IN THE INDUSTRIAL COURT OF SWAZILAND · Web viewIN THE INDUSTRIAL COURT OF SWAZILAND CASE NO. 23 /...
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IN THE INDUSTRIAL COURT OF SWAZILAND
CASE NO. 23/13In the matter between
VIKINDUKU DLAMINI APPLICANT
And
SWANNEPHA 1ST RESPONDENT THEMBI NKAMBULE 2ND RESPONDENT VUSI NXUMALO 3RD RESPONDENT
Neutral citation: Vikinduku Dlamini V Swanepha/Thembi Nkambule/Vusi Nxumalo (23/2013) [2013] SZIC 24 (August 2013)
CORAM: D. MAZIBUKO
(Sitting with A. Nkambule & M.T.E. Mtetwa) (Members of the Court)
Heard : 20 June 2013
Delivered : 31st July 2013
Summary:
Urgent application – requirement of Rule 15 (1) and (2) mandatory.
Failure to comply with the rule is fatal to the application.
Contempt proceedings – a party who alleges that the other party is in
breach of a Court Order must prove existence of that Court Order.
1. The Applicant, Mr Vikinduku Dlamini has filed three (3) sets of
urgent applications before this court between January to June 2013.
The first urgent application was filed on the 30th January 2013. The
Applicant asked for relief as follows:
“
(1) Dispersing with the Rules of this Honourable Court as relate
to form or procedures, service and the time limits condoning
the Applicant’s non-compliance with the Rules of this
Honourable Court and enrolling this matter as one of urgency.
(2) Pending finalisation of this application, the Respondents be
restrained and interdicted from proceeding with the Applicant’s
ongoing disciplinary hearing.
(3) That the 2nd Respondent forthwith dispatches to the Registrar
of this Honourable Court a record of the proceedings of the
Applicant’s disciplinary hearing sought to be corrected or set
aside together with such reasons as she is by law required, or
desires, to give or make and to notify the Applicant that she
has done so.
(4) That the 2nd Respondent be and is hereby removed from
acting as Chairperson in the ongoing Disciplinary hearing of
the Applicant.
(5) That the 1st Respondent be and is hereby ordered to appoint a
new Chairperson for the disciplinary hearing of the
Applicant.
(6) That the disciplinary hearing of the Applicant begin de novo
under the Chairperson to be appointed under prayer 5 above.
(7) The 2nd Respondent’s Ruling of 9th January 2012 be reviewed
and corrected or set aside.
(8) In the event of the 2nd Respondent not being removed as
Chairperson of the Applicant’s disciplinary hearing, she be
directed to reconsider the evidence led in the hearing and
submissions made by the parties on such directions as this
Honourable Court deems fit before reaching her final decision.
(9) Granting costs of the application on the scale as between
attorney and own client against the Respondents.”
2. The 1st Respondent in the 1st urgent application is SWANNEPHA, a
non- governmental organization with power to sue and be sued. The 1st
Respondent was sued herein as the Applicant’s employer.
The 2nd Respondent is Mary Da Silva who was cited in here official
capacity as the chairperson of an ongoing disciplinary hearing which had
been instituted by the 1st Respondent as employer, against the Applicant as
employee.
3. The Applicant approached the Court to challenge a specific
disciplinary hearing which was chaired by Mary Da Silva. That hearing
had began about 28th November 2012 and was ongoing at the time the
Applicant moved his 1st urgent application – on the 31st January 2013.
4. When the matter was called, the 1st Respondent indicated before
Court that they needed time to file opposing papers. It then became clear to
the Applicant that the matter would not proceed that day (the 31st January
2013) as the Applicant had anticipated. The Court indicated that justice
required that both parties be given time to file their papers before the
matter is heard. Each side was given dates within which to file. It was at
that point that the Applicant expressed his apprehension that the 1st and the
2nd Respondents may proceed with the disciplinary hearing to finalization
before his urgent application is heard and finalized in Court. There was no
order interdicting the 1st and the 2nd Respondents from so doing. In the
event that the Respondents proceeded with the disciplinary hearing, the
Applicant’s matter before Court would be rendered nugatory-since the
Applicant is challenging certain irregularities in that disciplinary hearing.
