IN
THE HIGH COURT OF SWAZILAND
Civ.
Case No. 1585/94
In
the matter between:
ELLEN
VELEPHI DLAMINI Plaintiff
and
THE
ATTORNEY GENERAL 1st Defendant
THE
MINISTRY OF EDUCATION 2nd Defendant
CORAM: Hull,
C.J.
FOR
THE PLAINTIFF Mr. Mngomezulu
FOR
THE DEFENDANTS No appearance
Judgment
(6/2/95)
By
an action instituted on 12th September 1994 the plaintiff, who is a
married woman assisted by her husband, sues the Government of
Swaziland for compensation of E5000.
Her
complaint is that while she was employed at Enjabulweni Private
School, Manzini, on 5th April 1994, one Aaron Ginindza unlawfully and
wrongly assaulted her. She says that at the time, he was employed in
the Ministry of Education as a Senior Inspector of Primary Schools
and was in the course of his employment as such, by which I
understand her to mean that he was on duty.
The
Government on 20th September sought to have the summons set aside as
an irregular proceeding for non-compliance with section 2(1) of the
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Limltation
of Legal Proceedings against Government Act 1972 (No 21 of 1972).
This objection was withdrawn on 3rd October 1994. By reason of
section 5 of that Act, it was for the Government to raise and pursue
that objection if it thought fit to do so.
On
17th November 1994, the plaintiff sought judgment by default in the
absence of any notice of intention to defend and on 18th November I
granted her leave to lead evidence of damages by affidavit.
She
has since done so. In her affidavit, she has stated an oath that she
was assaulted at the school in an office in full view of other
persons and that it caused her a good deal of pain.
A
person is entitled to be compensated for unlawful interference with
her dignity and for physical injury. Her claim, in my judgment, is
restrained. In the absence of opposition, I see no need to refer to
comparative award. E5000 is in my view an amount that is patently
reasonable.
There
will be judgment accordingly in favour of the plaintiff against the
defendant in the sum of E5000 general damages and costs.
Although
I accept of course that it is the business of the Government, I would
make one observation. In more than one case recently, individuals
have sued the Government in respect of misconduct by its servants
and, in the event, their claims have not been opposed at all. In such
circumstances, while it may well be that the Government or its legal
advisers see a need to obtain a formal order of a court of law before
paying public money to a claimant in compensation, it does seem to me
that time, inconvenience and expense - both to the claimant and to
public funds - could be saved and avoided if the Crown's legal
advisers were to come to reasonable terms with litigants before
trials. Every civil action involves an element of risk or uncertainty
for the litigants. It is well known that private disputes are settled
out of court frequently, through the initiative and constructive
approach
of the parties' legal advisers, to take into account those
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considerations.
It is an example that the Crown's advisers could obviously follow to
the advantage of the public, where no defence at all is offered.
DAVID
HULL
CHIEF
JUSTICE
