IN THE INDUSTRIAL COURT OF SWAZILAND
CASE NO. 23/13
In the matter between
VIKINDUKU DLAMINI APPLICANT
SWANNEPHA 1ST RESPONDENT
THEMBI NKAMBULE 2ND RESPONDENT
VUSI NXUMALO 3RD RESPONDENT
Neutral citation: Vikinduku Dlamini V Swanepha/Thembi Nkambule/Vusi Nxumalo (23/2013)  SZIC 24 (August 2013)
CORAM: D. MAZIBUKO
(Sitting with A. Nkambule & M.T.E. Mtetwa) (Members of the Court)
Heard : 20 June 2013
Delivered : 31st July 2013
Urgent application – requirement of Rule 15 (1) and (2) mandatory. Failure to comply with the rule is fatal to the application.
Contempt proceedings – a party who alleges that the other party is in breach of a Court Order must prove existence of that Court Order.
1. The Applicant, Mr Vikinduku Dlamini has filed three (3) sets of urgent applications before this court between January to June 2013. The first urgent application was filed on the 30th January 2013. The Applicant asked for relief as follows:
(1) Dispersing with the Rules of this Honourable Court as relate to form or procedures, service and the time limits condoning the Applicant’s non-compliance with the Rules of this Honourable Court and enrolling this matter as one of urgency.
(2) Pending finalisation of this application, the Respondents be restrained and interdicted from proceeding with the Applicant’s ongoing disciplinary hearing.
(3) That the 2nd Respondent forthwith dispatches to the Registrar of this Honourable Court a record of the proceedings of the Applicant’s disciplinary hearing sought to be corrected or set aside together with such reasons as she is by law required, or desires, to give or make and to notify the Applicant that she has done so.
(4) That the 2nd Respondent be and is hereby removed from acting as Chairperson in the ongoing Disciplinary hearing of the Applicant.
(5) That the 1st Respondent be and is hereby ordered to appoint a new Chairperson for the disciplinary hearing of the Applicant.
(6) That the disciplinary hearing of the Applicant begin de novo under the Chairperson to be appointed under prayer 5 above.
(7) The 2nd Respondent’s Ruling of 9th January 2012 be reviewed and corrected or set aside.
(8) In the event of the 2nd Respondent not being removed as Chairperson of the Applicant’s disciplinary hearing, she be directed to reconsider the evidence led in the hearing and submissions made by the parties on such directions as this Honourable Court deems fit before reaching her final decision.
(9) Granting costs of the application on the scale as between attorney and own client against the Respondents.”
2. The 1st Respondent in the 1st urgent application is SWANNEPHA, a non- governmental organization with power to sue and be sued. The 1st Respondent was sued herein as the Applicant’s employer.
The 2nd Respondent is Mary Da Silva who was cited in here official capacity as the chairperson of an ongoing disciplinary hearing which had been instituted by the 1st Respondent as employer, against the Applicant as employee.
3. The Applicant approached the Court to challenge a specific disciplinary hearing which was chaired by Mary Da Silva. That hearing had began about 28th November 2012 and was ongoing at the time the Applicant moved his 1st urgent application – on the 31st January 2013.
4. When the matter was called, the 1st Respondent indicated before Court that they needed time to file opposing papers. It then became clear to the Applicant that the matter would not proceed that day (the 31st January 2013) as the Applicant had anticipated. The Court indicated that justice required that both parties be given time to file their papers before the matter is heard. Each side was given dates within which to file. It was at that point that the Applicant expressed his apprehension that the 1st and the 2nd Respondents may proceed with the disciplinary hearing to finalization before his urgent application is heard and finalized in Court. There was no order interdicting the 1st and the 2nd Respondents from so doing. In the event that the Respondents proceeded with the disciplinary hearing, the Applicant’s matter before Court would be rendered nugatory-since the Applicant is challenging certain irregularities in that disciplinary hearing.
