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IN
THE HIGH COURT OF SWAZILAND
CIV.
CASE NO. 68/2000
In
the matter between
SWAZI
SPA HOLDINGS LIMITED APPLICANT
VS
JOSEF
ANDREW MURRAY RESPONDENT
Coram
S.B. MAPHALALA - J
For
Applicant MR. P. FLYNN
(Instructed
by Millin and Currie)
For
Respondent MR. S. DLAMINI
JUDGEMENT
31/07/2000
Maphalala
J:
The
Swazi Spa Holdings Limited is the applicant in this application
brought against its former employee. The applicant seeks ejectment of
the respondent from a house leased by applicant from Tisuka
TakaNgwane for the respondent. The applicant further seeks damages in
the amount of E8, 800-00 and costs of this application.
The
house was allocated to the respondent to afford him accommodation
while the respondent was an employee of the applicant. The respondent
was employed on the 19th July 1996, as its Rooms Division Manager at
the Lugogo Sun Hotel. The terms of the contract of employment are set
out in a document annexed in the applicant's papers as "JF1".
In terms of "JF1" the respondent was provided with
accommodation. On the 19th July 1999, the respondent's services were
terminated by the mutual agreement of the parties. This is reflected
in another document annexed marked "JF2". This document is
dated the 12th July 1999, addressed to the respondent and reads in
part as follows:
"Dear
Josef,
Re:
Voluntary Redundancy.
1. We
refer to the above matter and confirm that you applied for voluntary
redundancy. Be advised that your application has been accepted....."
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2. Your
services with the company will be terminated on the 19th July 1999.
Your redundancy package will be set out in annexure "A"
attached hereto on the terms and conditions set out therein...."
It
appears from the papers that the respondent accepted by agreement a
sum of E35, 991
-
71
as full and final settlement as reflected in a letter dated the 12th
July 1999.
Following
upon the termination of the contract of employment the respondent was
called upon to vacate the accommodation. The respondent has
steadfastly refused to comply with the request to vacate and it has
become necessary for the applicant to seek an order for ejectment
against him.
The
gravamen of the applicant's cause of action is that the respondent
remains in occupation of a house leased by the applicant in order to
provide the respondent with the accommodation, which was a term of
the contract of employment. The respondent was required to vacate the
premises not later than the last day of August 1999, but refuses to
do so. The applicant has in the meantime been required to pay the
rent for the premises and therefore seeks payment of the sum of E8,
800-00 by the respondent in respect of the rent. The applicant is
further of the view that the respondent has no defence to the
application for ejectment but merely contends that it is just and
equitable that he retains possession of the house until applicant has
paid his repatriation package.
When
the matter came for arguments Mr. Flynn for the applicant referred
the court to the judgement of the Chief Justice in the matter of
Royal Swaziland Sugar Corporation vs Simon Nhleko & 9 others
(Case Nos 785/98 to 2794/98 (unreported) where a similar dispute came
before the court. The court was persuaded to follow the dicta in that
case.
The
respondent in his answering affidavit raised two points in limine
viz, that this matter is within the exclusive jurisdiction of the
Industrial Court, because it has gone through the gauntlet of the
dispute procedure laid down in the Industrial Relations Act No. 1 of
1996 and the Commissioner of Labour has issued a certificate of
unresolved dispute, secondly, that in the event the court finds that
it has jurisdiction respondent submits in the alternative that this
application is fatally defective because no empowering resolution
from the applicant's governing body is attached to the founding
papers. The proceedings have not therefore been authorised by the
applicant's board. On the merits various averments are made in
rebuttal.
Mr.
Dlamini for the respondent when making his submissions contended that
the applicant does not have locus standi in judicio to bring this
application in that it is merely a lessee and the true owner of the
premises where respondent is sought to be ejected is Tisuka
TakaNgwane. Tisuka TakaNgwane has a direct interest in this matter
and thus a proper party to move these proceedings. The applicant has
not sought to join Tisuka in these proceedings. He went further to
argue that the judgement by the learned Chief Justice in Royal
Swaziland Sugar Association (supra) is distinguishable in a number of
respects viz, the applicant in that case was the owner of the
premises in which the respondents were sought to be ejected, in the
case in casu the question of repatriation is at the centre of the
dispute between the present litigants before the Industrial Court.
