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Countries-ESCR litigation Archives: Swaziland

Madeli Fakudze v. Commissioner of Police and Ors (8/2002)

Year: 2002 (Date of Decision: 1 June, 2002)

Forum, Country: Supreme Court; Swaziland

Standards, Rights: Rule of law; Right to adequate housing

Summary Background: Madeli Fakudze (the respondent in this appeal) was one of four individuals served with a removal order in August 2000 by the Minister of Home Affairs. The respondent claimed that security forces had wrongfully evicted him after he was granted an injunction from the High Court to stop his eviction. Upon returning to his home, the respondent was confronted by police officers and told they were acting upon a verbal order from the Commissioner of Police to eject the respondent immediately, in contravention of the court order. The High Court then proceeded to overturn the injunction it had granted, purporting to restore the status quo ante. The police officers claimed they were fully aware of the court orders issued at the time, but that issues of “national security” had prevented them from enforcing these orders and that threats to national security overrode all other interests, whether they rise out of a court order or not.

Holding: The Court rejected the defence of national security, deeming it a “last gasp attempt” to raise a barrier to the enforcement of the court order [p. 8]. The Court highlighted that an officer from the Attorney-General had made no objection or raised any security concerns at the initial decision of the Court of Appeal to permit the evictees to return to their homes. The Court denounced the police officer’s failure to disclose any information to the Court on which a reasonable apprehension could be based that a threat to national security might exist, and thus had acted in contempt of the court order with no reasonable excuse for deviation [p. 8].

The Court reaffirmed the injunction of Matsebula J, stating “anyone wilfully refusing or failing to comply with an order of this Court exposes himself to the imposition of a penalty…to compel performance in compliance with the court order” [p. 9].

The Court acknowledged that contempt of court is a criminal offence, yet as per S v. Beyers 1968, it held that in cases of civil contempt as in this case, it is left to the aggrieved party in the proceeding to seek the relief. It sentenced one police officer to a term of imprisonment [p. 10].

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