Ngwenya v Eswatini Wire & Others (89/2020) [2020] SZIC 82 (03 July 2020);

 

 

IN THE INDUSTRIAL COURT OF ESWATINI  

 

                    Case No. 89/20

In the matter between:    

JIMMY NGWENYA                      Applicant

And

ESWATINI WIRE INDUSTRIES        1st  Respondent

COMMISSIONER OF LABOUR            2nd  Respondent

ATTORNEY GENERAL                          3rd Respondent

 

Neutral citation: Jimmy Ngwenya v Eswatini Wire and 2 Others [2020] (89/2020) SZIC 82 (03 July 2020)

Coram:  MANZINI AJ

(Sitting with Nominated Members of the Court Mr. E.L.B Dlamini and Mr. D.P.M. Mmango)

 

Heard:  19 June 2020

Delivered:  03 July 2020

 

Summary:  The Applicant instituted an urgent application, seeking to interdict the Respondent from effecting a scheduled retirement of the Applicant pending a medical report. 

Held: Points in limine upheld.  The requirements of a final interdict not met by the Applicant.

 

RULING  

 

[1]  The Applicant is Jimmy Ngwenya, an adult Swazi male of the Manzini Region, instituted the present proceedings on a certificate of urgency for an order in the following terms:-

 

“1. Dispensing with the normal forms of service and time limits provided by the Rules of this Honourable Court and hearing this matter urgently in terms of Rule 15 of the Rules of this Court;

 

1.  Interdicting and restraining the 1st Respondent from the scheduled retirements of the Applicant pending a medical report;

 

1.  Granting the Applicant any further and/or alternative relief;

 

1. Costs of this application.”

 

 

[2] The 1st Respondent is Eswatini Wire Industries, a company duly registered in terms of the Companies Act of Eswatini.Its principal place of business is at the Matsapha Industrial Site.

 

[3] The 2nd Respondent is the Commissioner of Labour whose office is situated at the InterMinisterial Building, Link Road, Mbabane.

 

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To this end the Attorney for the 1st Respondent prayed that the Court dismiss the application with costs.

 

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9.1.1 Indeed the Applicant’s representative argued that 1st Respondent had come to Court with dirty hands because it proceeded to effect the retirement notwithstanding the existence of the Rule Nisi, an order which they were served with.It was the contention of the Applicant’s representative that the Applicant became aware of monies deposited into his bank account by the Employer, and went as far as to enquire what these funds were for.Accordingly to the Applicant’s representative, the employer informed the Applicant that he was officially retired, and the sums deposited in his bank account were his terminal benefits.

9.2 That the Applicant’s application does not meet the requirements of an interdict.The Applicant’s representative made no bones about conceding to this point.It was conceded by the Applicant in his Replying Affidavit (on page 36 of the Book of Pleadings), that indeed these requirements were not met.The Applicant however pointed out that it had already been granted interim relief in the form of the Rule Nisi.The Applicant’s representative admitted that this party had the option of instituting contempt of Court proceedings against the 1st Respondent after the retirement was effected inspite of the Rule Nisi, but opted not to do so as it was more interested in forestalling the retirement, which was illegally effected.It was argued that the option of going to CMAC to institute unfair dismissal was also not taken because, this party is more interested in getting an interdict to prevent this illegal retirement from being effected.

 

[10] THE FINDING OF THE COURT

1.  

 

10.2 That the requirements of an interdict have not been met:

The judgement of Innes J.A. in Setlogela v Setlogelo 1914 AD 221 provides clarity regarding the three requirements of a final interdict, and these stand as follows:-

1. Clear right
2. An act of interference
3. No other remedy.

 

Unlike an interim interdict, a final interdict is granted for the purpose of effecting a permanent cessation of an unlawful course of action, or state of affairs (See Apleni v Minister of Law and Order and Others 1989(1) SA 195 (A).)  The position of the law is that for the grant of such an order, all these three requirements must be present (See Sanachem (Pty) Ltd v Farmers Agri-Care (Pty) Ltd and Others 1995 (2) SA 781 (A) at 788 -790 (c)).

 

10.2.1  According to the Learned Author, Prest CB (Supra), the injury that the remedy is sought to curb with must be a continuing  one, because the Court cannot a grant an interdict restraining an act already committed (page 44).  The Applicant in casu has the option of approaching CMAC to report an unfair termination of his employment contract.  The core of the remedy sought herein is that it is a drastic remedy, and it is one that is used as a last resort (See SMAWU and 3 Others v Swaziland Poultry Processors (Pty) Ltd, IC Case No. 487/12 para 5.3.  This point of law is also upheld.

 

[11]  The 1st Respondent prayed that the application be dismissed with costs.  The Court will not grant the order of costs because the 1st Respondent proceeded to effect the retirement of the Applicant herein inspite of a Rule Nisi interdicting it from doing so pending a medical report.  This Honourable Court cannot countenance this blatant disregard of an order made by this very Court.

 

[12]  Taking into account all the factors and circumstances of this case, the Court makes the following order:

 (a)  The application is dismissed.

         (b)  There is no order as to costs.

 

The Members agree.

 

 

K. MANZINI

ACTING JUDGE OF THE INDUSTRIAL COURT

 

For the Applicant:   Mr M. Dlamini (Labour Law Consultant)  

         For the Respondents:       Mr S. Maseko (S.M. Attorneys)