Bongiwe & Others v SOS High School (275/2015) [2019] SZIC 04 (06 February 2019);

IN THE INDUSTRIAL COURT OF ESWATINI

                                                                                          CASE NO. 257/15

In the matter between:-

 

BONGIWE DUBE & 22 OTHERS                                   Applicants

AND

SOS HIGH SCHOOL                                                   1^st Respondent

 

THE CHAIRMAN OF THE TEACHING                           2^nd Respondent

SERVICE COMMISSION

 

THE PRINCIPAL SECRETARY IN THE

MINISTRY OF EDUCATION AND TRAINING      3^rd Respondent

 

THE ATTORNEY – GENERAL                                  4^th Respondent

 

 

Neutral citation:     Dube Bongiwe and 22Others vs SOS High School (275/2015) [2019] SZIC 04 (06 February, 2019)

 

 

Coram:                      N.NKONYANE, J

     (Sitting with G. Ndzinisa and S.    Mvubu      Nominated Members of the Court)

 

 

 

 

 

Heard submissions:                   12/12/18

Judgement delivered:        06/02/18   

 

SUMMARY---Labour Law---Writ of execution---Execution against Government property---Provisions of The Government Liability Act of 1967---Failure to cite the correct party in legal proceedings.

 

Held---Section 4 of The Government Liabilities Act, 1967 prohibits the execution or attachment of any property of the Government.

 

Held further---A writ of execution cannot be sued out against the property of a person against whom there is no judgement.

 

 

 

 

 

 

 

JUDGEMENT

 

 

 

 

 

 

 

1. The Applicants have approached the Court by way of Notice of Application and are seeking an order in the following terms;

 

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1. The Respondents did not file an answering affidavit to the Applicants’ supporting affidavit.  The Respondents’ attorney told the Court that they intend to argue legal points and they will seek leave to file answering affidavits if the legal points are dismissed by the Court.

 

1. There was no objection from the Applicants’ representative in the matter proceeding to arguments on the basis of the legal points raised.  The Court therefore allowed the parties to proceed to arguments as both parties had filed heads of argument.  

 

1. This application has a long history.  The factual background is as follows; the Applicants are employees of the 1^st Respondent.  The 1^st  Respondent is a school situate at Sidwashini in Mbabane. Prior to January 2006, it was part of a donor funded organization known as Hermann Gmeiner SOS Children’s Village Association of Swaziland.  The Applicants are employed as teachers and support staff. Over and above their normal monthly salaries from the Government of ESwatini, they were paid a monthly allowance by the organization as performance incentive.

 

1. It is common cause that the foundation or organization experienced financial hardships as a result of a decline in donor funds which led to the organization handing over the school to Government in January 2006.    

 

1. The taking over of the school by the Government resulted in the teachers losing the benefit of the allowance as the Government does not pay an allowance to teachers over and above the normal monthly salaries.  The teachers were not privy to the memorandum of agreement signed between the Government of ESwatini and the organization.  There is no evidence that they were consulted during the negotiations between the two parties.  In terms of article 2.5 of the agreement, the 1^st Respondent ceased to pay the additional monthly allowance to the teachers and support staff.                  

 

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1. As expected, the Applicants did not take the matter lying down.  They reported it to the Labour Commissioner as per the provisions of Section 26 of Employment Act No.5 of 1980 as amended.  The Labour Commissioner ruled in favour of the Applicants.

 

1. It seems that the 1^st Respondent did not comply with the Labour Commissioner’s ruling as the matter was eventually reported to the Conciliation, Mediation and Commission (“CMAC”).  At CMAC the 1^st Respondent did not appear and the CMAC Commissioner presiding over the matter heard the evidence of the party in attendance and made an award in favour of the Applicants.   

 

1. The 1^st Respondent again failed to comply with the CMAC award. The Applicants filed an application to Court to have the award registered to facilitate its execution in order to realize the judgement debt. There were many other Court processes that followed thereafter and the matter was at some point heard by the Industrial Court of Appeal.

 

1. The Applicants have now sued out a writ of execution.  The Registrar of the Court has declined to sign the document on the basis that the parties are not in Agreement on the exact amount to be realized hence the matter is now before the Court again.

 

1. On behalf of the Respondents it was argued that the warrant of execution cannot be enforced against the 1^st Respondent as it is a Government entity and has no locus standi in judicio.  It was argued that the 1^st Respondent, being a Government School, has no separate existence from the Government and therefore cannot be sued in its own name as a separate legal entity.  It was further argued that in terms of The Government Liabilities Act, 1967 execution or attachment of Government property is prohibited.

 

1. Indeed, Section 4 of The Government Liabilities Act No.2 of 1967 provides that;

 

“No execution or attachment or process in the nature thereof shall be issued against the defendant or respondent in any such action or proceedings referred to in section 2 or against any property of the Government…..”

 

1. The question that arises therefore is; is SOS High School (the 1^st Respondent) a Government entity.  In terms of the memorandum of agreement signed by the parties in January 2006, the Government merely took over the operations of both the Primary and High Schools.  Article 1.1 provides that Government will;

 

“1.1 take over from SOS Swaziland the operations and management of the Primary and High Schools in accordance with Government policies and regulations.”

 

Article 2.1 provides that SOS Swaziland will;

 

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Article 2.2 provides that SOS Swaziland will;

 

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15.3 the equipment and machinery in use by the schools at the time of the signing of the agreement were donated to the schools which are under the administration of the Government and are therefore the properties of the Government.

          

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N.NKONYANE

JUDGE OF THE INDUSTRIAL COURT OF ESWATINI

 

 

 

 

For Applicants:Mr. A. Fakudze

(Labour Law Consultant)

 

 

For Respondents:Mr. K. Nxumalo

(Attorney General’s Chambers)