IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 2810/08
In the matter between:
ERIC ZIKALALA Applicant
THE COMMISSIONER OF CORRECTIONAL 1st Respondent
THE ATTORNEY-GENERAL 2nd Respondent
THE ACCOUNTANT-GENERAL 3rd Respondent
Attorney Mr. M.Z. Mkhwanazi for the Applicant
Attorney Mr. Mndeni Vilakati for the Respondents
 This is a stated case filed by the consent of the parties, in terms of the provisions of Rule 33 (1) of this Court’s Rules, as amended.
 The sole question for adjudication by this Court is whether the Applicant, who is in the 1st Respondent’s employ, is entitled to payment of his arrear salary from 25 May, 2004 to 26 March, 2009.
 The agreed facts, which give rise to the determination, as stated in the papers are the following: The Applicant, a warder in the employ of the 1st Respondent, was dismissed by the latter with effect from 24 May, 2004. The dismissal was challenged by the Applicant by review application dated 23 July, 2008.
 In its judgment dated 26 March, 2009, this Court set aside the aforesaid dismissal on grounds that need not be traversed herein. It is in these circumstances that the Applicant seeks to be paid his arrear salaries during the time that he remained dismissed before the dismissal was set aside by this Court. The Respondents oppose the application and it is the propriety of the payment of arrear salaries that this Court must deal with in this judgment.
 The pith of the Respondents’ opposition is that during the time of his dismissal, the Applicant did not render any services to the 1st Respondent and for which he must be remunerated nor, it was added, did he tender to perform his duties during the time of his dismissal. For that reason, it is contended, it would seem, that the only avenue open to the Applicant, is to sue for damages.
 Support for this proposition was largely drawn from the Lesotho Court of Appeal case of Maopela Makhetha and Another vs. The Commissioner of Police and Another C of A (Civil) No.2/08,where the said Court of Appeal considered the twin remedies of reinstatement and payment of arrear salaries after considering authorities such as Schierhout vs. Minister of Justice 1926 AD 99;Koatsa vs. National University of Lesotho 1985-1987 LAC and Francis vs. Municipal Councillors of Kuala Lumpur 3 All ER 663 (PC).
 In summing up the position, the Court of Appeal said the following at pate 8 paragraphs  and :-
“It requires to be stressed that an order for reinstatement is in the nature of specific performance. The court has a judicial discretion whether or not to grant it. In exercising its discretion, the court is entitled to decide which relevant factors it will allow to influence it…The appellant’s claim for payment of arrear salary is equally hit by the principles set out above. There is no evidence on record that the appellants tendered to perform their duties.”
 It would appear, from the excerpt in Schierhout (supra) that in cases of a wrongful dismissal, in regard to the payment of wages, the remedy open to such employee, is one of damages. The question then is whether it is in every case that the Applicant should apply for damages or the Court may grant an order for back pay.
 This Court was referred to the case of Swaziland Electricity Board vs. Collie Dlamini Case No.2/2007, a judgment of the Industrial Court of Appeal. That case dealt with inter alia the question of reinstatement and payment of arrear salaries. In regard to the latter issue, it must be stated that the Industrial Court of Appeal considered the provisions of section 16 (1) of the Industrial Relations Act 2000, as amended. It must be stated further, in this regard, that the application of the aforesaid Act has been expressly excluded to members of the armed forces, of which the 1st Respondent is one. This is by virtue of section 3 of the Industrial Relations Act (supra). Save where I refer to the said case in respect of other issues, the ratio decidendi thereof does not apply to the instant case, regard had to section 3 aforesaid.
 It is necessary, before dealing any further with the question for determination that I quote a paragraph from the Respondents’ heads of argument and which forms the sub-stratum of their argument. It is to be found at paragraph 5 thereof, where Mr. Vilakati for the Respondents contends as follows:-
“We submit that the upshot of Maopela Makhetha is that at common law, reinstatement is the equivalent (sic) to specific performance and salary in arrears is the equivalent of damages. A dismissed employee who is granted specific performance can only be awarded damages if he or she has performed duties.”
On a proper reading of the Makhetha case, I am unable to agree that Mr. Vilakati is correct in his submissions and I shall endeavour to show why this is so later in this judgment.
