IN
THE HIGH COURT OF SWAZILAND
CASE
NO.624/00
In
the matter between:
BEN
M. ZWANE Applicant
VS
THE
DEPUTY PRIME MINISTER 1st Applicant
THE
SWAZILAND GOVERNMENT 2nd Applicant
CORAM: MASUKU
J.
FOR
APPLICANT: MR P.R. DUNSEITH
FOR
RESPONDENT: MS M. VAN DER WALT
RULING
ON POINTS IN LIMINE
24/03/00
In
this application, which is brought under a Certificate of Urgency,
the Applicant prays for inter alia:-
1. Waiving
the usual requirements of the Rules of Court regarding notice and
service of application in view of the urgency.
2. That
the interdiction of the Applicant from his office of Clerk of
Parliament by the Deputy Prime Minister be set aside.
3. Reinstating
the Applicant to his post of Clerk to Parliament with immediate
effect.
4. That
the Applicant be paid his full salary.
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5. Interdicting
and restraining the Respondents from any further actions preventing
the Applicant from executing his duties as Clerk of Parliament.
6. Declaring
the conduct of the Respondents towards the Applicant as amounting to
an abuse of power.
7. Costs
on an attorney/client scale, but only in the event of this
application being opposed.
The
Applicant, in his founding Affidavit deposed as follows:-
That
he was employed by the Civil Service Board of the Swaziland
Government as Clerk of Parliament. On the 8th February, 1999, he was
interdicted from performance of his duties by the Prime Minister and
certain allegations of misconduct were levelled against him and in
respect of which he was to exculpate himself. The Applicant
challenged this interdiction before this Honourable Court and on the
25 th January, 2000, the learned Chief Justice set aside the
interdiction and granted further ancillary relief therein prayed for.
This decision has been appealed against.
On
the 21st February, 2000, the Respondent then issued a fresh
interdiction on the Applicant with immediate effect and as a
consequence whereof, the Applicant was to receive 50% of his monthly
salary. By letter dated 21st February, 2000, the 1st Respondent
preferred certain charges against the Applicant against which he must
again exculpate himself. It is this interdiction that the Applicant
intends to have set aside by this Court.
In
opposition to the Orders prayed for by the Applicant, the
Respondents, duly represented by the Attorney-General, raised the
following main points of law, on the basis of which this Court was
moved to dismiss the application with costs on the scale of attorney
and own client, namely.
(i) Jurisdiction.
(a) That
the Applicant's Founding Affidavit lacks the essential allegation of
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jurisdiction
and/or a set of facts that indicate that this Court has jurisdiction
to entertain this application.
(b) That
this Court does not have jurisdiction to hear and determine this
matter, due regard being had to the provisions of the Industrial
Relations Act, 1 of 1996.
(ii) Notice
of Motion A Nullity.
It
was further argued that the Applicant used Form 2 and not Form 3 of
the Rules of Court and that no condonation for the use of the wrong
form was canvassed, in view of the fact that the Applicant only
required the Court to waive requirements as only relate to notice and
service.
(iii) That
matter is not urgent in that the Founding Affidavit does not fully
address the requirements of Rule 6 25 (a) and (b) of the Rules of
Court.
The
Applicant filed his heads of argument in which it challenged the
Respondent's submissions referred to above. I shall now deal with the
above points of law as raised by the Respondents ad seriatim. The
others are in my view minor and need not be referred to.
(i) Jurisdiction.
(a) Failure
to make allegations on jurisdiction in Founding Affidavit.
It
was argued by the Applicant that whether or not the Court has
jurisdiction is a conclusion of law. Mr Dunseith argued that it is
unnecessary to plead conclusions of law but the Court can determine
from the facts set out in the Founding Affidavit and the relief
prayed for that it has jurisdiction to entertain the application. In
support of this argument the Court was referred to Herbstein and Van
Winsen " The Practice of the Supreme Court of South Africa, 4th
Edition, Page 55.
The
Respondents referred the Court to the case of TITTY'S BAR AND BOTTLE
STORE (PTY) LTD AND OTHERS 1974 (4) SA 362 in support of their
contention. This case
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appears
however to deal with striking out allegations appearing in Replying
Affidavits which should properly have been included in the Founding
Affidavit and deals, in particular, with a failure by the Applicant
to establish his locus standi in judicio. It does not deal with the
question of jurisdiction as raised in this matter and is therefore
irrelevant in my view.
It
is common cause that no facts or allegations have been made by the
Applicant to show that the Court has jurisdiction. It is not even
stated where the Applicant resides. Must all this be left to the
Court to make an assumption that it has jurisdiction?
