IN THE SUPREME COURT OF SWAZILAND
HELD AT MBABANE CIVILAPPEAL CASE NO: 41/10
In the matter between:
THE ROYAL SWAZILAND SUGAR APPELLANT
ZENA GUMEDZE RESPONDENT
CORAM: EBRAHIM, JA
FARLAM, JA M.C.B. MAPHALALA, JA
FOR APPELLANT Advocate D. Smith
Instructed by Attorney
FOR RESPONDENT Attorney L. Howe
HEARD ON 8th, 18thand 23rdNOVEMBER 2011
DELIVERED 30THNOVEMBER 2011
Civil Appeal – Exclusivity of Jurisdiction of the Industrial Court on labour matters – Proper interpretation of Section 8 (1) of the Industrial Relations Act of 2000 – Application for rescission of Summary Judgment and effect of granting order – matter remitted to the court a quo – Respondent granted leave to defend main action –costs will follow the result.
M.C.B. MAPHALALA J.A.
 The appellant instituted an action in the court a quo against the respondent on the 22nd January 2010 under Civil Case No. 157/2010 for an order evicting the respondent and any other person holding and/or occupying House No. M23 Hlanganani Village at Mhlume Sugar Estate in the Lubombo District; the appellant further sought orders for payment of arrear rental in the sum of E6 300.00 (Six thousand three hundred emalangeni), interest at the rate of 9% per annum a tempore morae as well as costs of suit. The appellant further sought an order that the police be ordered to assist the Deputy Sheriff in giving effect to the eviction order; it also sought further and/or alternative relief.
 The appellant alleged that it concluded a Lease Agreement with the respondent in respect of House No. M23 Hlanganani Village at Mhlume Sugar Estate.
 The appellant further alleged that it was in lawful possession of three farms in the Lubombo District being Farm No. 1044, Portion B of Farm No. 704 and Farm No. 1244; that the said farms comprise of Simunye Sugar Estate, Ngomane Estate, Tshaneni Estate and Mhlume Estate which all form part of the Royal Swaziland Sugar Corporation Limited. The appellant further alleged that it was in lawful possession of these farms by virtue of a registered Notarial Deed of Lease concluded between the Swazi Nation and itself.
 The appellant alleged that in terms of clause 4 of the Notarial Deed of Lease it was entitled at its own discretion and at its own costs to establish, alter, demolish and replace on the leased premises factories, buildings, houses, roads, irrigation canals and generally any structure or infrastructure necessary for its operations. It further alleged that by virtue of the said notarial lease it established sugar mills, factories and houses on the estate inclusive of house No. M23 Hlanganani Central Village at Mhlume Sugar Estate.
 The appellant alleged that the respondent applied in writing to lease House No. M23 for which monthly rentals were payable. The appellant attached to the Combined Summons Annexure “RSSC2” being an application form completed and signed by the respondent on the 29th May 2009; the application was for a rental accommodation and it is headed “RSSC House Application Form”. The application was received by the Appellant on the 29th May 2009. Annexure “RSSC3” is attached to the Combined Summons, being a letter written by the Appellant on the 1st June 2009 and addressed to the Respondent. The letter is headed “Application for Accommodation - Teachers” and it is signed by Faith B. Motsa, the Community Services Development Manager employed by the appellant.
 The letter acknowledged receipt of the application for a house. The letter further stated the following:
“….In a spirit of co-operation we forward herewith a coy of a lease agreement (in duplicate) that you are required to sign and return one copy to the Education Manager together with proof of payment of the rental amount of E700.00 and the deposit amount as stipulated in the lease agreement by 1500 hours on Thursday the 4thJune 2009. Please note that payment should be made at RSSC pay office and the G L Code for the rental payment is S315 – G – (H) HCA07.
If we do not receive payment by Thursday 4thJune 2009 at 3pm we will handover the matter to our Attorneys to institute legal proceedings for your eviction from the house.”
 The appellant alleged that the respondent was already in occupation of the house when she made the application. The appellant further alleged that the respondent has failed to return the signed Lease Agreement but continues to occupy the house; and that her occupation of the house is unlawful because she is failing to pay the rental of E700.00 (Seven hundred emalangeni) per month, the required deposit as well as the arrear rental.
 On the 10th February 2010 the respondent filed a Notice of Intention to defend the action instituted by the appellant. In turn the appellant issued a Notice of Application for Summary Judgment on the 16th March 2010; it was served on the respondent’s attorney on the 2nd March 2010. The respondent did not file an Affidavit Resisting Summary Judgment. The court a quo granted an order for summary judgment on the 19th March 2010 evicting the respondent and any other person holding and/or occupying House No. M23 Hlanganani Village at Mhlume Sugar Estate, payment of arrear rental in the sum of E6 300.00 (Six thousand three hundred emalangeni) as well as interest at the rate of 9% per annum a tempore morae. Subsequently, the appellant issued a Writ of Execution in respect of the arrear rental, attached her movable property and further evicted her from the premises.
