THE HIGH COURT OF SWAZILAND
the matter between:
Mdluli and 7 others
Coal (Pty) Limited .
THE PLAINTIFFS Mr. Shabangu
THE DEFENDANT Mr. Flynn
question now is whether the terms of the defendant's amended plea
comply with the interlocutory orders made on 18th February 1994 and
22nd February 1994.
Shabangu contends that in four respects they do not do so. He seeks
an order declaring that the defendant's plea is struck out to that
extent, and he also seeks consequential orders. It is convenient to
deal with his points under heads, as follows:
first issue is whether the amended plea, to the extent that it avers
that the defendant was entitled to suspend the plaintiffs from 12th
January, now sets out a basis - a legal basis - for that.
plea, as amended, now asserts in paragraph 7 that unlawful conduct by
the plaintiffs in breach of their.
of employment made it impossible for the defendant to continue its
mining operations so that on 12th January it was forced to suspend
operations and the work of the plaintiffs.
paragraph 9.3, the original reference to the "suspension of the
in the new paragraphs 9.3.1 and 9.3.2, it is asserted that the
defendant was willing to allow the plaintiffs to work in accordance
with their contracts and that in the premises it did not refuse to
allow them to work, and further that it was in fact the plaintiffs
who refused to work in accordance with their contracts because they
refused to carry out reasonable instructions or allow necessary
paragraphs 10.2 and 10.3, the original references to "the
suspension of (the) plaintiffs" and to an allegation that "it
was fair to suspend (the) plaintiffs" remain. The reference in
paragraph 10.4 of the original plea to "the suspension"
(i.e., clearly, of the plaintiffs) still stands.
all of that comes down to, in round terms, is that the defendant in
the amended plea is now seeking to maintain the following
conduct of the plaintiffs made it impossible for the defendant to
continue its operations.
consequence it was, as a matter of fact, obliged to suspend its
operations, including the work on which the plaintiffs were
remained willing to allow the plaintiffs to do the work for which
they had been engaged (i.e., on the terms on which they had been
plaintiffs refused to do that work.
defendant suspended the plaintiffs' contracts of employment (by
clear implication, in the context, on the basis that it was lawfully
entitled to do so.)
Flynn did not seek to show that in law the facts in (a) - (d), if
accepted, give rise to a legal entitlement to suspend a contract of
employment. No other new basis was suggested for such an entitlement.
To the extent that the amended plea maintains the assertion in (e),
the plaintiffs are in my judgment entitled to have it declared to be
struck out under the order of 18th February.
portions of the amended plea that fall to be declared struck out are
paragraph 10.2 the words "and avers that the suspension of
plaintiffs was due to the unlawful conduct of the plaintiffs";
paragraph 10.3 the words "to suspend plaintiffs and".
am also of the view that the following portions of the amended plea
should be struck out, i.e.
paragraph 9.3, the words "and the suspension of the
paragraph 10.4, the words "after the suspension".
the extent that it may be argued that the word "suspension"
is capable of being construed simply as a factual reference to the
effect that the defendant could not offer the plaintiffs work after
it was allegedly forced to suspend operations (which is not in any
case, in my view, the real purport of the word in its context in
these places) the defendant's assertions are set out already and
sufficiently elsewhere in its pleadings - i.e. in the
that it had to suspend operations. The retention of the reference to
a suspension (of the plaintiffs) is unnecessary and might lead to
confusion as to whether it simply refers to a fact (an ability to
provide work) or to a legal act.
plea, as amended, also maintains an allegation that the defendant on
1st February 1991 lawfully terminated the plaintiffs' contracts of
employment with retrospective effect from 12th January 1991. This is
apparent from paragraphs 10.5, 10.5.3, 12.2, 13, 15.1 and 18. No new
basis is disclosed by the amended plea for that assertion. To the
extent that paragraph 10.5.3 might be construed as something besides
an implied assertion that the defendant actually did terminate the
contracts retrospectively, it is unnecessary to include it in the
amended plea. It would, if relevant, simply be a matter for argument
on the evidence.
