IN THE INDUSTRIAL COURT OF ESWATINI
Case No. 542/09
In the matter between:
RALEIGH FITKIN MEMORIAL HOSPITAL Applicant
JOSIAH MKHATSHWA Respondent
RALEIGH FITKIN MEMORIAL HOSPITAL Appellant
JOSIAH MKHATSHWA Respondent
Neutral citation: Raleigh Fitkin Memorial Hospital v Josiah Mkhatshwa (542/2009)  SZIC 44 (05 June 2018)
Coram: NSIBANDE S. JP
(Sitting with Nominated Members of the Court Mr. N. Manana and Mr. M. Dlamini)
Heard: 23 May 2018
Delivered: 05 June 2018
 The applicant filed an urgent application seeking an order in the following terms:-
1.1 that the applicant is condoned for non-compliance with the time limits and the manner of service and this matter be enrolled and heard as one of urgency.
1.1.1 that a rule nisi is hereby issued calling upon the respondent to show cause on a date to be decided by the court, why and (sic) Order in the following terms should not be made final:
1.1.2 that the respondent be and is hereby directed to stay the execution of the judgment issued under the above case number pending finalization of this application.
1.2.2 the execution of the judgment handed down on the 9th March 2018 is hereby stayed pending finalization of the appeal noted by the applicant to the Industrial Court of appeal under Case No. 5/2018.
1.3 that pending the finalization of this matter prayer 1.2.1 is to operate with interim and immediate effect.
1.4 the applicant is awarded costs of this application only in the event the matter is unsuccessfully opposed.
1.5 the applicant be granted further and/or alternative relief.
 The application is opposed and the respondent has filed its answering affidavit to which the applicant has replied. In his answering affidavit the applicant raises three (3) points in limine namely lack of prospects success, lapsing of the appeal and lack of urgency.
 We will start with the point on urgency. The respondent submitted that the urgency was self-created in that the judgment sought to be stayed was granted on 9th March 2008 and the applicant noted an appeal on 14th March 2018. The application to stay the execution of the judgment was filed on 18th May 2018 without an attempt by the applicant to explain what had occasioned the delay in filing the application. The court was referred to the case of Swaziland Electricity Board v Colile Dlamini IC Case No. 105/05 the application for a stay in execution was dismissed because there was a delay in bringing the application.
Applicant’s submission was that the issue of urgency was academic because all affidavits had already been filed. It was submitted that the point taken was academic since the respondent had not been prejudiced with regard to filing his opposing papers. The case of Swaziland Electricity Board v Colile Dlamini (supra) was said to be distinguishable because the SEB had approached the court upon receipt of the writ and not earlier. In this case it was submitted, the application has been made before the writ has issued. The respondent himself, has delayed in enforcing his judgment and is therefore not prejudiced by the delay.
What the applicant conveniently ignores is that the rules of this court demand that a party wishing to be heard urgently must set forth explicitly in his affidavit:
(a) the circumstances that render the matter urgent; (b) the reason why the provisions of part VIII of the Act should be waived; and (c) the reason why the applicant cannot be afforded substantial relief at a hearing in due course. It also ignores that it is for the Court to direct, on good cause shown, that the matter is to be heard as one of urgency. That is, whether the respondent has filed its papers in terms of the abridged time frames given by applicant, it is for the court at its discretion to decide that good cause has been shown for the matter to be treated as an urgent one and to have the matter so enrolled.
 The applicant stated that the matter is urgent because (a) the court has issued a judgment which the respondent may execute at any time, that once the judgment has been executed it will not be possible to recover money paid the respondent; that if applicant were to follow the normal or ordinary time limits and manner of service any order that this Honorable Court makes will only be academic; and that applicant cannot get adequate relief under part VIII of the Act in that CMAC is unable to stay the execution of a judgment of this court.
The applicant does not take the Court into its confidence to explain why it has taken it 2 months or so to seek a stay of the judgment. No does it adequately explain why it cannot be granted substantial relief at a hearing in due course save to say that any judgment of this court would be tendered academic. However, the respondent has not sought to enforce his judgement and it appears that the applicant has approached the court at its own volition not being pushed by a writ that has issued.
We find that the applicant has shown any good cause for this matter to be enrolled as one or urgency.
 Lapse of Appeal – Respondents submitted that there was no appeal pending before the Industrial Court of Appeal because the applicant had failed to file record of proceedings within the timelines provided for in the Rules. The Court was referred to Rule 21(4) of the Industrial Court of Appeal Rules which reads; “Subject to Rule 16(1) if an appellant fails to note an appeal or to submit or to resubmit the record for certification within the time provided by this Rule, the appeal shall be deemed to have been abandoned.”
It seemed common cause between the parties that the applicant had submitted the record of proceedings late and that it had not applied for condonation for late filing. Applicants submission was that this point was for the Industrial Court of Appeal to decide and not for this court. We disagree. The applicant has approached this court to stay the execution of its judgment. It alleges there is an appeal pending before the Industrial Court of Appeal. In terms of the quoted Rule, it appears there is no appeal pending before the Industrial Court of Appeal since the appeal shall be deemed to have been abandoned. This court in considering a stay of execution application is expected to consider among other things “the prospects of success on appeal including the question as to whether the appeal is frivolous or relations or has been noted not with the bona fide intention of seeking to reverse the judgment but for some indirect purpose to gain time or harass the other party.” In this matter the applicant filed its appeal within a week of the judgment on 14th March 2018. The record was filed two months after the noting of the appeal and out of time in terms of Industrial Court of Appeal Rules. In its application, no explanation is given of the failure to timeously file the record. Nor is any explanation given for the cavalier attitude towards same or even towards the application for a stay.
 This leads us to the issue of prospects of success. The applicant basis its appeal on two grounds “(i) that the Court a quo erred in law in holding that the respondent had not committed any act of insubordination; and
(ii) that the Court a quo erred in law in holding that the Respondent’s dismissed was procedurally and substantively unfair in that it was common cause that he abandoned the hearing voluntarily and the Chairperson returned a guilty verdict.”
It appears to us that applicant’s grounds of appeal are based on an attack on the Court a quo’s factual findings and not on questions of law as directed by Section 19(1) of the Industrial Relations Act 2000 as amended.
While we find the Applicant’s prospects of success dim and the answer to the question whether there is in fact an appeal pending before the Industrial Court of Appeal tilting towards the negative, it is our view that perhaps the Industrial Court is the proper forum for these issues to be ventilated, particularly so since the applicant is still within its rights to seek condonation for the late filing of the record.
 What remain now is the issue of prejudice if the application is not granted. Applicant complains that if payment is made to the respondent and its appeal is successful, it is likely to suffer irreparable harm in that respondent will be unable to repay the sums paid to him whereas he will suffer no prejudice, if he succeeds because the applicant has the capacity to pay the judgment debt should the appeal succeed.
Phyllis Ntshalintshali V Small Enterprise Development Company IC Case No. 88/2004.
The Court has the duty of balancing the interests of both litigants. While our view is that the applicant’s case is precarious, the equity jurisdiction of this court charges us with the duty to protect both parties. On this basis we shall make the following order:
- The application for a stay in execution succeeds;
- The applicant is however ordered to open an interest-bearing account into which the judgment amount is to be deposited; the full details of the said account must be shared with the Respondents attorneys within 14 days of this ruling.
- The contents of that account including the interest earned therein will be for the benefit of the party successful at the appeal;
- No order as to costs.
The members agree.
PRESIDENT OF THE INDUSTRIAL COURT
For the Applicant: Mr. Z. Magagula
For the Respondent: Mr. S. Madzinane