IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE
CASE
NO.299/04
IN
THE MATTER BETWEEN
CHURCHILL
DLAMINI………………..APPLICANT
And
SWAZILAND
GOVERNMENT………..RESPONDENT
CORAM:
NKOSINATHI
NKONYANE: A.J.
GILBERT
NDZINISA: MEMBER
DAN
MANGO: MEMBER
FOR
APPLICANT: P.R. DUNSEITH
FOR
PESPONDENT: N. VILAKATI
JUDGEMENT
JANUARY
2005
The
Applicant in this matter is the former Master of the High Court. He
brought a notice of motion before the court for an order in the
following terms :-
a)
directing the
Accountant-General to immediately refund to the Applicant the sum of
E5,145.83 unlawfully deducted from the Applicant's salary;
b)
that the sum of E5,145.83
be paid at the offices of the Applicant's attorney, together with
interest at the rate of 9% per annum from 1st
August 2003 to date
of payment;
c)
costs on attorney-client
scale;
d)
further and/or
alternative relief. The evidence before the court showed that on or
about 18 July 2000 the Master's office received a cheque of E5,145.83
which was payable to the estate of the late Paulos Gaziliyabila
Dlamini.
The
executor of the estate was Jerome Dlamini. The executor requested
this cheque from the Master and said he urgently needed it to pay
estate expenses and creditors, including school fees and expenses for
the deceased's three minor children.
In
support of this request the executor submitted copies of the schools'
invoices amounting to E4,344.30. The copies of which were attached
and marked "B2" and "B3".
The
Applicant duly handed the cheque over to the executor.
On
25th September 2002 the Applicant received a memorandum
written by the Accountant-General directed to the Principal
Secretary, Ministry of Justice. The memorandum reads in part as
follows:-
"On
receipt of this cheque, the Master of the High Court himself
presented this cheque to one Jerome Dlamini who was the executor of
this Estate. In the distribution account the name of Jerome Dlamini
does not appear and as such he was not entitled to the E5,145.83 that
the Master gave him. Jerome Dlamini has since died and now the
surviving beneficiaries of this Estate want the E5,145.83 that was
given to Jerome Dlamini by the Master."
From
the reading of the memorandum by the Accountant-General, it seems
that he did not seek legal advice on the matter from the office of
the Attorney-General. The Accountant-General started to deduct money
from the Applicant's salary over a period of five months to cover the
amount of E5,145.83.
From
the papers before the court it is not stated why was the money
deducted from the Applicant's salary. The Respondent's Attorney
however, told the court that the Applicant was being surcharged for
negligence. She told the court that the Applicant failed to record
the cheque in his books before handing it over to the executor, and
that such failure amounted to dereliction of duty.
It
is not being argued that the failure to record the cheque by the
Applicant in his books resulted in the cheque being lost. The cheque
was handed to the executor. It is also not being argued that it was
wrong for the Applicant to transmit the cheque to the executor of the
estate.
The
Accountant-General in his memorandum says beneficiaries want the
money. There were no supplementary affidavits by the said
beneficiaries attached to the Respondent's answering affidavit.
The
Applicant did not misappropriate the cheque. It is not in dispute
that the Applicant handed it to the executor of the estate.
If
the Applicant flouted procedure in the process of transmitting the
cheque to the executor, a probe should have been undertaken and
recommendation made as to the appropriate disciplinary action to be
taken against him.
As
it is, it is not known to the court on what legal basis did the
Accountant-General surcharge the Applicant especially because the
money did not belong to Government, and there was therefore no loss
to Government.
Wages
of employees are protected under the Employment Act No. 5 of 1980
under Part VI of the Act. Section 57(1) states that,
"No
employer shall make any deduction from the wages due to an employee,
or make any agreement or arrangement for any payment to him by the
employee for, or in respect of alleged bad or negligent work by the
employee."
The
operative word in this sub-section is "alleged". In this
case there was only an allegation of negligence on the part of the
Applicant made by the Accountant-General. The allegation of
negligence was never proved. From the papers before the court, no
enquiry or probe was made into the alleged misconduct, and the
Applicant found guilty. The Applicant was therefore not afforded the
opportunity to give his side of the story on the matter.
It
is clear from the above observations that the Accountant-General had
no right to unilaterally act as he did.
The
application must therefore succeed.
The
court will accordingly grant an order in terms of prayers (a), (b)
and (c) of the notice of motion. The costs in prayer (c) to be on the
ordinary scale.
The
members agree.
NKOSINATI
NKONYANE,
A.J.
INDUSTRIAL COURT
