Chiefs have powers to evict- High court

High Court Judge Bheki Maphalala made the ruling in a judgment where he dismissed a man’s application to stop Ezulwini Chief Sifiso Khumalo from evicting him. Sandile Hadebe from Ezulwini had been evicted by the chief after he had expelled his deceased elder brother’s widow and her two children from her marital home. Sandile refused to allow them back, even after the chief had issued such a ruling, and also failed to pay two cows as a fine. This led to the chief evicting him from his area for defiance, but he challenged the decision at the High Court. 

Sandile was, on December 29, 2011, told to vacate the area within one day because he had refused to appear before the area’s Inner Council to answer for his failure to pay the fine and allow the widow back to her marital home. He had also been called to give reasons why he should not be evicted from the area, but did not appear before the Inner Council when summoned by Khumalo.

In his application, Sandile had alleged the eviction was unlawful because he had not been afforded a hearing beforehand. He also argued that there was no court order allowing Khumalo to evict him. He said he had a clear right to live in his father’s homestead and Khumalo was interfering with his right to live in his parental house and he had no alternative place of residence.

Chairman of the Ezulwini Inner Council James Dlamini said the homestead belonged to Sandile’s grandfather, Robert, who relocated to KaLanga, Siteki, and left the homestead to Sandile’s father Sifiso.

Robert, Dlamini said, had introduced Sifiso to the Ezulwini Inner Council as the person to take over the responsibilities of the homestead and pay allegiance. Sifiso had three children; Mbonwa, Sandile and Dudu, and upon his death Mbonwa, as the eldest took over the responsibilities. Sandile lived in the same homestead as Mbonwa, who got married to Nelisiwe Ndlangamandla.

When Mbonwa died, Sandile expelled Ndlangamandla from the homestead and she reported the matter to the Ezulwini Chiefdom’s Inner Council, which interdicted him from evicting her.

She reported the matter to the Nkha-nini Circuit Court, which ruled that the matter be dealt with at family level, but it did not yield results. She then reported the matter to the Ludzidzini Royal Council, which confirmed Chief Khumalo’s orders that Sandile should be fined two cows and interdicted from evicting Ndlangamandla.

Judge Maphalala said land, including land concessions, in terms of the constitution vests in the Ingwenyama, save for privately-owned land. He said the Ingwenyama rules through chiefs, with the assistance of Inner Councils. He explained that the Ezulwini Chiefdom was therefore under the direct authority of the Ingwenyama, hence Khumalo was known as lidvuna.

"Citizens of Swaziland have equal access to land for normal domestic purposes including building homes and subsistence farming. Land in Swazi areas is allocated by the chief or lidvuna on the advice of their Inner Councils through the custom of kukhonta," noted Judge Maphalala. Judge Maphalala also said that where a person decided to leave a chiefdom, either to reside in another or on Title Deed land, he surrendered the land to the chief or lidvuna and it vests in their custody.

He also said the Constitution did not allow a person to be deprived of land without due process of law and if that happened, a person was entitled to compensation for improvements on the land or loss.

"In the present case, Section 21(3) of the Constitution has no application, because the deprivation of land in respect of Hadebe has been done after due process of law and he was found to have defied the authority of Lidvuna Khumalo and his Inner Council. In terms of Swazi Law and Custom, Khumalo has a right to evict him from the chiefdom for defying his authority," Judge Maphalala said.

Maphalala dismissed Sandile’s application to stop the eviction and said Khumalo was within his rights to do so. He also confirmed Khumalo’s decision to fine him two cows. The judge said Sandile should not evict his brother’s widow and her children and stopped him from setting foot in the homestead. He also ordered Sandile to pay costs on the ordinary scale.

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