IN THE INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 574/06
In the matter between:
TOM VILAKATI Applicant
THE SWAZI NATIONAL TREASURY 1ST Respondent
THE ATTORNEY GENERAL 2ND Respondent
P. R. DUNSEITH : PRESIDENT
JOSIAH YENDE : MEMBER
NICHOLAS MANANA : MEMBER
FOR APPLICANT : S. C. SIMELANE
The Applicant instituted proceedings against the Respondents by way of Notice of Motion under a certificate of urgency seeking an order in the following terms:
That the rules of court be dispensed with insofar as they relate to forms, services and time limits, and that the matter be heard as one of urgency.
That the 1st Respondent be ordered to and directed to reinstate the Applicant to his position and employment as general labourer within the 1st Respondentâ€™s employ.
That the 1st Respondent pay to the applicant all sums that ought to have been paid to him as salary/remuneration, from the date of his suspension from work to the date of his reinstatement.
That the 1st Respondent pay costs of the application.
In his founding affidavit the Applicant alleges that he was employed by the 1st Respondent as a general labourer and posted to Masundvwini Dairy Projects where he worked as a security guard. He alleges that Masundvwini Dairy Projects is wholly owned by the 1st Respondent.
On the 25th February 2002 the Applicant was suspended from his employment without payment pursuant to a criminal charge of theft laid against him by the management of Masundvwini Dairy Projects.
It appears that the Applicant was suspended pending finalization of the criminal charges against him. The Applicant does not state that he was remanded into custody as a result of the criminal complaint laid against him by his employer.
On the facts alleged in the founding affidavit, there was no basis in law for suspension without pay for a period longer than one month.
- See Section 39 of the Employment Act 1980 (as amended).
- See also Rycroft: A Guide to SA labour Law (2nd Ed.) at page 100.
The criminal charges were never brought to trial, and on the 19th July 2006 they were withdrawn by the prosecution. This brought an end to the suspension of the Applicant.
The Applicantâ€™s attorney wrote to Masundvwini Diary Projects on 26th July 2006 requesting that the Applicant returns to work and be paid his wages for the period of the suspension. Pursuant to this letter, a meeting was arranged with the manager at Masundvwini Dairy. The date of this meeting is not disclosed. It may be assumed that it took place within a period of two weeks from the end of July 2006. The manager requested a further period of three weeks for him to make enquiries into the matter.
The manager did not revert to Applicantâ€™s attorney, and the present application was thereafter instituted by way of urgency on or about 21st September 2006.
The application was duly served on both Respondents. Only the 2nd Respondent filed notice of opposition. No opposing affidavits have been filed, but the 2nd Respondent raised the following points of law in limine:
That there is no objective urgency in the matter.
That there has been a mis-joinder of the 2nd Respondent, as the 1st Respondent is not a part of government.
Alternatively that the Swaziland Government together with its employees is exempt from the operation of Section 39 of the Employment Act.
This latter objection was abandoned by the 2nd Respondent at the hearing.
The first two points in limine were argued by counsel for the Applicant and the 2nd Respondent. There was no appearance by or behalf of the 1st Respondent. The court commends Crown Counsel Khuluse for filing comprehensive heads of argument in support of his points of law.
Mr. Khuluse correctly submitted that the Industrial Court will not ordinarily hear and determine a dispute which has not been reported, conciliated upon and certified as unresolved in terms of the provisions of Part V111 of the Industrial Relations Act 2000 (as amended). The court will only depart from this general rule where the Applicant establishes good cause.
In the present application, the Applicant relies on urgency as good cause for dispensing with the provisions of Part V111 of the Act and the normal requirements of the Rules of Court.
Counsel for the 2nd Respondent argued that good cause has not been shown for the following reasons:
the urgency is self-created and there has been undue delay in bringing the matter to court.
the issues raised in the application are long standing. The Applicant will not be prejudiced by adhering to the normal procedure of dispute resolution prescribed by Part V111 of the Industrial Relations Act.
financial hardships and deprivation of the means of livelihood is a normal consequence of every loss of employment and does not warrant the urgent intervention of the court.
