannot comply with those Court Orders. Public Officials must
know and it should be clear that if an Order is granted calling upon
them to do or to refrain from doing a thing in their official
capacity, they are bound to comply therewith. They should also know
that their failure or refusal to comply therewith attracts some
penalty, namely, contempt proceedings.


To
insulate public officials from committal for contempt would give rise
to an unacceptable situation in which they would be placed on a high
pedestal and would be granted the status of being above the law when
the State they serve and act for is not. This would clearly
constitute a recipe for disaster insofar as respect and dignity of
the Courts is concerned. Such a notion should be quickly dispelled
lest it takes root in the minds of public officials. Officials who
serve the interests of State to the extent that they deliberately
disobey Court Orders must know that they will be required to make a
personal sacrifice i.e. loss of their freedom and for which they are
unlikely to be compensated by the State.


There
is no merit in this point in limine. It must accordingly fail. B.
MERITS


I
shall now proceed to consider the matter on the merits. A good
starting point would be declaring the law applicable to contempt of
Court.


11


The
Law Applicable to Contempt of Court.


In
CRAW AND ANOTHER VS JARVIS 1982 - 86 SLR 218 at 219, Dunn A.J. (as he
then was) stated that an applicant for contempt must show:-


(a) that
an order was granted against the respondent;


(b) that
the respondent was either served with the order, or was informed of
the grant of the order against him and could have no reasonable
ground for disbelieving the information; and


© that
the respondent has either disobeyed the order or has neglected to
comply with it.


See
also MADZANDZA E. ZWANE VS BHEKI G. SIMELANE & COMPANY AND THREE
OTHERS HIGH COURT CASE NO.2195/01 (per Masuku J.) (unreported) and
Herbstein and Van Winsen, "The Civil Practice of the Supreme
Court of South Africa", 4th Edition, Juta, 1997 at page 825. See
also CONSOLIDATED FISH DISTRIBUTORS (PTY) LTD VS ZIVE & OTHERS
1968 (2) SA 517 at 522 together with the authorities therein cited.


At
the commencement of the proceedings, the Attorney-General conceded
that the requirements in (a) and (b) of the CRAW judgement had been
satisfied. His main contention was that it was the third that had not
been fulfilled, Mr Maziya on the other hand submitted that the
Applicant had succeeded in meeting all the requirements.


I
shall now deal with the points raised on the merits.


(a) Likelihood
of anarchy arising if the Applicant returns.


The
Respondents argued that the return of the Applicant to Macetjeni
would culminate in serious violence, anarchy and bloodshed in the
area. It was argued that the Police are under a legal duty to prevent
this materialising and that they find it unsafe to allow the evictees
back to their respective areas for the time being. It was further
contended that the Police are aware of incidents of violence in both
areas and which occurred before and after the eviction


12


of
the evictees. In this regard, a long list of incidents is recorded.
It is further contended that the return will pose a threat to
national security. The question to be answered is whether all these
issues justify the 1st and 3rd Respondent refusing the Applicant from
exercising the rights conferred on him by the Court judgements.


The
Attorney-General referred the Court to the provisions of Section 7
(1) of the Police Act, 1957 which provide the following:-


"The
Force shall be employed in and throughout Swaziland for preserving
the peace and detection of crime, and for the apprehension of
offenders against the peace, and for the performance of such duties
shall be entitled to carry arms and members of the Force shall have
all the powers and duties which are conferred and imposed upon them
by any law in force in Swaziland. "


He
argued that it is necessary for the Police to prevent the evictees
from returning in order to keep the peace in Swaziland as required by
the above Section and that if the evictees are allowed to return,
then the Police would have failed to comply with the provisions of
this sub-Section. This argument however flies in the face of the
provisions of sub-section (2) and (3) of the same Section which
provide the following:-


(2) Every
member of the Force shall be an officer of the law proper for the
service or execution of any summons or warrant or other process
directed to him, and every such summons, warrant or process directed
to any member of the Force, and every such other member shall have
the same rights power and authority for and in the service or
execution of such summons, warrant or process as if it had originally
be directed to him.


