Court name
High Court of eSwatini

City Council of Mbabane v Masuku () [2000] SZHC 22 (18 February 2000);

Law report citations
Media neutral citation
[2000] SZHC 22
Coram
Matsebula, J









1


SWAZILAND
HIGH COURT


CITY
COUNCIL OF MBABANE


Plaintiff


vs


DOUGLAS
TEE MASUKU


Defendant


Coram
SAPIRE CJ


For
Plaintiff MR. P. FLYN


For
Defendant MR. B.G. SIMELANE


JUDGMENT


(12/07/2000)


The
plaintiff has sued the defendant claiming payment of E101, 391.27.
The amount represents the balance of monies lent and advanced by the
plaintiff to the defendant in terms of and pursuant to a scheme
operated by the plaintiff for the benefit of its employees.


The
defendant purchased a motor vehicle utilising the finance made
available to him by the Plaintiff in terms of the scheme.


The
Defendant gave notice of intention to defend the action. The
Plaintiff responded by applying for summary judgement. The Defendant
opposes this application and has filed an affidavit in which the
basis of his opposition is set forth.


The
Defendant has not raised any meaningful defence to the merits of
Plaintiff's claim but has.


1. advanced
points in limine challenging the propriety and regularity of the
application for summary judgement and


2. referred
to circumstances which he alleges give rise to one or more
counterclaims.


The
points in limine fall to be dealt with first. The Defendant has
enunciated the issue thus in paragraph 4 of the founding affidavit.


"4.1 The
Honourable Court will note that Gideon Mhlongo purports to be duly
authorised to represent the plaintiff by virtue of the fact that


2


he
is employed by the plaintiff as a City Clerk and Chief executive
officer. Gideon Mhlongo has failed to annex a Resolution or Authority
of the Council that he is entitled to bring the present action in
terms of the Urban Government Act 1969.

I

submit and I am advised that it will be argued when this matter is
heard that Gideon Mhlongo was never authorised by the Council to
bring theses proceedings and thus lacks the necessary authority to
sign any affidavit on behalf of the Plaintiff. "


The
passage quoted demonstrates the basic misconception under which the
defendant, (and/or who ever advises him and drafted the affidavit to
which the Defendant subscribed), labours.


Mhlongo
has not brought the instant action, and is not the applicant in the
present summary judgement proceedings. The Plaintiff /

Applicant
is the City Council of Mbabane.


As
a body corporate the Council can only litigate through and be
represented in court by, an attorney.


An
attorney represents the plaintiff in these proceedings.


The
rules of court provide that the attorney so appointed need not file a
power of attorney, supported by a resolution. A party may challenge
the authority of an attorney in the manner contemplated in the
rules. In such event, the authority of the attorney can be proved by
the production of a power of attorney authenticated by resolution.


The
defendant has challenged Mhlongo's authority not that of the
attorney.


Mhlongo
has done no more than, as a witness to testify under oath, to facts
of which he by virtue of his office, he personally knew to be true
has. For this like any other witness, he requires no authorisation.


The
point raised by the Defendant in limine is without substance It turn
now to the counterclaims.


(a) Claim
Paragraph 10 of Defendant's affidavit.


This
Claim is based on a Swaziland Government circular of 1993 which
prescribed the payments which were to be made to


3


employees
who took up study leave. The Defendant claims that as in 1992 he left
the Plaintiffs employment on study leave it being agreed or arranged
that he would receive his salary for one year.


He
claims that he is entitled to the increased benefits provided for or
proclaimed in the Government circular. Such claim defendant says is
an amount of E52 000.


There
is no basis for this claim,


(i) The
circular deals with Government policy in relation to its employees.
It does not apply to employees of the Plaintiff or create contractual
obligations in favour of such employees.


(ii) The
claim if there ever was one cannot now be enforced as it has become
time barred in terms of Section 116(1) of the Urban Government Act,
1969.


(b) Allegations
in paragraphs 12 and 13.


The
defendant has challenged that the finance afforded him in terms of
the plaintiff's scheme was governed by an oral agreement. He claims
that a draft agreement was submitted to him for signature.


