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IN
THE HIGH COURT OF SWAZILAND
CIV.
CASE NO. 1458/98
In
the matter between
VINCENT
JELE APPLICANT
And
THE
TEACHING SERVICE COMMISSION 1st RESPONDENT
THE
PRINCIPAL SECRETARY OF THE
MINISTRY
OF EDUCATION 2nd RESPONDENT
THE
ACCOUNTANT GENERAL 3rd RESPONDENT
THE
ATTORNEY GENERAL 4th RESPONDENT
Coram S.
B.
MAPHALALA-
J
For
Applicant MR. SIBANDZE
For
Respondents MISS GAMA
JUDGEMENT
(22/12/98)
Maphalala
J:
This
is an application brought by way of motion for an order that the 1st
respondent assign the applicant to a school immediately. That the 3rd
respondent should pay to the applicant his arrears salary due from
August 1997 to date of payment. That the respondents should pay the
costs of this application. Lastly, that the court grants applicant
any further and/or alternative relief. The application is supported
by the founding affidavit of the applicant. The respondents oppose
the application being represented by the 3rd respondent and have
filed an answering affidavit and confirmatory affidavits. The
applicant in turn filed a replying affidavit in answer to respondents
opposing papers.
The
fact giving rise to the dispute according to the applicant are as
follows:
In
June 1994 the first respondent posted the applicant to Velebantfu
High School in the Shiselweni Region where he was to teach English
and Siswati. He proceeded to the said school and indeed he taught at
the school from 1994. Sometime during 1997 and while employed by the
respondents and teaching at the school, he encountered into some
problems with the Deputy Head Teacher who claimed that he had
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difficulties
working with him. The school grantee then suggested that he be
transferred to another school close to Velebantfu where he would not
cause difficulties for the complaining Deputy/Acting Head Teacher.
Applicant refused to accept the proposed transfer mainly because he
was informed of what exactly the difficulties he was causing were and
no attempt was made to find alternative means of resolving the issue.
As a result of the misunderstanding and without any notice the first
respondent unlawfully stopped paying his salary in July 1997. At his
request, the first respondent came to Velebantfu on 2nd October 1997
in an attempt to settle the misunderstanding.
As
a result of the first respondent's intervention it was agreed that
applicant would be transferred to Timphisini High School and a letter
of transfer was given to him on 9th October 1997. The first
respondent assured him that applicant would receive his salary for
the months August and September 1997, to enable him to make the move
from Velebantfu to Timphisini as soon as possible. The first
respondent also advised that the Regional Education Office would
provide transport to move his property to Timphisini. Applicant
advised the first respondent that he would be unable to make the move
to Timphisini unless he received his salary as he would need some
form of sustenance there and there was no one he could depend on for
assistance with his sustenance. At the end of October 1997, he did
not receive his salary nor did he receive the salary for August and
September 1997. Applicant was therefore unable to make the move to
Timphisini in the circumstances. He attempted to speak to the
Executive Secretary of the first respondent whom he had been dealing
with at all times between October and November 1997, but was
unsuccessful mainly because he could no longer afford to travel to
Mbabane and had to resort to telephone calls.
In
December 1997, he managed to borrow some money and came to the 1st
respondent's office in Mbabane. He was admonished for not going to
Timphisini as per the letter of transfer and told that the Executive
Secretary would only be in a position to see him in January 1998. In
January, he was told to see the Executive Secretary of first
respondent on 10th February 1998.
He
did see the Executive Secretary on the 10th February 1998 at the
first respondent's office in Mbabane and again he was admonished for
not going to Timphisini and was advised that he would be contacted by
the first respondent refused to discuss the issue of his salary which
was last paid to him in July 1997. To date hereof applicant have not
been contacted by the first respondent about a new position nor has
his salary been paid. At the time of the suspension of his salary, he
was earning a basic salary of E2,151-75.
The
school's second term is now approaching and first respondent has
since February 1998 failed to find him a new position and to pay him
his salary for the last (9) nine months which he has been suspended
unlawfully. First respondent has not dismissed him from work nor have
he been suspended nor are any disciplinary proceedings pending
against him.