5.The Applicant then asked the Court for an order interdicting and
restraining the 1st and 2nd Respondent from proceeding with the ongoing
disciplinary hearing pending finalization of the urgent application. The 1 st
and 2nd Respondent’s agreed to stay that disciplinary hearing pending
finalization of the application. The Court was also of the view that the
Applicant’s request was fair and reasonable taking into consideration
prayer 2 in the Notice of Motion. The Court exercised its discretion in
favour of the Applicant. In particular the Court ordered that the ongoing
disciplinary hearing be stayed pending finalization of the application.
6. After the aforementioned order was granted there was a delay on the
parties in filing the necessary papers in preparation for argument. An
important document that was outstanding was the transcript of the
disciplinary hearing. This is the hearing which the Court had ordered that it
be stayed from proceeding pending finalization of the urgent application.
Several postponements of the matter were allowed at the request of the
parties. After the parties had filed that transcript and the requisite affidavits,
the Court referred that matter to the Registrar of the Court for allocating a
date for argument. The Registrar dully allocated the 20th June 2013 for
argument.
7. About the 15th March 2013 the Applicant filed a 2nd urgent application
before Court in this instance, SWANNEPHA (the employer) was the only
Respondent that had been cited. The Applicant asked for relief as follows;
“ 1. Dispersing with the Rules of this Honourable Court as relate to
from or procedure, service and time limits, condoning the Applicant’s
non compliance with the Rules of this Honourable Court and enrolling this
matter as one of urgency.
2. Directing the Respondent to pay the Applicant’s February 2013
salary forthwith, such sum to include the following benefits:
2.1 Basic Salary;
2.2 Housing Allowance;
2.3 Cell phone allowance;
2.4 Pension;
2.5 Medical aid;
2.6 Swaziland National Provident Fund contribution.
3. Directing the Respondent to henceforth deposit the Applicant’s salaries
inclusive of the benefits referred to in prayers 2.2 through to 2.6 above for
the current and forthcoming months (during the subsistence of the contract
of employment between the parties) in the Applicant’s Standard Bank
Account No. 0140570217801, not later that the 25th day of the said months.
4. Directing the Respondent to pay the Applicant forthwith the equivalent
of one month’s salary as his 13th cheque.
5. Directing the Respondent to pay the Applicant E7 500.00 (Seven
Thousand Five Hundred Emalangeni) in arrear cellphone allowance for the
months October 2012 to February 2013.
6. Directing the Respondent to pay the Applicant’s costs in these
proceedings at attorney –and –client scale.
7.Granting the Applicant any further or alternative relief.”
8. The Respondent filed papers in opposition. The matter was argued.
The Applicant was substantially successful in the 2nd application. The
following prayers were granted ; 1,2-2.6 ( subject to certain modification ),
4 and 5. A copy of the Court order in the 2nd urgent application is attached
to the Applicants affidavit marked annexure VMD 7. The details regarding
the 2nd application are not necessary for the purpose of the matter before
Court. The Court will not spend any more time on the 2nd application.
9. About the 17th June 2013 the applicant filed a 3rd urgent application
before Court. The Applicant cited SWANNEPA together with a certain
Thembi Nkambule and Vusi Nxumalo as the 1st , 2nd and 3rd, Respondents
respectively. The Applicant prayed for relief as follows;
“(1). Dispersing with the Rules of this Honourable Court as relate
to form or procedures, service and time limits, condoning the
Applicant’s non-compliance with the Rules of this Honourable Court
and enrolling this matter as one of urgency.
2. Pending finalization of these proceedings, the decision of the
1st Respondent of 7th June 2013 terminating the Applicants contract
of employment with the 1st Respondent is set aside.
3. Pending finalization of these proceedings, the Respondents are
restrained and interdicted from embarking on a recruitment
process of a Finance Manager during the subsistence of the contract
of employment between the Applicant and the 1st Respondent.
4. Pending finalization of these proceedings, the 1st Respondent
should not be heard, alternatively its defence under the pending
Industrial Court case Number 23/2013 be struck out if the 1st
Respondent does not purge its contempt forthwith.
