Shongwe v OK Bazzars (77/2013) [2019] SZLC 13 (20 February 2019);

IN THE INDUSTRIAL COURT OF ESWATINI

                                                                                          CASE NO. 77/2013

In the matter between:-

 

SANDILE SHONGWE                                                                             Applicant

 

And

 

OK BAZAARS                                                                                Respondent

 

 

Neutral Citation:   Sandile Shongwe vs OK Bazzars (77/2013) [2019] SZLC 13 (February 22, 2019)

                               

Coram:                   Sipho Madzinane – Acting Judge

                               (Sitting with D.P. Mmango and Ms. N. Dlamini – Nominated

                                Members of the Court)

 

 

Date heard            :         05/02/2019

 

Delivered              :         20/02/2019

 

 

 

 

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J U D G E M E N T

 

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1.       The Applicant launched proceedings for determination of unresolved dispute against the Respondent.  The Applicant’s case is predicated on the grounds of unfair labour practice in that Respondent demoted him from his position of being a none Food General Assistant to that of Till Packer without any notification nor agreement.  Applicant contends that the new position to which he was demoted has resulted in less favourable terms as he is working less hours and thereby his salary is reduced.

 

2.       The Respondent filed replies to the Applicant’s application for unresolved dispute.  In its replies, Respondent denied that it has committed any unfair labour practice on the Applicant and that it demoted Applicant.

 

3.       Respondent averred that it employed Applicant as a permanent part timer in that he is remunerated at hourly rate not on a monthly basis.    Accumulated hours are paid on fortnight basis.  The number of hours worked determine the amount to be paid to the Applicant.

 

4.       Respondent further averred in its replies that Applicant is allocated various different tasks as he is employed in a position of General Assistant.   Applicant works a period of not less than 104 hours per month but same depends on tasks allocated.

 

5.       Applicant, upon receipt of the Respondent’s replies, filed a replication wherein he now challenged the validity of his employment contract.

 

6.       It was against this development that Respondent filed a notice to strike out as irregular and irrelevant paragraphs of the replication.

 

7.       The Court notes that the Court allocated a date of arguments of this point on the 04th October 2013 but for some reason the matter was not argued on that day.  Further, on the date of argument of the matter before this Court like on the day of the allocation of the date of arguments, the Applicant’s representative did not appear in Court. In view of the delay caused by the non – appearance of the Applicant’s representative, this Court found it prudent and in the interest of justice to hear arguments of the Respondent. The Court has considered the heads of argument filed on behalf of the Applicant.

 

8.       On the day of argument, Mr Shabangu implored the Court to consider both the exception and the notice to strike out. According to Mr Shabangu, the heads of argument for a strike out are good enough to take care of the exception also.

 

9.       On perusal of the court record, it appears that the exception which was filed by the respondent was overtaken by events. It was filed on the 12th March 2013 to the application for determination of unresolved dispute. On the 20th March 2013, his Lordship Justice T. Dlamini, heard the parties and granted leave to the applicant to file a proper application on the 21st March 2013. Pursuant to the court’s ruling, the applicant filed its amended application for determination of unresolved dispute on the 20th March 2013.

 

          Accordingly, at this stage, there is no exception to be determined by this Honourable Court.  The only issue outstanding for determination at this stage is the notice to strike out.   Respondent filed its replies to the amended application on the 04th April 2013.   Applicant thereafter filed its replication.

 

10.     Following the filing of the replication by the Applicant, Respondent filed a notice to strike out certain paragraphs of the replication on the basis that the Applicant has introduced a new matter which was not part of the grounds founding the Applicant’s claims i.e. that the contract of employment entered into between the parties is null and void,  that the contract is not in compliance the with Regulations of Wages of 2012 in the industry and that the contract referred to by Respondent is unlawful in as much as it is not in compliance with section 27 of the Employment Act of 1980.

 

11.     Firstly, this Court, on perusal of the application for determination of unresolved dispute, notes that the Applicant did not raise the issue of a contract of employment being unlawful and / or being null and void. He simply complained of demotion which was allegedly affecting him. There is no reference to the Regulations of Wages of 2012 of the Industry or of violation of Section 27 of the Employment Act.

 

12.     According to Hebstein and Van Winsen (1997) The Civil Practice at the Supreme Court of South Africa, 4th ed  at page 651;

                                     

          “ When the objection goes to the root of the entire claim or defence, the proper procedure is exception , whereas a notice to strike out is usually appropriate when a portion of a claim or defence is objected to.”

 

                   At page 661 the celebrated author went on to state as follows;

 

“ … The replication may introduce new allegations where there are called for by a plea, such as a confession and avoidance or estoppel, but the plaintiff may not in the replication introduce a fresh claim or new cause of action or increase the amount of the claim…”.

 

                   See also Rule 23 of the Rules of the High Court of Swaziland.

 

12.     It is the Court’s finding that the issue of a contract of employment allegedly being unlawful, Regulation of Wages of 2017 and violation of Section 27 of the Employment Act are mentioned for the first time in the Applicant’s replication.  At this stage, the Respondent will be prejudiced in its defence as it will not have opportunity to file its replies to those issues.

 

13.     This Court notes that the Applicant‘s remedy   given the cause of action or of demotion and allegedly unfair labour practice, lies in Section 26 of the Employment Act of 1980. 

 

14.     Accordingly, the Court will grant the application for striking out paragraph 2,3,5,6,7 and 11 of the Applicant’s replication.  This Court has not been addressed on whether or not the Applicant is still employed by the

          Respondent.  Nonetheless on reading of the application, it appears Applicant at least at the time of commencement of the matter, was still employed by Respondent.  Accordingly, this Court would not like to strain the relationship further by granting costs and as such there will be no order as to costs.

 

14.     The members agree.

 

          Dated at Mbabane on this day of  20 February 2019.

 

 

 

 

S. L.MADZINANE

JUDGE OF THE INDUSTRIAL COURT OF ESWATINI

 

For Applicant:No appearance

                                      

 

 

For Respondent:Zweli Shabangu

(Magagula HlopheAttorneys)