IN THE INDUSTRIAL COURT OF APPEAL OF SWAZILAND
HELD AT MBABANE CASE NO. 01/2011
In the matter between:
SWAZILANDFRUIT CANNERS (PTY) LTD APPELLANT
THULISILE MNGOMEZULU RESPONDENT
CORAM RAMODIBEDI JP
FOR APPELLANT MR. M.M. SIBANDZE
FOR RESPONDENT MR. A.M. LUKHELE
HEARD : 14th MARCH, 2011
DELIVERED : 23RD MARCH, 2011
Civil Law – Practice and Procedure – Powers of the Industrial Court of Appeal – appeal against dismissal of a point in limine in an uncompleted case – Court not to interfere in an unfinished hearing before the Industrial Court. Case remitted to court a quo to finalise.
 It is common ground that the respondent, who was a probationary employee of the appellant was dismissed without notice by the appellant just a month into her employment. She viewed her dismissal as unfair and after going through all the required steps within the Conciliation Mediation and Arbitration Commission machinery, she then instituted proceedings in the court a quo claiming inter alia, salary compensation for a period of twelve months.
 In response to her application, the appellant raised a point in limine stating that the provisions of section 35 of the Employment Act 5 of 1980 (as amended) governing the circumstances under which an employee’s services may be terminated did not cover or govern the respondent’s situation and she was not entitled to be given notice of her dismissal. In raising the point inlimine, the appellant did not respond to the merits of the respondent’s application but expressly stated that “in the event the point in limine is not upheld, we will apply for leave on the date of judgment on the point in limine to plead to the application.”
 The point in limine was dismissed by the court on 3rd November, 2010. The appellant, however, did not make good on its promise to apply to respond to the merits of the application and the trial court did not then indicate that having dismissed the preliminary point, the application was proceeding to the next enquiry, being the merits thereof.
 On 18th January, 2011, just over two months after the dismissal of the point in limine, the appellant filed this appeal asserting that the court a quo erred in law in holding that section 35(1)(a) of the Employment Act is in conflict with section 20(1) of our Constitution and therefore unconstitutional and of no force and effect.
 From the above facts, and it is indeed common cause the court a quo did not deal with the merits of the application. It should have done so though. The only order that the court made was to dismiss the preliminary point of law raised and did not find either for or against any of the parties on the main application. For all practical purposes, the application remains unfinished or undecided by the court below. In the circumstances of this case, this court cannot entertain this appeal. To do so would be tantamount to interfering in the unfinished business of the court below. This, the court will not do. The proceedings have to be finalised or concluded in the court a quo before this court may hear the appeal.
 The facts in this appeal are distinguishable from those in Small Enterprise Development Company and Phyllis Ntshalintshali, Industrial Court of Appeal Case No. 8/2007, unreported judgment delivered on 18th October, 2007. In that case the Industrial Court had concluded the case and had rendered its judgment. An appeal had then been noted against the judgment and an application for the stay or suspension of the execution of the judgment had been made and refused. The appeal before this court was against the said refusal to grant a stay of execution. So plainly, the facts and underlying circumstances in these two cases are vastly dissimilar. The Phyllis Ntshalintshali decision is no authority for the proposition that this court may legitimately hear an appeal on an unfinished or uncompleted matter from the court below.
 For the foregoing reasons I would remove the matter from the roll and order that :
1. The case be remitted to the court a quo for hearing on the merits.
2. The costs of the appeal are to be the costs in the application in the court a quo.
ACTING JUSTICE OF APPEAL
I also agree.
ACTING JUSTICE OF APPEAL