5. A Rule Nisi do hereby issue calling upon the Respondents to
show cause on or before Monday , 17th June 2013 why;
5.1 The orders referred to in prayers 2,3 and 4 should not be made
final.
5.2The Respondents should not disclose the names of the 1st
Respondent’s Governing body and that, having been so disclosed,
why they should not be joined as Respondents in these proceedings.
5.3 The 2nd Respondent as the Principal Executive Officer of the
1st Respondent and the 3rd and other Respondents so joined as
members of the 1st Respondent’s governing [body] today should not
be committed to prison for a period of not less that thirty (30) days
for contempt of the order of this Honourable Court granted on 31st
January 2013.
6.The Respondents pay the Applicant’s costs at attorney-and- client
scale.
7. Granting the Applicant such further and/or alternative relief as
this Hounourable Court may deem expedient.”
10. The 2nd Respondent, a certain Thembi Nkambule is an executive
director of the 1st Respondent. The 3rd Respondent a certain Vusi Nxumalo
is a member of the 1st Respondent’s board of directors. The matter was
opposed both on the merits and on points of law. All three (3) Respondents
filed answering affidavits. The Applicant, through his counsel, chose not to
file a replying affidavit.
11. According to the Applicant, he was notified by the 1st Respondent on
the 7th June 2013, to collect his letter from their office. Upon receipt of that
letter the Applicant noticed that it summarily terminated its services with
the 1st Respondent. The letter is attached to the Applicant’s founding
affidavit marked exhibit VMD 2. The letter reads as follows:
“ NOTICE OF TERMINATION
EMPLOYEE: VIKINDUKU DLAMINI
DATE : 07 JUNE 2013
REASONS FOR TERMINATION
1. SUMMARY DISMISSAL
2. DISMISSAL
3. MEDICAL INCAPACITY
4. RETIREMENT
Please be advised that your services have been terminated and your last day
of work will [be] the 07th June 2013.
You have the right to appeal against the dismissal to the National
Executive Committee within 5 working days.
P. Nkambule 07/06/2013
Employer Employee”
12. Upon receipt of the letter of dismissal the Applicant’s a counsel (Mr
Dlamini) wrote to the 1st Respondent’s counsel ( Mr Bhembe) to
complain about the dismissal and the manner it was executed. The
Applicant’s letter is marked VMD 3. The Applicant raised several
issues in his letter which he repeated in his affidavit. In particular the
following issues were raised in that letter (VMD 3);
12.1 The dismissal is a violation of the order of Court of the 31st
January 2013. That Court order stays further disciplinary action
against the Applicant.
12.2 The dismissal was unfair in that it is not preceded by a
disciplinary hearing. Employees are protected by law against
unfair dismissal. The absence of a disciplinary hearing
accordingly renders the subsequent dismissal unfair.
12.3 The Respondents are in contempt of the Court order of
the 31st January 2013 in that they proceeded to dismiss
the Applicant from work in violation of the said order. As a
result of that contemptuous conduct the Respondents must be
committed to prison for a period of time until they purge
their contempt.
12.4 The dismissal is also unfair for the reason that the Applicant
was not given a chance to mitigate the sanction. Mitigation
should be allowed before a sanction is issued. The 1st
Respondent’s failure to give the Applicant a chance to mitigate
rendered the dismissal irregular and unfair.
12.5 The dismissal has resulted in a termination of the Applicant’s
salary and other work related benefits. The Applicant suffers
serious prejudice due to financial loss caused by the dismissal.
The Applicant cannot meet his financial obligations as a result
of the sudden loss of salary.
13. The Respondent’s counsel wrote a letter to the Applicant’s counsel
which is dated 11th June 2013 and is marked annexure VMD 4. This
letter was in response to annexure VMD 3, aforementioned. The
issues raised in annexure VMD 4 were also repeated by the
Respondents in their affidavits, namely;
13.1 The Applicant was not dismissed on the basis of the matter that
is pending in Court. Instead he was dismissed for other
offences which included poor work performance and
incompetence.
13.2 The 1st Respondent denied that they acted in contempt of the
Court order in the manner they dismissed the Applicant.
There is no order restraining them from dismissing the
Applicant for poor work performance and / or incompetence .
