IN
THE HIGH COURT OF SWAZILAND
CASE
NO. 2697/99
In
the matter between:
ROBERT
M. MDLULI
AND
SWAZILAND
GOVERNMENT
CORAM: MASUKU
J.
For
Plaintiff: MR P.R. DUNSEITH
For
Defendant: MR P.
M.
SIMELANE
RULING
ON EXCEPTION
12/4/00
In
this action, the Plaintiff claims an amount of E79, 380.85 plus such
further deductions at E3, 009.80 per month as may be made from his
salary during the period 1st November, 1999 to the date of judgement.
In
his Particulars of Claim, the Plaintiff avers that he was appointed
by the Defendant as the Deputy Chief Electoral Officer in 1993. He
performed the duties of that office from 1993 to 1997 but that
notwithstanding, the Defendant failed and/or refused to pay him his
emoluments in respect of the period.
An
amount of E676, 120.00 was subsequently paid by the Defendant to the
Plaintiff on or about 6th January, 1998 and an amount of E120, 643.50
was deducted from the aforesaid amount as income tax. The
Commissioner of taxes thereafter assessed an additional sum of E135,
331-93 as being due and payable by the Plaintiff as income tax on the
arrear
2
emoluments.
The said Commissioner further directed that the additional sum be
recovered by monthly deductions of E3, 009.80 from the Plaintiff's
salary due to him at monthly intervals.
The
amount claimed in the summons represents the amount already recovered
by the Commissioner of Taxes in respect of the assessed additional
sum. It is the Plaintiff's contention that had the Defendant paid his
emoluments as and when they fell due, the Plaintiff would not have
been required to pay the additional income tax. The Plaintiff,
further contends that due to the Defendants refused or failed to pay
his emoluments as they fell due, he has sustained damages in the
amount of E79, 380.85 being the amount already recovered by the
Commissioner of Taxes at the time when the summons was issued and
such further amounts deducted thereafter.
In
the plea, the Defendant admitted that it failed to pay the Defendant
his emoluments as and when they fell due in respect of the period set
out in the Particulars of Claim. The Defendant attributes the
non-payment to a delay in transferring the Plaintiff's responsibility
centre from the Deputy Prime Minister's Offices to the Ministry of
Justice and Constitutional Affairs as reflected in the assignment of
Responsibilities Notice, 1996. Whatever the reason, it is clear that
the delay was unconscionable. The Defendant denied that it was liable
to pay the Plaintiff the amount claimed and cited provisions of the
Income Tax Order, 1975.
The
Plaintiff then excepted to the Defendant's Plea on the grounds that
it did not contain sufficient averments to disclose a defence to the
claim. The reasons for such a view are that the Defendant in its Plea
admitted breach of the Plaintiff's contract of employment by failing
to pay the agreed salary on due date. Furthermore, the Defendant
admitted that as a result of its delay in paying the Plaintiff's
emoluments the additional income tax became payable by the Plaintiff.
In
view of the above admissions, it is very clear that no defence to the
Plaintiff's claim has been disclosed. The damages in respect of which
the claim is made emanate from the delay in payment of emoluments and
because the delay is admitted by the Defendant together with the
allegation that had it paid the emoluments on due date then the
additional
3
assessment
would not have been made, I have no option but to uphold the
Plaintiff's exception with costs.
The
parties proceeded to address me on the effects of the Income Tax
Order, 1975 but I find it inopportune and inappropriate at this stage
to rule thereon. The procedure normally followed in such cases is to
afford the Defendant time to file an amended Plea. The Defendant is
ordered to file on amended Plea within 14 days from the date of his
ruling. However, should the parties otherwise indicate, a judgement
on the balance of the issues raised can be made and that will be if
the Defendant indicates that it does not have a defence or it fails
to file its amended Plea within the time stipulated in this ruling.
In
the premises, the Plaintiff's exception is upheld with costs and the
Defendant be and is hereby granted leave to file an amended Plea
within fourteen (14) days from the date of delivering this ruling.
T.S.
MASUKU
JUDGE
