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TRADITIONAL COURTS RULINGS HAVE FULL FORCE OF LAW - HIGH COURT

02/06/2022 08:46:00 Mbongiseni Ndzimandze

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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.