(3) Every
member of the Force shall promptly obey and execute all orders and
warrants lawfully issued to him by any competent authority, collect
and communicate intelligence affecting the public peace prevent
commission of offences and public nuisances detect and bring
offenders to justice apprehend


all
persons whom he is legally authorised to apprehend and for whose
apprehension sufficient grounds exist and keep such books and records
and render such returns as the Commissioner may from time to time
direct. " (my own emphasis)


13


The
two Sub-Sections in my view suggest the contrary. They enjoin
officers, including the 1st and 3rd Respondents to execute warrants
and Orders of Court. They do not provide for any exceptions in which
Police Officers may refuse or neglect to comply with Court Orders. It
is my view that Courts are "competent authority" for
purposes of Section 7 (3). If it is the view of the Police that
compliance with an Order of Court would endanger public peace and
national security, they are not at large to take the law in their
hands and flout the Order of Court. They would be expected to bring
appropriate proceedings to Court seeking appropriate relief. It would
be dangerous to leave the Police to be arbiters regarding whether or
not to enforce or comply with Orders of Court. There is no law that I
know of which expressly or impliedly authorises the Police Force to
refuse to comply with Court Orders. None was cited to me. If the
Police find themselves between the rock and a hard place, as stated
by the Attorney-General, theirs is to approach the Court for it to
unlock the dilemma and certainly not to opt to disobey Court orders.


Furthermore,
I am of the firm view and conviction that the prevention of the
Applicant and the other evictees in the face of the Orders of Court
from the two areas is not the proper not way to preserve peace in the
two areas. It is common cause that armed members of the Police Force,
the Army and Correctional Services have been stationed in both areas,
ostensibly to prevent the breach of peace and to apprehend any person
who would attempt to engage or would engage in criminal activity or
breach of peace. The armed forces placed there must prevent people in
the areas from disturbing the peace and if necessary to arrest those
responsible. It is unfair and unacceptable to deprive the Applicant
and other evictees of the enjoyment of their homes in the name of
preventing anarchy and maintaining peace. More importantly, there are
no allegations that the Applicant or the other evictees have engaged
in any activity that amounts to the breach of peace or conduct that
would cause anarchy. The Applicant is not above the law. If he
attempted to engage in any illegal activity, he would have to be
dealt with according to law.


I
should also mention that the memorandum annexed "AG 4" is
open to attack as it appears to be the basis upon which the Court
must find a reasonable apprehension exists that there will be a
breach of peace. This memorandum appears to have been drafted in a
quest to address the deficiencies raised by Steyn J.A. at page 8 of
Case No.8/2002, namely that there


14


was
no information on which a reasonable apprehension could be based that
a threat to national security existed or may arise if the Court Order
is implemented.


The
memorandum itself, particularly in the form in which it was presented
does not constitute evidence. Furthermore, it was not drafted in the
ordinary course of duty but was written on the 26th of June 2002 to
the Attorney-General clearly for purposes of meeting the deficiencies
referred to above. It is also noteworthy that the events in issue
date as far back as 1998. Some, if not most of the events recorded do
not appear to be criminal nor a danger to public peace or national
security e.g. welcoming Applicant by people carrying hoes, spades
e.t.c. delivering morning apparel at a Police station in protest
against evictions. Whilst baring one's buttocks, if done in a public
place may amount to public indecency, it certainly does not threaten
public peace or security.


In
any event, it is the duty of the Police to investigate these issues,
bring the culprits to book and have the Courts deal with them.
Preventing the Applicant is certainly not the answer. The armed
forces stationed in those areas must do their job of ensuring that
peace is maintained and dealing with wayward persons according to
law.


In
view of the foregoing, I find that this point must be dismissed.


(b) Interests
of National Security.


In
paragraph 10.4 at page 7 of the Answering Affidavit, the 1st
Respondent states the following:-


"I
have since been made aware that the King has declared that the return
of the evictees at kaMkhweli and Macetjeni Areas will pose a threat
to national security, in light of the evidence contained in annexure
"AG4 " and other incidents of violence and threats of
violence allegedly perpetrated in the area some of which do no appear
in RCCI dockets. The Attorney-General has been asked to prepare a
certificate signed by His Majesty the King to be produced before this
Court in due course. I refer to the Confirmatory Affidavit of the
Acting Attorney-General annexed here to for an amplification of the
point. "


15


The
relevant contents of the confirmatory affidavit of one Sabelo
Johannes Khayelihle Matsebula read as follows at paragraph 4.