 On the 26th March 2010 the respondent filed an urgent application against the appellant for the following relief: First, staying the execution of the order granted by the court on the 19th March 2010 and the return of the respondent’s property as well as granting her occupation of the house pending finalization of the proceedings; secondly, setting aside and/or rescinding the Order of Court granted on the 19th March 2010 at the instance of the appellant, and further granting the respondent leave to defend the main action. The respondent further sought an order for costs of suit as well as an alternative relief.
 In her Founding Affidavit the respondent stated the reason why she did not file her Affidavit Resisting Summary Judgment prior to the hearing and why she did not appear in court during the hearing of the Application for Summary Judgment. She submitted that her Attorney did appear in court with the Affidavit Resisting Summary Judgment in terms of a Motion Court Roll issued by the Registrar of the High Court on the 18th March 2010. According to the Roll the matter was to be heard at the Mbabane Magistrate is Court Building where a judge of the High Court usually sits due to a shortage of court rooms at the High Court; when he arrived in that court, he was informed that a second motion court roll was subsequently issued by the Registrar of the High Court for the matter to be heard at the High Court, which is more than a kilometre away. The Attorney found that the court had already granted the Order for Summary Judgment.
 She argued that the court a quo does not have jurisdiction to hear the matter for three reasons: First, that the matter relates to her contract of employment since the “housing” was a benefit given to her when she was employed together with other benefits due to her such as electricity, natural gas for her cooking stove, subsidised electricity, education fees for her children at the school as well as their transportation to school; secondly, that the appellant was relying on a lease agreement which was not stamped, and that this lease could not be used in support of the order sought; thirdly, that there is a non-joinder of the government in light of the Tripartite Agreement it concluded with the appellant and the school.
 She further argued that she was employed by the government and posted to Mhlume High School, a government-aided school on the 19th March 2008; and, that during her interview, she was advised that the benefits mentioned in the preceding paragraphs accrued to her by virtue of being a teacher at the school, and, that the benefits were part of her contract of employment in terms of the Tripartite Agreement.
 The Respondent denied concluding the Lease Agreement with the appellant and further denied that she was occupying the house unlawfully; she argued that the house was part of the benefits accruing to her in terms of her contract of employment. She also argued that sometime in 2010 the appellant threatened her and the other teachers with eviction from their houses if they did not sign the “house application form”; she argued that she understood the application form to be a mere expression of interest in the house. However, the application form on the face of it clearly states that it is a “house application form” and that the application is to rent a house for which monthly rental shall be payable in advance by the first day of each month.
 The respondent’s attorney Professor Dlamini filed a Confirmatory Affidavit to the Founding Affidavit explaining his non-appearance in court during the hearing of the Application for Summary Judgment. The appellant does not dispute that the Registrar issued two conflicting Motion Court Rolls as alleged by the respondent; it is also not in dispute that the respondent’s attorney was not present in court when the Application for Summary Judgment was granted.
 The appellant argued that the respondent does not have a bona fide defence to the action on the basis that she is not an employee of the appellant and that there is no contract of employment between them. The appellant further argued that the respondent was employed by the Swaziland government which posted her to Mhlume High School; and that in the absence of a contract of employment between the parties, the High Court is seized with jurisdiction to hear and determine the matter since it does not fall within the exclusive jurisdiction of the Industrial Court.
 The appellant also argued that it was not a party to the Tripartite Agreement contained in Annexure “ZG5”; and, that the Agreement was between Inyoni Yami Swaziland Irrigation Scheme (IYSIS), the School Committees of Tshaneni and Thunzini Community Primary Schools as well as the Government of Swaziland represented by the Ministry of Education. To that extent, the appellant argued that it was not bound by the Tripartite Agreement, and, that it was merely discharging its social responsibility by providing certain subsidised services to the teachers. The appellant denied offering the house to the respondent as a benefit; and, it further argued that the respondent applied to lease the house as reflected in the Application Form.
 The Respondent filed a Replying Affidavit in which she referred to Annexure “ZG7”, being a Memorandum of Agreement concluded on the 2nd November 1990 between Mhlume Sugar Company, the Ministry of Education as well as the School Committees of Mhlume Primary and High Schools. The Agreement is a Management Agreement in terms of which the company is responsible for the maintenance of the school buildings and teachers’ houses; the appellant is also given the privilege to select Headteachers and teachers in consultation with the Teaching Service Commission, and further provide the schools with all the necessary teaching equipment and services in consultation with the Ministry of Education. However, it is the Government that employs these teachers and not the appellant.
 Clause 2 of Annexure “ZG7” further states that the Ministry of Education will provide financial assistance to ensure the continued maintenance and development of education facilities in the schools including the full costs of employing the necessary compliment of staff for the two schools, the provision of housing for staff, the costs of running the schools as well as the maintenance of school buildings and staff housing.
 Clause 3 of Annexure “ZG7” provides that the Ministry of Education will continue to exercise overall control of the schools through the Regional Education Office for the Lubombo District. Most importantly, it provides that the relationship between the Ministry and the schools will be the same as that with other grant-aided schools; this provision invokes Annexure “ZG6” which provides with regard to Teachers’ Accommodation that the “Royal Swaziland Sugar Corporation would award schools with houses to own and any needs thereafter the schools will rent”.