The 1st Respondent accordingly denied that they have
breached an order of Court in the manner they executed the
dismissal. As employer, they acted within their rights to
dismiss their employee for breach of workplace rules.
13.4 The Applicant was invited to challenge the dismissal by filing
an internal appeal to the 1st Respondents National Executive
Committee within five (5) days from the date of dismissal.
The purpose of the appeal was to give the Applicant a chance
to challenge the irregularities which allegedly exist in the
dismissal.
13.5 The Applicant was further advised that he could challenge the
dismissal by filing his claim through the Commission for
Mediation, Arbitration and Conciliation (established in terms of
the Industrial relations Act No. 1 of 2000 as amended)
hereinafter referred to as CMAC.
14. It is apposite at this stage to examine the order which this Court
issued on the 31st January 2013. The Court was asked by the
Applicant to restrain the 1st and 2nd Respondents from proceeding
with a particular disciplinary hearing which at that time was ongoing.
It is that disciplinary hearing specifically, that was stayed by the
Court.
15. The Court did not interdict or stay any future disciplinary hearing
or action that may be instituted by the 1st Respondent against the
Applicant. The Court did not interfere with the 1st Respondent’s right
and duty to discipline its employee ( Applicant) for any infraction of
the workplace rule that might occur in the future.
16. On the 31st January 2013 there was one matter before Court, viz the
ongoing disciplinary hearing which was chaired by Mary Da Silva.
The Court could not and did not concern itself with matters that
were not before it. The dismissal of the Applicant which took place
on the 7th June 2013, is not a continuation of the disciplinary action
which was stayed by the Court. There is not indication on the
Applicant’s affidavit that the offenses which the Applicant was
facing at the disciplinary hearing before Mary Da Silva, are the same
as those for which he was dismissed.
17. The 1st Respondent has stated in its affidavit that the Applicant was
dismissed for offences which are unrelated to the charges he was
facing at the disciplinary hearing before Mary Da Silva.
The 1st Respondent stated further that the Applicant was dismissed
for poor work performance and incompetence. The affidavit of the 1st
Respondent reads as follows on this issue;
“I humbly submit that the Respondent and myself have not violated
the order of the above Honourable Court of the 31st January 2013.
The applicant was not dismissed on the basis of the matter that is
pending before Court under case No23/2013. The applicant was
dismissed based on charges relating to poor work performance and
or incompetency. Neither myself nor the other Respondents are in
contempt of the above Honourable Court.
(underlining added)
(record page 61 paragraph 12)
The Applicant did not challenge this allegation. He is accordingly taken to
have admitted it. As aforementioned , the Applicant through his counsel
stated in open court that he will not file a replying affidavit. He saw no need
to file it.
18. The disciplinary charges which the Applicant was facing at the hearing
before Mary Da Silva read as follows;
“Charge 1
1.1 MISCONDUCT: in or about 3rd September, 2012 and at a staff
meeting you made allegations that the Director of SWANNEPHA
misappropriates and embezzles the organization’s funds; thereby
tarnishing the reputation and good name of both the Director and
the organization.
1.2 MISCONDUCT: in that on or about the September, 2012 you made
allegations to one Dumisani Hlatjwako, a supplier of the
organization, that the Director of the organization misappropriates
and embezzles the organizations funds; thereby tarnishing the
reputation and good name of both the Director and the organization.
2. Charge 2
MISCONDUCT: in that on or about the 3rd September, 2012 you
divulged confident information to one Njabu, Phesheya both
employees of PACT, a donor of the organization and made serious
allegations to the effect that the Director of the Organization
misappropriates and embezzles the organization’s funds; thereby
tarnishing the reputation and name of the Organization and that of
the Director into disrepute”
(Record of the 1st urgent application pages 46-47)
19. Incompetency and poor work performance are not amoung the
charges which the Applicant was facing at the disciplinary hearing
before Mary Da Silva. The 1st Respondent was therefore neither
restrained nor interdicted from taking disciplinary action against its
employee (Applicant) on the charges of incompetency and /or poor
work performance. The Applicant is aware of this fact since he has
expressed it in a letter from his counsel to the 1st Respondent’s
counsel. The letter is dated 12th June 2013 and is marked VMD 6. An
extract of paragraph 3 of annexure VMD 6 reads thus;
“3. To the extent that your client alleges that our client’s services
were terminated because of poor work performance and/or
incompetency, we are curious to know why this did not form part of
the disciplinary enquiry which commenced at the end of November
2012 against our client who has been suspended by your client
since September 2012.”
