Times Of Swaziland: TRADITIONAL COURTS RULINGS HAVE FULL FORCE OF LAW - HIGH COURT

TRADITIONAL COURTS RULINGS HAVE FULL FORCE OF LAW - HIGH COURT
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Mbongiseni Ndzimandze on 02/06/2022 08:46:00


MBABANE - The High Court has ruled that decisions, pronouncements, orders and
judgments issued by Swazi courts or traditional structures have the full force
of the law and do not require endorsement by any other court.
This pronouncement was made by Judge Mumcy Dlamini in a matter where a woman
wanted the High Court to make a decision that was issued by the Zombodze
Umphakatsi and order of the court. The High Court is usually flooded with
applications wherein litigants seek orders endorsing decisions by traditional
structures or Swazi courts. In her judgment, Judge Dlamini said it was clear
that Swazi or traditional courts were established in terms of the Constitution
and they derived their powers and authority from it (Constitution). “Their
decisions, pronouncements, orders and judgments, therefore, have the full force
of the law. In brief, they do not need another court to give effect to their
decisions,” reads part of the judgment.
Pronounced
She said once Swazi or traditional courts had pronounced upon an order, that
order had full force for purposes of execution as it carried the full brunt of
the law. Judge Dlamini mentioned that it was for that reason that scholars had
described the Kingdom of Eswatini as dual jurisdiction, in that Swazi Law and
Custom applied on the other hand with Swazi or traditional structures having
jurisdiction on such matter.  She said, on the other hand, common law (Roman-
Dutch) applied with the common courts regulating its application. The judge
highlighted that the submission that was made on behalf of the applicant, in the
Zombodze Royal Kraal matter, that the two legal systems existed side-by-side was
partially correct, in so far as the execution of orders by the respective courts
was concerned.
“However, by reason that a litigant who is dissatisfied with the decision of
the Swazi courts may appeal or apply for review before the common law courts in
terms of Section 151 of the Constitution, then the statement that the two legal
system exist independent of each other is unsuited,” said Judge Dlamini. The
court said what remained for Swazi Law and Custom courts or structures to do
upon issuing an order was to identify personnel to carry out or execute their
orders. Judge Dlamini stated that, fees for such personnel and costs of
execution were to be paid by the successful party, who would be reimbursed from
the costs order against unsuccessful litigant. “It follows therefore, if any,
by the national commissioner of police that the applicant should first obtain an
order for execution from this court for him to execute the order of the
traditional structure herein was misplaced,” said Judge Dlamini.
The genesis of the matter is that on November 2, 2019, the Zombodze Royal Kraal
deliberated on a Swazi Nation Land (SNL) dispute between Ntfombiyenkhosi
Rosemary Hlatshwayo, Ttfobhi Rita Nxumalo nee Hlatshwayo, Alfred Hlatshwayo,
Indvuna Mphathakahle Dlamini. The Royal Kraal ruled against Ttfobhi  and  Alfred
Hlatshwayo, who are respondents in the court proceedings. An appeal was lodged
by the respondents before the King’s liaison officer, who dismissed it.
Several attempts were made to compel the respondents to comply with the court
order, but to no avail. The assistance of members of the Royal Eswatini Police
Service (REPS) was sought, but they insisted on an order by the High Court.
Decision
The applicant (Ntfombiyenkhosi then approached the High Court where she was
seeking an order, that the decision issued by the Zombodze Royal Kraal, dated
November 21, 2019, be made an order of the court. She also wanted the court to
direct the respondents and all those holding  through or under them, ejected
from her matrimonial home situated at Ngonini, Mfabantfu.  Lastly, the applicant
wanted the High Court to direct the police to assist in giving effect to the
order. The respondents (Ttfobhi Hlatshwayo and Alfred strenuously opposed the
application. Their main ground was that the High Court lacked jurisdiction to
hear and determine this matter, on the account of the fact that this was a
dispute that emanated on a property situated on SNL. It was further their
argument that it was trite law that the High Court had inherent jurisdiction to
hear and determine disputes, that were governed by Swazi Law and Custom as a
court of first instance, save for review or appeal in terms of Section 151 (3)
(b) of the Constitution as read together with Section 9 of the Swazi Act, 1950.
In her judgment, Judge Dlamini said the issue was crisp and she asked; Does this
court (High Court) have jurisdiction to make an order of a traditional court an
order of the court? She further asked that, put from the respondents’
perspective: “Do orders issued by traditional authorities need this court’s
pronouncement to make them executable?” The respondents submitted that in
terms of the Constitution, there were two legal regimes operating in the Kingdom
of Eswatini. They pointed out that there was Roman - Dutch Law, commonly
referred to as the common law and Swazi Law and custom.  According to the
respondents, each regime had its own system of execution. It was further their
contention that to come to the High Court and seek an order to endorse the order
of the traditional structures, would effectively mean that orders of the
traditional structures had no force and effect. They argued that this was not
the correct position.
Respondents
The respondents averred that orders of traditional structures carried the same
force and effect of orders by common law court. Further, according to the
respondents, Section 151 of the Constitution provided for an appeal or review
and not for such procedure sought by the applicant. The applicant on the other
hand submitted that there was nothing amiss by the High Court endorsing the
orders by traditional structures. The respondents referred to two judgments in
support of their ground, that the High Court lacked the necessary jurisdiction.
Judge Dlamini (Mumcy) said Section 252 of the Constitution reads: “Subject to
the provisions of this Constitution or any other written law, the principle and
rules that formed, immediately before September 6, 1968 (Independence Day), the
principles and rules of the Roman - Dutch Law as applicable to Swaziland
(Eswatini) since February 22, 1907 are confirmed and shall be applied and
enforced as the common law of Swaziland except that those principles or rules
were inconsistent with this Constitution or Statute.
Section 2 provides that, subject of the provisions of the Constitution; the
principles of Swazi Law and Custom were hereby reecognised and adopted and
should be applied and enforced as part of the law of Swaziland. Judge Dlamini
(Mumcy) said, from the above, it was clear that Swazi or traditional courts were
established in terms of the Constitution.  She said they derived their powers
and authority from the Constitution.  The court said their pronouncement, orders
and judgments therefore had the full force of the law and they did not need
another court to give effect to their decisions. She then referred back the
matter to the traditional structure of Zombodze Royal Kraal for it to give
direction. The court further struck the matter of the roll. The applicant was
represented by Bahle Nkonyane of Magagula and Hlophe while appearing for the
respondents was Human Rights Lawyer Thulani Maseko of T.R Maseko.