the plaintiffs are entitled also to a declaration that the following
portions of the plea, as amended, stand struck out:
paragraphs 10.5, 13, 15.1 and 18, the words "with effect from
(the) 12th January 1991":
paragraph 12.2, the words "with effect from the 13th January"
third issue is whether the amended plea now sets out a basis on
which the defendant's actions would not constitute an unlawful
lockout. The issue is relevant, as I should perhaps have made clear
in my ruling on 18th February, because the plaintiffs as part of
their cause of action say that they were locked out unlawfully ( by
being refused readmission unless they signed the undertaking) and
the defendant denies it.
9.3 of the plea, as amended, still avers that the defendant's action
did not constitute an unlawful lockout. It does so partly, at least,
in reliance on a reference to the suspension of the plaintiffs
themselves, as distinct from a suspension of mining operations. I
have already held under (1) (above) that this portion of paragraph
9.3 is to be struck out - I would, however, further strike out the
whole of paragraph 9.3 under this present head of objection.
paragraph 8.1 the defendant has admitted that the plaintiffs were
requested to sign an undertaking and that only those who did so would
be permitted to resume work on 14th January 1991 (a date extended,
admittedly, to 31st January.) Paragraph 10.4 also contains such an
admission. Although the new paragraphs 9.3.1 and 9.3.2 assert that
the defendant was willing to allow the plaintiffs to work "in
accordance with their contracts" and that it was the plaintiffs
who refused to do so, it is evident from the whole of the pleading
that the defendant required them to give the undertaking before
allowing them to return to work. The facts now alleged therefore
still fall within the meaning of a "lockout" as defined in
section 2 of the Industrial Relations Act 1980. Such action is as a
matter of legislative policy lawful only in the circumstances set out
in section 59 of the Act. The plaintiffs are accordingly entitled for
these reasons as well to a declaratory order that in section 9.3 of
the plea, the words "and the suspension of the plaintiffs"
stand struck out. It goes further than that however. The plaintiffs'
declaration does not aver that the suspension of mining operations
per se constituted an unlawful lockout - hence the remainder of
paragraph 9.3 is irrelevant and stands struck out.
also consider that in paragraph 9.3.1, all the words after
"employment" must be treated as struck out to the extent
that the reference to "the premises" may be intended to
include reliance on an alleged right of the defendant to suspend the
contracts of employment; and that in paragraph 15.1 the words "denies
the alleged lock-out action and" should stand struck" out.
last issue is whether the amended plea complies with the order of
22nd February by demonstrating a basis on which the defendant was
entitled to terminate the contracts of employment without holding
disciplinary enquiries in accordance with the terms of the
employment agreement between the parties. Paragraph 18.1 of the
amended plea now asserts that the unlawful and violent conduct of
the plaintiffs made it impossible for the defendant to conduct
disciplinary inquiries. In my view, this pleading should be allowed
to stand, for determination at trial.
plaintiffs seek consequentially judgment in terms of paragraphs (a)
and (b) of the prayer to their declarations. The position now is that
as the pleadings stand, it is not open to the defendant to allege by
way of defence that it lawfully suspended the plaintiffs' contracts
of service from 12th January until 31st January, or that during that
period its actions did not constitute an unlawful lockout, or that it
lawfully terminated their employment before 1st February 1991.
follows from that at this point is that the plaintiffs are now each
entitled to judgment on the pleadings as they stand for the amounts
of their wages for the period 14th -31st January 1991 inclusive. In
respect of those portions of their claims, judgment at this stage
will be entered accordingly with costs. They are also entitled in any
event to the costs of the present application.
the same reasons, I make orders to the same effect in Civil Case
1398/92 between Jabulani Dlamini and others and the defendant.
Aprender a correr