 Since bedrock of the Respondents’ case is the Makhetha case, I propose to briefly deal with the facts as they appear from the Court of Appeal judgment, a copy of which this Court was favoured with. Makhetha, a policeman in the Lesotho Mounted Police Service was convicted for sedition. On 21st August, 2000, he was dismissed by the Commissioner of Police in terms of the relevant statutory law. This dismissal was then set aside by the said Commissioner, pending an appeal by Makhetha and others to the Court of Appeal of Lesotho. They remained interdicted however and placed at half pay.
 A new Commissioner of Police assumed office and on 19 April, 2001, she wrote to Makhetha and his co-appellants a letter calling upon them to show cause why they should not be dismissed from the police service having been convicted as aforesaid. Makhetha et al made written representations and contended that the incumbent Commissioner was bound by the decision of her predecessor to set aside their dismissal. Their contention was not upheld as she dismissed them in accordance with the relevant law. They sought recourse from the High Court of Lesotho where an order for setting aside their dismissal as unlawful and one for their reinstatement was prayed for. They further sought an order directing the Commissioner to pay their arrear salary with interest.
 It would appear that their application served before Mahase J. who declared their dismissal to be unlawful as the dismissing Commissioner was functus officio when she took the decision to dismiss. This finding was not disturbed on appeal. The claims for reinstatement and payment of arrear salaries were declined, the Court reasoning that those were in the nature of specific performance and that arrear salary claim could be properly raised in a claim for damages. In regard to the claim for arrear salaries, which is of particular interest in the present suit, the learned Judge held:
“The Applicants have however not performed any duties since when they were allegedly dismissed for the second time from the police service. They have therefore not earned any salary and so they cannot claim payment of any salary with arrears.”
This finding was upheld by the Court of Appeal as being fully justified on the facts. Makhetha et al therefore appealed unsuccessfully to the Court of Appeal in respect of both their reinstatement and payment of arrear salaries. Their appeal was therefore dismissed with costs.
 It will be clear from what I have stated earlier that this Court is not concerned with the issue of reinstatement, on which I may comment on an italics basis later in this judgment. The issue that arises and which I intend to discuss fully from the Makhetha case, is that of the payment of arrear salary which clearly arises in casu. The reasons why the claim for payment arrear salary was dismissed, it would seem was that Makhetha et al did not, during their dismissal, tender to work nor did they in fact do any work as police officers during that period which fact rendered their case in so far as the relief they sought, cadit quaestio.
 The Court of Appeal found, and correctly so, in my view that as is the case in this jurisdiction, the issue of reinstatement and particularly payment of arrear salary in respect of police officers, should be governed by the common law as there are no statutory provisions applicable thereto. It was in that wise that the Court of Appeal quoted the following excerpt from Schierhout (supra) in dismissing the aforesaid claim at page  of its judgment, where Innes C.J. expressed the following eighty-three years ago:-
“The plaintiff is a member of the public service; he is therefore a servant of the Crown. Now, it is a well established rule of English law that the only remedy open to an ordinary servant who has been wrongfully dismissed is an action for damages. The Courts will not decree specific performance against the employee, nor will they order the payment of the servant’s wages for the remainder of his term. (Macdonell Master and Servant 2nd ed, p.162), however points out that Equity Courts did at one time issue decrees for specific performance. But the practice has long been abandoned, and fear two reasons; the inadvisability of compelling one person to employ another whom he does not trust in a position which imports a close relationship; and the absence of mutuality, for no Court could by its order compel a servant to perform his work faithfully and diligently. The same practice has been adapted by South African Courts, and probably for the same reason. See Wouter vs. Lieberman 20, C.T., page 116, and Hunt vs. Eastern Province Boating Co. (111E.D.C. at page 23). No case was quoted to us where a master has been compelled to retain the services of an employee wrongly dismissed, or to pay him wages as such, and I know of none. The remedy has always been damages.” (Emphasis added).
 It would be helpful to make two comments regarding the above excerpt. First, the position stated, which appears to have been at English law, has since been the subject of legislative in roads in this country. As indicated earlier, the Industrial Relations Act (supra) changed the common law position in respect of both the remedies of reinstatement and payment of arrear salary, with the relevant Court exercising a discretion regarding both remedies. The above Act, as earlier established, is not applicable to the Applicant. This therefore, leaves the matter to be decided at common law.
