THE HIGH COURT OF SWAZILAND
Case No. 1472/93
the matter between:
PLAINTIFF Mr. Shabangu
DEFENDANT Mr. Flynn
and defendant entered into a written contract in terms of which
plaintiff employed the defendant as a "Running Shed Foreman".
The contract provided that the plaintiff was employed from 30th
September 1992 and other terms which are not relevant hereto.
there are issues relating to other terms of the contract, which would
have to be decided in this case, the parties have agreed that there
is one question which arises which can conveniently be decided before
any other issues are tried. It has further been agreed that should I
decide the issue in defendant's favour, that the action is to be
dismissed with costs, whereas if the decision on the issue is in
plaintiff's favour, a further hearing will take place at which the
question of damages and other outstanding issues will be canvassed.
question which I am called upon to decide, now, is whether in terms
of plaintiff's contract with the defendant, the plaintiff has
security of tenure until the prescribed retiring age, or whether the
contract was terminable by either party, more particularly by the
defendant on notice.
plaintiff took up his employment with the defendant and continued
therein until the defendant terminated the contract on notice because
the plaintiff had become redundant. An official of the defendant duly
authorised and empowered so to do, wrote to the plaintiff on the 29th
September 1992 in the following terms:
is regretted that owing to the decision made to phase out steam
traction your services are being terminated with effect from 30th
negotiation for additional terminal benefits above those provided in
the employment Act may still go on after this date.
past service with the Railway is greatly appreciated and it is a
cause of the greatest concern that you had to be made redundant. I
wish you well in the future."
a mutually acceptable redundancy settlement was arrived at and paid
by the defendant. In a statement of agreed facts corporated in a
Minute of a Pre-trial Conference, placed before me on which I am to
give my decision, the following paragraphs appear:
a result of the defendant's decision to phase out steam traction, the
plaintiff became redundant and his services were terminated on 30th
parties agreed that the plaintiff received the terminal benefits and
payments listed in the document described as "Swaziland Railway
Terminal Benefits, and the Remittance Advice dated 2nd November 1992.
parties agreed that the plaintiff was paid one month's pay in lieu of
is plaintiff's contention that because he was confirmed onto
permanent staff, he had security of tenure until the date of his
attainment of the retiring age. In other words, the plaintiff says
that "permanent" means just that. Accordingly so his
argument goes the termination of his services on 29th September 1992
was a breach of the agreement, which was not condoned, by his
acceptance of notice pay and terminal benefits. The damages claimed
is an amount representing the salary which he would have received
from date of termination to date of his retirement, together with the
difference the terminal benefits to which he would have been entitled
on his retirement age 60, and the termination benefits which were
actually paid to him.
is common cause that the provisions of the "Regulations
Governing Conditions of Service for Employees" (the Regulations)
made by the defendant are applicable to and incorporated in
plaintiff's contract with the defendant (see "Agreed facts"
in Minute of Further Pre-Trial Conference - dated 1st November 1995
and signed by the parties.)
10 of these regulations reads as follows:
An employee shall be required to give one months's notice of of his
intention to terminate employment after confirmation onto permanent
staff and such notice may not be rescinded or withdrawn except at the
discretion of the Chief Executive Officer. Similarly the Chief
Executive Officer may give notice of intention to dispense with the
services of an employee except where circumstances warrant immediate
provisions are clearly and unequivocally, a complete answer to the
regulation applies to individuals who like the plaintiff have been
confirmed onto the permanent staff and give both the employee and the
employer the right to terminate the employment on notice. It cannot
in the light of this regulation be argued that an employee may not be
dismissed or his services dispensed with until he reaches the age of
retirement. The termination of employment on notice or on payment of
appropriate amount in lieu of notice cannot constitute a breach of
the agreement giving rise to a claim for damages.
question posed must therefore be answered in defendant's favour. As
this, it is agreed, disposes of plaintiff's claims, there will be
judgment for the defendant with costs.