IN THE INDUSTRIAL COURT OF ESWATINI

HELD AT MBABANE CASE NO: 136/2024

In the matter between:

CELUCOLO DLAMINI Applicant

And

ESWATINI GOVERNMENT 1st Respondent

ACCOUNTANT GENERAL 2nd Respondent
ATTORNEY GENERAL 3rd Respondent
NTOMBIFUTHI PRISCILLA MABUZA 4th Respondent

REPLY TO POINTS OF LAW

BE PLEASED TO TAKE NOTICE that the Applicant replies to the points of law raised
by the 4th Respondents, as follows:

1. MISCONSTRUED JURISDICTION ON ALLEGATIONS WHICH ARE “MERE

SURPLUSAGE”
1.1. The attorney for the 4th respondent misconstrued issues and misapplied facts
and the law with regard to the issue of jurisdiction in the present matter.
1.2. The attorney for the 4th respondent argues the matter as if this is a review or
rescission or variation application.
1.3. The 4th respondent focused an attack on background facts, which do not go to
the crux of the present application.
1.4. The background facts regarding review are not the main subject of this
application and this court does not have jurisdiction to hear and determine
review, rescission or variation.
1.5. It is unequivocally stated in the affidavit that the background facts are not for
determination in this court.
1.6. In the result, the 4th respondent made up a case of its own and came up with
a totally new and different case, wherein it now seems like the attorney is
defending the decision of the magistrate court/maintenance court, against
some review or rescission or variation, and finds himself outside the
jurisdiction of the court.
1.7. If the attorney argues that this court does not have jurisdiction because the
attorney is opposing a review or recession or variation, the attorney is right:
indeed, this court does not have jurisdiction to entertain arguments in respect
of review or rescission or variation.
1.8. However, this is not the case pleaded by the applicant, who is the dominis

litis.

1.9. The background facts were simply a summary of relevant facts but they did

not alter the essential nature of the applicant’s application.

1.10. They amounted to what the courts commonly refer to as ‘mere surplusage’.

1.11. BACKGROUND FACTS – ‘MERE SURPLUSAGE’.

1.11.1. The Magistrate’s court (or maintenance court), as a court of first

instance, issued a maintenance order and garnishee order, as
the court endowed with jurisdiction and a court of first instance.
1.11.2. The applicant is not challenging the maintenance order and
garnishee order issued by the Magistrate court (maintenance
court).
1.11.3. Therefore, the validity or lawfulness of the maintenance order or
garnishee order is not challenged in the present proceedings.
 1.11.4. It is true that this court does not have jurisdiction over
maintenance of children, which is why the maintenance order
and garnishee order are not challenged in this court.
1.11.5. The applicant does not seek to variate, set aside, review or
rescind the maintenance order.
1.11.6. And the present application does not concern maintenance.
1.11.7. The facts concerning what happened at the maintenance court
were disclosed to this court for background information purposes
and not for determination of this court.
1.11.8. Other background facts which were relayed to the court were that
the original jurisdiction of the matter moved from the magistrates’
court (court of first instance) to the high court because of a
pending review which was instituted by the applicant, thus the
maintenance matter was now within the jurisdiction of the High
Court (court of second instance). The High court has jurisdiction
to hear and determine a review or appeal of maintenance order
issued by the magistrate court. However, this might bolster the
applicant’s case in its merits, but not necessarily the crux of this
application.
1.11.9. In a nutshell, the issues in the background facts were not the
crux of the present applications and was only background
information to enlighten the court on the background information,
so this court understands where we are today.