5.The Applicant then asked the Court for an order interdicting and restraining the 1st and 2nd Respondent from proceeding with the ongoing disciplinary hearing pending finalization of the urgent application. The 1st and 2nd Respondent’s agreed to stay that disciplinary hearing pending finalization of the application. The Court was also of the view that the Applicant’s request was fair and reasonable taking into consideration prayer 2 in the Notice of Motion. The Court exercised its discretion in favour of the Applicant. In particular the Court ordered that the ongoing disciplinary hearing be stayed pending finalization of the application.
6. After the aforementioned order was granted there was a delay on the parties in filing the necessary papers in preparation for argument. An important document that was outstanding was the transcript of the disciplinary hearing. This is the hearing which the Court had ordered that it be stayed from proceeding pending finalization of the urgent application. Several postponements of the matter were allowed at the request of the parties. After the parties had filed that transcript and the requisite affidavits, the Court referred that matter to the Registrar of the Court for allocating a date for argument. The Registrar dully allocated the 20th June 2013 for argument.
7. About the 15th March 2013 the Applicant filed a 2nd urgent application before Court in this instance, SWANNEPHA (the employer) was the only Respondent that had been cited. The Applicant asked for relief as follows;
“ 1. Dispersing with the Rules of this Honourable Court as relate to from or procedure, service and time limits, condoning the Applicant’s non compliance with the Rules of this Honourable Court and enrolling this matter as one of urgency.
2. Directing the Respondent to pay the Applicant’s February 2013 salary forthwith, such sum to include the following benefits:
2.1 Basic Salary;
2.2 Housing Allowance;
2.3 Cell phone allowance;
2.5 Medical aid;
2.6 Swaziland National Provident Fund contribution.
3. Directing the Respondent to henceforth deposit the Applicant’s salaries inclusive of the benefits referred to in prayers 2.2 through to 2.6 above for the current and forthcoming months (during the subsistence of the contract of employment between the parties) in the Applicant’s Standard Bank Account No. 0140570217801, not later that the 25th day of the said months.
4. Directing the Respondent to pay the Applicant forthwith the equivalent of one month’s salary as his 13th cheque.
5. Directing the Respondent to pay the Applicant E7 500.00 (Seven Thousand Five Hundred Emalangeni) in arrear cellphone allowance for the months October 2012 to February 2013.
6. Directing the Respondent to pay the Applicant’s costs in these proceedings at attorney –and –client scale.
7.Granting the Applicant any further or alternative relief.”
8. The Respondent filed papers in opposition. The matter was argued. The Applicant was substantially successful in the 2nd application. The following prayers were granted ; 1,2-2.6 ( subject to certain modification ), 4 and 5. A copy of the Court order in the 2nd urgent application is attached to the Applicants affidavit marked annexure VMD 7. The details regarding the 2nd application are not necessary for the purpose of the matter before Court. The Court will not spend any more time on the 2nd application.
9. About the 17th June 2013 the applicant filed a 3rd urgent application before Court. The Applicant cited SWANNEPA together with a certain Thembi Nkambule and Vusi Nxumalo as the 1st , 2nd and 3rd, Respondents respectively. The Applicant prayed for relief as follows;
“(1). Dispersing with the Rules of this Honourable Court as relate to form or procedures, service and time limits, condoning the Applicant’s non-compliance with the Rules of this Honourable Court and enrolling this matter as one of urgency.
2. Pending finalization of these proceedings, the decision of the 1st Respondent of 7th June 2013 terminating the Applicants contract of employment with the 1st Respondent is set aside.
3. Pending finalization of these proceedings, the Respondents are restrained and interdicted from embarking on a recruitment process of a Finance Manager during the subsistence of the contract of employment between the Applicant and the 1st Respondent.
4. Pending finalization of these proceedings, the 1st Respondent should not be heard, alternatively its defence under the pending Industrial Court case Number 23/2013 be struck out if the 1st Respondent does not purge its contempt forthwith.
