Swaziland: Court of Appeal

“Thank you for your letter dated 30^th July 1998 regarding the above named person. Mr. Dlamini was last enrolled on the ACCA Certificate Stage programme in January 1997 for the June 1997 examination diet. He has not been on any other programme since then.”

On the 2^nd July 1998 and acting on behalf of the Principal Secretary of Ministry of Education, the Accountant General of the Treasury Department was instructed to stop payment of appellant’s salary. The letter reads as follows:

It is not clear exactly when appellant abandoned his studies in Zambia. The inference to be drawn from the letter from the Centre dated 14^th August 1998 would indicate that it must have been around the middle of 1997. It is common cause that appellant at no stage advised his employer that he had ceased his studies and had returned to Swaziland. It is also common cause that he did not return to work but continued to receive his emoluments as an employee of the State.

It was appellant’s contention in his application to the High Court for the “release” of his monthly salary “including arrears” that the Principal Secretary had no authority to stop his pay. No substantation for this contention was ever advanced. It was respondent’s contention that the Principal Secretary was authorised to act as he did as the Ministry’s controlling officer.

The High Court (Sapire CJ) dismissed the appellant’s application with costs. Unfortunately it gave no reasons for doing so. We have in our judgment in MASUKU N.O. V MERIDIE0N RECOVERIES (CIVIL APPEAL 24 OF 2000) also delivered at this session, commented on the unacceptability of the practice of not giving reasons for judgment in matters adjudicated upon in the High Court. We, as well as the parties in this appeal are obliged to speculate upon which basis and for what reasons the High Court dismissed the application.

“The Ministry remains prepared to accept him (appellant) back as soon as he reports for duty. Until that happens payment of his salary will remain suspended on a no work no pay basis.” (The quotation is from the opposing affidavit)

I should add that appellant was, according to this affidavit, advised that he should report for duty forthwith and that his salary for the following month would be released once he returned to work.

I summarise our views as follows:

He was in breach of his obligations under the contract and accordingly not entitled to its benefits, including the right to remuneration, whilst not attending at work.
3.       His employer was therefore entitled to withhold his remuneration until such time as he was prepared to render the services for which he was employed.

As pointed out above there was a dispute of fact concerning the question of the authority of the Principal Secretary to withhold appellant’s pay. This dispute must be resolved in favour of the respondent in view of the fact that no evidence of the absence of authorisation was tendered and the bald allegation made in this regard was denied by the respondent. See PLASCON EVANS PAINTS V VAN RIEBEECK PAINTS (PTY) LTD 1984(3) SA 623(A).



For these reasons the appeal is dismissed with costs.



                                                      J.H. STEYN JA


I AGREE                    :                 J. BROWDE JA


I AGREE                    :                 C.E.L. BECK JA
Delivered on this day of December 2000.