Cargo Carriers (SWD) (Pty) Ltd v Dlamini (NULL) [2003] SZHC 26 (13 March 2003);

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THE HIGH COURT OF SWAZILAND


CARGO CARRIERS (SWD) (PTY) LTD


Applicant


And


MUSA E. DLAMINI


Respondent


Civil Case No. 3634/2002


Coram S. B. MAPHALALA - J


For the Applicant Miss Simelane


For the Respondent Mr. A. Shabangu


RULING


(On points of law in limine)


(13/03/2003)


Introduction


This matter was argued together with Case No. 3635/2002 that of Cargo Carriers (SWD) (Pty) Ltd vs Ronny N. Vilakati as the issues are substantially the same. For purposes of this judgement whatever decision the court arrives at will apply to both cases. The parties agreed to this arrangement


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Relief sought


This is an application by notice of motion in the long form where the Applicant seeks for an order that the Respondent and all those holding through and or under him be and are hereby ejected from the premises situate at Lot No. 34, Matsapha, Industrial Sites, Matsapha, district of Manzini. Further that the Respondent be ordered to pay costs of the application.


Background


On or about the 4th December 1981, the Respondent was employed by the Applicant as a Mechanic Assistant. In terms of the contract of employment between the parties, the Respondent was entitled to rent free accommodation whilst in the Applicant's permanent employ. The respondent was provided with a house situate at Lot 34, Matsapha Industrial Sites, district of Manzini.


According to the Applicant's papers is was the Applicant's policy to provide housing to permanent employees only and not to temporary and seasonal employees.


On or about the 10th January 2002, the Respondent's services were terminated by the Applicant though this fact is debatable. The Applicant notified the Respondent on the 23rd January 2002, that he will have to vacate the premises by not later than 22nd February 2002.


Prior to the aforesaid notice, and on 10th January 2002, the Applicant had offered the Respondent seasonal employment for the new cane season beginning April 2002. Notwithstanding the notice to vacate the Respondent failed and/or refused to vacate the house. According to the Applicant the Respondent's right to occupy the house ceased on 22nd February 2002, being a date more than a month after the Respondent's services were terminated. The Respondent filed a notice of intention to oppose on the 4th December


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2002, and thereafter a notice to raise points of law in limine filed on the 31st January

2003. The present judgment is on those points. The point of law in limine are as follows:

"Points of law in limine


1. The Honourable court has no jurisdiction to entertain, hear and determine the application in as much as the question of the alleged termination of the Respondent's right to housing or the unilateral alteration of the Respondent's right to housing are matters which are regulated by Section 18 of the Industrial Relation Act, 2000 and Section 26 of the Employment Act, 1980 and the general provisions of such legislation.


2. The Applicant's founding affidavit does not contain sufficient averments and evidence to support the relief sought in the notice of motion".


The matter came before me on the contested roll of the 31st January 2003, where I heard arguments and reserved my ruling. Mr. Shabangu in support of the points of law in limine attacked the Applicant's case on two fronts. Firstly, that the Applicant's founding affidavit does not contain sufficient averments to support the relief sought in the notice of motion. There is no sufficient evidence that the contract of employment between the Applicant and the Respondent has been terminated. The letter which the Applicant is relying on as that of termination is in fact a letter of variation.


The second contention advanced by Mr. Shabangu is that this court ha no jurisdiction to entertain, hear and determine the application in as much as the question of the alleged termination of the Respondent's right to housing or the unilateral alteration of the Respondent's right to housing are matters which are regulated by Section 18 of the Industrial Relation Act, 2000 and Section 26 of the Employment Act, 1980 and the general provisions of such legislation.


Miss Simelane for the Applicant advanced contrary argument. It was contended on the main on behalf of the Applicant that there was sufficient evidence at paragraph 8 of the founding affidavit that the Respondent's services were terminated on the 10th January


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2002. This fact is supported by annexures "MG1" and "M2" viz, a Memorandum Agreement dated the 10th January 2002, and a letter directed to the Respondent from Applicant dated the 23rd January 2002, respectively. The gravamen of the Applicant's case in this regard is that only permanent employees are granted accommodation not temporary employees.


