IN THE INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE CASE NO.:56/11
In the matter between:
DAVID HLATSHWAKO APPLICANT
SWAZILANDDAIRY BOARD RESPONDENT
N. NKONYANE :JUDGE
DAN MANGO : MEMBER
GILBERT NDZINISA : MEMBER
FOR APPLICANT : L. MZIZI
FOR RESPONDENT : L. MAPHALALA
Applicant claiming payment of severance allowance after resignation in terms of Clause 20.01 of the terms and conditions of service. Respondent alleging that the clause wasamended and Applicant no longer entitled to payment in terms of the new clause. Respondent failing to prove that the clause was amended as provided by Clause 46.01 of the terms and conditions of service. Motion proceedings—competent to institute motion proceedings if there are no disputes of facts foreseeable or where the matter is for determination of a question of law only.
 The Applicant is a former employee of the Respondent. He was employed by the Respondent as a Dairy Development Officer. He resigned from the Respondent’s employment in writing on 02nd September 2010 after having been with the Respondent since 01st June 1996. On his retirement was not paid his severance allowance as per Clause 20.01 of the Respondent’s terms and conditions of employment.
 He wrote a letter to the Respondent through his present Attorneys on 24th November 2010, demanding the payment of the severance allowance. The Respondent in response by letter dated 06th December 2010, told the Applicant that in terms of its policies severance allowance was not payable to an employee whose services terminated through resignation. The applicant has accordingly instituted the present Notice of Motion and is seeking the following orders;
“1. That the Respondent be and is hereby ordered to pay the Applicant a sum of E83,994.95 (Eighty Three Thousand Nine Hundred and Ninety Four Emalangeni ninety five cents) being monies in respect of Applicant’s severance allowance forthwith.
2. That the payment of Applicant’s severance allowance be paid to the Applicant’s attorneys being Lloyd Mzizi Attorneys situated at Office No.1, 1st Floor, Amalgam Building, Gwamile street, Manzini.
3. That the Respondent be and is hereby ordered to pay costs of suit.
4. Granting Applicant further and/ or alternative relief.”
 The Respondent duly filed its Answering Affidavit in opposition and also raised three points in limine, namely that, it was not appropriate for the Applicant to institute motion proceedings as there was a dispute of facts that was foreseeable.
Second; that this court does not have jurisdiction as there was no certificate of unresolved dispute attached.
Third; that the application is materially defective as it was not dated by the deponent and was also not attested before a Commissioner of Oaths.
 The Applicant accordingly filed his Replying Affidavit and addressed the points of law raised. He argued that it was not necessary to refer the matter to CMAC as the court was being asked to determine a point of law, namely, whether the Applicant was entitled to be paid severance allowance. The Applicant denied that there was a dispute of facts as it was common cause that he resigned from the Respondent’s employment, and that in terms of Clause 20.01 of the conditions of employment document he was entitled to severance allowance. On the question of attestation of the Founding Affidavit, he stated that this document was properly attested before a Commissioner of Oaths.
 We agree with the Applicant’s attorney that the question for the court to decide is one of law, namely, whether the severance allowance was payable to the Applicant following his resignation from the Respondent’s employment. There is no requirement for a certificate of unresolved dispute to be annexed to the application if the application is solely for the determination of a question of law. (See: Section 14 (6) (b) of the Rules of this court). The Applicant’s claim is based on Clause 20.01 of the Respondent’s document containing the terms and conditions of service. In terms of this clause, severance allowance is payable when the employee’s service is terminated by resignation. There was therefore no dispute of fact which the Applicant could reasonably foresee as the clause is stated in clear and unambiguous language. The documents that are before the court were properly signed and attested before the Commissioner of Oaths by the Applicant. If at some point the Applicant filed documents that were not properly attested to, and later retrieved those documents, that does not appear on the court’s record. The practice in this court is that when a party is uplifting a document, that process is endorsed on the court’s file. There is no such endorsement on the court’s file. The points of law raised are accordingly dismissed.
 The question for the court to decide is whether the severance was payable to the Applicant following his resignation from the Respondent’s employment. The Applicant’s claim is based on clause 20.01 of the terms and conditions document, Annexure “C” of the Founding Affidavit. That clause provides that;
“When the services of an employee are terminated because of redundancy, retirement, resignation or death, the employee or his estate shall be paid in addition to the benefits accruing at the time of termination, a severance allowance amounting to ten (10) working days’ wages for each completed year in excess of one year that he has been continuously employed with Swaziland Dairy Board.”
There is therefore clearly no doubt that the severance allowance is payable to the Applicant as his services terminated because of resignation on 02nd September 2010.
