Land issue turning King against people - farmers
MBABANE – Residents of Ezikhotheni say the High Court’s finding that land vests in the Ingwenyama and he can lease it, could cause aggrieved emaSwati to revolt against the institution of the monarchy.
These are the residents who did farming within Paradys Farm. They were ordered by Judge Ticheme Dlamini to stop using and farming on the farm situated in the Shiselweni Region.
The court also stopped the allocation of land within the farm, except with lawful authority given by the Ministry of Agriculture.
The farmers were not satisfied with the judgment and filed an appeal, which is awaiting judgment in the Supreme Court.
In their heads of argument, the farmers said the interpretation ascribed to Section 211 and 212 of the Constitution by Judge Dlamini on the issue of land had the effect of alienating the Ingwenyama from his own people, as it effectively turns him into a dictator.
Instruction
They are represented by Advocate Lucas Maziya on the instruction of Kenneth Simelane of Henwood & CO.
When the principal secretary in the Ministry of Agriculture took the residents to court to evict them from the farm, he stated that the chief protocol officer in the King’s Office had given him two lease agreements in which Minister Jabulani Mabuza, representing the Ingwenyama in Trust for the nation, signed and executed a notarial lease agreement in favour of Sisulu Royal Holdings (Pty) Ltd.
In an application to supplement government’s papers, the PS, Bongani Masuku, said the other lease agreement was between Sisulu Royal Holdings, which is a sub-lessor, and Temaswati Farms (Pty) Ltd, which is referred to as an investor in the proceedings.
Bernard Nxumalo, who is the first respondent in the matter, told the court that the rental payable per month was E0.08 or E1 per year.
The lease is allegedly for 99 years. Nxumalo said the physical addresses of all the role players, that is the Ingwenyama in trust for the Swazi nation, Silulu Royal Holdings (Pty) Ltd and Temaswati Farms (Pty) Ltd, was the same, King’s Office at Lozitha.
“Who really benefits from this meagre rental? Surely the transactions are unconstitutional,” the residents questioned.
According to their heads of argument, Silulu Royal Holdings sub-let the properties to Temaswati Farms, and Silulu Royal Holdings had shares in Temaswati Farms.
The residents told the court that the late King Sobhuza II had issued a royal command to the effect that the farm be bought for the people of Ezikhotheni by the Ministry of Agriculture. Government submitted that a power of attorney existed and it had the effect of superseding whatever royal command may have been there.
Operative
In his judgment, Judge Dlamini said Section 94 of the 1968 Independence Constitution was carried over and was still operative under the 2005 Constitution.
Section 94 (1) states that all land which is vested in the Ingwenyama in trust for the Swazi nation, shall continue to vest subject, to the provisions of this Constitution and to subsisting rights and interests, which before September 6, 1968 had been granted to, or recognised as vested, in any person.
Judge Dlamini said Section 211 of the 2005 Constitution states that all land in Eswatini shall continue to vest in the Ingwenyama in trust for the Swazi nation as it was the case on April 12, 1973. The court said under the King’s Proclamation of April 12, 1973, land vested in the Ingwenyama together with the power to make grants, leases or other dispositions.
The power to make grants, leases or other dispositions, according to the court, is inseparable from the vesting of land in the Ingwenyama. Judge Dlamini said the status quo, as it existed on April 12, 1973, was adopted by Section 211 of the 2005 Constitution.
The farmers alleged that the Ingwenyama no longer had a role to play in grants, leases and other transactions on land. Nxumalo submitted on behalf of the farmers that Section 211 never intended that land may still be the subject of leases.
Incapable
“Where would the land come from if the little that is still available (and incapable of multiplying) was still to be made the subject of leases, let alone long ones?” they enquired.
They informed the court that under the current constitutional dispensation, it was the Land Management Board (LMB) that was now in charge of the usage of every piece of land in the country. According to Section 212 (4), the LMB was responsible for the overall management and for the regulation of any right or interest in land, whether urban or rural or vesting in Ingwenyama in trust for the Swazi nation.
The farmers told the court that if land vesting in the Ingwenyama in trust for the Swazi nation could still be subject of leases, it was the LMB that could enter into valid lease agreements with other entities such as Silulu Royal Holdings.
“The Ingwenyama no longer has any role to play in such transactions,” said the farmers. Judge Dlamini, according to the farmers, failed to distinguish between the King and Ingwenyama.
They further mentioned that under the 1968 Independence Constitution, the Ingwenyama had powers (under Section 94) to exercise rights of ownership over land held by him in trust for the emaSwati. Such rights, according to the residents, included the power to make grants, leases and other dispositions.
Conferred
They also told the court that no such power was conferred upon the Ingwenyama by the 2005 Constitution, as Section 211 made no mention of land being the subject of grants, leases or other dispositions.
They submitted that instead, a new entity, the LMB, was created and of crucial importance was that it was this body that was entrusted with the responsibility of the overall management and the regulation of any right or interest in land, whether urban or rural or vesting in the Ingwenyama in trust for the Eswatini nation.
“It is submitted that not only is the Ingwenyama no longer empowered to make such land the subject of grants, leases or other dispositions, in fact, no such power is conferred even on the Land Management Board itself.”
According to Nxumalo, the 2005 Constitution made it illegal for chiefs to allocate land in the country.
Allocating land through custom is the responsibility of the Land Management Board (LMB).