IN THE INDUSTRIAL COURT OF ESWATINI
HELD AT MBABANE CASE NO: 369/2018
In the matter between
MDUDUZI DLAMINI Applicant
And
TEMASHINGA PROCESSORS (PTY) LTD Respondent
Neutral Citation: Mduduzi Dlamini vs Temashinga Processors (Pty) Ltd (369/2018) [2019] SZIL 14 (February 20, 2019)
Coram: Sipho Madzinane – Acting Judge
(Sitting with D.P.M. Mmango and Ms N. Dlamini – Nominated Members of the Court)
Heard: 13/02/2019
Delivered: 20/02/2019
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J U D G E M E N T
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1. The Applicant is a former employee of the Respondent. The Applicant filed
an application for registration of a memorandum of agreement entered into between the parties on the 07th June 2017 before the Conciliation Medication and Arbitration Commission (CMAC) and payment of the sum of E17,153.28 (Seventeen Thousand One Hundred and Fifty Three Emalangeni Twenty Eight Cents). The Applicant also applied for costs in the event of opposition to the application.
2. The Memorandum of Agreement entered at CMAC is annexed to the application. In terms of the agreement, the amount agreed on was in respect of Applicant’s terminal benefits being notice pay, additional notice pay, severance allowance and leave pay. Payment of the sum of E17, 153.28 was in full and final settlement of the matter.
(i) The agreed amount was to be paid in two instalments effective from the end of July 2017 and the balance in the following month (August 2017).
(ii) In terms of the agreement, the amount was to be paid at CMAC office in Manzini who were in turn to transmit it to the Applicant.
3. It is also apparent in the memorandum of agreement that the Respondent was represented by Mr Mashwama who signed on its behalf whilst Applicant represented himself.
4. The Respondent has opposed the application and raised a lot of issues i.e that he is the one who nurtured Applicant in the business of chicken abattoir having recruited him from being a farm labourer at Vuvulane:
(i) That its business experienced difficulties hence it is heavily indebted to various creditors and that applicant is not the only creditor.
(ii) That it is in the process of revitalizing of its business at which stage it will pay the Applicant and the other creditors.
5. The Honourable Court notes the Respondent’s case but it is this Court’s finding that it does not constitute a defence to the application for the registration of the memorandum of agreement. This is so as Respondent is not disputing the agreement nor its signature to the agreement.
6. During the hearing of the matter, the above concern (paragraph 5 herein) was raised by the Court to the Respondent’s representative and he correctly conceded it.
7. In terms of Industrial Relations Act 2000 as amended S 84(1) if a dispute has been determined or resolved, either before or after conciliation, the parties shall, with the assistance of the commissioner:
(a) Prepare a memorandum agreement setting out the terms upon which the agreement was reached; and
(b) Lodge the memorandum with:
(i) the commission and the commission shall lodge it with the Court.
8. In this matter, it appears that the memorandum of agreement was
entered into at CMAC in the presence of the Commissioner Mr Ncamiso Manana. In fact his signature (Manana’s signature) is apparent in the agreement. Accordingly, it is this Court’s finding that it was entered into during conciliation before the commission.
9. In terms of Section 84 (i) (b), it is the commission that is supposed to lodge it with the Court. The Applicant for Registration of the memorandum of agreement is the applicant himself not the commission. The Respondent did not object to this aspect nor did it raise any prejudice that it would occasion to it in the event the agreement is registered as an order of Court at the instance of Mduduzi Dlamini not the commission.
10. It is the Court’s finding that there is no prejudice that will be suffered by the Respondent if the memorandum of agreement is registered at the behest of Mr Dlamini. At any event, Mr Dlamini, the Applicant herein, is a party and a beneficiary of the amount agreed on in terms of agreement. This perhaps brings to the fore the proprietor of the question of costs of the application for registration.
11. In terms of Section 84 (2) of the Industrial Relations Act 2000 as amended, upon registration the memorandum shall have the same force and effect as a registered collective agreement.
In terms of Section 52 (1) of the Act, a registered collective agreement shall be binding on the parties. As such, the agreement entered into by the parties is binding on both of them.
12. The Applicant has also asked this Court to grant an order for payment of the agreed amount. This Court is of the view that it is premature at this stage to deal with such relief. Further, the act is silent whether the court can do so within the same proceedings of registration for the agreement. The Applicant’s relief for now lies in the registration of the memorandum of agreement.
13. Accordingly, this Honourable Court grants prayer 1 of the application.
- There is no order as to costs.
14. The members agree.
Dated at Mbabane on this day 2 February 2019
SIPHO L. MADZINANE
ACTING JUDGE OF THE INDUSTRIALCOURT OF ESWATINI
For Applicant:
for Respondent:
