Sibandze v Stanlib Swaziland (Pty) Ltd & Another (5/10) [2011] SZICA 3 (23 March 2011);

Case No: 

 5/10

Media Neutral Citation: 

 [2011] SZICA 3

Judgment Date: 

 23 March 2011

 

IN THE INDUSTRIAL COURT OF APPEAL OF SWAZILAND

 

HELD AT MBABANE                       CASE NO. 5/2010

 

In the matter between

 

ABEL SIBANDZE                             APPELLANT

 

AND

 

STANLIB SWAZILAND (PTY) LTD   FIRST RESPONDENT

 

LIBERTY LIFE SWAZILAND

(PTY) LTD                                        SECOND RESPONDENT 

 

CORAM                            RAMODIBEDI JP

                                        MASUKU AJA

                                        MAMBA AJA

 

HEARD            :               9 MARCH 2011

DELIVERED     :               23 MARCH 2011

 

 

SUMMARY

 

Appeal – Application for postponement of the hearing of appeal – Principles governing applications for postponement – Appellant’s non-preparedness fully explained – Application granted with costs.

 

 

 

JUDGMENT

 

RAMODIBEDI JP

 

[1]    This matter represents yet another chapter in the protracted legal battle between the parties.  It all started by way of a notice of motion filed in the court a quo on 4 August 2009 in terms of which the appellant, who is employed by the respondents as the Country Managing Director, sought an order against the respondents setting aside the disciplinary charges preferred against him as contained in a notification thereof dated 29 July 2009.  Alternatively, the appellant sought an order interdicting and restraining the respondents from proceeding with the disciplinary enquiry against him on the basis that it was both a shamand an unfair labour practice.

 

[2]    Thereafter, the parties have regrettably engaged in cut-throat litigation on technical issues while avoiding the merits of the main application to date.  In this torturous process the litigants have shockingly shuttled between the court a quo, the High Court and the Supreme Court with no end in sight.    It is strictly not necessary to retrace the course of the litigation in each court for the purposes of this judgment.  It shall suffice merely to state that on 12 November 2010, the court a quo (Mazibuko J) dismissed the appellant’s “main and alternative prayers.”

 

[3]    It is not disputed that on 19 November 2010, the appellant promptly noted an appeal against the judgment a quo.  In terms of Rule 21 (1) of the Industrial Court of Appeal Rules the appellant was obliged to prepare the record of proceedings within one month of the date of the noting of the appeal.  However, for reasons which will become apparent shortly, no such record was filed until 14 February 2011.  Indeed, the appellant makes the point that he simply filed the record in compliance with the Registrar’s directive.

 

[4]    On 8 March 2011 the appellant filed an application requesting this Court to postpone the appeal referred to in the preceding paragraph to the next session of this Court.  For the sake of completeness it may be noted that the appeal had been scheduled to be heard on 9 March 2011.  I should add that the application for postponement was fiercely opposed. 

 

[5]    After hearing submissions in the matter on 9 March 2011, this Court unanimously made the following order:-

 

“(1)    The application for postponement is granted.  The appeal will be heard in the next session of the Industrial Court of Appeal.

 

(2)      The respondents shall pay the costs of today’s application for postponement.  Such costs to include the costs consequent upon the employment of counsel.”

 

We intimated that reasons would follow.  These are the reasons.

 

[6]    In paragraph 5 of his founding affidavit the appellant made a material averment to which there is no acceptable answer that whilst processing the appeal he received correspondence, annexure “AB1”, through his attorneys from the respondents’ Board of Directors, requesting that the matter be held in abeyance whilst the parties pursued settlement negotiations as well as pending feedback from the board of directors regarding the negotiations.  I attach considerable weight to the following uncontroverted averments of the appellant in particular:-

 

“I understood the contents [of annexure “AB1”] to

mean that the respondents were implementing the

recommendations of the Supreme Court of Appeal

that the matter be settled.”

