Kunene N.O v Eswatini Railways And Others (398 of 2004) [2021] SZIC 98 (4 November 2021)

Case summary
The Applicant's husband who is now deceased was employed by the 1st Respondent. He was involved in an accident whilst on duty in the year 1997 and was retired on medical grounds. He received his pay out from the 1st Respondent on the 29th May 2012 as per the judgement that was delivered by this Honourable com1 on the 2nd April 2012. The Applicant is of the view that the amount paid to his deceased husband was not the proper full amount as there was an error in its computation; hence the present application.






IN THE INDUSTRIAL COURT OF ESWATINI




HELD AT MBABANE

In the matter between:-


Case No: 398/2004



TSAKASILE GLADYS KUNENE N.O

And

[SWATINI RAILWAYS

THE MASTER OF THE HIGH COURT THE ATTORNEY GENERAL

APPLICANT



1st RESPONDENT

2"d RESPONDENT

3rd RESPONDENT


Neutral citation: Tsakasile Gladys Kunene N.O v Eswatini Railways and 2 others (398 /2004)[2021] szrc 98 (06 December 2021)



Coram:


MSIMANGO, ACTING JUDGE

(Sitting with Mr S. Mvubu and Ms N. Dlamini nominated Members of the Court).


Date Heard:



Delivered:

04'11 NOVEMBER 2021



06th DECEMBER 2021


Summary: The Applicant's h1,1sband who is now deceased was employed by the 1st Respondent. He was involved in an accident whilst on duty in the year 1997 and was retired on medical grounds. He received his pay out from the 1st Respondent on the 29th May 2012 as per the judgement that was delivered by this Honourable com1 on the 2nd April 2012. The Applicant is of the view that the amount paid to his deceased husband was not the proper full amount as there was an error in its computation; hence the present application.


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JUDGEMENT


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  1. The Applicant is Tsakasile Gladys Kunene an adult liswati female widow, duly appointed executrix in the estate of the late Edward Jabulani Kunene.


  1. The first Respondent is Eswatini Railways, a public entity with the capacity to sue and be sued in its own name, duly registered and incorporated in accordance with the company laws of Eswatini carrying business along Dzeliwe Street, Mbabane in the Hhohho District.


  1. The second Respondent is the Master of the High Com1, the administrator of deceased estates in the country cited in her nominal capacity, whose address is Miller's Mansion, Mdada Street, Mbabane, Hl10ho District.


  1. The third Respondent is the Attorney General cited as the nominal Respondent and a legal advisor to all government departments, whose address is Fourth Floor,


Justice building, Usuthu Link Road Mbabane, Hhohho District. However, no order is sought against the 1st and 2nd Respondents.


  1. The Applicant alleges that he was lawfully manied to Edward Jabulani Kunene until he passed on at the beginning of 2021. Futihermore, her husband was involved in an accident whilst on duty and the injuries led to his early retirement from work on medical grounds.


  1. The deceased received a pay out from the 1st Respondent as per the judgement of this Honourable comi, which ordered the 1st Respondent as follows:-

    1. That the Respondent pays the Applicant the amount of El 94, 085.00.

    2. Interest at the rate of 9% per annum from 6th December 1997 to date of payment.

    3. Costs of suit.



  1. In compliance with the judgement the 1st Respondent made a sum payment of E234,521.6 l (Two hundred and thiliy four thousand five hundred and twenty one emalangeni sixty cents) through cheque number 190993 dated 29th May 2012 directed to Edward Jabulani Kunene's fonner Attorneys S.P Mamba Attorneys.


  1. The Applicant argues that the amount of E234, 521.61 was not the proper full amount as there was an error in its computation. By simple mathematic calculations the amount payable by the 29th May 2012 was E595, 025.20 (five hundred and ninety five thousand and twenty five emalangeni twenty cents) and not the sum ofE234, 521.61. Deducting the sum ofE234,521.61 from the amount of E595,025.20 which was owed and payable by 29th May 2012 gives an

outstanding balance of £360,503.59 (three hundred and sixty thousand, five hundred and three emalangeni and fifty nine cents).


  1. The Applicant alleges that the amount ofE360,503.59 has now accumulated 9% interest over the years from 2012 to 2020, such that the total amount due, owing and payable by the 1st Respondent is £782,975.31 (seven hundred and eighty two thousand, nine hundred and seventy five emalangeni thirty one cents).


  1. The Applicant submitted that the judgement of the Honourable comi remains inforce as it was not ove1iurned nor reviewed, and by reason of its failure to pay as per the judgement, the 1st Respondent is liable to pay the amount of E782,

975.31 together with interest at the rate of 9% per annum to final date of payment.


