Msibi v Zwane & Another

IN THE INDUSTRIAL COURT OF SWAZILAND

HELD AT MBABANE                                                                                     CASE NO. 17 /2003

In the matter between:

PROMISE MSIBI                                                                                           APPLICANT

And

BEN M. ZWANE                                                                                            1^ST RESPONDENT

SWAZILAND GOVERNMENT                                                                     2^ND RESPONDENT

In re:

BEN M. ZWANE                                                                                            APPLICANT

And

SWAZILAND GOVERNMENT                                                                     1^ST RESPONDENT

CORAM:

N.NKONYANE                                                           : ACTING JUDGE

D.MANGO                                                                  : MEMBER

G. NDZINISA                                                  : MEMBER

L R. MAMBA                                                          : FOR APPLICANT

P. R. DUNSEITH                                                        : FOR 1^ST RESPONDENT

L.DLAMINI                                                                 : FOR 2^ND RESPONDENT

_______________________________________________________________________________________

The matter came before the court on a certificate of urgency on the 10^th May 2004. On that day the parties agreed that it be postponed until the 13^th May 2004 to allow the 1^stRespondent to file its Answering Affidavits and that the matter be argued on that day. The 2^nd Respondent indicated to the court that it was taking a neutral position in the matter. On the 13^th May 2004 the Applicant had also filed its Replying Affidavit and a Notice to Amend. The matter proceeded to be argued on the merits on the 13^th May 2004. The court will therefore not make a ruling on the question of urgency. It will now make a ruling based on the merits of the application. The Applicant is seeking an order in the following terms:

(a)             Dispensing with the ordinary time limits for service and hearing this matter urgently.

(b) Staying execution of the court order of the above Honourable Court granted on the 4^th May 2004 under Case No. 17/03 pending the finalization of this matter.

(c)             Declaring that the Applicant is entitled to continue in the position of Controlling Officer in the House of Parliament pending the outcome of the proceedings referred to in paragraphs (d) and (e) below.

(d)             Rescinding and setting aside the order of the above Honourable Court granted on the 4^th May 2004.

(e) Granting the Applicant leave to intervene in the proceedings under Case No. 17/2003 as 2^nd Respondent.

(t)              Awarding costs of this application against anyone of the Respondents who opposes this application.

(g)             Granting further and/or alternative relief.

On the 10^thMay 2004 the court made an order that the status quo is to remain until the matter is finalized by the court.

The main issues in this application are contained in prayers (d) and (e). The Applicant is asking the court to rescind its judgement of the 4^th May 2004 and is also asking the court to grant it the leave to intervene in those proceedings. It was argued on behalf of the Applicant that he had the right to be joined as he had an interest in the matter and that his rights were going to be prejudiced by the court order. The 1^stRespondent's attorney argued to the contrary that the Applicant had no right to be joined as he had no legal interest in the subject matter of the proceedings. It was argued on behalf of the 1^stRespondent that the Applicant had not shown that he has a direct and substantial interest and not merely a financial interest. The court was referred to the cases of United Watch & Diamond Co (Pty) Ltd and Others v Disa Hotels Ltd and Another 1972(4) SA 409 and that of Kinekor Films (Pty) Ltd v Drive -In Home Movies 1976 (2) S.A. 87.

The first case is authority that a mere financial interest is not enough to entitle one to ask to be joined in the proceedings. The second case addressed the issue of when must a party seek to be joined. It was pointed out in that case that a party who wishes to be joined must apply at the earliest opportunity. The Applicant argued that the Applicant was a necessary party and referred the court to the case of Wistyn Enterprises (pty) Ltd v Levi Straus & Co. and Another 1986 (4) and to Herbstein and Van Winsen - "The Civil Practice of the Supreme Court of South Africa 1977, 4^thedition pages 170-180". The Wistyn case dealt with the issue of what constitutes a direct and substantial interest. Numerous cases were referred to in that case including the case of United Watch & Diamond Co. already referred to in this matter and the case of Amalgamated Engineering Union v Minister of Labour 1949 (3) S.A. 637. After having reviewed all the

cases listed in the Wistyn case, Ackermann J, made the following observations at page 801 paragraph G: “Reference to all the cases in which these principles have been applied would serve no useful purpose. Each case depends on its own facts and in particular the precise nature of the interest of the person sought to be joined in the relief sought in the proceedings”

From these observations of the Learned Judge, it is clear to the court that a practical approach should be adopted in this matter in deciding whether or not the third party should have been joined. Herbstein and Van Winsten at page 170 state the following:

"If a third party has, or may have, a direct and substantial interest in any order the court might make in the proceedings or if such an order cannot be sustained or carried into effect without prejudicing that party, he is a necessary party and would be joined in the proceedings unless the court is satisfied that he has waived his right to be joined Such a person is entitled to demand as of right that he be joined as a party and cannot be required to establish in addition that

it is equitable or convenient that he should be joined as a third party. ................ "

It has already been pointed out that a practical approach should be adopted in this matter. Although the court found in the main action that the transfer of the 1 st Respondent was null and void because the provisions of the Civil Service Board (General) Regulations Act No. 16 of 1973 were not followed, in the meantime the Applicant had been appointed to fill the position of the 1^stRespondent. The court will therefore come to the conclusion that the Applicant was going to be prejudiced by the order declaring the transfer null and void. The effect of the order was that the 1^stRespondent immediately resumed his position

as Clerk to Parliament, whereas that position was then being occupied by the Applicant.