Applicant
avers that he has not absconded from duty and that since October 1997
he has been available for posting to a new position and still remains
so available. The first respondent is well aware of his availability
and is well aware that as soon as he
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was
posted to a new school and paid his outstanding salary, he will
report to that school immediately.
The
delay, and/or failure and/or refusal by the first respondent to post
him to a new school and to pay his salary which has been outstanding
for nine (9) months is both unreasonable and unlawful as has caused
him continuous hardships, particularly since the first respondent has
not suspended or dismissed him for his employment and he remain in
its employment and is not justified in law to keep him in limbo as it
has done.
These
are the factual allegations that form the basis of the applicant's
case.
Now
coming to the respondent's opposition. The respondents have filed
answering affidavit of one P. M. Muir who is the Executive Secretary
to the 1st respondent. He avers that paragraph 1 -
5,
6, 7 of the applicant's founding affidavit are admitted. In response
to paragraph 8 the 1st respondent admits that applicant was
transferred to Timphisini High School upon his request for a
transfer, but he never reported from duty at his new station. The
applicant had not worked during the months of August and September
and therefore was not entitled to any salary though as a compromise
the respondents offered to pay his salary for the two months and
transport him to his new station. The 1st respondent admits that
applicant did not receive salary for the months of August, September
and October as he has failed to report for duty at his new school on
the 13th October 1997, to allow an instrument to be prepared to
reactivate his salary on the teacher's payroll. 1st respondent
further admits paragraph 11 that he admonished the applicant for
failing to report for duty at Timphisini and denies knowledge of
whether or not applicant borrowed money to visit him. Indeed, the
applicant failed to make arrangements to be transported to the school
by the respondent as had been earlier agreed. The 1st respondent
admits that he met with the applicant on the 10th February 1998,
where he was informed that another teacher had been posted to take up
the post offered to the applicant at Timphisini High School and to
date the applicant has not been working therefore is not entitled to
any salary whatsoever in accordance with the general regulations
governing the conduct of teachers and the relevant provisions of the
Employment Act. Respondents deny that the suspension of the
applicant's salary was unlawful and state that the applicant had
unlawfully and without justification stopped working and was thus not
entitled to any pay as claimed herein or at all. The applicant has
placed himself in this predicament by failing to report for duty when
he was transferred, however, the respondents are genuinely looking
for a school to post him. The first respondent denies that the
applicant did not abscond from duty and asserts that he deliberately
absented himself from work from the month of August and September
1997, and when he was transferred at his own request in October he
deliberately neglected to take up the offer. The first respondent
pleads the principle of volenti non fit injuria in so far as the same
applies to this case since the applicant deliberately refused and/or
neglected to take up a posting made in October 1997. Further, the
first respondent is still willing to post the applicant to a school
as soon as a suitable vacancy arises.
These
are the factual allegations that forms the basis of the respondent's
opposition.
The
applicant then file a replying affidavit to the respondent's
answering affidavit. He denies paragraphs 1 - 6 of the answering
affidavit. He stated further that he
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denies
that he did not work in August and September 1997. The first
respondent was made aware of his problems with the Headmaster of
Velabantfu in early August 1997, but only came to address them in
October 1997. Between August and 2nd October 1997, he reported for
work every school day without fail despite that the Headmaster had
allocated his class loads to other teachers, to deal with the
examinations. He avers further that his salary was unlawfully stopped
in July 1998, even before he was transferred to the new school on
13th October 1997. The respondent could not have known in August and
September 1997. His failure to pay his salary of August and September
despite being advised of his dependent on same, to enable him to
report for duty following the unlawful stoppage of same. He denies
that he stopped working but submit that he was prevented from
rendering his services in terms of the employment contract by the
first respondent and/or its agents. He further denies that he placed
himself in this predicament. The first respondent was the one who
prevented him from taking up his posting and therefore placed him in
this predicament.
These
are the facts before the court. The court heard submissions in this
matter of the 2nd November 1998, where Mr. Sibandze for the applicant
contended that the applicant is entitled to his salary from 1997
todate. He availed himself to work. He directed the court to
paragraph 6 of the answering affidavit in answer to paragraph 7 of
the founding affidavit. Paragraph 6 of the answering affidavit reads
as follows:
"-6-
AD
Paragraph 7
Contents
thereof are admitted"
This
is in answer to paragraph 7 of the founding affidavit, which reads
as
follows:
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As
a result of the misunderstandings indicated above and without any
notice to me, the first respondent unlawfully stopped paying my
salary in July 1997. At my request, the first respondent came to
Velebantfu on the 2nd October 1997, in an attempt to settle the
misunderstandings".