2. CHALLENGE IN THIS COURT – TRUE JURISDICTION

2.1. It is submitted that the pleadings of the applicant (jurisdiction), which provide
the legal foundation of the claim under which the applicant had chosen to
invoke the court's competence, should be the court's foundation when its
jurisdiction is contested.
2.2. It is submitted that this is an application in respect of the Employment Act
(Eswatini Legislation) and this court has jurisdiction to hear an application
under the employment act.
2.3. It is submitted that the contract of employment between the applicant and 1 st
respondent stipulates that the laws of the Kingdom of Eswatini shall be
applicable, and these laws include the Employment Act.
2.4. Thus, the 1st respondent is bound by the employment act in regulating the
employment relationship.
2.5. It is submitted that there was an attachment of wages of an employee
(garnishee), which was made in terms of civil proceedings instituted at the
magistrates’ court (maintenance court), in terms of the magistrate court act
and magistrate court rules.
2.6. It is submitted that the attachment/garnishee in its current form (even if it is
valid/lawful, for argument’s sake), cannot be effected by the employer
because it exceeds on third of the employee’s remuneration.
2.7. Therefore, whether the maintenance order or garnishee is valid/lawful or not,
is not for determination in this court, as this court does not have jurisdiction.
2.8. What happened (court order and garnishee) or what ought to have happened
at the maintenance court (such as review, rescission or variation) is not for a
determination by this court, because it is not within the jurisdiction of this
court.
2.9. Therefore, in granting an interdict, this court will not be interfering with the
maintenance order because even after the interdict, the maintenance order
will still be retained in its original form (as issued by the Magistrate) and the
order can be effected at a later stage, once situation of the applicant’s wages
has improved and the deduction of the maintenance order qualifies and would
not exceed a third of the wages if the garnishee/attachment is effected.
2.10. It is submitted that section 56 of the Employment Act prohibits an employer
from making deductions from an employee’s remuneration, subject to certain
exceptions. An employer is not allowed to make deductions from an
 employee’s remuneration, without fulfilling specific requirements, failing which
results in a contravention of s 56 of the Employment Act.
2.11. Therefore, section 56 of the Employment act confers jurisdiction on this court.
2.12. This court has jurisdiction to determine a claim or application under the
employment act.
2.13. The section reads:

Authorised deductions from wages.

56. (1) An employer may deduct from the wages due to an employee —

(a) any amount due by the employee in respect of any tax or

rate which the employer is required to deduct from the
wages of an employee under any law;

(b) any amount due by the employer in respect of a contribution

to the Swaziland National Provident Fund;

(c) the actual or estimated cost to the employer of any

materials, clothing (other than protective clothing required to
be supplied by the employer under any law or under the
provisions of a collective agreement), tools and implements
supplied by him to the employee at the latter’s written
request and which are to be used by the employee in his
occupation;

(d) any money advanced to the employee by the employer,

whether paid directly to the employee or to another person at
the employee’s written request, in anticipation of the regular
period of payment of his wages;

(e) any amount paid to the employee in error as wages in

excess of the amount due to him.

(2) Any employer may, with the written authority of an employee, deduct from
the wages payable to that employee, such amount as is stipulated in the
 authority as being the amount due from the employee as his membership
fee or contribution to an organisation of which the employee is a member.

(3) An employee may assign a part of the wages due to him under his
contract of employment.

(4) The total amount which may be —

(a) deducted from the wages of an employee under paragraphs (c)

and (e) of subsection (1) or under subsection (2);

(b) assigned by an employee under subsection (3);

(c) attached under any law,

shall not in any pay period, exceed one third of the wages due to the
employee in respect of that pay period.

2.14. Thus, the garnishee order is an attachment which emanates from the
magistrates’ court act/rules, and the attachment (garnishee) cannot be
deducted by the employer because it exceeds one third.
2.15. The Magistrates court act/rules/maintenance court (which gave birth to the
order and garnishee/attachment of wages) fall under “any law” under section
56 (4) (c).
2.16. The contents of the founding affidavit on jurisdiction are reiterated.

