United Plantations Swaziland t/a Tambuti Estate v Gina & Others (15/07) [2011] SZICA 18 (23 March 2011);

Case name: 
United Plantations Swaziland t/a Tambuti Estate v Gina & Others

IN THE INDUSTRIAL COURT OF APPEAL OF SWAZILAND

 

HELD AT MBABANE                                         CASE NO. 15/2007

In the matter between:

UNITED PLANTATIONS SWAZILAND

t/a TAMBUTI ESTATES                                      APPELLANT

AND

ELPHAS GINA AND OTHERS                              RESPONDENT

 

CORAM                                                           RAMODIBEDI    JP    

                                                                      MABUZA         AJA                                                                              

                                                                      MAMBA           AJA

                                                                                                         

FOR APPELLANT                                             MR. M.M. SIBANDZE 

 

FOR RESPONDENTS                                        MR. S. MADZINANE

                     HEARD         : 7TH MARCH, 2011 

                     DELIVERED : 23RD MARCH, 2011

 

          SUMMARY

[1] Labour Law – Practice and Procedure – Time for noting of appeal – section 19(3) of the Industrial Relations Act 1 of 2000 as amended and rule 8(1) of the rules of the Industrial Court of Appeal. Where there is a conflict, provisions of the Act to prevail over rules.  Appeal to be noted within 3 months rather than 7 days.

 

[2] Practice and Procedure – failure to submit court record on time contrary to rule 21(1) and 21(4) – no application for condonation – appeal deemed to have been abandoned. 

 

[3] Practice and Procedure – Industrial Court of Appeal has power to condone late filing of heads, rule 17.

 

 

JUDGMENT

 

 

MAMBA AJA,

 

[1]     This is an old matter.  It dates back to 26th June, 2006 when the respondents who are all security guards filed their application in the Industrial court claiming in the main for payment for overtime worked between December, 1999 and December 2003, all dates inclusive.

 

[2]     The respondents alleged that they worked 72 hours per week and this was in violation of Regulation 5 of the applicable Wages Regulations Order of 2000 which stipulated a 60 hour week for security guards in their situation or category.  They claimed further that any overtime worked in excess of the 60 hours per week should be paid at one and one half (1½) times the normal hourly rate from Monday to Saturday.  For Sundays, they alleged that they ought to be paid double the basic hourly rate as was the case with their colleagues at Ngonini Estates, a sister company to the appellant.

 

[3]     The respondents also claimed that their payment for all days worked should be made within one calendar month.  This claim was, however, later abandoned and consequently no decision was required or taken thereon by the arbitrator who heard the matter.

 

[4]     It is common cause that when the matter came to the Industrial court, the President of that court acting in terms of section 8(8) of the Industrial relations Act 1 of 2000 (as amended) (and hereinafter referred to as the IRA), directed that the matter be referred and determined by arbitration under the auspices of the Conciliation, Mediation and Arbitration Commission (hereinafter referred to as CMAC).  Because of this referral, the decision by the arbitrator is appealable.  (Vide Liyabuya Grocery v Thobile Lokotfwako, Industrial Court of Appeal Case 2/2007 (unreported) judgment delivered on 28th February 2008)

 

[5]     It is fair to say that the appellant did not challenge the substance of the claim as such but only disputed the method or formula by which the respondents’ claim was being calculated.  The appellant also argued that it was not bound by what security guards working at their Ngonini Estate were being paid in respect of time worked on Sundays.  No doubt because of the facts having been reduced to this very narrow campus, the parties agreed that there was no need for either side to lead evidence in support of its claim.  The matter proceeded on this basis and both sides were permitted to make submissions before the arbitrator.

 

[6]     It is common cause further that the arbitrator found in favour of the respondents.

 

[7]     The arbitrator handed down his written decision and award on 23rd October, 2007.  The appellant noted an appeal against this decision and this notice and grounds of appeal was filed with the Registrar of this Court on 29th November, 2007.  (I note here that for some reason, unexplained on the papers before us, this notice of appeal was served on the respondents’ representative on 10th January, 2008.  This was, however, within the period of 3 months from the date of judgment and was therefore in order too.)  This was followed much later, on 23rd July 2008 by a record of the proceedings, which bears the Registrar’s date stamp for that date.  I note again that there is no indication on the papers that this document was ever served on the respondents’ representative.