"I
wish to state that the King in his wisdom has ordered my office to
prepare a certificate in terms of the above-mentioned legislation for
his signature. However, because the Attorney-General is currently out
of the country this certificate has not been presented to the King
for signature. However, it is ready as per the instruction and I have
been made to understand that it will be taken to the King as soon as
the Attorney-General arrives back home on the 28th of June 2001. "


It
is however common cause that such certificate was never filed before
Court even after the return of the Attorney-General at the end of
June. In this regard, the Attorney-General fairly conceded that he
could not argue the question of the certificate and the issue of
national interest. This is a laudable step that the Courts always
expect from their officers, the Attorney-General included.


A
few issues need to be mentioned however regarding the paragraphs
quoted above. Firstly, the 1st Respondent provides no basis or
evidence for his assertion that the King declared the return of the
evictees will pose to threat to national security. It is accordingly
inadmissible standing on its own as it does. Secondly, it is not
immediately clear as to the circumstances in which and the procedure
by which the King can make the declaration alleged. No authority for
such powers was cited to the Court.


It
is my view that the provisions of Section 2 (1) of the Evidence
(State Interest) Order, 22/1976 are irrelevant and inapplicable to
the instant case and I am not surprised that the prepared certificate
never saw the light of day. The said Section provides the following:-


"Notwithstanding
any other law, no person shall be compellable and no person shall be
permitted or ordered to give evidence or furnish any information in
any proceedings in a court of law or before any tribunal, body or
institution established by or under any law as to any fact, matter or
thing or as to any communication made to or by such person, and no
book or document shall be produced in any such proceedings if a
certificate purporting to have been signed


16


by
His Majesty the King or any other person authorised by him thereto is
produced to the Court, tribunal, body or institution (as the case may
be) to the effect that such fact, matter, thing, communication, book
or document affects the interest of the State or public security and
that the disclosure thereof will, in the opinion of the King or the
person so authorised by him be prejudicial to the interests of the
State or public security."


From
the legislative nomenclature, it is clear that the Section applies in
situations where it is sought to bring evidence or information in a
court of law or before a tribunal or such other body established by
or under any law, where a certificate purporting to have been signed
by His Majesty the King or any person authorised by him is produced
in the court tribunal or other body to the effect that such matter,
thing, communication, book or document required for production
affects the interest of the State or public security and that
disclosure thereof will in the King's opinion or opinion of the
authorised person be prejudicial to the State's interests or to
public security.


It
is immediately clear in casu that there are no proceedings before any
Court, tribunal body or institution where information whether in a
book or other document or form is required to be produced.
Furthermore, it is clear that the interpretation sought to be
attached to this Section is that the King can sign a certificate
declaring certain areas as threat to national security. That is
clearly an abuse of the provisions of the Section in question and
amounts to a serious attempt to clutch at straws. The point relating
to national security declaration by the King would have to fail. As I
stated, the Attorney-General rightly did not persue it. This point
was incidentally thrown out by Steyn J.A. and I would not deviate.


© Have
the 1st and 3rd Respondents disobeyed or neglected to comply with the
Orders of Court?


In
the case of ELIAS VONKO NDZINISA VS THE COMMISSIONER OF TAXES (supra)
at page 3, Zietsman J.A. stated the position in the following
language:-


"Once
it is established that there has been disregard of the order of court
the respondent, to avoid committal, must show on a balance of
probabilities that the disregard was not wilful. It has also been
held that the disobedience of the


17


order
must not only be wilful, but also mala fide. "


It
is not in dispute in casu that the Court Orders were not complied
with. All that is left for the Respondents to show is that their
disregard was not wilful and there was no mala fides in their
disregard of the aforesaid Orders.


