IN
THE HIGH COURT OF SWAZILAND
IN
THE APPEAL COURT OF SWAZILAND
HELD
AT MBABANE
CIV.
APPEAL CASE NO. 3/1996
In
the matter between:
REUBEN
NDLANGAMANDLA & 91 OTHERS Appellants
and
SWAZILAND
BREWERS LIMITED Respondent
CORAM:
Kotze'
P.
Steyn
J.A.
Tebbutt
J.A.
Judgment
( /4/96)
STEYN
J.A.
Mr.
Ndlangamandla (appellant) is the former Branch chairman of the
Swaziland Manufacturing and Allied Workers Union. He alleges that he
is authorised "to make ....(an) affidavit on behslf of (all 91)
of the applicants" in the Court below.
The
relief the appellant sought in the Court below is for the following
order:
"(a)
That the purported termination or dismissal of the applicants by the
respondent was wrongful, invalid and unfair.
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"(b)
That the applicants are granted leave to institute separate
proceedings before this Court for the proof of the damages suffered
by each one of them as a result of the wrongful dismissal.
"(c)
That each of the applicants be paid by the respondent the amounts as
shown in the eighth column of schedule "A" of the founding
affidavit being the total of notice pay, additional notice pay and
severance allowance made up as shown in the fifth, sixth and seventh
columns respectively of schedule "A".
"(d)
Interest, a tempore morae, at the rate of nine percent per annum from
the date of 14th November, 1989 to date of payment."
The
application was opposed by the respondent. After hearing argument the
Court a quo, (Sapire J. presiding) made the following order:
"The
application is dismissed with costs to be paid jointly and severally
by each of the applicants."
The
Court also embargoed the institution of further proceedings by any of
the applicants against the respondent. It is against the dismissal of
this application that appellants' appeal to this court.
The
facts are briefly summarised in the judgment of the court a quo as
follows:
"The
facts and circumstances giving rise to these claims are as follows:
The
applicants are all former employees of the respondent and the
SWAZILAND MANUFACTURING AND ALLIED WORKERS UNION (SMAWU). In 1989 an
industrial dispute arose between SMAWU and the respondent. The Union
was the applicant's representative in the dispute which concerned the
respondents' refusal to replace or remove one of its employees, of
whom the applicants disapproved.
3
The
dispute remain unresolved notwithstanding the reconciliation
procedures adopted in accordance with the INDUSTRIAL RELATIONS ACT
NO. 4/1980. By March 1990 the INDUSTRIAL COURT had dealt with an
application by SMAWU for an order:-
"that
the court orders the respondent to reinstate all the locked out
workers immediately and unconditionally"
In
refusing the Order the President of the Court outlined the events
which eventually led SMAWU to make that application. As the judgment
is annexed to the Replying Affidavit I do not propose to quote
extensively therefrom. It is quite clear that the court was dealing
with the same dispute as is now before this Court".
The
Court then went on to hold that:
"The
final decision of the Industrial Court adverse to the applicants on
issues common to that case and to this is a bar to the granting to
the applicants (of) the relief they presently claim. The proceedings
in the Industrial Court were between the same parties as those now
before court. The relief claimed and the issues canvassed in the
earlier case a re-identical with those now advanced and raised in
this application."
The
court then held that "the applicants would have to succeed on
claim (a) in the notice of motion... to entitle them to the relief
claimed in (the) remaining prayers. The issue is whether the
termination by the respondent of its employment of the applicants on
14 November 1989 was lawful or not".
It
was these findings which were the subject of challenge by appellants'
counsel before us. This contentions can be summarised as follows:
Insofar
as the ancillary relief claimed is concerned, counsel contended that
this relief was not necessarily consequent upon the finding that the
strike was unlawful, the dismissal justified and that there was
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therefore
no "lock-out". It had to be adjudicated upon independently.
I will deal with this submission later in the judgment.
Concerning
the invocation of the plea of res judicata and the court a quo
upholding such plea, counsel contested the validity of . this finding
on the basis that it was not necessary for the Industrial Court to
have decided the issue concerning the lawfulness or unlawfulness of
the strike for it to determine whether there had been a lock-out or
not.
This
contention cannot be upheld. The decision which the Industrial Court
made was indeed one which on the facts before it required it to rule
on the lawfulness or not of the strike and the lawfulness of the
dismissal of the applicants.