(underlining added )
(Record page 36)
The Applicant confirms in annexure VMD 6 that two (2) disciplinary
charges namely; poor performance and incompetency were not among the
disciplinary charges which the Applicant was facing at the disciplinary
hearing before Mary Da Silva.
20. In the Applicant’s Notice of Motion as well as affidavit,
there is no prayer or even mention of future disciplinary action
which the 1st Respondent may institute against the Applicant. The
Court could not make an order regarding a matter that is not before
Court, especially a matter that is speculative.
20.1 Since the issue of future disciplinary action was not before
Court , the Court did not apply its mind to it . The Court did
not and would not make an order on a matter without
applying its mind on the facts and the law relating to that
matter. Instead, the Court confined itself to an existing
disciplinary action which was ongoing and presided over
by Mary Da Silva.
20.2 Neither of the parties was given a chance to address the Court
on the possibility of a future disciplinary action which the 1st
Respondent may or not take against the Applicant. The Court
did not make an order affecting the rights of the other party viz
the 1st Respondent, without giving them a hearing.
21. The Applicant has introduced annexure VMD 1 into Court , which
he alleged is a transcript of the Court order of the 31 st January 2013.
Annexure VMD 1 reads as follows;
“IN THE INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE ON THURSDAY THE 31ST DAY OF JANUARY 2013
BEFORE THE HONOURABLE D. MAZIBUKO, JUDGE OF THE INDUSTRIAL
COURT SITTING WITH NOMINATED MEMBERS.
CASE NO. 23/13
In the matter between
VIKINDUKU DLAMINI APPLICANT
And
SWANNEPHA 1ST RESPONDENT
MARY DA SILVA 2ND RESPONDENT
________________________________________________________________
COURT ORDER
WHEREUPON:Having heard counsel for both the Applicant and Respondents,
IT IS ORDER THAT further disciplinary action by the Respondents against the
Applicant is stayed pending finalization of the matter.
BY ORDER OF THE COURT GIVEN UNDER MY HAND
AT MBABANE ON THE 11TH DAY OF JUNE 2013.
________________________________________
B. NGCAMPHALALA
REGISTRAR – INDUSTRIAL COURT- MBABANE”.
22. Annexure VMD1 is not the Order which this Court issued on the 31st
January 2013 or at all, though it was presented as such by the
Applicant. This annexure is incorrect and misleading in the manner
it is drafted. It gives a wrong impression that the Court granted a stay
of future disciplinary action which the 1st Respondent may take
against the Applicant, when in fact that is not the case. It was only
the on going disciplinary action that was presided over by Mary Da
Silva which was stayed by the Court.
23. The Respondents’ counsel mentioned in Court in the course of the
proceedings that annexure VMD 1 was drafted by the Applicant and
brought to the Registrar of Court for signature. That meant that the
Registrar is not the author of annexure VMD 1. The Applicant’s
counsel did not deny this statement.
24. The Registrar works with attorneys on a daily basis. It is normal in
that situation for an element of trust to develop between the Registrar
and the attorneys. Annexure VMD 1 is skillfully drafted to give an
impression that it contains the Court order of the 31st January 2013. It
takes a close examination to notice the irregularity in the wording of
VMD 1. It is fair for the Court to conclude that the Registrar
believed that annexure VMD 1 has correctly captured the Court Order
and proceeded to sign the document under that genuine but mistaken
belief. The Registrar does not make Court orders, her duty is to
process the orders which the Court has issued.
The fact that annexure VMD 1 is signed by the Registrar does not
make it a written Court Order in the absence of an actual order by
the Court. A document that is signed and stamped by the Registrar in
error, should be set aside when that error is discovered
25. The Court order of the 31st January 2013, was based on the notice of
motion which was then before Court - particularly prayer 2 therein.