 One will have to assume, as I do, that the English law position quoted in the Schierhout case above is akin to that under Roman Dutch Law. I am presently not aware of any authority to the contrary hence the assumption that the position in English law is consistent with that at Roman-Dutch common law which is the common law of this country.
 The second observation that needs to be made and which is in my view, critical and decisive is that this the quotation in Schierhout (supra) applies to an employee whose services have been wrongfully terminated. They do not, as I will presently endeavour to demonstrate, apply to an employee whose services had been wrongfully terminated but who had since the declarator that same was unlawful, been reinstated to his previous position. That is so, in my view is evident from the portion of the excerpt that I purposely underlined, namely that Courts will not order payment of the servant’s wages “for the remainder of his term”, which presupposes a wrongful termination of employment before the term fixed during which the employment is expected to endure.
 A further and closer reading of the Schierhout judgment reveals one remarkable conclusion which in my view inexorably suggests that it is not correct that a Court may not grant the remedy of payment of arrear salary at common law as is apparently suggested in Schierhout. For starters, the second head note in that case reads as follows:-
“The retirement of a member of the public service contrary to the peremptory provisions of the Act applicable to his case is a nullity, and such servant is, therefore not confined to a remedy in damages; but is entitled to treat his notice of retirement as null and void and to claim the salary of his office, upon tender to perform its duties. An order for the payment of salary due to a public servant is not an order for specific performance ad faciendum…” i.e. “ To do; to make”, according to Black’s Law Dictionary. 8th ed, 2004. (Emphasis added).
 More importantly, at page 111, the Court in Schierhout held as follows:-
“It is therefore competent for this Court to hold that the plaintiff’s retirement was void and of no effect, and that he is entitled to claim the salary of his office, if being willing and tendering to perform the duties thereof …To order the payment of salary due is not an order for specific performance ad faciendum, and it is only when an order of that kind is prayed without an alternative of damages that the magistrate’s jurisdiction is ousted. It would have been quite competent for the magistrate to give judgment for the salary claimed, on the ground that the plaintiff’s retirement was null and void.” (Emphasis added).
 The picture that emerges from the foregoing extract is that where the employee who was dismissed, is found to have been wrongfully dismissed and is at the point of the determination that he was illegally dismissed willing and tendering to perform, he is entitled to claim an arrear salary provided he is reinstated. This is because the Court will have found that the purported dismissal is null and void. If he is not reinstated on the other hand, or is unwilling to render performance after the declaration that he was illegally dismissed, only then in my considered opinion, would he be eligible to claim for damages because the contractual relationship with his employer would have come to an end with no desire to have it continue.
 I interpolate to observe at this point that I agree with the conclusion of the Court in Makhetha on the facts. I say so because it is clear that Makhetha et al were not reinstated as the High Court correctly found, a finding upheld on appeal, that their continued employment was inimical to discipline and good order within the police service. That being the case, it would appear to me that they could not, not having been reinstated be eligible to claim their arrear salaries. Their remedy, on the facts, correctly lay in damages.
 It would appear to me therefore that the issue that is determinant whether it is a proper case of arrear salaries or damages is whether after the declarator is made that the dismissal was unlawful the employer accepts to reinstate the employee and the employee is also willing to tender to perform the duties of his office thenceforth. If the case is such that both are willing, it then means that the relationship of employer/employee is reconsumated, thus ordinarily entitling the employee to some arrear salaries which the Court would grant exercising its discretion as to the period for which it would be just and fair in the circumstances to do so.
 If, on the other hand, the employer, after the declaration of the unlawfulness of the dismissal is for justifiable reasons not willing to reinstate the employee or the latter be unwilling to tender to work, it is clear that the remedy would have to be the payment of damages to compensate the employee for his unlawful dismissal. It would therefore appear to me that arrear salaries are competent to be ordered in respect of an employee who, after being declared to have been unlawfully dismissed, is reinstated to his office and is willing and tenders to work. Damages, on the other hand, it would also seem to me, are payable where the employee ha not be reinstated either because he is unwilling to be so reinstated and has not tendered to perform on the one hand or the employee justifiably does not reinstate him on the other.