5. A Rule Nisi do hereby issue calling upon the Respondents to show cause on or before Monday , 17th June 2013 why;
5.1 The orders referred to in prayers 2,3 and 4 should not be made final.
5.2The Respondents should not disclose the names of the 1st Respondent’s Governing body and that, having been so disclosed, why they should not be joined as Respondents in these proceedings.
5.3 The 2nd Respondent as the Principal Executive Officer of the 1st Respondent and the 3rd and other Respondents so joined as members of the 1st Respondent’s governing [body] today should not be committed to prison for a period of not less that thirty (30) days for contempt of the order of this Honourable Court granted on 31st January 2013.
6.The Respondents pay the Applicant’s costs at attorney-and- client scale.
7. Granting the Applicant such further and/or alternative relief as this Hounourable Court may deem expedient.”
10. The 2nd Respondent, a certain Thembi Nkambule is an executive director of the 1st Respondent. The 3rd Respondent a certain Vusi Nxumalo is a member of the 1st Respondent’s board of directors. The matter was opposed both on the merits and on points of law. All three (3) Respondents filed answering affidavits. The Applicant, through his counsel, chose not to file a replying affidavit.
11. According to the Applicant, he was notified by the 1st Respondent on the 7th June 2013, to collect his letter from their office. Upon receipt of that letter the Applicant noticed that it summarily terminated its services with the 1st Respondent. The letter is attached to the Applicant’s founding affidavit marked exhibit VMD 2. The letter reads as follows:
“ NOTICE OF TERMINATION
EMPLOYEE : VIKINDUKU DLAMINI
DATE : 07 JUNE 2013
REASONS FOR TERMINATION
1. SUMMARY DISMISSAL
3. MEDICAL INCAPACITY
Please be advised that your services have been terminated and your last day of work will [be] the 07th June 2013.
You have the right to appeal against the dismissal to the National Executive Committee within 5 working days.
P. Nkambule 07/06/2013
12. Upon receipt of the letter of dismissal the Applicant’s a counsel (Mr Dlamini) wrote to the 1st Respondent’s counsel ( Mr Bhembe) to complain about the dismissal and the manner it was executed. The Applicant’s letter is marked VMD 3. The Applicant raised several issues in his letter which he repeated in his affidavit. In particular the following issues were raised in that letter (VMD 3);
12.1 The dismissal is a violation of the order of Court of the 31st January 2013. That Court order stays further disciplinary action against the Applicant.
12.2 The dismissal was unfair in that it is not preceded by a disciplinary hearing. Employees are protected by law against unfair dismissal. The absence of a disciplinary hearing accordingly renders the subsequent dismissal unfair.
12.3 The Respondents are in contempt of the Court order of the 31st January 2013 in that they proceeded to dismiss the Applicant from work in violation of the said order. As a result of that contemptuous conduct the Respondents must be committed to prison for a period of time until they purge their contempt.
12.4 The dismissal is also unfair for the reason that the Applicant was not given a chance to mitigate the sanction. Mitigation should be allowed before a sanction is issued. The 1st Respondent’s failure to give the Applicant a chance to mitigate rendered the dismissal irregular and unfair.
12.5 The dismissal has resulted in a termination of the Applicant’s salary and other work related benefits. The Applicant suffers serious prejudice due to financial loss caused by the dismissal. The Applicant cannot meet his financial obligations as a result of the sudden loss of salary.
13. The Respondent’s counsel wrote a letter to the Applicant’s counsel which is dated 11th June 2013 and is marked annexure VMD 4. This letter was in response to annexure VMD 3, aforementioned. The issues raised in annexure VMD 4 were also repeated by the Respondents in their affidavits, namely;
13.1 The Applicant was not dismissed on the basis of the matter that is pending in Court. Instead he was dismissed for other offences which included poor work performance and incompetence.