Furthermore, Mr. Dlamini directed the court's attention to Section 43
of the Employment Act of 1980 to the proposition that
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applicant
is enjoined by law to pay respondent's subsistence payment from the
date of the termination of the contract up to the time he is
repatriated. The house which is the subject matter of this dispute is
part of the subsistence which the applicant is entitled to pay in
terms of the Act. On the question of the claim for damages by the
applicant it is Mr. Dlamini's view that such is untenable as these
are a result of the applicant's own action. Finally he argued on the
strength of the dicta in the case of Lovius and Shtein vs Sussman
1947 (2) S.A. 241 that the court has discretion whether to order an
ejectment.
It
appears from the papers filed that the contracts of employment
between the applicant and the respondent has been terminated.
Although the respondent argue that his dismissal was unfair and the
case of his unfair dismissal is pending in the Industrial Court,
which I might state is in itself not a defence to the applicant's
claims. In this connection I agree with the learned Chief Justice in
the Royal Swaziland Sugar Corporation case (supra) where the
following sentiments were expressed:
"The
respondents even if successful in their actions in the Industrial
Court, are not entitled to reinstatement of their contract but are
confined to damages or an equivalent thereof for the unfair or
unlawful dismissal. It is for the Industrial Court to make an
appropriate award in the circumstances. In making an award the
Industrial Court will take into account the benefit of accommodation
which the respondents enjoyed in terms of their respective
contracts."
Further
on.
"Whatever
the outcome of the proceedings in the Industrial Court may be, the
respondents are not at all entitled to remain in occupation of the
premises pending that hearing. This is so because the contract is at
an end and there is no basis for their continued occupation of the
premises". (my emphasis).
On
the question of locus standi raised by Mr. Dlamini for the respondent
I tend to agree with Mr. Flynn for the applicant that the respondent
has a right to sue for ejectment as a lessee who had sub-let the
premises to a third party. There is ample authority that this can be
done. (see The South African Law of Landlord and Tenant by Cooper
(1973) page 113 and the authorities cited thereat). I thus dismiss
this point in limine as being misconceived.
Now
coming to the point in limine that the court does not have
jurisdiction as the matter is before the Industrial Court. It appears
to me that this is not so and I would follow the dicta in Royal Swazi
Sugar Corporation (supra) which is at fours with the case in casu.
It
appears to me from the papers that the respondent has no defence to
the application for ejectment but merely contends that it is just and
equitable that he retains possession of the house until applicant has
paid his repatriation package. The respondent clearly accepts that
the contract of employment has been terminated. The applicant submits
that there has been a full and final settlement while respondent has
reported a dispute and seeks maximum compensation for unfair
dismissal. The respondent does not seek reinstatement. On either
version the respondent has accepted the cancellation of the contract
and is accordingly not entitled to remain in occupation of the
premises (see Royal Swaziland Sugar Corporation (supra), National
Union of Textile Workers and others vs Stag Parkings (Pty) Limited
and another 1982 (4) S.A. 151(T); Coin Security (Cape) vs Vukani
Guards and Allied
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Workers
Union 1989 (4) S.A. 294 at 241 - 242 and Royal Swazi National Airways
Corporation Limited vs Lynette Dlamini and others Civil Case No.
201/90 (unreported).
The
respondent cannot in law hold the applicant at ransom, as it were, on
the issue of repatriation.
The
fact of the matter is that the contract of employment has come to an
end and the applicant is not obliged to provide respondent with
accommodation. It would be open for the defendant to claim damages he
may have suffered as a result of the loss of accommodation based on
the alleged unlawful dismissal. The respondent's argument cannot in
the circumstances be sustained as a defence to the applicant's claim
for ejectment.
In
the result an order is granted in terms of prayers 1, 2 and 3 of the
notice of motion.
S.B.
MAPHALALA
JUDGE
