Times of Eswatini

Forest dispute: 3 chiefs’ applicatio­n dismissed

- BY KWANELE DLAMINI

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.

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 ?? (File pic) ?? Judge Ticheme Dlamini.
(File pic) Judge Ticheme Dlamini.

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