13.2 The 1st Respondent denied that they acted in contempt of the Court order in the manner they dismissed the Applicant. There is no order restraining them from dismissing the Applicant for poor work performance and / or incompetence . The 1st Respondent accordingly denied that they have breached an order of Court in the manner they executed the dismissal. As employer, they acted within their rights to dismiss their employee for breach of workplace rules.
13.4 The Applicant was invited to challenge the dismissal by filing an internal appeal to the 1st Respondents National Executive Committee within five (5) days from the date of dismissal. The purpose of the appeal was to give the Applicant a chance to challenge the irregularities which allegedly exist in the dismissal.
13.5 The Applicant was further advised that he could challenge the dismissal by filing his claim through the Commission for Mediation, Arbitration and Conciliation (established in terms of the Industrial relations Act No. 1 of 2000 as amended) hereinafter referred to as CMAC.
14. It is apposite at this stage to examine the order which this Court issued on the 31st January 2013. The Court was asked by the Applicant to restrain the 1st and 2nd Respondents from proceeding with a particular disciplinary hearing which at that time was ongoing. It is that disciplinary hearing specifically, that was stayed by the Court.
15. The Court did not interdict or stay any future disciplinary hearing or action that may be instituted by the 1st Respondent against the Applicant. The Court did not interfere with the 1st Respondent’s right and duty to discipline its employee ( Applicant) for any infraction of the workplace rule that might occur in the future.
16. On the 31st January 2013 there was one matter before Court, viz the ongoing disciplinary hearing which was chaired by Mary Da Silva. The Court could not and did not concern itself with matters that were not before it. The dismissal of the Applicant which took place on the 7th June 2013, is not a continuation of the disciplinary action which was stayed by the Court. There is not indication on the Applicant’s affidavit that the offenses which the Applicant was facing at the disciplinary hearing before Mary Da Silva, are the same as those for which he was dismissed.
17. The 1st Respondent has stated in its affidavit that the Applicant was dismissed for offences which are unrelated to the charges he was facing at the disciplinary hearing before Mary Da Silva.
The 1st Respondent stated further that the Applicant was dismissed for poor work performance and incompetence. The affidavit of the 1st Respondent reads as follows on this issue;
“I humbly submit that the Respondent and myself have not violated the order of the above Honourable Court of the 31st January 2013. The applicant was not dismissed on the basis of the matter that is pending before Court under case No23/2013. The applicant was dismissed based on charges relating to poor work performance and or incompetency. Neither myself nor the other Respondents are in contempt of the above Honourable Court.
(record page 61 paragraph 12)
The Applicant did not challenge this allegation. He is accordingly taken to have admitted it. As aforementioned , the Applicant through his counsel stated in open court that he will not file a replying affidavit. He saw no need to file it.
18. The disciplinary charges which the Applicant was facing at the hearing before Mary Da Silva read as follows;
1.1 MISCONDUCT: in or about 3rd September, 2012 and at a staff meeting you made allegations that the Director of SWANNEPHA misappropriates and embezzles the organization’s funds; thereby tarnishing the reputation and good name of both the Director and the organization.
1.2 MISCONDUCT: in that on or about the September, 2012 you made allegations to one Dumisani Hlatjwako, a supplier of the organization, that the Director of the organization misappropriates and embezzles the organizations funds; thereby tarnishing the reputation and good name of both the Director and the organization.
2. Charge 2
MISCONDUCT: in that on or about the 3rd September, 2012 you divulged confident information to one Njabu, Phesheya both employees of PACT, a donor of the organization and made serious allegations to the effect that the Director of the Organization misappropriates and embezzles the organization’s funds; thereby tarnishing the reputation and name of the Organization and that of the Director into disrepute”
(Record of the 1st urgent application pages 46-47)
19. Incompetency and poor work performance are not amoung the charges which the Applicant was facing at the disciplinary hearing before Mary Da Silva. The 1st Respondent was therefore neither restrained nor interdicted from taking disciplinary action against its employee (Applicant) on the charges of incompetency and /or poor work performance. The Applicant is aware of this fact since he has expressed it in a letter from his counsel to the 1st Respondent’s counsel. The letter is dated 12th June 2013 and is marked VMD 6. An extract of paragraph 3 of annexure VMD 6 reads thus;
“3. To the extent that your client alleges that our client’s services were terminated because of poor work performance and/or incompetency, we are curious to know why this did not form part of the disciplinary enquiry which commenced at the end of November 2012 against our client who has been suspended by your client since September 2012.”
