Malaza v Mkhomati Transport (191/2016) [2017] SZIC 103 (27 March 2018);

                                   

 

 

IN THE INDUSTRIAL COURT OF SWAZILAND

 

Case No. 191/16

 

In the matter between:

 

 

DUMSANI MALAZA                                                         APPLICANT

 

And

 

BONANI NSIBANDZE T/A                                              RESPONDENT

MKHOMATI TRANSPORT

 

 

Neutral citation:        Dumsani Malaza v Bonani Nsibandze t/a Mkhomati

                                  Transport (191/2016) [2017]  SZIC 103 ( October 12, 2017)

 

 

Coram:                      N.Nkonyane J,

                                  (Sitting with G. Ndzinisa and S. Mvubu Nominated

                                  Members of the Court)

 

 

      Heard Submissions :                 04 October 2017

 

 Delivered Ruling :                             12 October 2017

 

 

 

 

 

SUMMARY---Labour Law ---Referral of dispute to arbitration---Factors to be taken into account---Complexity or otherwise of the legal and factual issues raised in the pleadings---Convenience to the parties---Speedy dispensation of justice.

 

Held---There are no complex legal and factual issues involved, the dispute therefore lends itself amenable to be referred to arbitration under the auspices of CMAC.

 

 

 

 

 

 

RULING ON APPLICATION FOR REFERRAL TO ARBITRATION

12.10.17

 

 

 

[1]     The Applicant was employed by the Respondent as a driver in February 2009.  He was dismissed by the Respondent on 02^nd February 2016.  The Applicant did not accept the dismissal and he reported the matter to CMAC as a dispute.

 

 

[2]     The dispute could not be resolved by conciliation and the Commission issued a certificate of unresolved dispute.  The Applicant thereafter filed an application for determination of the unresolved dispute.  The Respondent filed its reply in opposition thereto. The matter was thereafter referred to the Registrar’s Office for allocation of trial dates.

 

[3]     The matter has not yet been allocated trial dates despite it having been referred to the Registrar’s office for the allocation of trial dates on 12^th July 2016.  The Applicant has now filed the present application and is praying for an order that the dispute be referred to arbitration under the auspices of CMAC.  From the Court record there is nothing that indicates that the application is opposed as there is no answering affidavit.

 

[4]     The Applicant has stated the reasons in support of the application in his founding affidavit.  He stated that the dispute between the parties is not a complex one and that it can be easily dealt with by an arbitrator.

 

 

[5]     The President has a discretion in such applications.  In exercising the discretion the President considers, inter alia;

         

          5.1     The nature of the dispute.

          5.2     The nature of the legal and factual issues arising from the

 pleadings of the parties.

          5.3     The amount of the total claim involved.

          5.4     Whether the Respondent will suffer any prejudice if the dispute

 were to be referred to compulsory arbitration.

 

[6]     It is also an undisputed fact that there is a huge backlog of cases in this Court.  However, the Legislature in its wisdom has established alternative dispute resolution mechanisms.  There will therefore be no reason why a deserving dispute should not be diverted from the strict Court processes and be allowed to be dealt with by the less formal alternative dispute resolution mechanisms established by the laws of the country.

 

[7]     I have perused the pleadings filed of record.  My assessment is that there are no complex legal and factual issues raised that would require the formal and robust procedures of the Court in determination of the dispute.  It is my view, therefore, that there will be no prejudice on the Respondent if the dispute were referred to arbitration.

 

[8]     Taking into account all the foregoing factors, I come to the conclusion that the current dispute is amenable to determination by arbitration. I therefore make the following order;

         

a)     The dispute is referred to arbitration under the auspices of CMAC.

b)    There is no order as to costs.

 

 

 

                _______________

N. NKONYANE

ACTING PRESIDENT OF THE INDUSTRIAL COURT OF SWAZILAND

 

 

FOR APPLICANT:         MR. M. MBONANE         

                                          (LABOUR LAW CONSULTANT)

                                                                                  

FOR RESPONDENT:      NO APPEARANCE