Mabathoana v Ministry of Tourism, Sports & Culture and Others (CIV/APN/219/2002 )

Case No: 
Media Neutral Citation: 
[2004] LSHC 46
Judgment Date: 
10 March, 2004




In the matter between:







Delivered by the Honourable Mr Justice T. Nomngcongo on the 10th day of March 2004

This application was lodged on the 6th May 2002 for an order in the following terms:

  1. That the Respondents be ordered to pay Applicant's gratuity and all his benefits which have accrued on his retirement.

  1. That Respondents be ordered to pay costs of this application.

  1. That Applicant be granted such further and/or alternative relief.

Applicant's founding affidavit discloses that on the 23rd September 2002 he retired

from the public service at the age of fifty five and as such was entitled to pension and gratuity as well as payment in lieu of leave. In December of that year he was paid his pension only. The other benefits and in particular gratuity in respect of which he prays for relief, have not been paid. On the 1st March 2001, the applicant's attorney had written to the first respondent. In the letter he had indicated that the applicant's inquiries had unofficially indicated that his gratuity was being processed but that certain monies including P.A.Y.E. would be deducted from such gratuity.

He advised that if such deduction was made he regarded the act as unlawful and wrongful and he would apply to court for relief. He relied on the case of Mahase v Ministry of Education and Attorney General CIV/APN/69/99 (This case was not made available to me). The Principal Secretary replied on the 7th March confirming that the benefits of the applicant were being processed but denying knowledge of anything further than that as he was not privy to applicant's unofficial information.

It becomes clear that all of applicant's essential allegations are common cause. He is entitled to gratuity. In fact not only is this admitted, it also admitted and as long ago as the 7th March 2001, that it was already being processed. This disposes of any argument that there are material or serious disputes of fact. The point raised in this


regard is totally without merit, as is also the case with the other points raised by the respondents in their answering affidavit that there was a misjoinder of the 1st respondent, there was a non-disclosure of material facts and that the court has no jurisdiction.

The first respondent is the Ministry from which the applicant retired and was therefore first in line in processing the applicant's benefits and therefore had an interest in the proceedings. The allegation that applicant did not disclose that he owed P.A.Y.E or " some amounts on the car advance" has no merit; it is common knowledge that these are not only known to the Government, but they are deducted by Government at source without further recourse to its employees especially at the end of their service.

The point about jurisdiction is raised and left completely unmotivated. I shall not waist further time on it.

All that remains is that it is common cause that gratuity is owing to applicant. This gratuity was owing and due upon his retirement. From that date, to - date it has not been forthcoming despite protestations that it was being processed. That it was not


paid immediately upon retirement might just be understandable on the grounds that the 1st and 2nd respondents were working out the last details including perhaps any monies due by the applicant such as P.A.Y.E. - which should be a relatively simple things in my view. But not to have paid the gratuity more than one year later, when applicant had to make inquiries was unreasonable and it justified the applicant to approach this court. Nearly eight months later the applicant did just that because nothing had happened. This time the respondents conduct had become extremely unreasonable. When the matter was finally argued in court it was more than two years since the applicant had retired. He had still not been paid, otherwise the court would have been told so. It is inconceivable that it should take so long to calculate P.A.Y.E. or an amount owing on a car advance. In my view this now constituted a gross dereliction of duty on those charged with the exercise of paying out gratuities to retired public servants. Conduct such as this cries out for some kind of censure .

I have no hesitation in granting this application with costs. It is also specifically ordered that:

  1. The 1st and 2nd respondents take measures to ensure that the applicant's gratuity is paid within thirty (30) days of the service of this order upon them.


  1. This order together with this judgment be served upon the Principal Secretaries of the 1st and 2nd Respondents to ensure compliance with 1. above.



Mr Letsika :

For Applicant Mr Hlakane :

For Respondent