(underlining added )
(Record page 36)
The Applicant confirms in annexure VMD 6 that two (2) disciplinary charges namely; poor performance and incompetency were not among the disciplinary charges which the Applicant was facing at the disciplinary hearing before Mary Da Silva.
20. In the Applicant’s Notice of Motion as well as affidavit,
there is no prayer or even mention of future disciplinary action which the 1st Respondent may institute against the Applicant. The Court could not make an order regarding a matter that is not before Court, especially a matter that is speculative.
20.1 Since the issue of future disciplinary action was not before Court , the Court did not apply its mind to it . The Court did not and would not make an order on a matter without applying its mind on the facts and the law relating to that matter. Instead, the Court confined itself to an existing disciplinary action which was ongoing and presided over by Mary Da Silva.
20.2 Neither of the parties was given a chance to address the Court on the possibility of a future disciplinary action which the 1st Respondent may or not take against the Applicant. The Court did not make an order affecting the rights of the other party viz the 1st Respondent, without giving them a hearing.
21. The Applicant has introduced annexure VMD 1 into Court , which he alleged is a transcript of the Court order of the 31st January 2013. Annexure VMD 1 reads as follows;
“IN THE INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE ON THURSDAY THE 31ST DAY OF JANUARY 2013 BEFORE THE HONOURABLE D. MAZIBUKO, JUDGE OF THE INDUSTRIAL COURT SITTING WITH NOMINATED MEMBERS.
CASE NO. 23/13
In the matter between
VIKINDUKU DLAMINI APPLICANT
SWANNEPHA 1ST RESPONDENT
MARY DA SILVA 2ND RESPONDENT
WHEREUPON:Having heard counsel for both the Applicant and Respondents,
IT IS ORDER THAT further disciplinary action by the Respondents against the Applicant is stayed pending finalization of the matter.
BY ORDER OF THE COURT GIVEN UNDER MY HAND AT MBABANE ON THE 11TH DAY OF JUNE 2013.
REGISTRAR – INDUSTRIAL COURT- MBABANE”.
22. Annexure VMD1 is not the Order which this Court issued on the 31st January 2013 or at all, though it was presented as such by the Applicant. This annexure is incorrect and misleading in the manner it is drafted. It gives a wrong impression that the Court granted a stay of future disciplinary action which the 1st Respondent may take against the Applicant, when in fact that is not the case. It was only the on going disciplinary action that was presided over by Mary Da Silva which was stayed by the Court.
23. The Respondents’ counsel mentioned in Court in the course of the proceedings that annexure VMD 1 was drafted by the Applicant and brought to the Registrar of Court for signature. That meant that the Registrar is not the author of annexure VMD 1. The Applicant’s counsel did not deny this statement.
24. The Registrar works with attorneys on a daily basis. It is normal in that situation for an element of trust to develop between the Registrar and the attorneys. Annexure VMD 1 is skillfully drafted to give an impression that it contains the Court order of the 31st January 2013. It takes a close examination to notice the irregularity in the wording of VMD 1. It is fair for the Court to conclude that the Registrar believed that annexure VMD 1 has correctly captured the Court Order and proceeded to sign the document under that genuine but mistaken belief. The Registrar does not make Court orders, her duty is to process the orders which the Court has issued.
The fact that annexure VMD 1 is signed by the Registrar does not make it a written Court Order in the absence of an actual order by the Court. A document that is signed and stamped by the Registrar in error, should be set aside when that error is discovered
25. The Court order of the 31st January 2013, was based on the notice of motion which was then before Court - particularly prayer 2 therein. Prayer 2 has been reproduced in paragraph 1 above. A fair and proper transcript of the Court order should then read as follows, or words to that effect;
It is ordered that the Applicant’s on going disciplinary hearing that is before Mary Da Silva is hereby stayed pending finalisation of the matter.