 The Respondent’s defence is simply that this policy on which the Applicant’s claim is based was amended in November 2009 with the result that clause 20.01 excluded employees who terminate their services to the Respondent by resignation from entitlement to severance allowance. The amended document was, however, not annexed to the respondent’s Answering Affidavit. Leave was sought from the court by the Respondent’s attorney to file further papers and it was granted. The Respondent accordingly filed a Supplementary Affidavit and attached the ‘amended’ policy manual. The Applicant also applied for leave to respond to this affidavit and the leave was granted.
 The Applicant maintained that the policy document containing the terms and conditions of employment at the Respondent’s undertaking was never amended. He argued further that there was no way that he could not have been aware of any amendment as he was a member of the Works Council. He argued that even if there was any amendment to Clause 20.01, such would have been illegal as it would be taking away a benefit from the employees. The burden of proof therefore shifted to the Respondent to prove on a balance of probabilities that Clause 20.01 was amended in November 2009 with the result that it took away the benefit of severance allowance from an employee who resigns.
 The terms and conditions document which came into effect in April 2000, on which the Applicant relies, does have a provision for amendment. Clause 46.01 provides that;
Provided that the employees of Swaziland Dairy Board will have been consulted in the Works Council prior to a decision being made, Swaziland Dairy Board reserves the right to alter, replace, add or affect by way of regulations and directives any or all of the provisions of these terms and conditions of employment or of any of its appendices.”
 The Respondent therefore had a burden to prove that;
There was a consultation of the employees through the Works Council.
It thereafter made a decision to amend Clause 20.01.
There exists a directive or regulation by which it amended clause 20.01
 The respondent is a category A Public Enterprise in terms of the Public Enterprises (Control and Monitoring) Act No.8 of 1989. In terms of Section 10 (i) (e) of this ACT, no category A Public Enterprise should make a major adjustment of terms and conditions of its staff without the approval of the Minister responsible acting in consultation with the Standing Committee. The Respondent failed to prove before the court that the Minister responsible did give a directive amending Clause 20.01 of the terms and conditions of Respondent’s staff. The Respondent attached Annexure “A” of its Supplementary Affidavit as proof that there was a meeting held on 24th November 2009 in which the issue of terminal benefits was discussed. This document however shows that this was a meeting of the Respondent’s Board. Paragraph 2 of the minutes shows that the Board made responses to staff grievances submitted to it on 26th June 2009. On item e) the minutes show the following;
“e) Terminal benefits
Refer to schedule of such provided for entitlements of various terminal benefits.”
 These minutes do not take the Respondent’s case any further because;
12.1 The minutes reveal that the Board was simply responding to staff grievances submitted to it on 26th June 2009. It is unheard of that the staff could have raised the payment of severance allowance, which is a benefit to the employees, as a grievance and ask management to do away with it.
12.2 The minutes of 26th June 2009 were annexed to the Applicant’s Replying Affidavit to the Respondent’s Supplementary Affidavit. The issues that the staff raised in that meeting appear on item 3. There is nowhere on this item where the amendment of Clause 20.01 was raised either by the staff or the management.
 The Respondent failed to produce before the court minutes of any meeting showing that the Board did consult the Works Council and proposed to amend Clause 20.01 of the terms and conditions of employment. Further, the Respondent failed to produce before the court minutes of the meeting in which the Board made the decision to amend Clause 20.01 as envisaged by Clause 46.01. All that was required of the Respondent was to consult the Works Council on the proposed amendment of Clause 20.01. The Respondent did not need to get the consent of the employees. It was only required to consult the employees through their Works Council.
 In terms of Clause 46.01 which deals with amendments, after the Board has consulted the Works Council and made the decision, the Board could then effect the amendment by means of a regulation or a directive. Clause 46.01 is clear that the amendment is made “by way of regulations and directives.” No such regulations and directives were produced in court. There was also no explanation from the Respondent as to why Appendix A, being the Disciplinary Code and Procedure, was also not amended to be in line with the ‘amended’ Clause 20.01. Appendix A, Clause 5 of the Code dealing with terminal benefits still provides that severance allowance is payable to an employee who terminates his services by resignation. The clause provides that;
“5.01 Except where an employee either resigns or retires or is declared redundant, when the services of an employee are terminated according to the provisions of Sections 36 of the Employment Act he shall not be entitled to severance allowance.”
If therefore the argument by the Respondent were to be accepted as correct, it would mean that the policy documents of the Respondent now contain two contradictory provisions.
 Taking into account all the foregoing observations and also all the circumstances of the case, the court will come to the conclusion that the Applicant has proved on a preponderance probabilities that he is entitled to be paid the severance allowance in terms of Clause 20.01 of the terms and conditions of service.
The court will accordingly make an order in terms of prayers 1, 2 and 3 of the Notice of Motion.
The members agree.
JUDGE OF THE INDUSTRIAL COURT