Case No. 1373/2000
Applicant Mr. S. Simelane
Respondent Mr. P. Flynn
applicant seeks an order against both respondents.
the Respondent's (sic) be found guilty of contempt of Court and be
committed to gaol for such period as the Honourable Court may deem
the Respondents pay the costs of this application at a scale as
between attorney and client scale.
applicant is a former Principal Secretary in the Ministry of Public
Service and Information. He says that he is authorised to make the
affidavit which is the basis of the relief he seeks. Once again I
point out that nobody has to be authorised to make an affidavit. The
giving of evidence either viva voce or by way of affidavit is the
personal act of the deponent. The assertion of authorisation is
meaningless in such circumstances and should be avoided.
citing and describing the Respondents, the affidavit goes on to
recount that on the 18th April 2000 the applicant instructed his
attorney to bring an urgent application against the 1st and 2nd
respondent for an order that the 1st and 2nd respondent be required
to pay his "salary and benefits" for the month of April,
2000 and the succeeding months. He further sought a direction that
the respondent be compelled to pay him his salary so long as he is
employed by the Swazi Government.
asked for costs on the scale between attorney and client.
application and its founding affidavit were duly served. No notice of
intention to oppose the application was ever filed.
representative of the 1st respondent attended court on the 18th
April, 2000 when a what the Applicant describes as "provisional"
order was made A copy of the order is attached to the papers. It was
granted by me and was not provisional in anyway. The order made by
consent was that the applicant was to be paid his salary for the
month of April and May, 2000.
matter was postponed sine die.
order, I am informed, was served on the respondent(s).
application was then reinstated on the 9th June, 2000 and the notice
of reinstatement was served on the respondent. The reason given was
that the Respondents had not attended to the computation of "terminal
benefits" to which the applicant says he was entitled. The
notice of reinstatement reads: -
take note that the above matter has been reinstated for hearing in
the above honourable court on Friday 9th June, 2000 at 9.30a.m."
the 9th of June 2000 the application was not opposed and an order was
granted. The order read as follows: -
1st and 2nd respondents are hereby ordered to pay the applicant's
salary and benefits for the month of April, 2000 and succeeding
not sure why this order was made as the previous order had already
dealt with this subject. The applicant has to be paid his salary so
long as he is employed by the Government of Swaziland.
founding affidavit in these proceedings recites that the respondents
are in wilful default of the order of court as it is deliberately
refusing to comply with the same.
respondents are refusing to pay me my benefits that being the car
allowance and entertainment allowance. The balance of convenience
favours me because the respondent ought not to be allowed to
disregard an order of court which can only result in the lowering of
the dignity of the above court I submit that the respondents are
guilty of contempt and in all the circumstances I pray that the
application be granted. Given the respondents' abuse of the court
process and its the contemptuous behaviour I submit that the costs
should be on a punitive scale."
is the content of the founding affidavit.
answering affidavit which has been filed is that of David Dlamini who
also proclaims that in his capacity as Accountant General he is duly
authorised to attest this affidavit on behalf of the respondents.
Once again I point out that nobody requires to be authorised to make
is admitted in this affidavit that the applicant is an adult Swazi
male and that he is a former Principal Secretary for Broadcasting and
Information. In paragraph 5 the respondent points out that the court
order did not specify the nature of the benefits that had to be paid
to the applicant. The respondents deny that the applicant is entitled
to any benefits, comprising the car allowance and entertainment
allowance. These they say are the benefits payable to Principal
Secretaries only. The applicant's entitlement to these allowances and
benefits fell away when His Majesty the King
the applicant's appointment as Principal Secretary by Legal Notice 31
point of the matter is as follows: -
judgment which stands is unspecific as to what is required. One
cannot say what, if any, benefits there are to which the applicant is
the applicant proceeded on this application he should have sought a
declaratory order as to what was to be paid.
this ground alone the application to commit the respondents for
contempt cannot succeed. There is a further difficulty.
is statutorily provided that there can be no execution on government
assets. In attempting in this way to force these officials to
withdraw money from some government account and pay it over to the
applicant amount to execution of a judgment. This is a procedure
expressly prohibited by statute. Of course one expects the Government
represented by its Ministers and officials to obey orders of court.
the present case if there had been an order that the applicant was to
be paid particular amounts as benefits, then I hope Government would
have paid. But there seems to be a genuine dispute as to what the
applicant is entitled.
dispute cannot be decided on these papers.
the application is dismissed with costs.