26. A glaring omission in annexure VMD 1 is that the disciplinary hearing whose continuation has been stayed by the Court is on going before Mary Da Silva. An irregular inclusion in the annexure, is the word “further” since it distorts the content of the Court order. Annexure VMD 1 is couched in terms that are general and very generous to the Applicant, yet the Court issued a specific order relating to a particular disciplinary hearing. Accordingly, the Court declares annexure VMD 1 to be an irregular document. The Applicant is aware of the effect this phrase has in this context; ongoing disciplinary proceedings- since he has correctly used that phrase in his affidavit before Court.
27. In paragraph 8 of his affidavit, the Applicant stated the following;
“On 30th January 2013 I instituted proceedings under Industrial Court Case Number 23/13 against the 1st Respondent and a certain Mary Da Silva in her capacity as chairperson of then ongoing disciplinary proceedings against me. In the said proceedings I sought the following relief”.
(Record page 12)
The Applicant is correct in stating (on affidavit ) that on the 30th January 2013, he filed a Court application to challenge on going disciplinary proceedings which was before Mary Da Silva. The Respondent also confirms this to be the case. The Court was therefore dealing with a disciplinary hearing that was already in process on the 31st January 2013, not one that may or may not be instituted by the employer in the future.
28. The preceding quotation clearly indicates that the Applicant was aware, especially at the time of drafting and presenting annexure VMD 1 for signature, that the Court order stayed an on going disciplinary hearing which was before Mary Da Silva. It is not clear to the Court why was this critical phrase omitted when drafting annexure VMD 1, yet it has a decisive importance in the success or failure of VMD 1.
It is also not clear why the word “further” was inserted in annexure VMD 1 since its presence clearly distorts the tenor and spirit of the Court order.
29. When the matter came before Court it was brought under a certificate of urgency. The Applicant informed the Court in his certificate as well as affidavit that an order of Court had been breached by the Respondents. The matter was accordingly enrolled as urgent on that basis, in terms of prayer 1 of the notice of motion. However, upon reading the papers filed and hearing arguments from both Counsel it became clear to the Court that actually the order that the Court granted had not been breached. It further became clear to the Court that the remaining prayers namely 2 – 7 are predicated on a wrong conclusion that annexure VMD 1 is an order of Court. Annexure VMD 1 has already been declared by Court to be an irregular document. It follows therefore that the remaining prayers should also fail.
30. Though the Court order was granted on the 31st January 2013, annexure VMD 1 was presented to the Registrar for signature on the 11th June 2013. This much is common cause between the parties. The Registrar’s office stamp on annexure VMD 1 also bears the date 11th June 2013. That means that annexure VMD 1 was presented to the Registrar for signature about four (4) days after the Applicant had been dismissed.
31. Between the 7th and 11th June 2013, the parties exchanged correspondence in which they disagreed on two issues,
namely the legality of the dismissal and the correct wording of the Court order of the 31st January 2013. The letters are marked annexures VMD 3 ,4 and 6 and have been mentioned above. Annexure VMD 1 was therefore drafted (by the Applicant) with the knowledge of the dispute that had reason between the parties regarding the correct wording of the Court order. It is not clear to the Court why was the Registrar not alerted to that dispute at the time she was made to sign annexure VMD 1. Had the Registrar been so alerted, she would have had a chance to verify the correct wording of the Court order before signing VMD 1. The conclusion is inescapable that the Applicant engineered the drafting and signing of annexure VMD 1 in order to give himself an order to which he was not entitled.