Before
signing it he made amendments to the draft to provide that should the
balance of the amount owing become due because his relationship with
the plaintiff was severed, the amount to be paid by him in respect of
the loan would be reduced by any amounts owing to him by the
plaintiff. There is however, nothing to suggest that a written
agreement amended as alleged was ever signed. In any event, such a
term would not have been necessary to advance defendant's case,
because of the automatic operation of prescription. On the other
hand, Defendant does not deny that he received the financial
assistance in the form of a loan which enabled him to purchase his
vehicle. It is common cause that he is no longer an employee of the
plaintiff and that the balance of the loan is owing and has been due
and payable since September 1997. I can find nothing in these
paragraphs to


4


indicate
a defence to the claim apart from the alleged claims which the
defendant makes elsewhere in the affidavit.


(c) Allegations
in paragraph 16 of Defendant's Affidavit.


Defendant
refers to a recommendation made by K.

P.
M.
G.
which had been had been employed to advise the Plaintiff on the
revision of the salary scales of its employees. The Defendant does
not disclose the particulars of the recommendation but claims that by
virtue of that alone he is entitled to payment from the Plaintiff of
an amount of approximately E11 000 There is nothing to show that the
recommendation, which in itself could not create an obligation by the
plaintiff to the Defendant, was ever implemented. Moreover if
implemented there is nothing to indicate that at the time of
implementation the defendant was entitled to the benefits thereof.


This
claim apart from the question of being time barred is also
unsubstantiated.


(d) Claim
for E34 000 Swaziland Employee Benefit Consultants.


There
is nothing alleged in paragraph 17 to indicate why an amount
allegedly owing by the firm mentioned should constitute a debt owing
by plaintiff to the Defendant.


(e) Claim
for E18 000 leave pay- paragraph 18.


The
Defendant has failed to allege any facts upon which this claim can be
considered. The bald allegation of indebtedness unsupported by
details as to how the claim is computed is not enough to constitute a
bone fide counterclaim and as such a reason for deducting it from the
amount of plaintiff s claim for summary judgement.


(f) Claim
for Car Allowance E18 000 -paragraph 19.


Similarly,
this claim is stated with a degree of vagueness which makes it
impossible to treat it as a bone fide counterclaim.


5


(h) Claim
E250 000 alleged defamation - paragraph 25.


The
allegations made to demonstrate or indicate this counterclaim are
incomprehensible. There are no allegations as to what was published,
where and to whom such publication was made, and to show that the
publication was defamatory. Such a counterclaim is so insubstantially
that it plays no part in a proper consideration of this application.


The
Defendant goes on in his affidavit to categorise the plaintiff's
claim as malicious; citing its knowledge of the defences which the
defendant has seen fit to raise. There is little merit in this form
of attack on the Plaintiff for pursuing its claim against the
Defendant. The Defendant has not hitherto taken any positive step to
advance its claims. Indeed it has delayed so long that the claims
have all become time barred. This the Defendant has himself
recognised. In paragraph 24 of his affidavit he says.


"
I am also aware that there is an element of prescription as to the
claim I have against the plaintiff. It is my intention to ask for
leave of the above Honourable Court to file an application the late
filing of a counterclaim as I believe that I have good grounds for
not having sued the plaintiff before the expiry of the prescription
period. "


While
defendant may believe that he has prospect of success in such an
application, no facts have been placed before the court, which
indicate the basis for such belief.


The
plaintiff has argued that the High Court has by reason of the
provisions of Section 2 and Section 5 of the Industrial Relations Act
no jurisdiction to entertain those of Defendant's counterclaims which
arise out of the relationship of the Plaintiff and Defendant as
employer and employee respectively.


This
is a doubtful proposition having regard to the decision in the Appeal
Court1, which seems to rule otherwise. Because of the uncertainty and
1 Sibongile Nxumalo and others v Attorney General Court of Appeal
case No. 25/96


6


because
there are other ample reasons for finding adversely to the respondent
in the present application no decision on this point need be made.


En
fin I find that the defendant has not raised any bone fide defence to
the claim and that the alleged counterclaims advanced are
unmaintainable.


There
will be summary judgement for the plaintiff for.


(a) Payment
of the sum of E101 391,27.


(b) Interest
on the said amount calculated at 7% per annum from 7th January 1999
to date of payment.


(c) Costs
of the suit.


SAPIRE,
CJ