IN THE INDUSTRIAL COURT OF APPEAL OF ESWATINI
Appeal Case No. 8/19
Held at Mbabane
In the matter between:
PHILEMON MADAKWA DLAMINI APPELLANT
CENTRAL TRANSPORT ADMINISTRATION 1ST RESPONDENT
PUBLIC SERVICE PENSION FUND 2ND RESPONDENT
SWAZILAND GOVERNMENT 3RD RESPONDENT
MINISTER OF PUBLIC WORKS AND
TRANSPORT 4TH RESPONDENT
ATTORNEY GENERAL 5TH RESPONDENT
Neutral citation: Philemon Madakwa Dlamini V Central Transport Administration & 4 Others [8/19]  SZIC 12 (16 October 2019
Coram: FAKUDZE AJA
Heard: 26th September, 2019
Delivered: 16th October, 2019
Summary: Labour Law – Appellant employed by Government – Retired in 1991 after attaining the age of 60 – Appellant files Application against Government regarding payment of pension – Respondent raises issue of prescription since proceedings instituted 17 years after cause of action arisen – prescription in terms of The Limitation of Legal Proceedings Against the Government Act, 1972 – Court a quo upholds point of law – Appellant Appeals – Appeal Court upholds decision of court a quo – Appeal dismissed and no order as to costs.
JUSTICE M.R. FAKUDZE
 This is an Appeal from the Industrial Court of Eswatini under Case No. 270/2018. In the court a quo, the Appellant alleged that he was employed by the Government of Eswatini in 1991 as a night watchman. He retired from such position in August 2001 after attaining the age of 60. The Appellant did not qualify for pension, but was only entitled to his own contribution to the Pension Fund. The reason was that when he was employed, he was already 51 years old and hence his compulsory retirement year was in 2000, since he was born in 1940. The Appellant instituted proceedings against Government in August 2018, claiming that he was entitled to also get the employer’s contribution at the Pension Fund. The Respondents raised points of law, inter alia, that the claim was time barred in terms of The Limitation of Legal Proceedings Against Government Act, 1972.
 The Learned Acting Judge L. Msimango dismissed the application on the point of law raised by the Respondents and ruled that the matter was time barred. The Appellant was not satisfied with the judgment and hence has lodged the present appeal.
 In noting the Appeal, the Appellant raised the following points:-
(a) The court aquo erred in law and in fact, and misdirected itself by incorrectly applying Section 2(1)(c) of The Limitation of Legal Proceedings Against The Government Act, 1972 in violation of the Constitution of the Kingdom of Swaziland Act, 2005, Section 21 which provides the right to access court.
(b) The court aquo erred in law and in fact, and misdirected itself by incorrectly applying Section 2(1) (c) of The Limitation of Legal Proceedings Against Government Act, 1972, in violation of the Constitution, Section 141 (1) (2) and (3) which provides for the independence of the Judiciary to try cases.
(c) The Court aquo erred in law and in fact, and misdirected itself by applying Section 2 (1) (c) of The Limitation of Legal Proceedings Against Government Act, 1972 in lieu of The Limitation of Legal Proceedings Against Government Act, 1972, Section 4.
(d) The court aquo erred in law and in fact and misdirected itself by incorrectly applying Section 2 (1) (c) of The Limitation of Legal Proceedings Against Government Act, 1972, in violation of the Constitution of the Kingdom of Swaziland Act No. 1 of 2005, Section 195 (1), (2) (b), (3) and 196 (1) (a) and (b).
The Parties’ Contention
 The Appellant’s case is that in April, 1991, he entered into an employment contract with the First Respondent and this contract was for an indefinite period. He was employed as a night watchman and his monthly salary was E1,206.50. The Appellant stated that he was in continuous employment of the Respondent until 28th August, 2001 wherein he officially retired.
 The Appellant further contended that upon his retirement, the 1st and 2nd Respondents unlawfully denied the him/her right to receive a monthly payment from the Pension Fund. He submitted that upon retirement, the First Respondent tacitly renewed his employment and he continued with his employment service and completed 10 years of service therein. The tacit employment was based on the same terms and conditions as the initial one. He was therefore a permanent and pensionable employee. When he was denied the payment of pension, he now has no source of livelihood. The Appellant implores the court to uphold the Appeal
 The Respondent submitted that the court aquo was correct in concluding that no legal proceedings may be instituted against Government for the payment of a debt after the lapse of a period of twenty four (24) months from the date of occurrence of the debt.
 The Respondent further contended that it is common cause that the Appellant’s cause of action arose in 2001 when he retired. The Act states that legal proceedings may only be instituted against the Government within 24 months from when the cause of action arose. Although the cause of action arose at the end of September, 2001, the Appellant only approached the court in 2018 on a certificate of urgency.