Hebstein
& Van Winsen (supra), at page 364 state that founding affidavits
must contain certain averments and that it is necessary to clearly
state, amongst others that the Court has jurisdiction. On the other
hand, Erasmus, "Superior Court Practice" at B - 37 to 38,
states as follows:-
"The
facts must be set out simply, clearly and in chronological sequence,
and without argumentative matter in the affidavits which are to
support the notice of motion. The statement of facts must contain the
following information:
(i) ...
(ii) the
facts indicating that the court has jurisdiction ".
The
legal position stipulated by the learned authors above also finds
support in Harms, in his works entitled "Civil Procedure in the
Supreme Court", at page 79 and the cases therein cited. There,
the learned author states as follows: -
"In
any summons or founding affidavit, the necessary factual allegations
relating to jurisdiction must be made. It is not sufficient to state
the legal conclusion of jurisdiction."
Clearly,
this has not been done in this case neither factual allegations nor
legal conclusions of jurisdiction have been stated in casu. The
allegations must appear in the affidavit and the Court must not be
left to deduce that it has jurisdiction. I am disinclined to agree
with Mr Dunseith's submission in this regard. This point of law is
accordingly upheld.
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(b)
Implications of the provisions of Section 5 of the Industrial
Relations Act, 1996
On
the second question regarding jurisdiction, the Respondents contended
that the case in issue arises from an employment relationship and
involves a suspension, which falls under disputes as defined in
Section 2 of the Act. It is therefor, contended that the Industrial
Court has exclusive jurisdiction to deal with this matter and to that
extent, the jurisdiction of the High Court is excluded. Mr Dunseith
argued otherwise. He argued that the Industrial Court only has
jurisdiction in matters where the dispute procedures prescribed by
the Industrial Relations Act have been followed. If not, continued Mr
Dunseith, the matter cannot be said to be properly before the
Industrial Court. The Court was referred by both parties to the case
SIBONGILE NXUMALO & OTHERS v ATTORNEY - GENERAL AN D OTHERS CASE
NO.25, 30, 28, 29/96 (per Tebbutt J.A.). At page 11 of the said
judgement, Tebbutt J.A. had this to say,
"An
analysis of the entire present Act reveals that those matters which
are expressly reserved for the Industrial Court's consideration are
(a) the provisions of the constitutions of employer or employee
organisations, any violations of such constitutions, unlawful conduct
in the election of office bearers in such organisations 'funds and
certain ancillary matters relating to employee and employer
organisations ...(b) the establishment of joint industrial councils,
work councils and collective agreements.....and (c) determination of
disputes. "
Section
2 defines dispute as including a "grievance, a trade dispute and
means any dispute over the -
(a) ....
(b) .....
(c) disciplinary
act, dismissal, employment, suspension from employment, re-employment
or re-instatement of any person or groups of persons, (my emphasis)
(d) ...
(e) ...
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(f) ....
At
page 11 to 12, the learned Judge of Appeal proceeded to states as
follows:-
"From
this definition, it is clear that the legislature had in mind, when
enacting that the Industrial Court should adjudicate the disputes was
that those disputes should be of the type set out in the definition
viz disputes relating to employer employee organisation......... In
other words those matters which fall under what may generally be
described as industrial or trade disputes. "
Tebbutt
J.A. proceeded to analyse a case decided by the Botswana Court of
Appeal in BOTSWANA RAILWAYS ORGANISATION v J. SETSOGO AND OTHERS in
which that Court held that exclusive jurisdiction was confined only
to matters which had been "properly brought before it under this
Act", and was of the view that that decision was persuasive
authority in the Nxumalo case.
In
conclusion, the learned Judge of Appeal stated thus: -
"It
confines the Industrial Court's jurisdiction solely to those matters
set out in the Act, to those disputes which have run the gauntlet of
the disputes procedure, and to those issues arising from the other
legislation specifically set out in Section 5 (1). Having regard to
the principle that in order to oust the jurisdiction of the ordinary
courts, it must be clear that the legislation intended to do so and
that any enactment which seeks to do so must be given a strict and
restricted construction, it is in my view, clear that save for the
specific provisions mentioned, Section 5 (1) does not disturb the
common law of master and servant. "
It
is clear that this case was never submitted to the dispute's
procedure set out in the Industrial Relations Act. In view of the
ratio decidendi in the Nxumalo case, this matter is not properly
before the Industrial Court and therefore, it cannot be said to be
one in respect of which the Industrial Court can be said to have
exclusive jurisdiction. This point should accordingly fail.
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I
come to this view with a heavy heart with due regard to what Tebbutt
J.A. stated at page 15 of the judgement, namely
"In
those matters which can (my emphasis) be properly brought before the
Industrial Court as set out in the Act, the appropriate forum is the
latter Court and to that extent the High Court's jurisdiction is
ousted".