3. DOCTRINE OF UNCLEAN HANDS

3.1. It is submitted that failure to comply with an order ad pecuniam solvendam is

not contempt of court, and the doctrine of “unclean hands” is not applicable.
3.1.1. The issue of the Applicant having approached the court with dirty hands
by failing to pay a sum of money does not arise.
4. WAIVER – LACK OF EVIDENCE TO SUPPORT A PRELIMINARY POINT –
ATTORNEY PROHIBITED FROM GIVING EVIDENCE FROM THE BAR – LEGAL
SUBMISSIONS NOT SUBSTITUTE TO EVIDENCE
4.1. Unfounded submissions
4.1.1. The attorney made unfounded submissions that Applicant indicated to the
court that he would be in a position to contribute monies while waiting to
settle other debts with money lenders such as Select Services (Pty) Ltd
and allegations of serving the Applicant with a garnishee application.
4.1.2. The attorney further made unfounded submissions that 4th respondent
was left with no option but to move a garnishee order which was granted
on the 23rd April 2024.
4.1.3. The attorney continued to make unfounded submissions that that the
garnishee was slated to be heard on the 30th January 2024 but could not
be proceeded with since the application was halted in order to give the
applicant the benefit of the doubt.
4.1.4. The attorney continued to make unfounded submissions that the applicant
was served with a Notice of Set down on the 18th April 2024 and that the
Applicant waived his right to be heard.
4.1.5. The attorney continued with submissions of deplorable and highly
contemptuous attitude towards judicial officer and that the language is
deplorable.
4.2. It is submitted the preliminary point on “waiver” raised is baseless without
evidential support.
4.3. How can the court reach a conclusion that the applicant waived his right to be
heard by the maintenance court when there is no evidence that the applicant
was served with a Set down and garnishee application?
4.4. It is submitted that there was no affidavit submitted by the 4th respondent.
4.5. It is submitted that all the arguments submitted in the Notice to raise points of
law and before Court whilst the attorney is at the bar, is not evidence.
4.6. The Court rules or procedure require that evidence be invariably delivered in
Court by a witness, under oath, either orally or by affidavit.
 4.7. There is no evidence that the applicant was served with notice of set down
and garnishee application, thus waived his rights.
4.8. The attorney was not under oath when he made the submissions in the
Notice to raise points of law and we cannot cross-examine the attorney.
4.9. It is submitted that the absence of evidence is fatal to the preliminary point
that the applicant waived his rights not to be heard by the maintenance court.

5. COSTS – VEXATIOUS, FRIVOLOUS ALLEGATIONS

5.1. It is submitted that an objection relating to irrelevant, vexatious or frivolous

allegations is premature if the objection is not made when the matter is heard
on the merits.
5.2. It is submitted that until the actual hearing of the application on the merits,
affidavits do not serve before court as evidence but affidavits are merely
documents filed with the Registrar to be used later as evidence when the
application is heard on its merits, and the affidavit cannot be objected to until
then.
5.3. This court cannot disallow evidence which is proposed to be tendered at a
later stage as irrelevant or vexatious or frivolous.
5.4. It is submitted that a party who intends to object to a matter on the basis that
it is scandalous, vexatious or irrelevant, should apply to court to have the
matter struck off from the affidavit.
5.5. The party must cite the specific allegations which subject to the application to
strike out
5.6. The 4th respondent has not shown that any matters complained of were
irrelevant, vexatious or scandalous.
5.7. As it stands, we are unaware of what allegations are irrelevant, vexatious or
frivolous (the applicant deposed to his name and surname – are these
allegations vexatious frivolous or irrelevant?)
5.8. We are unaware which allegations should be struck out.
 5.9. The respondent must also show that the specific allegations are prejudicial to
it.
5.10. The 4th respondent has failed to show which matters are prejudicial to it
because the 4th respondent himself states that whatever matters are in the
respondent’s mind relate to the conduct of the judicial officer.
5.11. In fact, there is no application to strike out in the first place.

6. APPLICANTS CASE
6.1. The applicant’s case as pleaded by the applicant remains the only version
before court, remains unhindered and uncontroverted by attorney’s evidence
made on submissions and from the bar (which must be discarded), and the
version of the applicant remains the only version which the court must treat as
true and the applicant’s facts remain unquestionable through attorney’s
submissions or evidence from the bar (which is as good as non-existent).

WHEREFORE WE PRAY THAT THE POINTS OF LAW BE DISMISSED WITH

COSTS
SIGNED AT MBABANE ON THIS THE 7th DAY OF JUNE 2024

________________________
THEMBA ZULU
APPLICANT’S REPRESENTATIVE
C/o SANDILE.G DLAMINI ATTORNEYS
1st Floor
Chrystel House
Office G04
DZELIWE STREET
MBABANE

___________________
TO:
THE REGISTRAR
INDUSTRIAL COURT
MBABANE

AND TO:
ATTORNEY GENERAL
1st and 2nd Respondents’ attorneys
C/o Ministry of Justice Building
4th Floor, Usuthu Link Road
MBABANE _________________received

on this the………Day of
June 2024

AND TO:
XABA ATTORNEYS
4th Respondent’s Attorneys
C/o MLK NDLANGAMANDLA ATTORNEYS
1st Floor Office 102
Development House

Swazi Plaza _________________received

on this the………Day of
June 2024