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Richard Shabalala v Accountant General and Attorney General [2000] SZHC 14 (16 October 2000)

SWAZILAND HIGH COURT

No execution on Government assets

Richard Shabalala

Applicant

vs

Accountant General

1^st Respondent

Attorney General

2^nd Respondent

Civ. Case No. 1373/2000

Coram SAPIRE, CJ


For Applicant Mr. S. Simelane

For Respondent Mr. P. Flynn

JUDGMENT

(16/10/00)

The applicant seeks an order against both respondents finding them to be in contempt of court and to be dealt with accordingly and for costs on the scale applicable between attorney and client.
The applicant is a former Principal Secretary in the Ministry of public service and Information, he says that he is authorised to make the affidavit on which the application is founded. Once again I point out that nobody has to be authorised to make an affidavit.
After citing respondents the affidavit goes on to recount that on the 18^th April 2000 the applicant instructed his attorney to bring an urgent application against the 1^st and 2^nd respondent for an order that the 1^st and 2^nd respondent be ordered to pay his salary and benefits for the month of April, 2000 and the succeeding months, and that the respondent be compelled to pay him his salary so long as he is employed by the Swazi Government. He asked for costs on the scale between attorney and client.
No notice of intention to oppose the application was ever filed. The representative of the 1st respondent attended court on the 18^th April 2000 when a provisional order was made.
The copy of the order is attached. It was granted by me and was not provisional in anyway. The order made by consent provided that the applicant was to be paid his salary for the month of April and May 2000.
The matter was postponed cine dine.
The order I am informed was served on the respondent.
The application was then reinstated on the 9^th June 2000 and the notice of reinstatement was served on the respondent, the reason given was that Respondents had not attended to the computation and payment of the terminal benefits. The notice of the reinstatement was attached. It reads

“Please take note that the above matter has been reinstated for hearing in the above honourable court on Friday 9^th June, 2000 at 9.30 a.m.”

On the 9^th of June 2000 the application was not opposed and a final order was granted. The order read as follows: -

“The 1^st and 2^nd respondents are hereby ordered to pay the applicant’s salary and benefits for the month of April, 2000 and succeeding months.”

I am not sure why this order was made as the previous order had already dealt with this subject. The applicant has to be paid his salary so long as the Government of Swaziland employs him. The Applicant again asked that the respondents be ordered to pay the costs in the scale between attorney and own client.
The founding affidavit goes on to say that the respondents are in wilful default of the order of court as it is deliberately refusing to comply with the same. The relevant portion of the affidavit reads
“The respondents are refusing to pay me my benefits that being the car allowance and entertainment allowance.
The balance of convenience favours me because the respondent ought not to be allowed to disregard an order of court which can only result in the lowering of the dignity of the above court I submit that the respondents are guilty of contempt and in all the circumstances I pray that the application be granted Given the respondents’ abuse of the court process and its the contemptuous behaviour I submit that the costs should be on a punitive scale.”

. .

That is the content of the founding affidavit.
The answering affidavit, which has been filed, is that of David Dlamini who also proclaims that in his capacity as Accountant General he is duly authorised to attest this affidavit on behalf of the respondents. Once again I point out that nobody requires to be authorised to make an affidavit.
It is admitted in this affidavit that the applicant is an adult Swazi male and that he is a former Principal Secretary for Broadcasting and Information. In paragraph 5 the respondent points out that the court order did not specify the benefits that had to be paid to the applicant and that it is further stated that the respondent is not entitled to any benefits, car allowance and entertainment allowance, these being the benefits payable to Principal Secretaries only.

These allowances and benefits fell away when His Majesty the King revoked the applicant’s appointment as Principal Secretary by Legal Notice 31 of 1997. The point of the matter is as follows: -

The judgment, which stands, is unspecific as to what is required. One cannot say what, if any, benefits there are to which the applicant is entitled. Before the applicant proceeded on this application he should have sought a declaratory order at least as to what was to be paid. On this ground alone the application to commit the respondents for contempt cannot succeed. There is a further difficulty.
There can be no execution on government assets. In attempting in this way to force these officials to withdraw money from some government account and pay it over to the applicant amount to execution of a judgment. This is a procedure expressly prohibited by statute. Of course there is the other side of the story that one expects the Government represented by its Ministers and officials to obey orders of court. Generally this is done.
In the present case if there had been an order that the applicant was to be paid particular amounts as benefits, then I am sure that the Government would have paid. But there seems to be a genuine dispute as to what the applicant is entitled. That dispute cannot be decided on these papers.

Accordingly the application is dismissed with costs.



SAPIRE, CJ