By SIFISO NHLABATSI | 2024-12-03

CHIEF Mdlaka Gamedze alongside other appellants have successfully appealed a High Court ruling in a protracted land dispute involving Swazi Nation Land at Elangeni.

The Supreme Court set aside the High Court’s decision, ruling in favour of Gamedze and the Jericho Church, represented by the fourth appellant, Mfanufikile Magongo.

The respondent in the matter Simphiwe Simelane had initially sought to overturn traditional rulings made by the Elangeni Royal Kraal (Libandla) and the Ludzidzini Council.

The dispute arose over the occupation and use of the land, with both the Jericho Church and Simelane claiming allocation rights.

The Libandla and the Council had previously ruled in favour of the church, a decision Simelane challenged at the High Court, citing alleged violations of natural justice.

The Supreme Court, however, found no basis for the High Court’s interference. It ruled that the traditional institutions had adhered to Eswatini law and custom in resolving the matter and emphasised that the respondent failed to exhaust all traditional avenues before escalating the case to the courts.

“The High Court erred in substituting the decision of the Elangeni Royal Kraal and the Ludzidzini Royal Council without sufficient grounds,” reads the Supreme Court judgment.

The Supreme Court ruling reinstated the decisions of the Libandla and the Council, affirming that the disputed land rightfully belongs to the Jericho Church.

Simelane has been ordered to bear the legal costs.
In its analysis, the Supreme Court referred briefly to traditional structures regarding Eswatini Law and Custom.

“The chief's council (Libandla) is a traditional court of first instance. A party aggrieved by its decision has a choice between two figurative roadmaps: either to appeal to the chief and then escalate the matter to the Ludzidzini  Council or to commence proceedings under the Swazi Courts Act in the Eswatini Court. Different hierarchies apply to each roadmap,” reads part of the judgment.

The court further pointed out that the High Court, in terms of sections 151(3)(b) and 152 of the Constitution, indubitably enjoyed powers of review over decisions of traditional institutions or courts.

In this case, the court argued that the respondent Simelane had elected to escalate the matter to the Council. According to the court, Simelane did not appear to have appealed the Libandla's decision to the chief before approaching the Council, but this issue was not taken into account.

“Within the context of hierarchy, the finding by the court a quo that the setting aside of the Libandla's decision ex lege extinguished the decision of the Council merits closer scrutiny.

By analogy: where a party takes a magistrate's court decision on review or appeal to the High Court, and the decision of the High Court is appealed to this court, this court deals with the High Court's decision.

“That is the decision that is confirmed, set aside, or varied, and not the decision of the magistrate. There cannot be an appeal directly from the magistrate's court to this court; the appeal emanates from the High Court, not from the Magistrate's Court,” the judgment stated.

The Supreme Court added that in this case, the review must emanate from the Council as the highest-ranking adjudicatory institution in the factual matrix, and not from the Libandla, which was the court of first instance.

Simelane was said to have chosen to follow the Ludzidzini Council’s roadmap, meaning the review should have determined the validity of the decision of the Council.

According to the Supreme Court, the High Court, in granting relief in respect of the Libandla decision, not only erred in addressing the decision of the wrong institution, but also in holding that the setting aside of the Libandla's decision dispensed with the decision of the Council.

“This will be tantamount to this court, in an appeal, upholding or setting aside a magistrate's court judgment and holding that the High Court’s judgment in the premises falls away.

This, according to the Supreme Court, would do a disservice to the structural hierarchy,” the judgment stated. The matter was heard by Judge Magriet Van Der Walt, Chief Justice Bheki Maphalala, and Judge Jacobus Annandale.

share story          

Post Your Comments Below

---