 

[8]     I observe that in terms of section 19(3) of the IRA, an appeal must be noted within three months of the date of the judgment appealed against.  However, rule 8(1) of the rules of this court stipulates a period of (7) seven days.  This is clearly a conflict.  The enabling statute is an act of Parliament, whereas the rules are delegated or subordinate legislation deriving their source as they do, from the Act.   Therefore, where there is a discord between the two, the rules must yield to the provisions of the superior powers of the Act.  Thus, in this case, a litigant has to note his appeal within three months rather than seven days.  One also notes of course that the rules were enacted in 1997 whilst the Act was amended much later in 2000 and 2005.  There was therefore, one should assume, a deliberate or conscious decision by Parliament to provide that an appeal must be noted within three months rather than seven days.

 

[9]     In terms of Rule 21(1) of this court, the appellant is required to prepare the court record and lodge a copy thereof with the Registrar of the Industrial Court for certification as correct within one month of the date of the noting of the Appeal.  If the appellant fails to submit the record for certification within this period, “the appeal shall be deemed to have been abandoned,” per rule 21(4).

 

[10]   The court record referred to above was not certified as correct by the Registrar.  There is just no certificate or indication of what her opinion was on the issue.  It was submitted by Counsel for the appellant before us in court that this record was incomplete and thus another batch or bundle was prepared and submitted to and certified as correct by the Registrar on 3rdMarch 2011.  This is not entirely correct.  I have collated all the copies filed herein.  Whilst these copies bear the date stamp for the Registrar of this court, none of them has been certified by the Registrar of the Industrial Court as demanded by Rule 21(1).

 

[11]   From the above facts, the first record was filed about 7 months after the noting of the appeal and it was not certified as correct by the Registrar.  Counsel for the appellant conceded that this record was incomplete.  It was therefore not a proper record and was filed way out of time.  Where the registrar declines to certify the record as correct, he shall return it to the appellant for revision and amendment and the appellant shall relodge it for certification within fourteen days after receipt thereof failing which it may not “thereafter be lodged for certification without the leave of the judge who presided at the hearing in the court a quo,” (per Rule 21(2) and (3).  In the present case, there is no certified court record. The record filed on 3rd March, 2011 has not been certified either although it bears the date stamp for the Registrar of this court. Certification must be by the Registrar of the Industrial Court. It should have been filed in December, 2007.  No leave from the presiding judge in the court a quo was sought or obtained and no condonation from any quarter has been sought and obtained to file this record out of time.  The only application for condonation made by the appellant relates to the late filing of its heads of argument to which I now turn.

 

[12]   On 21st February 2011, appellant’s attorneys were notified by the Registrar of this court that the appeal will be heard on 7th March, 2011.  The attorneys were also informed to submit or file their heads of argument by the 25th February 2011.  Due to previously arranged commitments, including court engagements, the attorneys say, they failed to comply with the Registrar’s directive.  The heads were eventually filed on 3rd March 2011.  The attorney avers that it “was not out of disrespect for the court nor is it any laissez-faire attitude towards compliance with the rules of court but was a combination of the late notification by the Registrar and prior commitments which hindered my ability to comply with the rules.”

 

[13]   The notification by the Registrar and the accompanying demand to file heads by 25th February, 2011 was rather too short a notice.  In any event, an appellant is required by rule 22(1) to file his heads of argument not later than fourteen days before the hearing of the appeal.  This rule is obviously premised or predicated on the assumption that adequate notice for the hearing of the appeal has been given by the Registrar to the appellant.

 

[14]   The filing of heads of argument and the time limits thereon is a matter of practice and procedure.  It is not a matter of substantive law.  It is a matter within the powers of the court to regulate the prosecution of all proceedings before it.  For this reason the court has the power, in appropriate or deserving cases to waive or excuse non-compliance therewith.  (See rule 17).  Such condonation is not in the nature of that dealt with by this court in ARTHUR MNDAWE AND 74 OTHERS v CENTRAL BANK OF SWAZILAND, unreported judgment delivered on 17thSeptember, 2010, where the condonation related to the actual powers or jurisdiction of the court.  Matters of practice and procedure are a different class or category.

 

[15]   On the general law pertaining to condonation, I am in respectful agreement with this court’s judgment in the Central Bank case (supra).