On the issue of jurisdiction Miss Simelane relied on the dicta in the Appeal Court case of Sibongile Nxumalo et al vs Attorney General and two others (Case No. 25/96 being a composite judgement involving three other separate cases) (unreported) where Tebbutt JA_stated the following, and I quote at page 6; thus:


"It is a well known principle that has been emphasized time and again not only in the courts of Southern Africa but also in courts in other parts of the world where the judicial function, power and independence is jealously guarded, that there is a strong presumption against legislative interference with the jurisdiction of the ordinary courts. In the South African courts this has frequently been stressed. In Protocircuit S.A. (Pty) Ltd vs De Klerk No. and D Swart No. and others 1989 (4) S.A. 209 at 214 H - J, Friedman J (as he then was) said:


"There is a strong presumption against legislative interference with the jurisdiction of the Supreme Court. It is a well-known rule of statutory interpretation that the curtailment of the powers of a court of law will not be presumed in the absence of an express provision or a necessary provision to the contrary therein. The court will therefore examine closely any provisions which appear to curtail or oust its jurisdiction


That the above mentioned presumption, so the argument goes, apply with equal force in Swaziland. Further that the High Court Act gives the High Court inherent and unlimited jurisdiction.


These are the points raised in this matter. I have considered the arguments for and against the points in law in limine. I shall proceed to examine these questions sequentially, thus:


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a) Jurisdiction


On the issues of jurisdiction I am in total agreement with the submissions by Miss Simelane in this regard that this court does have jurisdiction to hear this matter. The High Court has inherent and unlimited jurisdiction and such jurisdiction in casu has not been ousted by Section 18 of the Industrial Relation Act/2000. The sentiments expressed by Tebbutt J A in Sibongile Nxumalo et al vs Attorney General and others (supra) are apposite. I refer also to a decision by Sapire CJ in the case of Royal Swaziland Sugar Corporation vs Simon Nhleko and nine others Cases Nos. 2785/98 to 2794/98 (unreported).


For the above-mentioned reason the points in limine ought to fail.


b) Whether founding affidavit contain sufficient averments


It is trite law that if an employee is resident on the property of his employer and his contract of employment is terminated, the employee must leave the property at the time of such termination even though the termination may be irregular (see Lawsa, First Re­issue Vol 13 Part 1 at para 272 and the cases cited thereat), unless a statute provides to the contrary. If he refuses to leave the property the employer may obtain an ejectment order against him.


In view of the above statement of law it is encumber therefore for the Applicant to prove that there was termination of the services of the Respondent. The Applicant avers at paragraph 7 of its founding affidavit that "on or about 10th January 2002, the Respondent's services were duly terminated by the Applicant. The Applicant notified the Respondent on the 23rd January 2002, that he will have to vacate the premises by not later than 22nd February 2002. I attach hereto marked "MG1" a copy of the notice to vacate dated 23rd January 2002".


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Further at paragraph 8 the Applicant continues "prior to the aforesaid notice, and on 10th January 2002, the Applicant had offered the Respondent seasonal employment for the new cane season beginning April 2002. I annex hereto marked "MGR" s copy of the agreement"


When the matter was argued Miss Simelane submitted that annexure "MG1" in paragraph 7 should have been annexure "MG2" in paragraph 8 vice versa. That this was a mistake on their part.


I have read the annexure which purports to have terminated the Respondent's services on the 10th January 2002, captioned Memorandum Agreement (annexure MG1). To me this does not appear to be a letter of termination but of transferring the Respondent to the Malkems operation as a mechanic from the Matsapha branch. I tend to agree with Mr. Shabangu for the Respondent that this was not a termination at all but a variation of the terms of employment. In so far as that is concerned one cannot safely say on the papers that there was a termination of the Respondent's employment services for the Applicant to be entitled to eject him. Further, I was unable to find documental evidence of the so-called company policy that only permanent employees are entitled to accommodation.


For the above reason I would agree with Mr. Shabangu for the Respondent that the Applicant's founding affidavit does not contain sufficient averments and evidence to support the relief sought in the notice of motion.


I hold therefore in this regard that the point of law in limine ought to succeed. In the result, the application is dismissed with costs.


S.B. MAPHALALA


JUDGE