32. The dismissal took the Applicant by surprise. It was not foreseeable, and as such had not been provided for in the application of the 31st January 2013. The Applicant felt the need to get instant relief against the dismissal. The Applicant had an option of taking the matter to trial, but decided against this option since it would not give him instant relief. The Applicant deiced to manipulate the drafting of annexure VMD 1 in order to give himself immunity against dismissal, in an irregular manner.
33. The Applicant has attacked the dismissal from another angle. According to the Applicant the dismissal is unfair because it was not preceded by a disciplinary enquiry. The dismissal has therefore his constitutional right to a hearing . In paragraph 23-24 of his affidavit states as follows;
“Secondly, there was an attempt to distance my purported dismissal from the matter pending before Court under case Number 23/12. However and even if the said dismissal could be distinguished from the issues under Case Number 23/13, the said dismissal would be patently unfair because it was not preceded by a disciplinary enquiry or hearing. The 1st Respondent [‘s] conduct violated the cluster of constitutional rights to a fair hearing .
24. It cannot have been the intention of the legislature to set up elaborate processes preceding the ultimate sanction of dismissal if employers would be allowed to dismiss employees at whim. I also have a constitutional right not to be dismissed unfairly or subjected to victimization and unfair treatment as set out in Section 32 (4) (d)
[of the constitution of the Kingdom of Swaziland Act No.1 of 2005]”
34. A third attack on the dismissal is based on the premise that the dismissal would result in a financial prejudice to the Applicant. The dismissal has the effect of depriving the Applicant his monthly salary plus work related benefits. Without payment of a salary, the Applicant would not be able to pay his monthly sustenance and would also fail to pay his creditors. The Applicant’s evidence reads as follows in this point;
“39. This matter is urgent by virtue of the fact that my livelihood is dependant on the 1st Respondent meeting its financial obligations towards me as spelt out in the Court order of 15th March 2013. If the 1st Respondent was allowed to continue with its unlawful conduct, this would leave me without a job in the face of numerous financial obligations in respect of accommodation, my car, a personal loan at First Finance (a financial service provider) a cell phone contract, maintenance of my wife and kids as well as my old sickly parents.
40. As it is, payday (25th June) is looming and, taking into account the right of the 1st Respondent to be heard, it might mean that the 25th June 2013 will pass before this matter is finalized and I will not be afforded substantial redress at a hearing in due course”.
(Record pages 21-22)
35. Another argument which the Applicant raised was that the dismissal will ruin his reputation, if not immediately addressed. He will have to carry the stigma of being dismissed until the dismissal is determined in a trial, in the future.
36. The Industrial Relations Act No.1/2000 ( as amended) enjoins a litigant who intends to set aside his dismissal to approach the Court for determination of his dispute, armed with a certificate of unresolved dispute. That means that the Applicant is required to follow the alternative dispute resolution mechanism provided for in part viii of the Act.
The Commission for Mediation, Arbitration and Conciliation (CMAC) is mandated by the Act to attempt to resolve a dispute that has been reported to it by one of the parties. In the event that CMAC fails to resolve that dispute, it is directed by the Act to issue a certificate as aforementioned. It is at that point that either of the parties can refer the dispute to Court for determination.
37. In terms of rule 15 (1) of The Industrial Court Rules 2007, the Court has a discretion to waive part viii of the Act in an urgent matter. However, a litigant who seeks to approach the Court in terms of rule 15 has to meticulously follow the mandatory requirements of the rule. The rule provides as follows;
“15 (1) A party that applies for urgent relief shall file an application that so far as possible complies with the requirement of rule (14)
(2) The affidavit in support of the application shall set
(a) the circumstances and reasons which render the matter urgent;
(b) the reasons why the provisions of part viii of the Act should be waived; and
(c) the reasons why the applicant cannot be afforded substantial relief at a hearing in due course.
(3) On good cause shown, the court may direct that a matter be e heard as one of urgency”
38. The onus is on the Applicant to demonstrate with evidence that his matter has met the requirements of rule 15 (1) and (2). Failure to satisfy the requirement of rule 15 (1) and (2) would mean that the mater is not urgent. The Applicant would then have to report his dispute to CMAC in accordance with part viii of the Act, and follows the procedure stated therein until a certificate is issued.