Mr. Simelane for the Applicant responded by emphasizing that:
the Applicantâ€™s entitlement to reinstatement only arose when the prosecution was withdrawn and his suspension terminated. Thereafter he acted promptly by approaching an attorney to procure his reinstatement. He should not be penalized for attempting to resolve the matter by negotiation before engaging in litigation;
the court should take into account the nature and intricacies inherent in traditional structures such as the 1st Respondent;
the delay between the elapse of the period of grace requested by the Manager of Masundvwini Dairy Projects and the institution of proceedings is less than three weeks and is not unreasonable in all the circumstances;
the financial hardship being suffered by the Applicant does not arise from loss of employment but is a consequence of the 1st Respondentâ€™s violation of the law in failing to return the Applicant to work.
In dealing firstly with the failure of the Applicant to comply with the provisions of Part V111 of the Industrial Relations Act, the court has considered whether the Applicantâ€™s claim amounts to a dispute which requires conciliation in terms of Part V111 of the Act.
The claim arises from an alleged violation of the law. The factual allegations set out in the founding affidavit are not challenged. No dispute is raised with regard to the merits of the claim and the entitlement of the Applicant to be reinstated at work and paid his arrear wages.
In the view of the court, there is no genuine dispute, merely a non- compliance with the labour laws. In these circumstances, there was no need for the claim to be reported to CMAC as a prerequisite to the institution of proceedings in the Industrial Court.
The court must then consider whether the application is sufficiently urgent to warrant abridgement of the usual time limits prescribed by the rules or practice for the institution of applications on Notice of Motion in the Industrial Court. In particular, the court must consider whether the urgency has been self-created by the Applicant and whether he delayed unreasonably in coming to court.
The prosecution having been withdrawn on 19th July 2006, the Applicant acted promptly in instructing an attorney to facilitate his return to work. The attorney in turn wrote a letter and arranged a meeting with commendable expedition. If any delay occurred, it was during the period of about three (3) weeks after the expiry of the period of grace given to the 1st Respondent.
In the case of Nhlanhla Hlatshwayo v Swaziland Government & Another (I. C. Case No. 389/2006) (interloc. application), the court recognized the need to take into account, when assessing whether a litigant is guilty of delay, the natural reluctance of an employee to rush into litigation against his employer without careful consideration of his legal position.
In the case of cash-strapped litigants, there is also the need to raise sufficient funds to secure the services of counsel for the litigation. The recognition of these â€œreality factorsâ€ should not be construed as an invitation to prevarication. Nevertheless, in a court of equity such as the Industrial Court, a little more leeway may be afforded to an employee in the position of the Applicant, also taking into account the general tardiness of traditional structures such as the 1st Respondent.
The court is satisfied that in the circumstances of this case, where the Applicant acted promptly in engaging his employer in dialogue, and only dragged his feet in expectation of a positive response, that the delay of less than three weeks does not disqualify the Applicant from approaching the court by way of urgency.
The court does however agree with Mr. Khuluseâ€™s criticism of the Applicant that, having dragged his feet in coming to court, once he decided to litigate he engaged a high gear and expected the court and the Respondents to adjust to his motion.
It is trite that Applicants in urgent applications must give proper consideration to the degree of urgency involved, and minimize their deviation from the normal time limits.
Luna Meubel Vervaardigers v Makin & Another 1977 (4) SA 135 (W).
The court in turn exercises a judicial discretion â€œconcerning which deviations it will tolerate in a specific case.â€
See Caledon Street Restaurants CC v Dâ€™Aviera (1998) JOL 1832 (SE).
The court deprecates the short notice given to the Attorney General, and has given serious consideration to dismissing the application on this ground alone. The short notice does not however amount to a gross abuse of process, and it is not in every case where the Applicant departs from the Rules to an unwarranted extent that the appropriate remedy is the dismissal of the application.
See Nelson Mandela Metropolitan Municipality & Others v Greyvenouw CC & Others 2004 (2) SA 81 (SE) at 95.