The
Attorney-General submitted that the state of mind of both 1st and 3
rd Respondents was not that of persons who wilfully disobeyed the
Orders of Court. He argued that what was uppermost in their minds was
the threat to national peace and security which would be occasioned
by their compliance with the Order. Furthermore, the Court was urged,
in assessing their state of mind, to consider the incidents of
violence referred to in annexure "AG4" which had a bearing
on their state of mind in acting in the manner in which they did.


In
assessing the correctness of the Attorney-General's submissions, one
need not go further than the Answering Affidavits filed in this
matter. Paragraphs which are relevant in this regard include
paragraphs 7,8.9,10.2 and 10.6 and 10.7 of the 1st Respondent's
Answering Affidavit. These paragraphs read as follows:-


"7. I
admit that the natural effect of the Court's judgement is that the
evictees are at liberty to go back home. However there is more
serious problem making it difficult for the evictees to simple return
to their original place of residence without a possibility of Anarchy
and bloodshed happening at the area. My office has a legal duty to
ensure that nothing of that nature happens and thus whilst we are
still making the return of the evictees to be as peaceful as possible
it is necessary that their return be delayed for the time being.


8. hough
I do not dispute the contents of these paragraphs as such I wish to
state that my office had not authorised the officers in charge of the
Macetjeni and KaMkhweli Police Posts to allow the evictees back to
their former places of residence, thus they were right, in terms of
Police Principles and claim of command to disallow Applicant back
home.


9. I
admit that the arrival of the Applicant attracted a large number of
community Members who identify with and even pay allegiance to Mliba
Fakudze as their Chief. This further shows that there is a high
likelihood of anarchy in the area if I were to allow


18


Applicant
and the other evictees back to Macetjeni area. When Applicant arrived
he was given a hero's welcome which is usually accorded to the King.
This was done despite the fact that he was not a chief but an
ordinary resident then one can deduce from this that if an ordinary
citizen returns back and is accorded a hero's welcome, which revives
the Chieftaincy dispute in the area then how worse will this be if
the former Chief Mliba Fakudze returns. I refer this honourable Court
to annexure "AG2" attached hereto being a confirmatory
Affidavit of the third Respondent herein, Agrippa Khumalo which shows
that this isolated incident of the return of the Applicant revived
the feelings of hostility between the factions of the community that
pays allegiance to the currently reigning chief and the former Chief,
Mliba Fakudze.


10.2. I
am not deliberately refusing to obey the Court Orders and judgement
both this court and the Court of Appeal, but I am worried about the
state security considerations which in my submission, are very
paramount as compared to the right to a home which is alleged to be
infringed against the Applicant herein. There is evidence of anarchy
in the Macetjeni and Kamkweli areas, which the Police are aware of.
There are many incidents prior and after the eviction of Applicant
and to show the level of bloodshed and anarchy I have attached a
memorandum from the station commander of Siphofaneni Police Station
dated 26th June 2002 "AG4" which shows the different
incidents that were reported formally to the Police and have R.C.C.I
numbers. These are incidents, which were actually reported and amount
to about less than half the incidents that actually occurred and for
which no R.C.C.I dockets were opened.


10.6. I
submit further that this Court will not be justified in committing
myself and the 3rd Respondent to jail for whatever period because
what we are doing there is not only for the good of the people
currently residing in the area but even for the Applicant's own good.
In as much as he may have a right to be home, he also has a right to
live there peacefully and not at his own risk, and if the latter is
not guaranteed, as it is not in this matter, there is no wisdom in
being at that place, even if such a refusal of the right to be home
amounts to a flout of order of the Highest Court.


10.7. I
submit therefore that the act of not allowing Applicant home is in
utmost good faith and is calculated not to protect a particular
faction over the other but to ensure that the members of all the
factions involved in the Chieftaincy dispute enjoy their right to
life and not to be exposed to life threatening situations only in the
name of a Court Order of the highest Court.


19


10.7. In
as much as I fully appreciate and fully subscribe to the principle of
Supremacy of the Law over the executive I submit and I and verily
advised that everyone has to enjoy any of his rights afforded by law
whilst he lives and if ever there is anything like a hierarchy of
rights the right to life must certainly be on top of that list or
hierarchy."


