Forest dispute: 3 chiefs’ application dismissed
MBABANE – Judge Ticheme Dlamini has found no satisfactory evidence that the three chiefs who formed an association to benefit their communities were allocated the land they used by King Sobhuza II in 1973.
This was in the matter in which Chief Juwako Dlamini of Baleni/Mpolonjeni
Umphakatsi at Mahlangatsha was taken to court by the three chiefs who accused him of interfering in the operations of the forestry plantation project which they formed to benefit their communities.
The three chiefs are Chief Ndabakawombe Dlamini of Mambatfweni Umphakatsi, Chief Mlobokazane Fakudze of Ngcoseni Umphakatsi and Chief Mphaphela Mabuza of Mgomfelweni
Umphakatsi.
The chiefs are said to have organised themselves and formed the Mahlangatsha Forest Community Association to improve the livelihood of members of their communities under Mahlangatsha
Inkhundla.
The court proceedings were instituted by Mahlangatsha Forest Community Association, which was seeking an order interdicting Chief Juwako or his agents from harassing one Mliba Dlamini or anyone working in the forest at Mhlangatsha.
They also wanted the court to interdict and restrain Chief Juwako or his agents from coming within 50 metres of the forest. Judge Dlamini dismissed the application.
Chief Juwako had opposed the application and filed a counter-application.
He applied to the court for an interdict restraining the three chiefs and Dlamini from illegally cutting, pruning, felling and selling the forest under Baleni/ Mpolonjeni Umphakatsi. He further sought an order declaring the forest to be under Baleni/Mpolonjeni Umphakatsi and not under the three chiefs who formed Mahlangatsha Forest Community Association. Chief Juwako wanted the court to also declare null and void the purported contract entered into by Mahlangatsha Forest Community Association and the three chiefs.
In his judgment, Judge Dlamini declared the forest to be under Baleni/ Mpolonjeni Umphakatsi. The order, according to Judge Dlamini, will remain operative until the appropriate traditional structures cleared the dispute between the parties concerning the disputed ownership of the land on which the forest is situated.
Intervention
The three chiefs had reported the conflict to the regional administrator (RA) for the Manzini Region. Judge Dlamini allowed the intervention of the RA to proceed.
In the meantime, according to the court, the parties are directed to meet and discuss all the relevant and pertinent issues under the chairmanship of the RA.
The Chairman of Mahlangatsha Forest Community Association, Because Nkambule, had told the court that the association was formed by the three chiefs under Mahlangatsha after 1973, when King Sobhuza II allocated the land to the chiefs.
He told the court that the association was managed by a committee of residents under the three chiefs. Nkambule further pointed out that the association was formed to manage the forest, which was cultivated for purposes of benefitting the three chiefdoms.
Chief Juwako, in his opposing papers, informed the court that the plantation started in 1971 when the land was a farm under Farm 138, under a certain Mankomane. Mankomane, according to Chief Juwako, reared sheep on the farm and ventured into forestry in 1971. He said from time immemorial, Baleni/ Mplonjeni Umphakatsi was inside Farm 138 and his grandfather was the chief of the area.
Chief Juwako told the court that the forest was about 150 metres from his
He denied harassing Mliba Dlamini but had enquired from him why he was harvesting or disturbing peace in his area without his permission.
Chief Juwako said only Chief Ndabakawombe attempted to engage him about the matter.
Judge Dlamini said it had been put to the spotlight that the association had no prima facie right or clear right to the interdict it was seeking.
“There is no clear or satisfactory evidence that has been placed before court to prove the allegation that the land on which the forest is situated was allocated to the three chiefs by King Sobhuza II. Hearsay evidence is not permitted in affidavits,” said the judge.
Facts
Judge Dlamini said Nkambule - the chairman of the association - was required to set out in full the facts upon which he based the grounds for his belief and how he had obtained the information.
Nkambule submitted that the association was formed after the purported allocation of the land by King Sobhuza II to the three chiefs.
However, according to the judge, the implication was that the association was not in existence at the time. He said personal knowledge of Nkambule and the association about the matter was fundamental.
“The deponent (Nkambule) has not stated if he was present when King Sobhuza II allocated the land to the three chiefs or how he got to know about this alleged fact.
“According to the founding affidavit, the association was formed after 1973 when King Sobhuza II allocated the land to the three chiefs.
“This averment is in itself ambiguous because it could mean that the applicant (association) was formed in 1973, or that the allocation of the land to the three chiefs was made in 1973,” said the judge.
Judge Dlamini pointed out that from 1974 to date, a period of 48 years had lapsed. He said the court had not been informed if Nkambule was the chairman of the association for the past 48 years. Under normal circumstances, said the judge, this was unlikely to have been the case.
“This now brings into question whether or not the deponent deposed to issues that are within his personal knowledge,” added the judge.
Judge Dlamini concluded that Chief Juwako had successfully demonstrated that he had authority over the land where the forest is situated.
The judge said there was no satisfactory evidence warranting the court to accept as convincing that the land on which the forest is situated was allocated by King Sobhuza II.
“No one informed the court how they came to know about the alleged allocation of the land to the three chiefs. There is also no one who stated that he was present and was a witness to the alleged land allocation.
“This allegation is in my view unlikely to be truthful because there was already a chief appointed for that area. It has not been controverted that the first respondent (Chief Juwako) was appointed a chief to succeed his father, who also succeeded his grandfather and who succeeded his great grandfather.”
Human Rights Lawyer Sipho Gumedze of V.Z. Dlamini Attorneys in Manzini represented Mahlangatsha Forest Community Association and B. Mdluli appeared for the respondents.