COURT OF SWAZILAND
Trial No. 34/99
PLAINTIFF MR. SHILUBANE
DEFENDANT MR, FLYNN
Applicant, presently an Under Secretary in the Ministry of Health and
Social Welfare is, on motion claiming, in essence, payment of El 37
453.45 with interest and costs. The amount is said to comprise E128
753,42 in respect of a "Transport re-imbursive allowance"
for the period March 1994 to December 1998, and E68 700,00 in respect
of "entertainment allowance" during the same period, the
aggregate of which is the said amount of E 137 453.45.
claim is, unnecessarily, combined with a prayer in the notice of
motion, declaring that a memorandum from the Principal Secretary
Ministry of Public Service and Information addressed to a number of
government officials "is null and void and of no legal force or
effect", There is no basis in law for making such an order,
either at the instance of the applicant or at all. The memorandum is
merely an internal administrative communication between government
officials. It, like the memorandum of 8th December 1998 in which it
withdrawn, cannot in itself, give rise to, or do away with rights and
obligations between the parties. It is on the memorandum of 8th
December that the applicant basis his claim. I will proceed therefore
to examine the applicants substantive claim.
applicant recounts in the founding affidavit that on 1st October 1985
he was appointed Commissioner of Police. This post entitled him to
the use of a Government vehicle and an entertainment allowance of
El50 00 per month. He apparently served as Commissioner until 28th
February 1994, when to use his own words, his appointment was
"Varied" to Ambassador with "all (his) personal rights
to Grade 18." The letter which the applicant attaches in support
of this allegation reads as follows
am directed by the Civil Service Board to inform you as I hereby do
that approval for the variation of your appointment from the post of
Commissioner of Police, Grade 18 to that of Ambassador/High
Commissioner (Canada) Grade 16 with Personal Right to Grade 18 has
been granted with effect from date of assumption of duty."
founding affidavit is silent as to whether the applicant was in fact
appointed High Commissioner, and when, if at all Applicant assumed
duty. The respondent has in a replying affidavit, attested by Hugh
Magagula Principal Secretary of Public Service and Information,
pointed out that appointments in the civil service fall into two
categories. The King makes political appointments
as High Commissioner while the Civil Service Board makes "Ordinary"
appointments. In this connection there is a statement that applicant
was appointed High Commissioner and that the appointment was revoked,
in each instance by the King.. To this the Applicant has answered
I deny that I was appointed as Ambassador as there is no legal
instrument appointing me as ambassador and thereafter removing me
from the said position"
2.2.2 Replying Affidavit)
would seem that Applicant was never appointed Ambassador or High
Commissioner and he could therefor never have assumed duty. As the
transfer of his rights was dependant on his taking up the post, the
letter of the 28* February (SM2) is of no assistance in determining
whether the Applicant is entitled to the payments he is claiming. On
the papers as they stand nothing indicates any reason why the
Applicant should now since occupying his present position be entitled
to the benefit of a re-imbursive transport allowance. This he enjoyed
when commissioner of police, and which he may have enjoyed had he
been appointed High Commissioner and assumed duty as such.
paragraph 5 of the Founding Affidavit, after mentioning the variation
of his appointment, he laconically states
I was appointed to my present position as under secretary in he
Ministry of Health and Social Welfare"
applicant makes no reference to the terms of such appointment or the
salary and other benefits attaching thereto.
real seed of the applicant's claim is to be found in a circular of
the 11th August 1992. The heading is that of the Ministry of Labour
and Public Service, Department of Establishment and Training. It is
signed by the Acting
Secretary, one E J Vilikati. After the date and reference a heading
appears indicating that it is confidential and of limited
circulation. It proclaims itself to be "ESTABLISHMENT CIRCULAR
No 18 of 1982" Its content is "TRANSPORT RE-IMBURSIVE
ALLOWANCE FOR PRINCIPAL SECRETARIES AND HEADS OF DEPARTMENTS ON
SALARY GRADES 26 AND ABOVE." The last paragraph of the circular
had application to the applicant, and reads as follows:
uniformed officers in the Police Department, the Defence Force and
the Prisons Department who fall within this category and who opt to
continue to use Government transport shall not be paid the car
may be safe in assuming that the provision applied to the applicant
who was Commissioner of Police at the time, but there is nothing in
the papers to indicate whether or not he opted to continue to use
government transport. In paragraph 4 of the founding affidavit, he
merely says that he was entitled as Commissioner to the use of a
government vehicle, but makes no mention of whether he gave up that
use when the circular announced a new policy. How and on what
authority, this change in policy was effected is not disclosed.
four years after applicant had ceased to be Commissioner of Police, a
memorandum dated 8th December 1998 was issued under the hand of H D
Magagula, Principal Secretary, Ministry of Public Service and
Information. It was addressed to the Secretary to the Cabinet and the
Principal Secretaries of a number of ministries, including that in
which the Applicant is employed. Dealing with the commuted car
allowances and entertainment allowances.
addressees were informed:
has been decided that all former Principal Secretaries and
Commissioner of Police whose transport re-imbursive and entertainment
allowances were stopped following the variation of their
appointments, should be re-instated with effect from the date they
ceased to receive them and any amount that remained unpaid to date be
re-imbursed without further delay"
applicant was stated to be one of the officers affected. Who made
this decision and the authority so to do are undisclosed.
issue of this memorandum in itself did not create any contractual
obligations. The communique announces that after considerable
deliberation a decision had been taken. The applicant was not party
to the deliberations or to the decision. The process was entirely
unilateral which is the antithesis of the formation of a contract.
What has to be asked is whether there was any underlying obligation
on the Government to make the payments referred to. In other words
apart from the announcement in the memorandum how did the obligation
to make payment of the allowances arise. If the applicant indeed has
a claim it is for him to show some contractual or statutory duty on
the government to make payment of the amounts.
over two weeks later the same Principal Secretary announced in a
further memorandum that the matter had been reconsidered and that the
letter of the 8th December was withdrawn. This like the previous
action was unilateral. The pronouncements of the Principal Secretary
as to the Applicant's entitlement to the allowances are not decisive,
nor are they evidence of the terms of applicant's contract with the
the Applicant has not established a contractual or legislative basis
for his claim it must fail. The opinions and sentiments expressed in
the documents attached to the Applicant's replying affidavit marked
SM 11 and SM 12 take the Applicant's case, (which should have been
made in the founding affidavit) no further. Even if regard were to be
had thereto they are not admissions as claimed by the applicant but
merely memoranda between government employees. It is disturbing that
SM 11, which is a communication by an employee of the Attorney
General with the client, (and as such privileged) should ever have
come to Applicants knowledge, let alone to his possession.
papers do not disclose that the applicant is entitled to the relief
application is accordingly dismissed with costs.