I
must mention that this Affidavit contains hearsay material as the 1st
Respondent was not present when the events of the 18th June 2002, as
recorded in Founding Affidavit unfolded. It is also clear that the
3rd Respondent was not present at least when the Applicant arrived
and was welcomed. The depositions made by the Respondents in this
regard must therefor be viewed subject to this observation i.e. they
are hearsay and should be struck out.


What
is implicit from the contents of this affidavit, subject to what I
have said about the hearsay nature of some of the allegations, is not
the depiction of a pious man who did not intend to disobey the Court
Orders. As I have said above, there were legal channels to follow if
there was any difficulty associated with compliance. In this case,
there was not even an attempt to comply with the Orders by the
Respondents. The 1st Respondent's behaviour in particular, must not
be viewed in relation to this application but also the previous
Orders of Court which were contravened with astounding nonchalance. I
have underlined the paragraphs, which in my view reflect the
intention to disobey the Court Orders and from which mala fides can
be inferred. I will however comment on a few of those.


So
brazen was the Applicant's contumacy of this and the Appeal Court's
Orders that he had the audacity to state the following at paragraph 9
quoted above:-


"
...This further shows that there is a high likelihood of anarchy, if
I were to allow Applicant and the other evictees back to Macetjeni."


These
depositions are those of a man who regards himself as the person who
is the only and ultimate authority to decide whether or not he allows
the evictees to return. He has in fact substituted himself for the
Courts, such that Court Orders may not be enforced if he has any
qualms about them. This smacks of highhandedness not to be expected
from a Commissioner of Police if one takes into account the
provisions of Section 7 (3) of the


20


Police
Act (supra) I come to no other conclusion than that wilfulness is
implicit from the 1st Respondent's own words and actions. Mala fides
must necessarily be inferred in casu.


Regarding
the 3rd Respondent, it is worth considering that he associated
himself with the 1st Respondent's depositions and reasons for defying
the Court Orders. His state of mind is consistent with wilfulness as
stated in paragraph 15 of the Founding Affidavit. There the Applicant
states that the 3rd Respondent came to the Applicant's home in a
"fighting mood". When told about the Court judgements as
being the Applicant's reason for being on the premises he:-


(i) said
everyone should leave the premises for discussions;


(ii) ordered
a soldier to lock the gate;


(iii) that
Applicant's presence was undesirable as he had not been told by the
1st Respondent to allow the Applicant or the other evictees to
return;


(iv) he
flatly refused to read or even look at the Court judgements exhibited
to him;


(v) he
was extremely agitated when informed that what he was doing was
unlawful as it was contrary to Court Orders. He stated that he would
not allow the Applicant in under any circumstances; and


(vi) he
threatened the use of force against the Applicant if he and his
attorneys did not leave the area.


All
these are allegations that the 3rd Respondent did not challenge in
his Answering Affidavit. For that reason, they stand uncontroverted
and must be accepted as true. It may be argued, looking at the 3rd
Respondent's conduct that he was acting on the 1st Respondent's
Orders but he said the 1st Respondent did not tell him to stop the
Applicant. In any event, it is improper for officers to carry out
unlawful Orders from their superiors as an instruction to disobey an
Order of Court would be unlawful.


What
the 3rd Respondent did in casu went beyond what would have been the
1st Respondent's instructions, particularly after being shown the
Court orders. After being shown these, his refusal to read them and
his statement that he would not allow the Applicant in under any
circumstances are actions attributable to him as an individual. He
even threatened persons on the property on the strength of a Court
Order with the use of


21


force.
His state of mind is clearly indicative of wilful defiance that
should count against him as an individual. The Applicant further drew
the Court's attention to earlier episodes under Case No.2813/01 where
the 3rd Respondent did a similar thing. No response to this paragraph
was forthcoming. It would be a travesty if this Court were to act
oblivious to the 3rd Respondent's previous actions as deposed to by
the Applicant. It would engender a sense that he can transgress
Orders of Court with impunity, an impression that must be erased very
swiftly.


In
view of the foregoing, I am of the view that wilfulness has been
shown and therefor mala fides must as of necessity be inferred as
both as 1st and 3rd Respondents were aware of the Court Orders but
wilfully refused to comply with the terms thereof.