39. One of the reasons the Applicant has advanced for urgency, is that the dismissal has caused him financial inconvenience as a result of loss of salary and work related benefits. He is no longer able to meet his financial obligations. Financial inconvenience (also known as economic hardship) is a normal consequence of loss of employment. Every person who has lost employment will suffer loss of salary and/or benefits . If loss of salary and/or benefits is a ground for urgency, that would mean that every person who has been dismissed from work should bypass part viii of the Act and approach the Court by way of urgency- to challenge the dismissal. That thinking would defeat the purpose and spirit of the Act. The Act was established inter alia, to provide a cheaper, simpler and speedy resolution of disputes between employer and employee, and to ease the congestion of cases that are pending trial before the Court. The reason advanced by the Applicant viz financial inconvenience (economic hardship) is not a ground for urgency.
40. Secondly, the Applicant complained that the dismissal is unfair since it was not proceeded by a disciplinary hearing. The Applicant has however failed to demonstrate to the Court why he believes he cannot be afforded a substantial relief at a hearing in due course. In terms of Section 16 of the Act, the Court has wide remedial powers in the event that it finds the dismissal unfair. The Court’s remedial powers include an order for reinstatement, re-engagement and payment of compensation. The Court is not satisfied that the requirements of rule 15 (1) and (2) have been met. The Applicant can be afforded substantial redress in the hearing in due course
41. The Applicant argued further that if his dismissal is not set aside urgently, he will have to;
“ carry the stigma of being dismissed until at least 2017 at the earliest when this Honourable Court would be in a position to vindicate me in a trial”
(Record page 22 paragraph 42)
41.1 It is not clear to the Court how the Applicant arrived at the conclusion that if he were to report the dismissal under part viii of the Act, the earliest date available for trial would be in the year 2017. Trial dates are allocated by the Registrar to matters that are ready for trial.
A litigant who is looking for an early trial date is expected to exercise diligence in reporting the dismissal in the correct forum and file his claim in Court and further take the necessary steps to get the matter ready for trial. Therefore a lack of diligence on part of the litigant will necessarily result in a delay in finalizing his matter in Court
41.2 It is not clear what the Applicant means when he states that he will have to carry the stigma of being dismissed. If there is a stigma that is attached to a dismissed person, then all other persons who have been dismissed can insist on being heard on an urgent basis to avoid carrying that stigma as alleged by the Applicant. Every dismissal will therefore be labelled urgent. There would be no need for a dismissed person to report his dispute to CMAC for resolution. The Applicant has failed to show how is he different from any other person who has been dismissed from work.
42. In the circumstances the Court finds that the Applicant has failed to show;
42.3 How is he different from any other employee who has been dismissed,
42.4 Why does he believe he cannot be afforded substantial relief in due course.
42.5 The reason why part viii of the Act should be waived.
43. The Applicant has accordingly failed to show good cause to have his matter enrolled on an urgency basis. Failure to satisfy the mandatory requirement of rule 15 (1) and (2) is fatal to an application for urgent enrolment. The Applicant’s prayer to have his dismissal claim heard on an urgent basis therefore fails for reasons aforementioned.
44. At this stage the Court is not concerned with the merits of the dismissal. The merits will be dealt with when the matter is properly enrolled before Court. At this stage the Court is concerned with whether the application should be heard urgently or it should follow the normal route as provided for in the Act and the rules. The Court accordingly directs the Applicant to report his dispute in terms of part viii of the Act.
The above are the reasons this Court issued an ex tempore order on the day 20th June 2013. The Court ordered as follows;
(a) The application is dismissed.
(b)Each party is to pay its costs
Applicant’s Attorney: Mr C. Bhembe
Bhembe & Nyoni Attorneys
Respondent’s Attorney: Mr S. Dlamini
Magagula Hlophe Attorneys