 

[7]    Indeed in Stanlib Swaziland (Pty) Ltd and others v Abel Sibandze, Appeal No. 65/2009 delivered on 30 November 2010 the Supreme Court strongly urged the parties in the present matter to settle their dispute out of court.  In paragraph [38] of its judgment the Supreme Court expressed the point in the following terms:-

 

“[38]   Because of the intensity and multiplicity of the legal proceedings between these protagonists, much heat and ill will have been generated, substantial costs incurred on both sides, and much valuable time, which the appellants could have expended in conducting their business, while the respondent pursued his career, has been irretrievably lost.  If I might venture to express an opinion, it would be that the controversy between these parties might lend itself to a pacific settlement through one of the alternative dispute resolution mechanisms which have proved to be such efficacious substitutes for protracted and costly litigation.  Mediation may any well suggest itself in the context of this case, because of its flexibility which affords the parties the opportunity to contribute substantially towards the achievement of a settlement or agreement satisfactory to both sides.”

 

[8]    It is undoubtedly convenient at this stage to reproduce annexure “AB1” which, as can be seen, decides the matter.  It is on Stanlib’s letterheads and reads as follows:-

 

 

 

 

15th December, 2010

 

Magagula & Hlophe Attorneys

Mbabane

 

Dear Sir,

 

“Without Prejudice”

 

 

LIBERTY LIFE & STANLIB SWAZILAND – ABEL SIBANDZE

 

Reference is made to the above matter.

 

This is to inform you that the Boards of both Liberty Life and Stanlib Swaziland deliberated on the dispute between both companies and your client Mr. Abel Sibandze during their meeting held on December 03, 2010.  The Board has not finalised and reached a conclusion on the matter but will be in a position to inform you on its decision after January 30, 2011.

 

In the interim period we request all parties to put in abeyance any further action pending our feedback to you.

 

Yours faithfully

        

                        (signed)

                   ________________________                  

                   Chairman of the Board

 

                   cc.     Robinson Bertram”  

                                                         

 

[9]    It is not disputed that following the respondents’ request contained in annexure “AB1” the appellant actually instructed his attorneys to hold the matter in abeyance whilst pursuing settlement negotiations.  More importantly, in paragraph 6 of his founding affidavit the appellant averred that he agreed to the respondents’ request to pend further action in the matter, based on the belief that the respondents were acting in pursuance of the recommendation of the Supreme Court of Appeal to have the matter settled.  This material averment was not met issuably or at all.  It must, therefore, be accepted as correct on the authority of Plascon-Evans Paints LTD v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).

 

[10]  I discern the need to digress there to consider the applicable principles which govern applications for postponement.  I observe at once that these were admirably collated by Masuku J(as he then was) in Madeli Fakudze v Swaziland Government and Another, Civil Case No. 2815/01 (unreported).  It cannot be over-emphasised that an application for postponement is an indulgence which lies pre-eminently within the discretion of the court.  It must be stressed, however, that the discretion is not an arbitrary one.  It is a judicial discretion which must be exercised upon a consideration of all the relevant factors including, but not limited to, prejudice.  As was correctly said, in my view, in Myburgh Transport v Botha t/a SA Truck Bodies 1991 (3) SA 310 (A) at 315:-

 

“A court should be slow to refuse a postponement where the true reason for a party’s non-preparedness has been fully explained, where his unreadiness to proceed is not due to delaying tactics and where justice demands that he shouldhave further time for the purpose of presenting his case.”

 

It need hardly be stressed, however, that judicial officers should ordinarily decline to grant postponements of cases unless adequate reasons are advanced. 

 

[11]  Reverting now to the facts of the instant case, it is important at this stage to record the respondents’ defence in the matter.  It is mainly to the effect that annexure “AB1” referred to in paragraphs [6] and [8] above was written on a “without prejudice” basis.  It was contended by Adv Woudstra SC on the respondents’ behalf that the appellant cannot, therefore, rely upon this document in order to place the contents thereof before the court.  I have no hesitation in rejecting this submission as untenable in the circumstances of this case.  Two reasons will suffice, namely:-

 

  1. As Adv Joubert SC for the appellant correctly submitted, in my view, there is no magical power in the words “without prejudice.”   In fitting cases this Court will go behind the veil in order to do justice.   This is  undoubtedly  such  a  case.     In this regard s 11 (1) of the Industrial Relations Act, 2000 bears reference.  It reads as follows:-

 

“11.  (1)  The Court shall not be strictly bound by the rules of evidence or procedure which apply in civil proceedings and may disregard any technical irregularity which does not or is not likely to result in a miscarriage of justice.”