Prayer 2 has been reproduced in paragraph 1 above. A fair and
proper transcript of the Court order should then read as follows, or
words to that effect;
It is ordered that the Applicant’s on going disciplinary hearing that
is before Mary Da Silva is hereby stayed pending finalisation of the
matter.
26. A glaring omission in annexure VMD 1 is that the disciplinary
hearing whose continuation has been stayed by the Court is on
going before Mary Da Silva. An irregular inclusion in the annexure,
is the word “further” since it distorts the content of the Court order.
Annexure VMD 1 is couched in terms that are general and very
generous to the Applicant, yet the Court issued a specific order
relating to a particular disciplinary hearing. Accordingly, the Court
declares annexure VMD 1 to be an irregular document. The
Applicant is aware of the effect this phrase has in this context;
ongoing disciplinary proceedings- since he has correctly used that
phrase in his affidavit before Court.
27. In paragraph 8 of his affidavit, the Applicant stated the following;
“On 30th January 2013 I instituted proceedings under Industrial
Court Case Number 23/13 against the 1st Respondent and a certain
Mary Da Silva in her capacity as chairperson of then ongoing
disciplinary proceedings against me. In the said proceedings I
sought the following relief”.
(underlining added)
(Record page 12)
The Applicant is correct in stating (on affidavit ) that on the 30th
January 2013, he filed a Court application to challenge on going
disciplinary proceedings which was before Mary Da Silva. The
Respondent also confirms this to be the case. The Court was
therefore dealing with a disciplinary hearing that was already in
process on the 31st January 2013, not one that may or may not be
instituted by the employer in the future.
28. The preceding quotation clearly indicates that the Applicant was
aware, especially at the time of drafting and presenting annexure
VMD 1 for signature, that the Court order stayed an on going
disciplinary hearing which was before Mary Da Silva. It is not clear
to the Court why was this critical phrase omitted when drafting
annexure VMD 1, yet it has a decisive importance in the success or
failure of VMD 1.
It is also not clear why the word “further” was inserted in annexure
VMD 1 since its presence clearly distorts the tenor and spirit of the
Court order.
29. When the matter came before Court it was brought under a certificate
of urgency. The Applicant informed the Court in his certificate as
well as affidavit that an order of Court had been breached by the
Respondents. The matter was accordingly enrolled as urgent on that
basis, in terms of prayer 1 of the notice of motion. However, upon
reading the papers filed and hearing arguments from both Counsel it
became clear to the Court that actually the order that the Court granted
had not been breached. It further became clear to the Court that the
remaining prayers namely 2 – 7 are predicated on a wrong conclusion
that annexure VMD 1 is an order of Court. Annexure VMD 1 has
already been declared by Court to be an irregular document. It
follows therefore that the remaining prayers should also fail.
30. Though the Court order was granted on the 31st January 2013,
annexure VMD 1 was presented to the Registrar for signature on the
11th June 2013. This much is common cause between the parties. The
Registrar’s office stamp on annexure VMD 1 also bears the date 11th
June 2013. That means that annexure VMD 1 was presented to the
Registrar for signature about four (4) days after the Applicant had
been dismissed.
31. Between the 7th and 11th June 2013, the parties exchanged
correspondence in which they disagreed on two issues,
namely the legality of the dismissal and the correct wording of the
Court order of the 31st January 2013. The letters are marked
annexures VMD 3 ,4 and 6 and have been mentioned above.
Annexure VMD 1 was therefore drafted (by the Applicant) with the
knowledge of the dispute that had reason between the parties
regarding the correct wording of the Court order. It is not clear to the
Court why was the Registrar not alerted to that dispute at the time she
was made to sign annexure VMD 1. Had the Registrar been so
alerted, she would have had a chance to verify the correct wording of
the Court order before signing VMD 1. The conclusion is inescapable
that the Applicant engineered the drafting and signing of annexure
VMD 1 in order to give himself an order to which he was not entitled.