  1. The 1st Respondent argued that there was a dispute relating to what the deceased was to be paid, and the dispute culminated to firstly an agreement for payment of a sum of El80, 600.00 (one hundred and eighty thousand six hundred emalangeni) and later litigation in this comi which gave rise to the judgement of the 2nd April 2012.


  1. The payment ofE180, 600.00 was part payment of the money or claim that was in dispute and the balance thereof was to be settled after determination of the dispute by this comi.


  1. At the time of conclusion of the agreement the deceased was represented by Attorney P.R.Dunseith, hence the mutual understanding that the deceased be paid El 80, 600.00, so that he could continue supporting himself and paying his


monthly bills. If the court held that he was owed more than the aforementioned amount, then the shortfall was to be paid to him.


  1. On the 2nd April 2012, the court held that the deceased was to be paid E194,

085.00 (one hundred and ninety four thousand eighty five emalangeni) plus 9% interest per annum and costs of suit.


  1. The deceased through his Attorneys S.P. Mamba Attorneys was advised that he would be paid a further sum of E234, 521.61 (two hundred and thhiy four thousand five hundred and twenty one emalangeni sixty one cents) over and above the El 80, 600.00 which he had received earlier on. The amount ofE234,

521.61 was paid by cheque to deceased's Attorneys.



  1. The 15' Respondent submitted that in line with the aforesaid calculations and payment to deceased's Attorneys, it fully satisfied its obligation in the judgement of this honourable court.


  1. In this regard the 1st Respondent raised the following points of law:­

    1. Incorrect interpretation of the judgement by the Applicant.

    2. Unreasonable delay in filing the present application.

    3. Doctrine of acquiescence- the Applicant and the deceased acquiesced with the calculations of the Attorneys and the judgement of the

comi, they are now estopped from claiming that there are outstanding monies du.e to the estate.


  1. The principles of the doctrine of acquiescence were canvassed in the case of

BOTHA V WHITE 2004 (3) S.A 184, where the court stated:


"The doctrine of acquiescence is competent to halt cases where its application is necessary to attain Just and equitable results. The test for inferred acquiescence is the impression created by the plaintiff or applicant on the defendant or respondent. It can be proven by some act, conduct or circumstances on the part of the plaintiff or applicant, for example, by the Applicant's delay in taking action, so that the respondent is lulled into a false sense of security. Then in such circumstances the enforcement of a right would cause a real inequi(y and the applicant's conduct in issue amount to unconscionable conduct".


  1. In HARTLEY, ROEGSHAAN AND ANOTHER V FIRST RAND LIMITED AND ANOTHER, HIGH COURT CASE NO. 27612/2010, the COU!i held that:

"According to the common law doctrine of peremption a party who has acquiesce to a judgement cannot subsequently seek to challenge the judgement because he cannot be allowed to opportunistically endorse two conflicting positions or both approbate and reprobate, or to blow hot and cold. In other words a party cannot be allowed to have his cake and eat it too"


  1. In the present application it took the Applicant almost 9 years to file the application since the judgement was handed down in 2012. Fmihermore, the long or inordinate delay in filing the application is virtually and essentially unexplained. That this was attributable to the deceased maliciously clese1iing his matrimonial home at Matsetsa after receiving his pay out from the 1st


Respondent, and went to stay with his brother at Mbhuleni area in Matsapha, later re-uniting with his family in 2019, is in itself meaningless.


  1. The reality of the matter is that the deceased was all along represented by Attorneys. The court does not for a moment believe that the Attorneys would not have advised the deceased whether to appeal or in any way challenge the judgement if the amount payable to the deceased was unacceptable. In the circumstance it is the court's considered view that all these factors point to a clear and settled intention to acquiesce to the judgement of the court.


  1. In DABNER V SOUTH AFRICAN RAILWAYS ANDHABOURS 1920 AD 583 AT 594, it was noted that:

"If the conduct of an unsuccessful litigant is such as to point indubitably and necessarily to the conclusion that he does not intend to attack the judgement then he is held to have acquiesced to it.........."


  1. In the result, the points of law raised by the pt Respondent are hereby upheld and the application is dismissed without costs.



The Members Agree.



L.MSIMANGO

ACTING JUDGE OF THE INDUSTRIAL COURT OF ESWATINI




For Applicant : Mr M.Nsibande. (Mongi Nsibande & Paiiners).



For Respondent : Mr S.M.Simelane (SM Simelane & Company)

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