 

[16]   The application for the condonation of the late filing of the heads of argument is being opposed by the respondents.  The gravamen of the attack on the application is that there is nothing to condone as there is no appeal before the court.  The respondents have advanced two grounds for this.  First, respondents submit that the appeal was noted outside the provisions of rule 8(1) of the rules of this court.  I have dealt with the conflict between this rule and s 19(3) of the Act above.  The provisions of the Act prevail; the appeal must be noted within 3 months of the date of the judgment appealed against.  So, this point fails.  The second attack is that the appellant failed to file a certified record as required by the rules.  Where there is such failure, the appeal is deemed to have been abandoned.  The respondents’ submission on this point is, in my judgment, unassailable.  It shall be remembered that the appellant filed two court records but both were filed way out of time and were never certified as correct by the Registrar of the Court a quo.  The appellant has not addressed this issue at all.

 

[17]   Whilst this court has the power per rule 17 to condone or excuse a litigant from non-compliance with any of the rules, it can only exercise such power or right “on application and for sufficient cause shown.”  The appellant has not made such application and the appeal must be deemed to have been abandoned.  Consequently, the application for the condonation of the late filing of the heads of argument is bad in law as there is no appeal to which it relates.

 

[18]   An application for condonation for the late filing of heads of argument may, in my judgment be made and granted under rule 17 of the rules of this court.  The filing of heads is purely a matter of practice and procedure and is a matter within the competency of this court.  To this extent, I respectfully do not share the view that rule 17 is inconsistent with section 19 of the Act.  It can only be inconsistent with it if and only if it purports to empower the court to do that which it has no power to do.

 

[19]   I have stated above that the Registrar’s demand for the filing of the heads of argument was too short. The appellant’s explanation for failure to comply therewith is in my judgment reasonable and therefore the non-compliance is pardonable.  That, however, does not resurrect or revive the expired or abandoned appeal.

 

[20]   Purely for the sake of completeness of this judgment, the following comments on the merits of this appeal bears mention.  First, I agree entirely with Mr Sibandze’s submission that :

          “18. The meaning of the Section is clearly that where the hours that an employee works in excess of 60 hours a week fall on a Sunday the employee will draw two times his hourly wage rate but where the overtime is worked during the week i.e. Monday to Saturday, the employee will only be paid 1.5 times his hourly rate as overtime.

  1. The effect of the arbitrator’s award with regard to Sundays

worked is that the employees who are normally scheduled for shift work on Sundays, and who still have the one day off per week as provided for by Regulation 5 are paid a double rate for Sundays worked, notwithstanding that they have not exceeded the normal hours of work

20. This interpretation is manifestly incorrect, on an ordinary reading of the Regulations.

21. The Appellant accepts that the Respondents should be paid at the normal rate for the first 60 hours of employment and 1.5 times the normal rate for any hours worked beyond 60 hours per week from Monday to Saturday inclusive and twice the normal rate for overtime worked on Sundays.”

          That construction or interpretation of regulations 5 and 6 of the

Wages Regulations is correct.  However, the argument that “to the extent that the award of the arbitrator differs from paragraph 21 herein above, it should be set aside and the appeal should succeed,” overlooks or ignores the fact that the parties agreed in the collective agreement that Sundays would be paid at twice the daily rate and not just on overtime worked on Sunday.  This applied or obtained at the Appellant’s Ngonini Estates.  The agreement between the parties was that it should apply to both Estates; including the Tambuti Estate.  The respondents therefore sought to enforce this agreement that was being implemented or enforced at their sister establishment, Ngonini Estates.  So, whatever the terms of regulations 5 and 6 on the computation or calculation of pay for work done or performed on a Sunday, the parties had agreed on a formula that enhanced or improved rather than disadvantaged the employees and was therefore binding and enforceable between the parties.

 

[21]   For the foregoing reasons, there being nothing to condone as there is no appeal pending, I would dismiss the appeal with costs.

 

 

         

M.D. MAMBA

ACTING JUSTICE OF APPEAL

 

 

I agree.

 

 

 

 

 

 

 

M.M. RAMODIBEDI

            JUDGE PRESIDENT

 

I also agree.

 

 

 

Q.M. MABUZA

ACTING JUSTICE OF APPEAL