[3]
The court will accordingly make a ruling on the main prayers being
prayers 3 and 4. In terms of prayer 3 the applicant wants the court
to make an order declaring that the judgement of this court
delivered on the 27.09.02 has been fully satisfied as the applicant
paid the sum of E145.933.00 the 1st
respondent.
[4]
Mr. Hlophe argued that the payment of the said sum of E145.933.00 to
the 1st
respondent was in full and final settlement of the judgement of the
court.
[5]
Mr. Mavuso argued to the contrary that there was never at any time
an agreement that the payment of the said sum was payment in full
and final settlement of the judgement debt.
[6]
In order to fully appreciate the basis of the arguments it is
important to set out briefly the facts forming the basis of this
application.
[7]
The facts appear from the judgement of the late Judge, Justice
Nkambule which was delivered on 27.09.02 under case No. 6/2001. The
1st
respondent, who was then the applicant, had applied to the court to
grant him two prayers. Prayer 1 was for an order for proper grading
or notching of the position of administration manager by equating it
with that of a similar organization, the Swaziland National
Provident Fund (SNPF).
[8]
Prayer 2 was for an order that the applicant receive the difference
between what he was earning and what he could have earned had his
salary been equated with that of the administration manager of SNPF.
The court found in favour of the applicant (1sl
respondent herein). On page 4 of its judgement the court held as
follows:-
"For
the above reasons and conclusions the applicant's application
succeeds. Respondent to pay applicant the amount reflected in the
applicant's prayer
Respondent
to further pay applicant a salary equivalent to the administration
manager of the SNPF as reflected in annexure "B". This
should be with effect from the payday of October 2002."
What
is clear therefore is that there were two distinct prayers before
the court, and the application was granted by the court.
Mr.
Hlophe argued that the court when delivering its judgement did not
grant the specific prayers sought by the 1st
respondent, but the court used its discretion to make an order that
the payment of the adjusted salary should be with effect from the
payday of October 2002.
From
the submissions made before the court and from the papers filed in
court, we are unable to agree with Mr. Hlophe. The evidence revealed
that the 1st
respondent filed an amended statement of claim, which contained the
two prayers. In terms of paragraph 15 of the amended statement of
claim, the 1st
respondent averred that as the result of the discrimination in pay
when compared to his counterpart at SNPF, he suffered prejudice in
monetary terms amounting to E142,261.45 when calculated from 1st
April 1998 to December 2000.
The
writ of execution marked "PSP 4" was therefore sued out
for the said amount of E142,261.45. There were no ambiguities as
regards this amount.
The
problem arose when the 1st
respondent sued out the second writ for the sum of E163,427.04
marked "PSP9". This second writ led to the argument that
it was out of order, as the parties had already settled the matter
in full.
The
court must therefore enquire whether there was indeed a full and
final settlement of the matter. There was no documentary evidence to
back this claim. The only documentary evidence referred in court was
the letter marked "PSP5". PSP5" is a letter emanating
from the applicant's attorney's office to the 1st
respondent's attorney's office and is dated 19 September 2005. In
paragraph 2 the writer thereof stated that:-
'We
confirm
having clarified the basis of the cheque bearing the sum of
E145,933.09 and that same was from client's point of view a payment
in full and final settlement of all the monies due to your client
from ours in terms of the judgement of the Industrial court."
Mr.
Mavuso denied that he at any time accepted the said amount as
payment in full and final settlement. The burden to prove that there
was an offer of compromise was on the applicant. There being no
documentary evidence to that effect, we find that it was highly
unlikely that Mr. Mavuso could have orally accepted the offer on
behalf of his client as a full and final settlement especially when
one takes into account the amount of money involved. We therefore
come to the conclusion that the applicant has failed to prove on a
balance of probabilities that the 1st respondent was offered and
accepted the sum of E145,933.09 as payment in full and final
settlement of the judgement debt.
Further,
the circumstances surrounding the payment of the cheque were not
clear. The general rule is that sending of a cheque in full and
final settlement of a debt amounts to an offer of compromise. It
carries with it the implied condition that if the cheque is
accepted, that is, banked the claim is settled. (SEE
AMLER'S PRECEDENTS OF PLEADINGS AT PAGE 305 AND THE CASES THEREIN
CITED).
In
this case however, there was no evidence that when the sum of
E145,933.00 was paid, the applicant indicated in a covering letter
that it was in full and final settlement of the judgement debt, and
that the 1st
respondent
knowing of that went ahead to bank it.
The
second aspect of the applicant's application is contained in prayer
4. In that prayer the applicant seeks an order declaring the writ of
execution dated 12.12.05 a nullity.
It
was argued on behalf of the applicant that a writ can only be issued
for a sum that is clear. It was further argued that the figure
appearing therein was in dispute, as the calculations were not made
to start in October 2002 as per the court order.
We
are unable to agree with the applicant. The figure of E163,427.04
appearing on that writ was satisfactorily explained to the court.
That figure was based on "R3" of the 1st
respondent's Answering Affidavit. That document is also annexed to
the Founding Affidavit, though it was not marked. It was annexed
between documents "PSP6" and "PSP7".
[21]
Annexure "R3" clearly shows that the calculations are from
October 2002. That is exactly what the court order said. The 1st
respondent in its amended statement of claim had asked that the
salary difference be calculated as from the 1st
April 1998. The court, however, using its discretion ordered that
the calculations should be as from the payday of October 2002.
[22]
We therefore do not find any misdirection on the part of the 1st
respondent.
[23]
After having carefully considered the submissions made before the
court and the totality of the evidence we are of the view that the
application should be dismissed.
