IN
THE HIGH COURT OF SWAZILAND
CIVIL
CASE NO. 2291/04
THE
SWEDISH FREE CHURCH APPLICANT
AND
REVEREND
SIMON J. MANANA RESPONDENT
CORAM
K.P. NKAMBULE – J
FOR
APPLICANT MR. MBUSO SIMELANE
FOR
RESPONDENT MR. SIFISO MDLULI
RULING
10/9/04
In
this proceedings the applicant has brought an application by Notice
of Motion seeking an order in the following terms:
1.
Dispensing with the forms and service and time limits prescribed by
the rules of this court and directing that the matter be heard as one
of urgency.
2,
That a rule nisi do issue calling upon the respondents to show cause
on Friday the 20th of August 2004 at 9.30 a.m. or such
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time
as the court may direct why an order should not be made final in the
following terms:
2.1
The respondent be ordered to deliver or handover all assets of the
Swedish Free Church, Malkerns branch to the Regional Church Board.
2.2
The respondent be restrained and/or interdicted from occupying and/or
making use of the property of the Swedish Free Church at Malkerns
Branch described as Portion 5707 Farm No. 65 situated in the Manzini
District, Swaziland.
2.3
The respondent be restrained from collecting any church offerings and
tithes and to refund the Swedish Free Church Regional Board all
offerings and tithes already collected.
3.
Pending the return day, an order in terms of 2.1, 2.2 and 2.3 above
operate as an interim order with immediate effect.
4.
Costs at attorney/client scale.
5.
Further and/or alternative relief.
A
launching affidavit by Reverend Titus Nzima is filed of record.
Respondent has filed an answering affidavit to which a number of
preliminary points of law have been raised in the following respects:
Locus
Standi
The
locus standi of the applicant to bring the present proceedings does
not appear ex facie on the founding papers and/or affidavit and for
that reason this application has to
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be
dismissed with costs. (Applicant has failed to annex documents to
show to the court that it is legally empowered to bring this
application before this honourable court.
Clear
Right
The
applicant has failed to establish a clear right which is one of the
requisites for an interdict.
Ad
Urgency
Applicant
has failed to show the court that the non-observance of normal
procedures and time limits prescribed by the rules will result in
irreparable harm to his prejudice in the situation giving rise to
this application.
Jurisdiction
This
court does not have jurisdiction to hear this matter and to give an
order in the terms prayed for by the applicant.
Starting
with the last point, the respondent argues that the power and the
jurisdiction to determine this matter has been placed in the hands of
the Industrial Court of Swaziland which has been vested with
exclusive jurisdiction to hear and determine any matter which may
arise at common law between an employee and an employer in the coarse
of employment.
It
is not in dispute that before his resignation, Pastor Manana was an
employee of the Swedish Free Church and as such the relationship was
governed by the Employment Act 1980 as read with the Industrial
Relations Act 2000.
Section
8 (1) of the Industrial Relations Act 2000 provides as follows:
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"The
court shall, subject to Section 17 and 65, have exclusive
jurisdiction to hear, determine and grant any appropriate relief in
respect of an application, claim or complaint or infringement of any
of the provisions of this, The Employment Act the Workmen's
Compensation Act, or any other legislation which extends jurisdiction
to the court, or in respect of any matter which may arise at common
law between an employer and employee in the coarse of employment..."
From
the applicant's founding affidavit it is clear that the occupation of
the church premises by the respondent arose out of his appointment as
the pastor of the Malkerns branch of the Swedish Alliance Church.
This therefore places the church in the position of employer and the
respondent in the position of an employee. See the case of Meshack
Zwane Vs the Swedish Free Church Industrial Court Case No. 41/99 In
such matters therefore, the Industrial Court has exclusive
jurisdiction to hear, determine and grant any appropriate relief.
For
the foregoing and conclusions the point in limine succeeds. This
matter is therefore, remitted to the Industrial Court for
determination. I am not going to make findings on the rest of the
points because this point alone disposes of the matter.
The
application is therefore dismissed with costs.
K.P.
NKAMBULE
JUDGE.
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