Where there has been an unwarranted deviation from the Rules, the court must ascertain whether any party has suffered prejudice thereby, and it should be the courtâ€™s endeavour to remedy such prejudice in a manner appropriate to the circumstances, bearing in mind that the Rules are provided to secure the inexpensive and expeditious completion of litigation before the courts.
In the view of the court, any procedural prejudice occasioned to the 2nd Respondent by the short notice given was remedied by the postponements granted on and after the 29th September 2006, and any financial prejudice may be remedied by an appropriate order as to costs.
The point in limine regarding urgency is accordingly dismissed.
Mr. Khuluse submitted that the Attorney-General should not have been joined as a party in his capacity as legal representative of Swaziland Government, because :
the Applicant is seeking relief against the Swazi National Treasury;
the Swazi National Treasury is not a wing of the Swaziland Government;
the Government has no substantial legal interest in the application or its outcome.
He referred the court to the case of Enock Jabulani Dlamini v Rex 1979 â€“ 1981 SLR 180.
In this case, the High Court was seized with a criminal appeal involving the fraudulent misappropriation of monies which were the property of the Swazi National Treasury. The question arose whether a mandatory term of imprisonment was called for in terms of the Theft & Kindred Offences by Public Officers Order 22 of 1975, and the High Court had to decide whether the money misappropriated was â€œpublic moneyâ€, namely â€œany money owned â€¦â€¦â€¦â€¦â€¦ by or in the possession of Government or a statutory corporation or parastatal body â€¦â€¦â€
The Full Bench of the High Court held that the Swazi National Treasury is neither a statutory corporation nor a parastatal body, and that â€œthe Treasury operates in relation to the Swazi National Administration in a manner similar to that of the Accountant General and the Central Governmentâ€ (at page 183).
Describing the status of the Swazi National Administration, the Full Bench held as follows at page 184:
â€œâ€¦ Nor in my view is it correct as the magistrate suggests that the Swazi National Administration is a wing of the Government of Swaziland. They are indeed parallel authorities running side by side, with the Swazi national Council having certain specified including functions certain legislative powers- albeit of a limited character-to be exercised by the Ngwenyama in Libandla: it is not a limb of the Central Government as for example is a ministry or government department. It is an independent body and I consider it to be a derogation of its status to regard it as if it was a mere appendage of the Government of Swazilandâ€.
The Industrial Court is bound by this ratio decidendi in accordance with the principles of stare decisis. Since the Swazi National Administration is not a ministry or department or limb of the Central Government but an independent and parallel body, it follows that its Treasury likewise does not fall under the administration or control of the Government, notwithstanding that its revenues are provided by the Government and its budget is subject to the approval of the Minister for Finance (See The Swazi National Treasury Accounting and Auditing Regulations, 1951).
In the founding affidavit, the Attorney General is cited as the legal representative of the First Respondent. In terms of the Government Liabilities Act No. 25 of 1967 the Attorney General may be cited as legal representative of the Swaziland Government, but no provision is made for the citation of the 2nd Respondent as legal representative of any other persons or bodies including the 1st Respondent.
The 2nd Respondent has no interest in the present application and should not have been joined as a party. The plea of misjoinder is upheld, and the application against the 2nd Respondent is dismissed.
The 2nd Respondent was not only needlessly cited, but was also needlessly placed under pressure due to the unreasonable curtailment of the normal time limits. The Applicant is order to pay the 2nd Respondentâ€™s costs.
LOCUS STANDI OF 1ST RESPONDENT
The 1st Respondent has not appeared to oppose the application. Nevertheless it is incumbent on the court to determine whether the 1st Respondent has locus standi in judicio enabling judgement to be entered against it.
Judgement in the Enock Jabulani Dlamini case cited above was delivered on 12 December 1980. In early 1981, the Theft & Kindred Offences By Public Officers Order was amended by Legal Notice No. 5 of 1981. In particular, the definitions of â€œparastatal bodyâ€ and â€œstatutory corporationâ€ were amended. In terms of these amendments, the Swazi National Treasury is now covered by the definition of both a parastatal body and a statutory corporation, for purposes of the Theft & Kindred Offences of Public Officers Order.
