Times Of Swaziland: ‘MAJOR V’,  EX-WIFE IN HOME SALE COURT BATTLE

‘MAJOR V’,  EX-WIFE IN HOME SALE COURT BATTLE
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Phiwase Phungwayo on 23/10/2024 10:04:00


MANZINI – Liqoqo member and Prophet, Vusumuzi ‘Major V’ Dlamini is
embroiled in a dispute with his former wife over their home.
On Monday, his wife, Simangele Portia Dlamini (née Hlophe), applied for an
order to interdict and restrain the Liqoqo member from interfering with her
rights of possession, ownership and control of their home, including the
buildings situated along Matsapha Airport Road in the Manzini Region. She
specifically sought to prevent him from blocking her access to and occupation of
the property. The clergyman had reportedly locked their home after it was
claimed that his former wife wished to sell it.
Simangele is the first applicant in this matter, with Bongani Dlamini as the
second applicant. Bongani expressed his desire to buy and/or take full
ownership, occupation and control of the home. The clergyman, the national
commissioner of police and the attorney general, are the first, second and third
respondents, respectively. Simangele is the plaintiff, while the Liqoqo member
is the defendant. Major V is represented by Phakathi Jele Attorneys, while
Simangele has engaged the services of SM Simelane & Co. The matter was heard by
Manzini Acting Magistrate Mongezi Mciza; however, the application was
unsuccessful.
Unhindered
“The first respondent be ordered and directed forthwith to unlock the entrance
gate into the above-mentioned property and to thereafter desist from locking the
gate going forward,” part of the plaintiff’s application reads.The
application further noted that if the Liqoqo member fails to unlock the access
gate and allow the applicant unhindered access to the home, a messenger of the
court for the Manzini Region, assisted by the second respondent, would be
directed to break the padlock and chain he had used to secure the gate and to
take all necessary actions to grant the applicant access to the premises for the
purpose of occupation.
Additionally, the application stated that the costs of this application at the
attorney-own-client scale are to be paid by the first respondent. In her
founding affidavit, Simangele submitted that the second applicant, Bongani, an
adult male liSwati from the Lubombo Region, also has a direct and substantial
interest in this litigation. “This honourable court has the necessary
jurisdiction to hear and determine this application, because the relief sought
(interdict and directory orders) arises from matrimonial (divorce) proceedings
which commenced in this court and were finalised herein, hence it is the
appropriate forum,” she stated.
She mentioned that on August 5, 2024, the court issued a divorce order between
her and the clergyman, which included final and binding terms, stating that the
defendant (Vusumuzi Brother Dlamini) forfeits all matrimonial property and
privileges arising from the marriage and within the joint estate. Simangele
elaborated that on August 14, 2024, at 7:03am, the first respondent was served
with the final decree of divorce by court messenger Bongani Zikalala, as
indicated in annexure PH2.
Applicants
“In fact, the first respondent became aware of the court order, especially the
forfeiture term of the divorce. He has done nothing about it up to today,” she
claimed.On the other hand, the Liqoqo Council member opposed the application. In
his notice to raise points of law, he stated that despite the applicants
acknowledging that the home in question is situated on Eswatini Nation
Land(ENL), they had failed to include the Masundvwini Royal Kraal in the matter,
which has a direct and substantial interest. He highlighted that the royal kraal
oversees the land on which the home is located.
“I assert that the Masundvwini Committee has a substantial interest in the
outcome of these proceedings, and the failure to cite and serve the committee
constitutes a fatal non-joinder. Disputes involving the home are ordinarily
within the jurisdiction of that committee,” he stated. The clergyman further
argued that the second applicant was wrongfully included in these proceedings.
“He has no interest in the home in question, as the land was allocated to the
first applicant and me, and any matters concerning it should only involve the
two of us before those who allocated the land to us. I therefore argue that his
interest is contrived,” he contended.
Additionally, the Liqoqo member argued that the court lacks the necessary
jurisdiction to hear and determine this matter, because the property is situated
on ENL. He stated that proprietary rights concerning land on ENL are dealt with
under Swazi Law and Custom, by the relevant traditional structures, in this
case, the Masundvwini Royal Kraal. He asserted that even if the court in the
divorce action ordered the first respondent to forfeit all matrimonial
properties and privileges, this could not extend to the parties’ home on ENL,
as the court lacked jurisdiction to determine ownership.
“After their divorce, the parties should have reported the issue of their home
to the Masundvwini Royal Kraal for purposes of addressing their rights to the
homestead,” he explained.
He added that although the applicants filed an urgent application, they failed
to specify the circumstances that rendered the matter urgent and why they
claimed they could not obtain substantial redress at a later hearing. The
clergyman noted that they merely prayed for condonation to bypass the normal
time limits for filing their application, without fulfilling their obligation to
demonstrate the urgency of the matter. Furthermore, he pointed out the absence
of a certificate of urgency from an attorney attached to the application.
He requested that the court uphold the points of law and dismiss the application
with costs at the attorney-and-own-client scale. If the court did not uphold the
points of law, he sought leave to respond on the merits. Meanwhile, Acting
Magistrate Mciza dismissed the application on the grounds that the court lacked
the necessary jurisdiction to hear and determine the matter. He stated that the
issue involved property situated on ENL, and thus the Masundvwini Royal Kraal,
which was not cited by the applicant, had sole jurisdiction as a traditional
structure.
“The issue of the proper forum arises from determination. A proper choice must
be made between the Roman Dutch common Law courts and the Swazi courts,” Mciza
said. Additionally, the acting magistrate stated that the court cannot review or
appeal matters from ENL or Swazi courts, although the High Court can. The first
respondent was granted costs against the applicants at a punitive scale.