THE HIGH COURT OF SWAZILAND
the matter of
MANDLA KUNENE Respondent
: Hull, CJ.
APPELLANT : Mr. Khumalo
RESPONDENT : No appearance
R D E R (24/02/93)
an action in the Industrial Court for wrongful and unfair dismissal,
the respondent here claimed five heads of relief, i.e. notice pay,
additional notice, compensation, severance allowance and arrears of
Industrial Court found he had been unfairly dismissed. This finding
is not challenged.
awarded him all the heads of relief claimed. In particular, it
awarded him six months salary as compensation. He was a monthly paid
addition, the court recommended that the applicant employer should
reinstate the respondent in his employment. It went on to order, in
default of reinstatement, that the appellant should pay to him "a
sum representing 6 months of his salary in lieu of reinstatement".
first complaint by the applicant here is that the respondent had
never sought such a sum. It is also
that the sum so awarded was in fact compensation, and that the
Industrial Court by virtue of section 13(4) of the Industrial
Relations Act 1980 had no jurisdiction to award more than 6 months
compensation to a monthly paid worker.
the applicant seeks a ruling that it is beyond the jurisdiction of
the Industrial Court to award any sum in lieu of failure to comply
with a recommendation for reinstatement. The contention, as I
understand it, is that this would have the effect of changing the
nature of a recommendation (which is a form of relief open to the
Court under section 13) to that of a coercive directive and that, for
the reasons explained by Will CJ. in his judgment in UBOMBO RANCHES
LIMITED v PRESIDENT OF THE INDUSTRIAL COURT AND ANOTHER (1982-86) SLR
at 264, the Industrial Court does not have the jurisdiction to make
such an order, i.e. a coercive order of reinstatement.
(1) of section 13 gives the Industrial Court a wide discretion in
granting relief, i.e. it may make an order granting 'such remedy as
it may deem fit". The subsection must however be read in
conjunction with those that follow it. Subsection (2) says that
without restricting the generality of the first subsection, the court
may order the employer to pay "compensation", or recommend
reinstatement "in substitution for or in addition to" any
compensation so ordered.
(3) deals with factors that must be considered by the court in
assessing compensation under subsection (2). One of these, in
paragraph (e), is the acceptance or rejection of a recommendation for
(4) imposes a limitation on the maximum amount of compensation that
it can order. The subsection is not expressed as aptly as it might be
but it means, in the
context, an amount equivalent to 6 months salary.
last subsection provides that compensation is to be in addition to
and not in derogation of any payment to which "the employee may
be entitled by law".
legislation, no doubt, should be given as liberal a construction as
possible. Nevertheless in the context of the section as a whole, I
consider that there is a clear implication that while a court may
grant compensation and make a recommendation for reinstatement, and
while it not only may but must have regard to the acceptance or
rejection by the employer of a recommendation for reinstatement when
assessing compensation, subsections (2) to (4) inclusive are
definitive of the circumstances in which the court can order an
employer to pay money to an employee in lieu of accepting a
recommendation for reinstatement. In other words, if the court orders
a payment to be made in lieu of reinstatement, then that can only be
by way of compensation (however the court chooses to describe it) and
it is therefore subject to the overall restriction on the maximum
amount of compensation that may be awarded.
application for this reason, and also because the relief in issue was
not claimed, is therefore allowed. The judgment of the Industrial
Court is varied by setting aside that part of it that awards an
additional six months salary as a payment in lieu of reinstatement.
respondent here must pay the applicant's costs on the review,
excluding the costs involved in amending the proceedings on review.
THE HIGH COURT OF SWAZILAND
the matter of
ESTATES LIMITED Plaintiff
HAYTER N.O. Defendant
PLAINTIFF : Miss
DEFENDANT : Mr.
the present application, by the defendant, to dismiss the plaintiff's
action and to strike out its defences to the counterclaim, on the
ground that it had not complied with the order of 29th January 1993
to furnish further particulars, the remaining issue (subject to one
question as to the provision of documents by the defendant to the
plaintiff for that purpose) is whether the defendant should have his
costs on the application.
a consideration of the whole application, I am satisfied that he
objection taken that the defendant did not comply with rule 30(5) of
the High Court Rules before applying for the order obtained on 29th
January is not in my view a good one. Although Norman & Co. (Pty)
Ltd v Hanselle Construction Co.
Ltd  (1) S.A. 503 related to the South African rules of court
(which differ from our present rules in this respect), I think that
the reasoning of the court in that decision nevertheless applies
equally here. Rule 21 of our rules is self-contained and independent
of Rule 30(5) as far as the present point is concerned.
in any event, the plaintiff clearly had adequate notice of the
hearing of 29th January. It chose not to contest it. It gave further
particulars within the time set by the court. While I of course
accept that there was a misunderstanding between the plaintiff's
representatives and their legal adviser in south Africa, so that he -
i.e. the legal adviser - was unaware that the further particulars
that he first prepared were required pursuant to a court order, that
is a matter for the plaintiff, not the defendant.
the plaintiff applied to the court to condone late delivery of
certain of the further particulars sought, and it has since given or
agreed to give full further particulars.
seeking condonation it relied . partly on the internal
misunderstanding that occurred. Beyond that, it has sought to justify
its earlier non-delivery of the particulars ordered. Looking at the
course of events as a whole, I am satisfied that the plaintiff was,
generally, at fault in not complying fully with the original order
within the time prescribed. It thereby occasioned the defendant the
trouble and expense of this present application. In those
circumstances, he is entitled to the costs of this application, on a
party and party basis as sought by him.
will be an order accordingly.
make a further order that the plaintiff must within 14 days furnish
the further particulars in paragraph 2.1 of the original request for
further particulars, relating to the invoices between 26th February
1988 and 3rd March 1988, and for that purpose the defendant is to
provide to" the plaintiff timeously for inspection the invoices
held in his possession. I leave it to the advisers to the parties to
make arrangements as to the modalities of effecting this.