 The respondent referred to Annexures “ZG6” and “ZG7” to support her contention that she was entitled to free housing as part of her terms and conditions of employment.
 It is common cause that the court a quo granted an interim order that the respondent be granted occupation of the house and that her household effects be returned to her pending the finalization of the matter; it was further ordered that the appellant and respondent should file their Answering and Replying Affidavits on the 30th March 2010 and 31st March 2010 respectively, and that the matter should proceed on the 7th April 2010.
 On the 19th August 2010 the court a quo heard submissions on what it referred to as the “Point in Limine”, whether or not the court is seized with jurisdiction to hear and determine the main action. It is common cause that the issue of the jurisdiction of the court was raised by the respondent in her Application for Rescission of Summary Judgment as part of her defence to the eviction for arrear rental. At paragraph 17 of her Founding Affidavit, she states that she has a bona fide defence to the main action for eviction; in paragraphs 18-21 she states that her defence is that she was allocated the house by the appellant as part of her terms and conditions of employment, and at no costs to her. As part of her defence, she argued at paragraph 18.1 that “the above Honourable Court does not have jurisdiction to hear the matter because it relates to her contract of employment since the housing was a benefit given to her when she was employed”.
 At paragraph 4 of her judgment delivered on the 19th August 2010 Justice Mabuza said the following:
“Before the application for rescission can be heard and concluded, the applicant has raised a point in limine that this court has no jurisdiction to hear and determine this matter because it falls within the exclusive jurisdiction of the Industrial Court in that it deals with her contract of employment. The house, she argues, was a benefit given to her when she was employed.”
 The learned judge proceeded to deal not only with the so-called “Point in Limine” but with the merits of the Rescission Application. At paragraph 9 of the judgment, the learned judge states the following:
“It is not clear how she has occupied the house for so long without disturbance until now. Her non-disturbance fortifies her argument that house M23 was part of her employment benefits from the Ministry of Education her employer in agreement with the First Respondent. This is further fortified by the Memorandum of Agreement entered into between the Ministry of Education and the First Respondent dated 2ndNovember 1990, which agreement is annexed to the applicant’s replying affidavit as ‘ZG7’.”
 At paragraph 10 of her judgment, the learned judge further delved into the merits and stated the following:
“As Mhlume High School is a grant-aided school, clearly the occupation of house M23 by the applicant was facilitated by the Ministry of Education and the First Respondent in terms of the aforementioned Memorandum of Agreement; thereby making the use of house M23 a benefit to her as part of her employment package.”
The Learned Judge made a further finding on the merits at paragraph 12 of her judgment:
“The ejectment of the applicant from house M23 raises a dispute over her terms and conditions of employment; it is only the Industrial Court that can adjudicate upon this dispute having been given exclusive jurisdiction in such matters in terms of section 8 (1) of the Industrial Relations Act. It is the Industrial Court which can aptly determine why the applicant who is employed by the Ministry of Education resides in a house owned by the First Respondent in order to teach in a school built by the First Respondent but grant-aided by the Ministry of Education….
In the event I uphold the point in limine raised in respect of the lack of jurisdiction of this court herein with costs.”
 The court a quo misdirected itself when it dealt with the issue of jurisdiction of the court independently of the application for rescission. It was incumbent upon the court to deal with the so-called “Point in Limine” as part of the “bona fide defence” raised by the respondent in the application for rescission. Rule 32 (11) provides that any judgment given against a party who does not appear at the hearing of the application for Summary Judgment may be set aside or varied by the court on such terms as it thinks just.
 This court appreciates that the court a quo had already granted an interim order for a stay of execution pending finalization of the application for rescission of judgment; hence, it was imperative that the court decides the said application and not the so-called “Point in Limine”. If the court a quo was satisfied that the Summary Judgment should be rescinded in terms of Rule 32 (11), then it would set aside the Summary Judgment granted on the 19th March 2010 and further grant leave to the Respondent to defend the main action. The court a quo was not at liberty to make a final and definitive decision on the so-called “Point in Limine” and to deal with the matter as if the merits of the trial were serving before the court and on which it had to make a decision. As stated in the preceding paragraphs, the co-called “Point in limine” should only have been taken into account by the court a quo in determining whether or not a bona fide defence to the main action had been established; this would in turn determine whether or not the Order for Summary Judgment should be set aside. However, the court a quo misdirected itself and dealt with the merits of the main action and made a final decision.
 In the circumstances the order granted by the court a quo is set aside and it is substituted with the following order:
The Respondent is given leave to defend the main action.
Costs will follow the result.
DELIVERED IN OPEN COURT ON 30TH NOVEMBER 2011.
JUSTICE OF APPEAL
I agree: A.M. EBRAHIM
JUSTICE OF APPEAL
I agree: I.G. FARLAM JUSTICE OF APPEAL