32. The dismissal took the Applicant by surprise. It was not foreseeable,
and as such had not been provided for in the application of the 31 st
January 2013. The Applicant felt the need to get instant relief
against the dismissal. The Applicant had an option of taking the
matter to trial, but decided against this option since it would not give
him instant relief. The Applicant deiced to manipulate the drafting of
annexure VMD 1 in order to give himself immunity against dismissal,
in an irregular manner.
33. The Applicant has attacked the dismissal from another angle.
According to the Applicant the dismissal is unfair because it was not
preceded by a disciplinary enquiry. The dismissal has therefore his
constitutional right to a hearing . In paragraph 23-24 of his affidavit
states as follows;
“Secondly, there was an attempt to distance my purported dismissal from
the matter pending before Court under case Number 23/12. However and
even if the said dismissal could be distinguished from the issues under
Case Number 23/13, the said dismissal would be patently unfair because
it was not preceded by a disciplinary enquiry or hearing. The 1st
Respondent [‘s] conduct violated the cluster of constitutional rights to a
fair hearing .
24. It cannot have been the intention of the legislature to set up elaborate
processes preceding the ultimate sanction of dismissal if employers would
be allowed to dismiss employees at whim. I also have a constitutional
right not to be dismissed unfairly or subjected to victimization and unfair
treatment as set out in Section 32 (4) (d)
[of the constitution of the Kingdom of Swaziland Act No.1 of 2005]”
(underlining added)
(Record page17)
34. A third attack on the dismissal is based on the premise that the
dismissal would result in a financial prejudice to the Applicant. The
dismissal has the effect of depriving the Applicant his monthly salary
plus work related benefits. Without payment of a salary, the
Applicant would not be able to pay his monthly sustenance and
would also fail to pay his creditors. The Applicant’s evidence reads
as follows in this point;
“39. This matter is urgent by virtue of the fact that my livelihood is
dependant on the 1st Respondent meeting its financial obligations
towards me as spelt out in the Court order of 15 th March 2013. If the
1st Respondent was allowed to continue with its unlawful conduct,
this would leave me without a job in the face of numerous financial
obligations in respect of accommodation, my car, a personal loan at
First Finance (a financial service provider) a cell phone contract,
maintenance of my wife and kids as well as my old sickly parents.
40. As it is, payday (25th June) is looming and, taking into account
the right of the 1st Respondent to be heard, it might mean that the
25th June 2013 will pass before this matter is finalized and I will not
be afforded substantial redress at a hearing in due course”.
(Record pages 21-22)
35. Another argument which the Applicant raised was that the dismissal
will ruin his reputation, if not immediately addressed. He will have
to carry the stigma of being dismissed until the dismissal is
determined in a trial, in the future.
36. The Industrial Relations Act No.1/2000 ( as amended) enjoins a
litigant who intends to set aside his dismissal to approach the Court
for determination of his dispute, armed with a certificate of unresolved
dispute. That means that the Applicant is required to follow the
alternative dispute resolution mechanism provided for in part viii of
the Act.
The Commission for Mediation, Arbitration and Conciliation
(CMAC) is mandated by the Act to attempt to resolve a dispute that
has been reported to it by one of the parties. In the event that CMAC
fails to resolve that dispute, it is directed by the Act to issue a
certificate as aforementioned. It is at that point that either of the
parties can refer the dispute to Court for determination.
37. In terms of rule 15 (1) of The Industrial Court Rules 2007, the Court
has a discretion to waive part viii of the Act in an urgent matter.
However, a litigant who seeks to approach the Court in terms of rule
15 has to meticulously follow the mandatory requirements of the rule.
The rule provides as follows;
“15 (1) A party that applies for urgent relief shall file an
application that so far as possible complies with the
requirement of rule (14)
(2) The affidavit in support of the application shall set
forth explicitly-
(a) the circumstances and reasons which render the matter
urgent;
(b) the reasons why the provisions of part viii of the Act
should be waived; and
(c) the reasons why the applicant cannot be afforded
substantial relief at a hearing in due course.
(3) On good cause shown, the court may direct that a matter
be e heard as one of urgency”
38. The onus is on the Applicant to demonstrate with evidence that his
matter has met the requirements of rule 15 (1) and (2). Failure to
satisfy the requirement of rule 15 (1) and (2) would mean that the
mater is not urgent. The Applicant would then have to report his
dispute to CMAC in accordance with part viii of the Act, and follows
the procedure stated therein until a certificate is issued.