The amendments do not in any way derogate from the finding of the High Court that the Swazi National Administration and its Treasury are not part of the Central Government, but they do detract from the orbiter remarks made by the High Court with regard to the legal status of the Swazi National Treasury.
The 1st Respondent is a statutory body. It was formally established in terms of the Swazi National Treasury Act 81 of 1950. Although the Ngwenyama in Libandla is empowered, with the approval of the Minister of Finance, to make regulations providing for its constitution, conduct and management, no constitution has infact been created.
If the 1st Respondent is an incorporated body, as was held in the Enock Jabulani Dlamini case (at page 183), then it has no separate legal identity. It is simply the name under which the Swazi National Administration carries on its financial affairs.
The Swazi National Administration, according to the judgement of the High Court, administers and conducts the affairs of the Swazi National Council, â€œby definition (ibid) an amorphous body consisting of the Ngwenyama, the Ndlovukati and all adult male Swazisâ€ (see judgement at page 183 F).
The Constitution of Swaziland refers to the Swazi National Administration as â€œthe Swazi traditional governmentâ€ (section 227 (1)) and refers to the Swazi National Council as â€œSibayaâ€ (section 232). There is no mention of the Swazi National Treasury. Following the logic of the Enock Jabulani Dlamini judgement, the Treasury operates in relation to the â€œtraditional governmentâ€ in a manner similar to that of the Accountant-General and the Central Government.
There is however one striking difference. The Government Liabilities Act makes specific provision for legal proceedings to be instituted against the Central Government. No similar law provides for the manner of institution of legal proceedings against the traditional government. The Ngwenyama is immune from legal proceedings, and it would be a legal absurdity to sue the Sibaya.
The traditional government is not above or outside the reach of the civil law, save in respect of those matters specifically reserved for determination according to Swazi Law and Custom or where the jurisdiction of the civil courts is expressly excluded. Section 20 (1) of the Constitution prescribes that all persons shall enjoy equal protection of the law. Persons employed by the traditional government have the same rights under the labour laws of Swaziland as any other employees. In order for such rights to be protected and enforced, persons employed by or through the Swazi National Treasury must be able to have recourse through the Industrial Court against their employer:
The maxim Ubi ius Ibi remedium applies.
(Where there is a right, there is a remedy) - See Minister of the Interior and Another v Harris & Others 1952 (4) SA 769 (A).
The court is satisfied that the 1st Respondent is properly before the court as a Respondent for the following reasons:
the 1st Respondent is a formal body duly established by statute;
it maintains financial records, which are audited;
it has office bearers, including a Treasurer;
it operates a bank account in its own name, according to papers availed by counsel from the bar;
it has a place of business at Nkhanini;
it operates a dairy project, for which it employs workers;
it is alleged to be the employer of the Applicant;
it has not denied the express allegation in the founding affidavit that it has full capacity to sue and be sued;
in the absence of any other person, corporate or incorporate, that may be sued in respect of the Applicantâ€™s claims, the 1st respondent is the most appropriate Respondent.
If the court is wrong in thus conferring locus standi on the 1st respondent, Rule 14 (2) of the High Court of Swaziland provides that an association, defined as â€œany unincorporated body of persons, not being a partnershipâ€ may sue or be sued in its own name. Rule 14 was introduced to facilitate the citation of the legitima persona standi in judicio, particularly where a party is not sure whether he is suing an association, a corporate body or an individual. The trend of the courts has been to expand the scope of application of Rule 14.
See Cupido v Kings Lodge Hotel 1999 (40 SA 257 (E) at 266.
The 1st Respondent has been properly cited in terms of Rule 14 and it has not appeared to deny its locus standi. For this reason also the court is satisfied that it is properly before the court as a party.
The Applicant has established his entitlement to the relief he seeks against the 1st Respondent. The court grants an order in terms of prayers 1, 2 and 3 of the Notice of Motion.
There is no order as to costs.
The members agree.
P. R. DUNSEITH
PRESIDENT OF THE INDUSTRIAL COURT