 The above being the case, it appears to me to be unjust and absurd to require or expect an employee who has been dismissed to tender to perform or to actually work during the period when the dismissal obtains and when the dismissal has not yet been adjudged to have been unlawful by a competent Court or tribunal. If that were to be required of dismissed employees as a qualification for them to be eligible to claim their arrear salary after their dismissal has been set aside, it would create a lot of confusion at the work place. I say so because the dismissed employees would be required to tender to perform or actually go to work an action that would prompt the employer to possibly obtain an interdict keeping the dismissed employee away from the premises of his erstwhile employer.
 A worse case scenario would be where the employee actually works after dismissal and is of course not paid because he was dismissed. The question would be what would happen in the event the Court held his dismissal was proper because he would have worked but would not be entitled to being remunerated therefor because he worked during the period of his dismissal? The answer is obvious.
 It is for that reason that I respectfully differ from the finding in Makhetho, as I understand it that an employee becomes entitled to arrear salary only when he has rendered or actually worked during the period of dismissal. As indicated that position is not fully supported by the Schierhout case. In my view, the dismissed employee is unable to work or tender to work during that period not of his own free volition but as a result of the dismissal, lawful or not, which stands until set aside, if at all, by a competent Court or tribunal.
 It would therefor appear to me, with respect, to be preposterous and not in line with law, logic or principle to expect a dismissed employee to work or tender to work during the period of dismissal and hold his failure to do so against him when he claims arrear salaries after being reinstated. If he continues in his employment, he should for that reason, be able to claim a measure of his arrear salary without the requirement that he claims damages, which would ordinarily put a strain on the resumed employer/employee relationship, probably raking dying embers and flaring them up for renewed hostilities in Court, with witnesses having to be called once again for the issue of the damages.
 It will be seen from what I have said above therefore, that Mr. Vilakati was not correct in his submission that an employee who has not tendered to perform or has not worked during the period of his dismissal, is not entitled to claim damages. The statement is rather wide and finds no support in Makhetho. The conclusion in Makhetho with which I respectfully disagree, it being a judgment of persuasive and not binding effect, is that where the employee has neither worked nor tendered to work during the period of dismissal is entitled to claim damages and not the payment of arrear salary. If he be subsequently reinstated.
 To non-suit him altogether, as Mr. Vilakati would appear to contend, would be the high water mark case of injustice. That he is entitled to some remedy, finds support from Chegutu Municipality vs. Manyora 1997 (1) S.A. 662 (2SC), at 665 H, where McNally J.A. dealt at length with the concept of reinstatement. The learned Justice of Appeal said:-
“I conclude therefore that ‘reinstatement’ in the employment context means no more than putting a person again into his previous job. You cannot put him back into his job yesterday or last year. You can only do it with immediate effect of from some future date. You can, however, remedy the effect of previous injustice by awarding back pay and/or compensation. But mere reinstatement does not necessarily imply that back pay and/or compensation automatically follows.” (Emphasis added).
I therefore do not think Mr. Vilakati’s submissions are an accurate rendition of the ratio decidendi in Makhetho.
 As the curtain closes on this matter, it would be remiss of me not to consider another judgment from the Court of Appeal of Lesotho and which was referred to in Makhetho. This is the judgment of Commissioner of Police and Another vs. Ntlo-Tsoeu LAC (2005 – 2006) 156. In dealing with that case in Makhetho the Court held that it was distinguishable for the reason that the Respondent therein had been reinstated from a particular date. This is an issue I deal with later.
 The facts in Intlo-Tsoeu are simple. He was also a police officer. Between February, 1997 and September, 2000, he absented himself from duty, alleging that he was on a “hit list” of persons who were due to be exterminated. He fled to the Republic of South Africa. He was consequently declared a deserter and removed from the police personnel roll. In September, 2006, he was arrested and detained on a charge of sedition until February, 2003. The charge was not proceeded with.
 By letter dated 31 July, 2003, he was reinstated into his former position with effect from February, 28, 1997. The letter spelt out in clear terms that he would not be paid his arrear salary in respect of the period of his desertion. He instituted proceedings in the High Court for an Order directing that he be paid his arrear salary from February 1997 to July, 2003 with interest. His prayers were granted and the Commissioner of Police appealed against that decision.
 The Court of Appeal held, and correctly so in my view, that from the Commissioner’s letter reinstating the respondent, it was clear that he intended the respondent to be paid his arrear salary in respect of the second period i.e. from 3 September, 2000 to July, 2003. In respect of the earlier period from February, 1997 to 3 September, 2000, the Court of Appeal held that he was not so entitled for reasons I capture immediately below.