39. One of the reasons the Applicant has advanced for urgency, is that the
dismissal has caused him financial inconvenience as a result of loss
of salary and work related benefits. He is no longer able to meet his
financial obligations. Financial inconvenience (also known as
economic hardship) is a normal consequence of loss of employment.
Every person who has lost employment will suffer loss of salary
and/or benefits . If loss of salary and/or benefits is a ground for
urgency, that would mean that every person who has been dismissed
from work should bypass part viii of the Act and approach the Court
by way of urgency- to challenge the dismissal. That thinking would
defeat the purpose and spirit of the Act. The Act was established
inter alia, to provide a cheaper, simpler and speedy resolution of
disputes between employer and employee, and to ease the congestion
of cases that are pending trial before the Court. The reason advanced
by the Applicant viz financial inconvenience (economic hardship) is
not a ground for urgency.
40. Secondly, the Applicant complained that the dismissal is unfair since
it was not proceeded by a disciplinary hearing. The Applicant has
however failed to demonstrate to the Court why he believes he cannot
be afforded a substantial relief at a hearing in due course. In terms of
Section 16 of the Act, the Court has wide remedial powers in the
event that it finds the dismissal unfair. The Court’s remedial powers
include an order for reinstatement, re-engagement and payment of
compensation. The Court is not satisfied that the requirements of rule
15 (1) and (2) have been met. The Applicant can be afforded
substantial redress in the hearing in due course
41. The Applicant argued further that if his dismissal is not set aside
urgently, he will have to;
“ carry the stigma of being dismissed until at least 2017 at the
earliest when this Honourable Court would be in a position
to vindicate me in a trial”
(Record page 22 paragraph 42)
41.1 It is not clear to the Court how the Applicant arrived at the
conclusion that if he were to report the dismissal under part viii of
the Act, the earliest date available for trial would be in the year
2017. Trial dates are allocated by the Registrar to matters that are
ready for trial.
A litigant who is looking for an early trial date is expected to exercise
diligence in reporting the dismissal in the correct forum and file his
claim in Court and further take the necessary steps to get the matter
ready for trial. Therefore a lack of diligence on part of the litigant
will necessarily result in a delay in finalizing his matter in Court
41.2 It is not clear what the Applicant means when he states that he will
have to carry the stigma of being dismissed. If there is a stigma
that is attached to a dismissed person, then all other persons who
have been dismissed can insist on being heard on an urgent basis to
avoid carrying that stigma as alleged by the Applicant. Every
dismissal will therefore be labelled urgent. There would be no need
for a dismissed person to report his dispute to CMAC for resolution.
The Applicant has failed to show how is he different from any other
person who has been dismissed from work.
42. In the circumstances the Court finds that the Applicant has failed to
show;
42.3 How is he different from any other employee who has been
dismissed,
42.4 Why does he believe he cannot be afforded substantial relief
in due course.
42.5 The reason why part viii of the Act should be waived.
43. The Applicant has accordingly failed to show good cause to have his
matter enrolled on an urgency basis. Failure to satisfy the mandatory
requirement of rule 15 (1) and (2) is fatal to an application for
urgent enrolment. The Applicant’s prayer to have his dismissal
claim heard on an urgent basis therefore fails for reasons
aforementioned.
44. At this stage the Court is not concerned with the merits of the
dismissal. The merits will be dealt with when the matter is properly
enrolled before Court. At this stage the Court is concerned with
whether the application should be heard urgently or it should follow
the normal route as provided for in the Act and the rules. The Court
accordingly directs the Applicant to report his dispute in terms of
part viii of the Act.
The above are the reasons this Court issued an ex tempore order on the
day 20th June 2013. The Court ordered as follows;
(a) The application is dismissed.
(b)Each party is to pay its costs
Members agree
_____________________________
D. MAZIBUKO
INDUSTRIAL COURT-JUDGE
Applicant’s Attorney: Mr C. Bhembe
Bhembe & Nyoni Attorneys
Respondent’s Attorney: Mr S. Dlamini Magagula Hlophe Attorneys