 The Respondent’s final contention is that the Appellant did not even bother to make an Application to the High Court for condonation as per Section 4 of The Limitation of Legal Proceedings Against the Government Act, 1972. The Respondent therefore implores the court to dismiss the appeal.
The Applicable Law
 Section 2 (1) (c) of The Limitation of Legal Proceedings Against the Government Act, 1972, states that “no legal proceedings shall be instituted against the Government in respect of a dent after the lapse of a period of twenty four months as from the day the debt become due.”
 In Comfort Shabalala V Swaziland Government (2618/1995)  SZHC 23 (07 June 2002), the High Court was called upon to interpret Section 2 (1) (c) of The Legal Proceedings Against Government Act, 1972. The Court had this to say:
“A debt is due when it is immediately claimable by the Creditor and as its correlative, it is immediately payable by the debtor. It can only be claimable immediately the creditor has the right to forthwith institute an action for its recovery. In other words, the creditor must have a complete cause of action in respect of it.”
 In the case of Walter Sibisi V The Water and Sewerage Board and Another High Court Case No. 504/1987 Hannah CJ, as He then was, opined that:-
“A person claiming a non-delictual debt who fails to serve his demand within twenty four months becomes debarred from instituting proceedings not by virtue of Section 2 (1) (a) but by virtue of Section 2 (1) (c)…….”
Court’s analysis and conclusion
 As stated earlier, it is trite that the Appellant’s cause of action arose in 2001 when he retired. The Appellant approached the court in 2018 and this is some 17 years after the cause of action had arisen. It is the Respondents’ contention that the cause of action has prescribed in terms Section 2 (1) (c) of The Limitation of Legal Proceedings Against the Government Act, 1972. There is no reason to disagree with the Respondents’ contention on this point. The court a quo was correct in upholding the point of law that was raised by the Respondents on prescription. In coming to a similar conclusion as this court, the court aquo rightly observed as follows:
“ The Respondent submitted that seventeen years after the occurrence of the alleged complainant, the Applicant instituted legal proceedings against the Government much against the peremptory provisions of Section 2 (1) (c) of The Limitation of Legal Proceedings Against Government Act, 1972. In this regard the Respondents prayed that the point of law be upheld and the application be dismissed with costs.
 In response the Applicant argued that based on denial of his rights by 1st and 2nd Respondent to receive his full retirement final benefits, the court shall not be prevented and/or hindered by any time limitation clauses of any law or statutes, to protect and exercise its jurisdiction, and to ensure Applicant’s right to access the courts.
 It is trite law that when the period of time specified in a statute of limitations passes, a claim might no longer be filed or if filed, may be liable to be struck out if the defence against that claim is or includes, that the claim is time barred as having been filed after the statutory limitations period.”
 The Appellant also raised another point pertaining to the point that the court aquo erred in law by not interpreting Section 2 (1) (c) in light of Section 4. Section 4 (1) states that:
“The High Court may, on Application by a person debarred under Section 2 (1) (a) from instituting proceedings against the Government, grant special leave to him to institute such proceedings if it is satisfied that:
- He has reasonable prospects of succeeding in such proceedings:
- The government will in no way be prejudiced by reason of failure to receive the demand within the stipulated period.”
In Walter Sipho Sibisi’s case (Supra), the Court had the privilege of interpreting Section 4 when it stated that:
“On a plain reading of Section 4(1), the person who may apply for special leave is a person debarred under Section 2 (1) (a) as if must therefore be determined what category of person can be debarred by that Section from instituting proceedings against the Government. The answer, in my opinion, can only be a person claiming a debt arising from a delicit who has failed to serve his demand within 90 days. A person claiming a non delictual debt who fails to serve his demand within 24 months becomes debarred from instituting proceedings not by virtue of Section 2 (1) (a) but by virtue of 2 (1)(c) ……… In my judgment the operation of Section 4 (1) is confined solely to a case of a person demanding a debt arising from a delict who has failed to comply with the terms of the proviso to Section 2 (1) (a) and has no application at all to a person, whatever his claim may be, who has failed to institute proceedings within the period of 24 months stipulated by Section 2 (1) (c). In my judgment a court has no power to grant a relief sought by the Applicant whatever the merits of his case may be.”
 This court alligns itself fully with the sentiments expressed by the High Court in the Sibisi’s case. There is therefore no merit in the Appellant’s contention on this point.
 In light of all that has been said above the following Order is made:
(a) The Appeal is dismissed.
(b) Each party shall bear its costs.
ACTING JUSTICE OF APPEAL
I agree ___________________
T. L. DLAMINI
ACTING JUSTICE OF APPEAL
I agree ____________________
ACTING JUSTICE OF APPEAL
Appellant: S. B. Dlamini
Respondent: S. Hlawe