The
Attorney-General had another string up his bow in relation to the 3rd
Respondent. He argued that the 3rd Respondent, if the Court finds he
is guilty of contempt will be committed whereas there was no order
issued against him and which he defied. At first glance, this sounded
like a formidable proposition. Mr Maziya, in his eloquent reply
stated that the initial Order granted on the 9th November 2001
interdicted the Commissioner of Police and or any of its security
forces from preventing the Applicant returning to and residing at his
home. It is in respect of this order that Matsebula J. found the 1st
Respondent guilty but suspended the committal pending compliance.
Against that Order, an appeal was lodged resulting in the judgement
by Steyn J.A. Clearly therefore the intention of the order was that
it should apply to all security forces including the R.S.P. and of
whom the 3rd Respondent is a member. I agree.


Furthermore,
if the Attorney-General's contention were to be upheld, it would lead
to a very undesirable situation which would allow Police Officers to
continuously defy Orders of Court. All they would need to do once an
Order for Police Officer X not to prevent the Applicant from
returning and residing at his home was issued would be, to then post
Officer Y at his home to prevent him. When another Order for Officer
Y is issued against Y, then Officer Z would be posted as the next
impediment. This would constitute a licence for the Police to delay
enforcement of Court Orders to the detriment of the successful
parties and the dignity of the Courts and would reduce the procedures
and Orders of this Court into a mere farce and an object of derision.
I find that it was not necessary, in view of the foregoing to obtain
an Order specifically against the 3rd Respondent and this point will
not


22


be
sustained. The 3rd Respondent's actions and words and in particular,
his refusal to read the Court judgements, being a senior Police
Officer of considerable experience must return to haunt him.


Jafta
J. in the Mjeni case (supra) stated the following at page 454:-


"I
would like to stress that contempt of Court proceedings can only
succeed against a particular public official or person if the order
has been personally served on him or its existence brought to his
attention and it his responsibility to comply with the the order but
he wilfully and contemptuously refuses to comply with the Court
Order."


These
have been fulfilled in this case.


In
view of the foregoing, I rule that the Orders prayed for in 2 and 3
of the Notice of Motion dated 19th June 2001 be and are hereby
granted. There is no reason why costs on the punitive scale should
not be granted in view of the Respondents high handed behaviour -See
in RE: ALLUVIAL CREEK LTD 1929 CPD 532 at 535. I further order, as
applied for by Mr Maziya for the provisions of Rule 68 (2) of the
Rules of Court as amended should apply. I considered whether it would
be proper to suspend the committal pending compliance and found it
inappropriate in view of the Respondents contumacy of Orders of this
Court exhibited in previous applications. As stated by James R.
Lovell, "one thorn of experience is worth a wilderness of
warning."


In
denouement, it is necessary that I decry this state of affairs where
Orders of the Courts are being deliberately not enforced by the
Executive. It is a sad day for any country when such episodes are
witnessed, whatever the purported justifications. It is an injury to
the Judiciary, indeed, the entire Government and nation that may
never heal. It robs the Court, sometimes irredeemably, of its esteem
and dignity, reducing it to a toothless institution which issues
inconsequential orders that may be defied at will and with impunity.
The Courts, in such situations, end up conducting "mock trials"
and issuing academic judgements, which reduces the whole judicial
machinery to a mere farce.


Jafta
J. in the Mjeni case (supra), had this to say at page 453 A - C


23


"An
independent but ineffective judiciary would be little help to
litigants. Successful litigants against the State need
institutionalised mechanisms to enforce their rights once those
rights are declared and defined pursuant to proper adjudication by
the courts of law. A complete denial of such mechanisms would render
meaningless the whole process of taking disputes to courts for
adjudication and that is a recipe for chaos, and disorder. The
constitutional right of access to courts would remain an illusion
unless orders made by the courts are capable of being enforced by
those in whose favour such orders were made. The process of
adjudication and resolution of disputes in courts of law is not an
end in itself but only a means thereto; the end being the enforcement
of rights or obligations defined in the Court Order. "


It
may be well to reiterate some comments that I made in MADELI FAKUDZE
VS COMMISSIONER OF POLICE AND OTHERS HIGH COURT CASE NO.2815/01.