 At page 160, C-F the Court, per Smallberger J.A. said:-
“The intention of the first appellant (or his authorized representative) as reflected in the letter is quite clear; the right of the respondent to be paid a salary for the second period (and beyond to 31 July, 2003), if not expressly stated, is necessarily implied. …In my view the first appellant is bound by his undertaking in respect of the second period. There is no suggestion that the respondent did not accept what was offered in that regard. The fact that he did not render services is irrelevant; the undertaking was made with full knowledge of the fact that his imprisonment had precluded him from doing so; and the authority to make the undertaking has never been disputed.”
 In relation to the period of desertion, which is in my view critically important for our case, the Court said at page 160 F – 161 B:-
“The position is, however, different in respect of the first period. It was made subject to an important qualification – that because the respondent’s ‘absence from police work was in your own accord that made it impossible for you to render police services to LMPS’ he was not entitled to a salary over that period. In other words, the first appellant specifically invoked the common law principle of ‘no work no pay’ in relation to the first period. Apart from the fact that this period was conditional upon no salary being paid to him, the respondent, in my view made no proper case for payment of salary in respect of that period. Save for the bald allegation that he fled because he feared for his life, the respondent has put forward no facts to justify his prolonged absence from Lesotho, and his failure to return to duty. As a policeman one would have expected him to have communicated with his superiors with regard to his predicament, and to have caused enquiries to be made as to when it would be safe to return. But he has maintained a complete silence with regard to his movements and efforts to return over the first period. The onus is on the respondent to establish his entitlement to back pay in respect of the first period. Because of his failure to provide evidence of circumstances justifying his prolonged absence, and in the light of a qualification that attached to his reinstatement in respect of this period he has in my view not succeeded in doing so. He is consequently not entitled to back pay for the first period.” (Emphasis added).
 The Court, it will be clear; considered the issue of fault on the part of the employee in being unable to render his services. It clearly found that in relation to the first period, the respondent had not given plausible reasons for his failure to render. This to me is significant because it shows that had he been able to show justification for failure to tender services, the Court may well have found him eligible to receive his back pay. Crucially, it would also seem to me, the Court did not insist on the argument of tendering services to be a condictio sine qua non and did not, as it appears to have done in Makhetha, say that his remedy lay in damages, in the circumstances.
 It would therefor appear to me that the concession by the appellant regarding the respondent’s eligibility in respect of the second period did not have a bearing on the first and that if the respondent had given cogent reasons for failure to render services with no fault on his part in respect of the desertion, the Court, it would seem to me, would have upheld the High Court’s order even in respect of the first period.
 As indicated earlier, the issue of eligibility to payment of arrears salary and particularly the period in respect of the back pay, lies within the discretion of the Court. There are factors like delay in instituting proceedings which may, in a given case, affect the date from which the back pay is ordered to start. The Respondents, in this case, took the position that the Applicant was not entitled to not just back pay but to damages as well. No facts or allegations were given to the Court which could assist it in the exercise of its discretion in the event if found back pay was payable. There being no such facts before me, for purposes of this particular case. I see no reason why the Applicant’s prayer should not be granted.
 I must particularly mention that there is no or a paucity of information regarding the events between the conviction of the Applicant and the dismissal, as well as beyond, leading to the application for review. For instance, it is not clear whether the applicant was suspended and if so, on what terms and up to what period of time. These are important periods which need to be carefully documented as they may have a bearing in a proper case on the period which for the arrear salary if grantable, should be granted.
 I have come to the considered view that the Applicant is entitled to his arrear salary. In view of the deficient information on the record, I call upon the parties, within seven (7) days to prepare and file agreed facts regarding the common cause events from the date of conviction and within ten (10) days thereafter, file written submissions regarding factors that the Court may properly take into account in determination of the period from which the back pay should be ordered to run. Costs will be pronounced after the submissions have been properly tendered.
DELIVERED IN OPEN COURT IN MBABANE ON THIS THE 2ND DAY OF JUNE, 2010.
JUSTICE OF THE HIGH COURT
Messrs. Mkhwanazi Attorneys for the Applicant.
Attorney-General’s Chambers for the Respondents.