The
above excerpt, as Miss van der Walt correctly argued introduces
exclusive jurisdiction not only over matters actually brought to it
but also those capable of being so brought.
(ii) Notice
of Motion A Nullity.
Miss
van der Walt argued that instead of bringing this application in
conformity with Form 3, the Applicant herein brought the same in
accordance with Form 2, which is expressly designed for ex parte
applications. Miss van der Walt's argument is correct and is fully
supported by the Rules. This Mr Dunseith rightly conceded.
Rule
6 (9) which is peremptory states as follows: -
"Every
application other than one brought ex parte shall be brought on
notice of motion as near as may be in accordance with Form 3 of the
First Schedule and true copies of the notice, the supporting
affidavits and all annexures thereto, shall be served upon any party
to whom notice thereof is to be given. "
Form
3 requires the Respondent, in addition to other issues to be informed
of when a notice to oppose, if any, should be filed and also when
answering affidavits should be filed. Form 2, which is presently
being used is clearly designed for ex parte applications as envisaged
by the provisions of Rule 6 (4) and the said Form 2, itself clearly
stipulates so.
Miss
van der Walt is therefore correct. The proper Form was not used and
condonation for not using it was not prayed for regard being had to
prayer 1 of the Applicant's Notice of Motion. Mr Dunseith argued that
the procedure adopted by the Applicant in this case has been used for
a long time and that in fairness to the Applicant, the Court should
first issue a warning before insisting on following the express
provisions of the Rules in this regard.
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Mr
Dunseith requested the Court to condone this non-compliance. He
further argued that not withstanding the non-compliance with Form 3,
the non-compliance does not result in the Notice of Motion being
rendered a nullity and that the objection is one as to form only made
with no purpose but to obstruct the expeditious hearing of the
application.
While
the Court may grant condonation, it is unfair to say that this
objection is made to obstruct the expeditious hearing of the
application. The Rules peremptorily direct that Form 3 is to be used
and in this case, no application for condonation is made for
non-complicance with the Forms. The Respondent is perfectly entitled
to raise this point and help the Court set the compliance with the
requirements of the Rules in proper perspective.
I
will, in exercise of my discretion condone the non-compliance in this
case only for the reason that the procedure adopted by the Applicant
has been consistently but erroneously followed for a long time.
Time
has come for this Court to insist on the strict requirements of Rule
6 (9), regarding the use of Form 3. The use of Form 3, even in urgent
applications serves to safeguard the interests of Respondents which
are endowed to them by the Rules. Notwithstanding the urgency that
attaches, the Respondent is entitled to service of the application.
He is also entitled to know when he should file the Notice to Oppose
and when to file the Answering Affidavits. To use Form 2 renders the
Respondent a mere stooge being left entirely in the Applicant's
hands.
I
find it apposite, in this regard to refer to the case of GALLAGHER v
NORMAN'S TRANSPORT LINES (PTY) LTD 1992 (2) SA 500, where Flemming
DJP held that the invariable use of the short form of notice of
motion is unacceptable. At page 502 E to 503 A, the Learned Judge
stated as follows:-
"Rule
6 (5) a of the Uniform Rules of Court is peremptory. An application
must be in accordance with Form 2 (a)....No Rule says that any of the
said obligations do not apply to an urgent application. Such an
application is an "application' in terms of Rule 6 (5). The only
qualification is that in an urgent matter an applicant may 'amend the
rules of the game' without asking prior permission of the Court...
But the intent of the Rules is that such amendment is permissible
only in those respects and to that extent which is necessary in the
particular circumstances ....The Court is enjoined by the Rule to
dispose of an urgent matter by procedures
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"which
shall as far as practicable be in terms of these Rules; that
obligation must of necessity be reflected in the attitude of the
Court about which deviations it will tolerate in a specific case. The
mere existence of some urgency cannot therefore justify an applicant
not using Form 2 (a) of the First Schedule to the Uniform Rules. The
rules do not tolerate the illogical knee-jerk reaction that, once
there is any amount of urgency, that form of notice of motion may be
jettisoned - and a rule nisi may be sought. The Applicant must, in
all respects, responsibly strike a balance between the duty to obey
Rule 6 (5) and the entitlement to deviate, remembering that the
entitlement is dependent upon and is thus limited according to the
urgency which prevails. "
The
Form 2 (a) referred to above, is in part materia with to our Form 3.
In the circumstances, time has come for this Court to refuse to allow
the "illogical knee-jerk reaction" referred to above to
continue haunting litigants in this Court. This can only be done if
this court will refuse to entertain matters which are not ex parte
but where the use Form 3 has been jettisoned less still, those cases
where no condonation for dispensing with Forms is not prayed for.
