THE INDUSTRIAL COURT OF SWAZILAND
the matter between:
AUGUSTINE EZEOGU & OTHERS
SECRETARY - MINISTRY OF
AND SOCIAL WELFARE
SECRETARY - MINISTRY OF
SERVICE & INFORMATION
AUGUSTINE EZEOGU & OTHERS RESPONDENTS
NKONYANE: ACTING JUDGE
APPLICANTS: M. MKHWANAZI
RESPONDENTS: M. VILAKATI
applicants brought an application and are seeking an order in the
Committing the 2nd
to gaol for contempt of court following his failure to comply with
orders of this court for a period to be determined by the above
Such order dealing with the contempt of the 2nd
as this Honourable Court may deem fit.
Costs of this as between on the attorney own client scale.
Declaring Establishment Circular No.7 of 1993 unlawful and
unreasonable in so far as the formula of computation and payment of
on-call and standby allowances is concerned.
Further and or / alternative relief."
application is founded upon a Founding Affidavit deposed thereto by
the applicants' attorney Mr. Mkhwanazi.
behalf of the respondents an Answering Affidavit was filed deposed
thereto by one Muntu Mntungwa.
the Answering Affidavit a point of law was raised on behalf of the
respondents. The point of law raised was that the application for
contempt of court is ill conceived as the judgement that was entered
by the court in favour of the applicants was a money judgement and
cannot in law be enforced by way of contempt of court proceedings.
court is therefore presently asked to make a ruling on this point of
is common cause that the present applicants obtained a judgement
against their employer, the Swaziland Government on the 1st
2006. The terms of the court order or judgement was that the
employer was to make certain money payments to the applicants within
fourteen days, and also to pay the costs.
Swaziland Government ("the Government") however failed to
comply with that court order.
2006 the applicants instituted proceedings calling upon the
Government to appear before the court to explain why it was refusing
to obey the court order. That application was placed before the
court on the 15th
that day a consent order was made by the court after it was informed
that the parties have agreed that the payment would be made on or
before the 31st
seems that the Government has further failed to comply with the
court order despite the undertaking it made that it was going to
make the payment on or before the 31st
applicants have come to court again to seek its intervention in the
this particular point however, the court is only called upon to
answer the question of law raised. It will not go into the merits of
of this court are enforced in the same manner as in the High Court.
The enforcement of this court's orders is provided for under section
14 of the Industrial Relations Act No.1 of 2000 as amended.
That section provides that:-"14.
An order of the court -
Made under this act and directing the payment of money or the
delivery of any property shall be enforceable by execution in the
same manner as an order of the High court.
Directing the performance or non-performance of any act shall be
enforceable by contempt proceedings in the court in the same manner
as an order of the High Court."
There was no argument that the court order in question was not an
order directing the payment of money. In terms of Section 14(a)
therefore such an order is enforceable by execution.
The order was made against the Government as the employer of the
applicants. The first question that arises therefore is, can the
execution process proceed where the respondent is the Government.
The answer to the above question is to be found in the Government
Liabilities Act No.2 of 1967. Section 4 thereof provides that:-
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: provided that the Accountant General shall cause such
money as may, by judgment or order of the court, be awarded to the
plaintiff or the petitioner, as the case may be, to be paid out of
the revenues of Swaziland."
It is clear from this section therefore that no execution or
attachment shall be made against the property of the Government.
second question that arises is, what remedy do the applicants have
in these circumstances or; put differently, is the present
application for committal for contempt appropriate?
answer this question it is important for one to appreciate the two
categories into which court orders fall. The distinction is
succinctly summarized by HERBSTEIN
AND VAN WINSEN "THE
CIVIL PRACTICE OF THE SUPREME COURT OF SOUTH AFRICA"
1977 at page 820 as follows:-
of court are, generally speaking, divided into two categories:
solvendam (sc order to pay a sum of money) and orders ad factum
praestandum (sc orders to do, or abstain from doing, a particular
act, or to deliver a thing). Not every order of court can be
enforced by committal for contempt. The order must be one ad factum
praestandum before the court will enforce it in that manner...".
already pointed out (in paragraph 15) the nature of the order in
question is not in dispute. It is an order to pay a sum of money.
From the authority referred to above, it is clear that it cannot be
enforced by committal for contempt.
court was referred to various court decisions from the Eastern Cape
in the Republic of South Africa. There will be no need however, for
the purposes of this ruling, to delve into those judgements
emanating from the Eastern Cape as there is a Supreme Court of
Appeal decision that dealt with a similar point and reversed those
the case of JAYIYA
V. MEMBER FO THE EXECUTIVE COUNCIL FOR WLFARE, EASTERN CAPE, AND
ANOTHER 2004 (2) S.A. 611 (SCA), CONRADIE JA held
at page 9 that:-
for one exception, an order for the maintenance of one whom the
judgement debtor is liable to maintain, a money judgement is not
enforced by contempt proceedings but by execution. The State
Liability Act in S.3 precludes execution against the property of a
provincial administration (now government), so that this avenue of
obtaining satisfaction of her debt was not open to the appellant
Supreme Court of Appeal in the Republic of South Africa therefore
reinforced the common law position that a money judgement is not
enforced by contempt proceedings but by execution.
court in that case overruled the decision in the case of MJENIV.
MINISTER OF HEALTH AND WELFARE, EASTERN CAPE 2000 (4) SA 446 (TK).
the Mjeni case Jafta J. purported to expand or evolve the common law
position as it meant that those who sue the State run the risk of
obtaining hollow and unenforceable judgments.
response to this robust stance adopted by Jafta J, the Supreme Court
of Appeal pointed out as follows at page 10:-
common law cannot evolve in conflict with statute law or basic
principles of law. The State Liability Act outlaws the 'attachment'
of the nominal defendant or respondent in proceedings against a
government department. There is nothing that any evolution of the
common law can do about that. Moreover, the common law must evolve
in a principled way. One of the fundamental tenets of the common law
is that of legality: it cannot evolve in such a way as to
(retrospectively) create a new crime or extend the limits of an
existing one. This is what the decisions in the Eastern Cape appear
to have done. Contempt of court, even civil contempt of court, is a
There was half hearted attempt to persuade the court to exercise its
equitable jurisdiction in this matter in line with the provisions of
Section 4(b) of the Industrial Relations Act. That section states
that one of the purpose and objective of this Act is to promote
fairness and equity in labour relations.
order for the court to properly exercise its powers in line with
this provision of the Act however, the application must have been
brought before the court under the correct head.
an aside, the court will point out that if indeed as a matter of
fact, the applicants have still not been paid, it is a serious cause
for concern. Such conduct of the Government is contrary to the
assurance by the head of the Executive that Government will obey
such conduct impacts directly and negatively on the independence of
the judiciary. It renders the judiciary ineffective and of little
help to litigants. It renders meaningless the whole process of
taking disputes to court for adjudication. The question that
potential litigants will have is, why bother to go to court if court
orders are not enforced.
court strongly believes however that there is no closed line of
argument in law. In a properly presented case before it, the court
may find it necessary to make inroads into the common law in order
to meet the needs of litigants.
into account all the aforegoing observations the court will make the
THEPOINT OF LAW IS UPHELD.
NO ORDER FOR COSTS IS MADE.