SWAZILAND
HIGH COURT
Ngcamphalala
Kenneth
Plaintiff
Vs
First
National Bank of Swaziland
Defendant
Civ.
Trial No. 3191/1997
Coram SAPIRE,
CJ
For
Plaintiff. L. Maziya
For
Defendant Mr. L. Khumalo
JUDGMENT
(20/02/2002)
This
is an action in which the plaintiff, a former employee of the
defendant, which is the First National Bank of Swaziland, is suing
the bank on the basis of what he says was agreed when he was first
employed by Meridian Bank. The evidence is and allegations are that
the same terms applied when the First National Bank took on the
business of Meridian together with some of its employees including
the plaintiff
The
plaintiff alleges that during 1995 he entered into a contract of
employment with the defendant in terms of which the defendant was to
employ him on the same terms and conditions that governed when had
been employed by the Meridian Bank. There is also reference that in
January in the same year a contract of employment with him was
entered into by Meridian Bank as a Manager at the Bank's Head Office.
1
The
agreements, on which Plaintiff relies, are in writing, but no mention
is made therein of the terms, which are alleged by the plaintiff. The
terms are
1. That
he would be paid a salary of E14 000 per month;
2. That
he would be given a company/bank car,
3. That
he would receive a scholarship of 7 000.00 which had been offered to
him by the Standard Chartered Bank which was to be taken over by the
Defendant. There is no evidence of such an agreement between the
plaintiff and the Standard Bank. Nobody has been called from the
Standard Chartered Bank or its successors to establish that such an
agreement existed and that he was to embark upon an MBA Programme.
4. The
plaintiff also was to be entitled to a car loan of 1½
times his annual salary and interest thereon would be 5%.
5. He
also claims that it was agreed that he would be entitled to 4 return
airfares to London where he was to write for his MBA Programme and
the total sum thereof was E16 000.00.
6. The
plaintiff would be entitled to have his electricity, water, maid and
entertainment at the sum of El 200.00 per month.
Can
plaintiff lead evidence to contradict and vary the terms of a written
contract? The circumstances in which this may be done are limited.
There is one circumstance, which may have applied in this case, that
is, if the plaintiff could have shown that it was not intended that
the written agreement should record all the terms of the agreement.
It was on this that the case turned.
There
was a sharp conflict between the Plaintiff and the defence witnesses.
The Plaintiff maintained that he had been headhunted from his
previous employers and that he was promised benefits not less than
his former employers had promised him. These comprised the additional
terms not mentioned in the letters that were the contract documents.
Defendant's
witnesses were equally adamant that there was no collateral
agreement. This being so the plaintiff has just not proved his case.
2
The
damages, which Plaintiff claims, arise out of breach of the unwritten
terms that do not appear in the letter of appointment.
Such
breach by the Defendant is alleged to be that
a) it
failed to pay the plaintiff the E14 000.00 per month;
b) it
failed to honour the undertaking to pay the tuition and air ticket;
c) it
failed to award the plaintiff its car loan at the rate of 5% but
charged him 19.7%.
Those
are the heads of damages. They are repeated in paragraph 9 of the
particulars of claim. Nothing is mentioned in the summons of any
breach relating to the inferiority of the post to which the Plaintiff
was appointed at the bank, either in the Meridian or First National
Bank.
The
onus was, and remained on the Plaintiff to prove the contract in the
terms alleged by him
The
Plaintiff's evidence that the parties did not intend that the letters
of appointment, subscribed by both parties should be the only
memorial of their transactions, is in sharp conflict with that of the
defendant's witnesses to the contrary.
Plaintiff
was initially employed on probationary basis. It is inconceivable
that these other terms which have been included if the contract was
only probationary. It is inconceivable that these terms, of which
defendant talks could have been inducement for him to leave his
former employers to join the defendant's predicessors. This is so
because if the defendant intended to be deceitful as suggested by the
plaintiff then in order to escape that condition what could have
happened was that at the end of the probationary period the defendant
could have refused to confirm the contract.
Again
when the First National Bank, the defendant, took over the business
of Meridian and the employees were reengaged, once again the terms
and conditions were confirmed and nothing was ever said about the
terms or conditions, which are the basis of the Plaintiff's claim.
3
Even
if there were nothing to choose between the Plaintiff's testimony and
the adduced on behalf of the Defendant, the balance of probabilities
not in the Plaintiff's favour. Quite the contrary is true.
I
cannot find that the parties intended that only part of their
agreement as to the terms and conditions of the Plaintiff's service
should be reflected in the written memorials. The plaintiff may
therefore not lead evidence to contradict the written contracts.
There will be judgment for the defendant with costs including
counsel's fee in terms of rule 68.
SAPIRE,
CJ
4