That however is one part of the answer to the question of joiner. The second inquiry that the court must make is whether the Applicant waived his right to be joined. In paragraph 7 of the Founding Affidavit the Applicant admits that he was aware of the litigation between the parties. He says however he was not aware of the exact nature of the relief sought by the 1^stRespondent. The Applicant says he has been aware of the litigation since the year 2002. There was, however, evidence that the Applicant was aware of the exact nature of the litigation. There was evidence that the Applicant approached the attorney who was handling the matter on behalf of the 1^st Respondent and enquired what relief the 1^stRespondent was seeking in court. The attorney told the Applicant that the 1^st Respondent wanted his position as Clerk to Parliament back. The Applicant tried to persuade the attorney to drop the application but he refused to do so and pointed out that the 1^stRespondent had no wish to drop the case. In it's Replying Affidavit the Applicant merely made a bare denial of the contents of the Affidavit by the attorney. The court will therefore come to the conclusion that the Applicant was aware of the exact relief that the 1^stRespondent was seeking in court. He should by then have made up his mind whether he wished the joinder of himself as the 2^nd Respondent. The court would have been able to hear the matter as a whole and dealt with all claims simultaneously. (See the Kinekor Films case at page 94). The court will therefore answer the second part of the enquiry by making a finding that it is satisfied that the Applicant waived his right to be joined. The Applicant also said it was opposed to the second order of the court re-instating the 1^stRespondent into the position of Controlling Officer in the House of Parliament. It was argued on behalf of the Applicant that the court had no power to issue such an order as it was the administrative duty of the Minister of Finance to do that. It was also argued that such appointments or designations were only for one year and that the court had no power to order

the re-instatement as the period of one year had elapsed. The court was referred to the Finance Management and Audit Act No. 18 of 1967. In terms of the interpretation section of the Act, Controlling officer:

''means an officer designated by the Minister in terms of the Financial Management and Accounting Regulations as the officer responsible for the control of each head of expenditure and each item of revenue in the estimates of revenue and expenditure laid before Parliament in terms of Section 128 of the Constitution '~

It was argued on behalf of the Applicant that he was a controlling officer. The court was referred to annexure "PM1", that annexure was a Memorandum from the Principal Secretary, Prime Minister's office addressed to the Accountant General Treasury Department dated the 6^th December 2002. The title is "Additional specimen signature for Parliament" and it contains the following:

“The memo Ref. Par/1/B dated the 1^stNovember 2002 refers. Following the appointment of a new Clerk to Parliament Mr. Promise Msibi, who now assume the title of Warrant Holder for Parliament Head 02 with effect from the (6^TH  December 2002. The Clerk at Table, Mr. David Magongo will remain his relief.

The following is a specimen signature for the Warrant Holder .............. "

There is nowhere that the memorandum states the Applicant was being appointed Controlling Officer. The Applicant has failed to prove that he was ever appointed or designated by the Minister of Finance as a Controlling Officer. That point was raised by the 1^stRespondent's attorney on the 10^th May 2004 when the matter first appeared before the court on a certificate of urgency. The 1^stRespondent's attorney argued that the Applicant had no basis to oppose the order of re-instatement of Controlling Officer powers as he was never appointed one. When the matter came to court again on the 13^th May 2004, still the

Applicant failed to produce proof that he was designated Controlling Officer by the Minister of Finance in terms of the Finance and Audit Act of 1967. there is evidence before the court that on the 24^th October 2002 the designation of the 1 st Respondent as Controlling Officer was revoked by the Minister of Finance, see annexure "BZ1". On the 31^stOctober 2002 a letter from the Prime Minister's office was written to the Accountant, Swaziland Houses of Parliament with the title "Controlling Officer for Parliament". The Accountant of the House of Parliament was being advised that the Minister of Finance has appointed Mr. D. M. Lukhele, Principal Secretary in the Prime Minister's office, to be the Controlling Officer with effect from 1^stNovember 2002. The letter continues as follows:

"In the meantime, please prepare a memo which will show the specimen signature of Mr. D. M. Lukhele as Controlling Officer and Mr. D. S. Magongo as Warrant Holder or Relief Signatory. I hope that this change will be smooth and that we will have a good working relationship. "

The letter is signed by Mr. D. M. Lukhele and is annexure "BZ2". On the 24^th October 2002 Mr. D. Lukhele was. written a letter by the Minister of Finance appointing him as the Controlling Officer for Parliament Officer with effect from 1 st November 2002. The Applicant was appointed Clerk to parliament on the 28^th November 2002. During the month of November 2002 therefore the Controlling Officer for Parliament was Mr. D. M. Lukhele. There was no evidence before the court that the Applicant was ever appointed Controlling Officer of Parliament by the Minister of Finance. The evidence before the court showed that Mr. D. Lukhele was the Controlling Officer for Parliament when the Applicant assumed the position of Clerk to Parliament on 28^th November 2002. There was no evidence placed before the court that Mr. D. Lukhele's appointment was revoked by the Minister of Finance.