 

(2)  Annexure “AB1” was addressed to the appellant through his attorneys.  It cannot seriously be suggested that he was precluded from acting on its basis.  There was no attempt from the respondents to retract it at any stage.  The result is that the appellant agreed to pend further action in the matter.

 

[12]      It is regrettably an extraordinary feature of this case that the respondents’ attorneys simply failed to respond to correspondence emanating from the appellant’s attorneys.  Thus, for example, on 7 January 2011, the appellant’s attorneys addressed the following letter, annexure “AB4”, to the respondents’ attorneys:-

 

 

 

“07 January 2011

 

Robinson Bertram

Ingcongwane Building

Lot Nos. 44 & 45 Gwamile Street

MBABANE

 

ATTENTION: MR. JELE

 

Dear Sir,

 

RE: STANLIB (SWAZILAND) – LIBERTY LIFE/ABEL SIBANDZE

 

  1. We refer to the above matter.

 

  1. We have been instructed by our client Abel Sibandze that in the early hours of the 07 January 2011 a Deputy Sheriff served upon him a copy of a letter from your offices dated 07thDecember 2010 calling upon him to attend a Disciplinary Enquiry on the 10th January 2011.

 

  1. We are rather taken aback by this sudden turn of events, particularly in light of the contents of the correspondence received by our office from Stanlib Swaziland (Pty) Ltd on the 15thDecember 2010.  The correspondence aforesaid requested the parties to put in abeyance any further action with regard to this matter pending the Board’s final decision on same which decision would be communicated after the 30th January 2011. Acting pursuant to that correspondence our client thereafter acting in good faith suspended all action pending the Board’s decision as requested.

 

  1. It would therefore appear to us that you are now acting on a frolic of your own and without instruction from Stanlib Swaziland (Pty) Ltd  and Liberty Life Swaziland in calling our client to the Disciplinary enquiry contrary to your client’s request that all actions be suspended pending the Board’s decision on the matter.

 

  1. Kindly indicate by the close of business on this the 07th day of January 2011 whether you insist on proceeding with the Disciplinary enquiry on the 10th January 2011 much against the clear instructions of the Board of Directors of Stanlib Swaziland (Pty) Ltd and Liberty Life Swaziland (Pty) Ltd that same be held in abeyance, so that we may in turn advise our client.

 

Yours faithfully,

 

                   (signed)

_____________________________________

                   MAGAGULA & HLOPHE ATTORNEYS

 

Cc:     1.     The Chairman of the Board

                                      Stanlib Swaziland (Pty) Ltd

                                      Fax No:  404 1803

         

                             2.      The Chairman of the Board

                                      Liberty Life Swaziland (Pty) Ltd

                                      Fax No:  404 1803/404 7566

 

 

Enclosed:-

                   1.      Letter from Stanlib Swaziland (Pty) Ltd dated 15th

                             December 2010.

 

                   2.      Letter from Robinson Bertram dated 07th

                             December 2010.

 

              Typically, there was simply no response to that letter.  But, perhaps more startling was the failure by the respondents’ attorneys to deny the damaging allegations that they were acting on a frolic of their own and without instruction from the respondents.

 

[13]       In the light of the foregoing factors the conclusion is, in my view,   inescapable that the respondents created the impression in the appellant’s mind that the appeal would not be proceeded with pending the settlement negotiations between the parties as suggested by the Supreme Court. I consider, therefore, that the appellant’s non-preparedness to proceed with the appeal has been fully explained.  It is clear to me that his unreadiness in these circumstances is not due to delaying tactics.  Justice demands, therefore, that he should have further time for the purpose of presenting his appeal.

 

[14]       In  the result this Court made the order as fully set out in paragraph [5] above.

 

                                                _____________________

                                                M.M. RAMODIBEDI

                                                JUDGE PRESIDENT

 

I agree                                      _____________________________

                                                T.S. MASUKU

                                                ACTING JUSTICE OF APPEAL

                       

I agree                                      _____________________________

                                                M.D. MAMBA

                                                ACTING JUSTICE OF APPEAL

 

For Appellant           :       Adv Z.F. Joubert SC

                                        (with him Mr. Z. Shabangu)

For Respondents      :       Adv H v R Woudstra SC

                                        (with him Mr. N.D. Jele)