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NDABAZABANTU RULINGS NOT BINDING - COURT

16/12/2021 08:55:00 BY MBONGISENI NDZIMANDZE

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MBABANE - A King’s liaison officers or Ndabazabantu is not a court, tribunal of adjudicating body and their decisions have no force of law.

He is a mediator, conciliator and his determination is advisory only. This was the finding of the Supreme Court, which has also been followed by the High Court in a matter where the powers or jurisdiction of the King’s liaison officer or Ndabazabantu were being challenged. The Office of the King’s liaison officer or Ndabazabantu is not the same as the Swazi National Court presidents. Swazi National Courts are established by the Swazi Courts Act of 1950. In its judgment, the court highlighted that the King’s liaison officer or Ndabazabantu was a recognised functionary established in terms of Eswatini Law and Custom.

Peacemaker

He is appointed by Ingwenyama and is answerable to the regional administrator (RA). It was also the court’s finding that the King’s liaison officer did not exercise judicial power and that his function was that of a mediator or peacemaker between rival parties. It was further highlighted in the Supreme Court judgment that his decisions had no force of law and their legitimacy and compliance depended on the willingness of the parties to abide by them. The court said, in deciding a dispute, the King’s liaison officer or Ndabazabantu applied Eswatini Law and Custom.

The High Court has followed that judgment in the matter between Khayelihle Mbingo nee Mavimbela against Thamsanqa Thikazi, Celani Mbingo, Zinhle Mbingo, Bongani Mbingo and the attorney general (AG). The matter was heard and determined by Judge Mbutfo Mamba, who was sitting with assessors, Nxumalo, the President of Eswatini National Court of Appeal, Lozithehlezi Mhlanga, President of Eswatini National Court. This was essentially a family dispute. The dispute was over family land belonging to the Mbingo family of Logoba, just on the outskirts of the city of Manzini. The piece of land in question is on Swazi Nation Land (SNL) under the Masundvwini Royal household under Eswatini Law and Custom. The crisp question or issue in this case was whether Ndabazabantu had the power or authority to issue orders, decrees or injunctions, which had the status or force of law in the determination of any issue before Ndabazabantu.

Marriage

The essential facts in this matter were that Albert Mbingo married his first wife and they had their matrimonial house at his family home at Logoba. There were at least three children born of this marriage; two boys and a girl. Later on, Albert khontaed or was allocated land, again on SNL, at Etiyeni where he set up a home for his first wife. However, he did not abandon or destroy his first wife’s house at Logoba. The Etiyeni home was exclusively for him, his wife and children. When his daughter got married, all siSwati rituals and festivities regarding the marriage were performed at this home and not at the Logoba residence.

Albert then married his second wife, Khayelihle (the applicant) and built her a house at his parental homestead at Logoba and lived there with her. The children born of Albert’s first wife objected to their father allowing the applicant to reside at the Logoba homestead. They argued that this was their mother’s house and they were entitled to the use thereof to the exclusion of the applicant. They successfully lodged a complaint with Ndabazabantu against their father and a decision was handed down on November 12, 2018. Albert was instructed to build the applicant a separate home in order to allow his children from his first wife to have unfettered or unhindered use of the Logoba home.

Matter

Dissatisfied with the outcome, Albert took up the matter with the Masundvwini Royal Kraal, which ruled in his favour. It was also held that Albert’s children, however, had a right to use their mother’s house at Logoba. Albert died testate in 2020. The children successfully filed a complaint with the first respondent (Thikazi) against the decision of the Masundvwini Royal Kraal. In a letter dated November 6, 2020, Thikazi ordered the applicant to vacate the Mbingo homestead at Logoba, failing which he would authorise members of the Royal Eswatini Police Service (REPS) to forcefully evict or eject her therefrom. Thikazi is said to have specifically referred to his office as an ‘honourable court.’ He referred to his predecessor’s 2018 ruling and the ruling subsequent to it by the Masundvwini Royal Kraal.

It was this eviction by Thikazi that prompted or culminated in this application where the applicant prayed for, inter alia, an order reviewing, correcting and setting aside Thikazi’s decision contained in the letter dated November 6, 2020, as being improper, wrongful and unlawful. In her application, the applicant argued that Thikazi was only a conciliator and had no power in law to either hear the matter or make the order which he made on November 6, 2020. It was further his contention that the decision by Thikazi was irrational and/or grossly unreasonable in that he purported to enforce the order of the King’s Liaison Officer and the Chief’s Council (Masundvwini Royal House).

She averred that she had been advised that the King’s Liaison Officer had no power or authority to adjudicate the dispute between her and the respondents (Celani Mbingo, Zinhle Mbingo and Bongani Mbingo), but had powers to only conciliate or mediate between the two parties. The applicant submitted that in this regard, she had been advised that Thikazi could not purport to enforce a decision taken by a functionary, who wrongly misconstrued the powers that he had in law.

In his judgment, Judge Mamba said the first and fifth respondents did not file any papers in opposition to this application, whereas the other respondents did. He highlighted that at the beginning of the hearing of the application and after the court had enlisted the assistance of assessors, whose invaluable assistance and guidance was greatly appreciated, all the respondents conceded that Thikazi had no power, jurisdiction or authority to issue impugned orders.

Agreement

He further pointed out that both sides were in agreement that the office of the first respondent (Thikazi) was not a court or tribunal and did not have the authority to issue an order as that issued by Thikazi on November 6, 2020. The court said that was also true of the order issued by the King’s liaison officer on November 12, 2018. “Both orders were, it is common cause, incompetent on an account of want of jurisdiction,” said Judge Mamba. He then cited the case of Maziya Ntombi vs. Ndzimandze Thembinkhosi, where the court described the jurisdiction or powers of the King’s liaison officer in the following terms: The King’s liaison officer or Ndabazabantu is a recognised functionary established in terms of Eswatini Law and Custom; he is appointed by the Ingwenyama and is answerable to the RA.

In the cited judgment, the court said the King’s liaison officer did not exercise judicial powers, his functions were that of a mediator or peacemaker between rival parties, his decisions had no force of law and their legitimacy and compliance depended on the willingness of the parties to abide by them. In deciding a dispute, the court stated that he applied Eswatini Law and Custom. “However, in accepting the above legal position on the role and powers of the first respondent, Simelane, Counsel for the second, third and fourth respondents, submitted that since the King’s liaison officer is neither a court, tribunal nor an adjudicating body, a review of his decision or order by the High Court was incompetent,” observed Judge Mamba.

Declaratory

The judge also pointed out that Simelane submitted that the applicant ought to have sought a declaratory order. “While the applicant indeed states that the order must be reviewed and set aside, the reason for such setting aside is that it is ‘improper, wrongful and unlawful’. That in my view is a declaratory order. That is the substance and legal import of the main prayer sought,” said the judge. Judge Mamba said the applicant had referred to it as a review was in his judgment, a legal technicality and was of no moment.

Judge Mamba said for the foregoing reasons, the order or instruction issued by Thikazi and contained in his letter dated November 6, 2020, was hereby declared irregular, wrongful and of no force and effect or unlawful. The court did not make any order as to costs. Both the assessors were in agreement with the order. The applicant was represented by Bongani Dlamini while appearing for the second, third and fourth respondents was Ben J Simelane.