Mr.
Sibandze contended that throughout the period the applicant has held
up to the disposal of the respondent. The respondent do not say why
they did not pay him or they did not post him to another school. To
this effect he referred the court to William and Millin on
Merchantile Law of South Africa (18th ED) at page 350.
Further
the first respondent could not possibly have known that applicant did
not work in August and September 1997. It would need some
supernatural powers in the part of the respondents to know that in
July that a person would not work in August and September. Most of
the allegations in the founding affidavit are not denied. It is not
denied that applicant came to the first respondent's offices in
December and was to come again in January. It is also not denied that
the first respondent advised the applicant that he would be contacted
as regards a new position and that took place in February. Right
until the matter was taken to court the applicant was not contacted.
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On
the other hand the respondents as represented by Miss Gama argue that
the applicant is not entitled to the relief he seeks. Respondents
have offered to pay for August and September. What was unlawful was
made lawful and there was an agreement between the parties. The
applicant agreed to go to Timphisini. Applicant did not go to school
on the 13th October 1997, and this act was contrary to the agreement
between the parties. The applicant absconded from duty even when he
was granted free transport to Timphisini. There was the whole year
where the applicant was sitting at home at his own free will. He is
the author of his own misfortune. The respondent contend that it is
totally incorrect that applicant was entitled to withhold his
services.
Mr.
Sibandze on points of law directed the court to paragraph 8 of the
applicant. Respondents do not dispute the allegation contained
therein. An employer is not entitled to take the law in its own
hands. There were supposed to have conducted a disciplinary inquiry
as to why the applicant was not working or summarily dismiss him for
failure to report for work. The respondent did not do so but sat back
and told the applicant to come later and thereafter informed him that
they will reply him by post. They cannot be heard to say that
applicant was the author of his own fate.
These
are the issues before me. It appears from the papers before me that
paragraph 8 of the applicant is not denied by the respondent in its
answering affidavit which is to the effect that it was agreed that
applicant would be transferred to Timphisini High School and a letter
of transfer was given to him on the 9th October 1997. The respondent
assured him that he would receive his salary for the months of August
and September 1997, to enable him to make the move from Velebantfu to
Timphisini as soon as possible. The first respondent also advised him
that the Regional Education office would provide transport to move
his property to Timphisini. Applicant then advised the first
respondent that he would be unable to make the move to Timphisini
unless he received his salary as he would need some form of
sustenance there and there and there was no one he could depend on
for assistance with his sustenance.
The
only response by the respondents to this allegation in its answering
papers is that they admit that applicant was transferred to
Timphisini High School, upon his request, but never reported for duty
at his new station. I do not find any allegation in the answering
affidavit that any disciplinary proceedings had been taken or that
the applicant has been called upon to answer ant specific charges
made against him. In other words there is nothing in the affidavit
which suggests the reason for withholding the salary for the period
in which it is claimed. One uncanny aspect of this matter as it was
pointed out by Mr. Sibandze for the applicant is that the respondents
could not have possibly have known that the applicant did not work
for the month of August and September unless they had some
"supernatural" powers to know in July that applicant would
not work in August and September.
Most
of the pertinent allegations in the applicant's founding affidavit
are not denied by the respondents. It is not denied by the respondent
that applicant went to 1st respondent's office in December and was
told to come back in January. It is also not denied that 1st
respondent advised applicant would be contacted as regards a new
position and that was in February. To date applicant has not been
contacted. This appears to me to be a classical case of red tape
going haywire.
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For
these reasons there is no defence to the applicant's claim and an
order is made directing the 1st respondent should assign the
applicant to a school immediately. Secondly that the 3rd respondent
should pay the applicant his arrears salary due from August 1997 to
date of payment. Thirdly the respondents are ordered to pay the costs
of this application.
S.B.
MAPHALALA
JUDGE