This will be so even if the matter is urgent. It is important to
comply as far as practicable in the circumstances with the
requirements of Form 3. The Courts in the Republic of South Africa,
which had Rules in pari materia with ours correctly rendered this
practice unacceptable and it is obedience to our Rules that dictates
that we should adopt a similar stance as the South African Courts
without further delay.
(iii) Urgency.
It
was contended for and on the Respondent's behalf that no reasons are
furnished as to why the Applicant claims that he cannot be afforded
substantial relief at a hearing in due course. It was further
contended that the Applicant failed to set forth explicitly the
circumstances he avers render the matter urgent. Mr Dunseith stated,
certain facts which he set out in the heads of argument must be
considered in deciding whether the Applicant has complied with the
provisions of Rule 6 (25) (a) and (b).
The
said Rule reads as follows:-
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a.
"In urgent application, the Court or a Judge may dispense with
the forms and service provided for in these Rules and may dispose of
such matter at such time and place and in such manner and in
accordance with such procedure (which shall as far as practicable be
in terms of these Rule) as to the Court or Judge, as the case may be,
seems fit.
b.
In every affidavit or petition, filed in support of an application
under paragraph (a) of this sub-rule, the applicant shall set forth
explicitly the circumstances which he avers render the matter urgent
and the reasons why he claims that he could not be afforded
substantial relief at a hearing in due course."
In
the case of HUMPHREY H. HENWOOD v MALOMA COLLIERY AND ANOTHER CASE
NO.1623/93, Dunn J. held that the above provisions are peremptory and
I am in respectful agreement with that view. In addressing the
requirements of Rule 6 (25) (a) and (b), the Applicant stated as
follows at paragraph 24 of his Founding Affidavit:-
"This
matter is urgent in that the decision to interdict me is prejudicial
to me as it affects my rights to my job and salary. I have been on
suspension for over twelve months and was receiving only half my
normal salary.
If
this matter is not heard urgently the prejudice I have already
suffered will continue and I have reason to believe that this state
of affairs will most likely continue for many months before a
disciplinary hearing is held against me.
25.
The disruption of my family life in terms of basic necessities such
as water, electricity, and financial support has already taken its
toll and should I be subjected to another long suspension my family
and myself are going to find this state of affairs highly
intolerable.
Clearly,
there was not even a feeble attempt by the Applicant herein to
address the requirements of Rule 25 (b), particularly regarding why
he claims that he cannot be afforded substantial relief at a hearing
in dues course. I had occasion to deal with a similar
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point
in the case of MEGALITH HOLDINGS v RMS TIBIYO (PTY) LTD & ANOTHER
CASE NO.199/2000. At page 5,
I
stated as follows:-
"
The provisions of Rule 6 (25) (b) above exact two obligations on any
Applicant in an urgent matter. Firstly, that the Applicant shall in
affidavit or petition set forth explicitly the circumstances which he
avers render the matter urgent. Secondly, the Applicant is enjoined,
in the same affidavit or petition to state the reasons why he claims
he could not be afforded substantial redress at a hearing in due
course. These must appear ex facie the papers and may not be gleaned
from surrounding circumstances brought to the Court's attention from
the bar in an embellishing address by the Applicant's counsel. "
I
reiterate this view. In H.P. ENTERPRISES (PTY) LTD v NEDBANK
(SWAZILAND) LTD CASE NO.788/99 (unreported), Sapire C.J. stated the
requirements of the above Rule with absolute clarity, as follows:-
"A
litigant seeking to invoke the urgency procedures must make specific
allegations of fact which demonstrate the observance of the normal
procedures and time limits prescribed by the Rules will result in
irreparable loss or irreversible deterioration to his prejudice in
the situation giving rise to the litigation. The facts alleged must
not be contrived or fanciful but give rise to a reasonable fear that
if immediate relief is not afforded, irreparable harm will follow. "
As
I have stated, no attempt to address this requirement in his
affidavit was made by the Applicant in casu. No facts or allegations
are made from which it is demonstrated that irreparable loss or
irreversible deterioration to his prejudice will ensue. The Applicant
attempted to raise some of the facts and allegations in the heads of
argument and this is not what is required or contemplated by the
Rules. These allegations must be included in the Founding Affidavit
which is deposed to under oath.
An
applicant must stand or fall on his Founding Affidavit.
In
the premises, it is ordered that the first point on jurisdiction and
the one on urgency must be upheld with costs. I however am not
convinced that there are, in the circumstances,
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reasons
why costs should be on the punitive scale. Costs be and are hereby
declared to be on the ordinary scale.
T.S.
MASUKU
JUDGE
