Mbabane – The High Court has ordered Phesheya Sibandze to immediately restore Thabsile Sibandze to possession of a piece of Swazi Nation Land at kaMkhweli in the Lubombo Region after finding that he had unlawfully removed fencing and taken control of part of the land.
Judge B.W Magagula ordered Phesheya to remove all fencing, poles and other structures he had erected on the disputed portion and barred him from interfering with Thabsile’s possession unless authorised by a competent court or other lawful authority.
The judgment, delivered on Wednesday, follows an urgent application in which Thabsile told the court that she had been in peaceful possession of the land forming part of her family homestead before Phesheya allegedly entered the property, removed fencing erected by her family and fenced off a portion for himself.
The court heard that the dispute involved members of the same family, with Phesheya being the younger brother of Thabsile’s late husband.
Phesheya opposed the application, arguing that Thabsile had never been in possession of the disputed land. He maintained that the land belonged to Bhacile Ngengane Sibandze, who, together with her late husband, had acquired rights to the land through the customary process of kukhonta.
He also argued that the KaMkhweli Umphakatsi should have been joined to the proceedings because of its role in the administration and allocation of Swazi Nation Land.
However, Justice Magagula rejected the argument that the dispute over customary entitlement prevented Thabsile from seeking restoration of possession.
The judge stressed that the court was not being asked to determine who owned or had the customary right to the land, but whether Thabsile had been in peaceful possession before she was allegedly dispossessed.
The court found that Thabsile had established, on a balance of probabilities, that she had exercised peaceful and undisturbed possession of the disputed portion of land.
Her account was supported by Gideon Madvwalefika Methula, who told the court that following the death of Thabsile’s husband, the extended family entrusted her with the administration of the homestead.
The court also noted that Phesheya did not claim that he had previously been in peaceful possession of the disputed portion. Instead, his case largely relied on the alleged customary rights of Bhacile.
Judge Magagula said such a claim could not justify taking the law into one’s own hands.
“The mandament van spolie exists precisely to ensure that disputes concerning rights to property are resolved through lawful judicial processes, rather than unilateral action,” the judgment states.
The court further dismissed Phesheya’s objection that Thabsile lacked locus standi, finding that a person alleging unlawful dispossession has a direct interest in seeking restoration of possession.
The non-joinder objection concerning the KaMkhweli Umphakatsi was also dismissed.
According to the judgment, the Umphakatsi would only become relevant if the court were required to determine issues relating to ownership, allocation or customary entitlement. Those issues were not before the court in the spoliation proceedings.
The judge also accepted that the matter was properly treated as urgent, noting that the purpose of the mandament van spolie is to restore possession promptly where a person has allegedly been dispossessed without lawful process.
Phesheya was ordered to pay the costs of the application.
The court was, however, careful to state that its decision did not determine ownership of the land or the ultimate customary rights of any member of the family.
Any party claiming ownership or customary entitlement remains free to institute separate proceedings before a competent forum.
Discussion about this post