There
I stated as follows at page 10:-


"I
find it appropriate to throw a word of caution regarding this and
other related matters that have been enrolled in this Court and in
which it appears that there is flagrant disregard and disdain, if not
overt disobedience of Court Orders perceived to be unpalatable. This
is a recipe for lawlessness. The road to chaos does not begin with
gargantuan leaps but a few steps in direction of wilful disobedience
of Court orders, particularly by State agents, who are not only to be
exemplary in their conduct but are actually custodians and enforcers
of the law, including Orders of Court. No efforts should be spared in
ensuring that the rule of law, about which so much has been said, is
observed, for therein does the peace and prosperity of this country
and its economy in great measure lie. The road to anarchy is a
one-way street and a return to normalcy may well night be impossible.
If you sow seeds of disobedience of Orders of Court, you reap
anarchy, a fruit that no one can enjoy, including those who sowed
those seeds."


The
task that this and other Courts all over the world are charged with
is not an easy one although it is essential for all. This was
recognised by Leon AD JP in HURLEY AND ANOTHER VS MINISTER OF LAW AND
ORDER 1985 (4) SA 708 (D & CLD) at 715 in the following lapidary
remarks:-


24


"Firstly,
it is perhaps necessary to remind oneself, from time to time, that
the first and most sacred duty of the court, where it is possible to
do so, is to administer justice to those who seek it, high and low,
rich and poor, black and white; to attempt to do justice between man
and man and man and state... "


Lord
Atkin in LIVERSIDGE VS ANDERSON (1942) AC 206 (HL) stated the
following in the minority judgement and which has since been held to
be correct:-


"In
this country, amid the clash of arms, the laws are not silent. They
may be changed but they speak the same language in war and in peace.
It has always been one of the pillars of freedom, one of the
principles of liberty for which on recent authority, we are now
fighting, that the Judges are no respecters of persons and stand
between the subject and any attempted encroachments on his liberty by
the Executive, alert to see that any coercive action is justified in
law. "


Beadle
C.J. in MADZIMBAMUTO VS LARDNER-BURKE N.O. AND ANOTHER 1968 (2) SA
284 (R.A.D.) at 314, records the events surrounding Judge A.G.
Macgrath of South Carolina who in a dramatic ceremony, descended from
the Bench into the body of the Court and there coram publico formally
divested himself of his judicial robes and declared "the temple
of justice is now closed".


It
is hoped that the present trend of events will not lead to Judges
following the example set by Macgrath J. of "closing the temple
of justice", although his reasons for closing the temple of
justice were different.


I
would have failed in my duties if I did not condemn in the strongest
possible terms, the import of a phrase in paragraph 4 of the 3rd
Respondent's affidavit where he stated the following:-


"I
therefore fully associate myself with the evidence and reasoning of
the Commissioner of Police and ask this Court not to adopt a
simplistic arm chair approach to the mater but be executive minded in
this matter. "


25


This
paragraph is a highhanded aberration from what is expected of
litigants. It is evidence that the Courts are perceived to be an
appendage if not an instrument of the Executive. The Court is
implored not to consider the matter according to the dictates of the
law as required of Judges of this Court in the solemn oath they took.
This unfortunately is not a reflection of the brazen contempt with
which this Court is perceived, not only by the 3rd Respondent but his
legal advisers as well. Such language, insinuation and suggestion
from litigants which seeks to direct and influence how the Courts
should handle their business is totally out of order and deserves
severe censure. It is not and will not be tolerated and deserves to
have been struck out as it is clearly scandalous, if not vexatious
and embarrassing at the same time.


Having
said all the above, it should be remembered, not blithely, the
timeless words of Dyzenhaus, in his article entitled, "Judges,
Equity and Truth", SALJ Volume 102 Part II, 1985, who stated as
follows:-


"That
the government might have been powerful enough to eventually override
in someway the Court's assistance is irrelevant. The Court's job was
to determine the true legal answer and while truth can be defeated by
power, it is not determined by power."


T.S.
MASUKU


JUDGE