The
judgment of the Industrial Court in this regard reads as follows:
"I
now turn to the next question as to whether the applicant had acted
contrary to law when it took out its members on strike on 14/11/89.
In this connection I wish to refer to Section 64(11).
"No
party to a dispute may continue, or take strike action or institute a
lock-out while proceedings, in relation to a dispute to which that
action relates are pending before the Court."
"It
is common cause that the application in Case No. 95/89 was filed on
9/11/89 after the Union had given strike notice on 8/11/89, that it
would be taking out its members on strike on 10/11/89. The Notice of
this application was served on the Union on the same day. The Union
then called off the strike but later give fresh strike notice for
14/11/89. The applicant Union however appeared in Court on 13/11/89
and filed its objection to the issues raised in the said application
and the matter was fixed for Inquiry on 17/11/89. Meanwhile on
14/11/89, the workers belonging to the applicant Union went on
strike.
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Therefore
on 13/11/89 the Union was fully aware that there was a case pending
against it in Court,brought by the Company, for determination on the
matters related to the disputes. Despite this on 14/11/89 the union
took out its members on strike, thereby contravening the provisions
of Section 64(1). As such the Court has no other alternative but to
hold that the strike action 14/11/89 was unlawful.
The
Company then terminated the striking workers on 14/11/89 under
Section 62(c) and in my view the Management was justified in its
action."
A
reading of these passages in the judgment clearly demonstrates that
the Industrial Court was obliged to rule on the question as to
whether or not the applicants had been lawfully dismissed. If they
had not been so dismissed the applicants would indeed have been
locked out, would have been entitled either to reinstatement or to
damages - if reinstatement could not have been validly ordered - and
to the ancillary relief they now claim in this action.
The
Court a quo was therefore manifestly right in directing that the
relief claimed in paragraph (a) in the notice of motion before him
had already been adjudicated upon between the same parties in another
court.
In
so far as the claim for ancillary relief is concerned it is clear
from the passage cited that the Industrial Court found that
management was "justified in its action" (in dismissing the
striking workers).
This
finding may, however, not have been necessary for the purpose of
determining the dispute which had to be adjudicated upon by the
Industrial Court. It was seized only with the obligation to rule on
the question whether the strike was lawful or not. It was not called
upon to decide whether the monetary amounts now sought by the
appellants in respect of notice pay, additional notice pay and
severance allowance were or were not due and payable in spite of the
lawfulness of the dismissal. Neither is the entitlement to these
amounts necessarily forfeited because appellants were lawfully
dismissed.
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It
follows that the finding of the Court a quo that "applicants
would have to succeed on Claim A in the Notice of Motion.... to
entitle them to the relief claimed in (the) remaining prayers"
was legitimately challenged on appeal.
Sections
33(7) and (8) of the Employment Act 1980 appears to be the sections
which are applicable in cases of summary dismissals. These two
subsections read as follows:
"(7)
Nothing in this section shall prejudice the right of the employer to
dismiss an employee summarily for just cause and any employee who is
dismissed for just cause shall be paid the wages due to him up to and
including the date of such dismissal."
"(8)
An employee shall not be dismissed without notice unless the reasons
for his dismissal are such as to warrant the immediate cessation of
the employer/employee relationship and where the employer cannot be
expected to take any other course."
Having
regard to all the circumstances surrounding the industrial action by
the appellants, the warning issued by the respondent, the fact that
they embarked upon strike action despite the Industrial Court being
seized of the matter, in my view justified the summary dismissal of
the appellants and brought the dismissals squarely within the ambit
of Sections 33(7) and (8) of the Employment Act of 1980.
I
should add in conclusion that it was established in the Court below
that the appellants had attempted to challenge the Industrial Court's
decision on review in 1992. On the 7th of February 1992 Rooney J.
ruled that there was an unreasonable delay in instituting review
proceedings. To seek to reopen these proceedings in 1995 by way of
the present application was ill-advised and bordered on abuse. In
these circumstances the Court a quo was perfectly justified in making
the protective order of costs which it did.
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For
these reasons the appeal is dismissed with costs.
(Signed)
J.H.
STEYN
(Signed)
G.P.C.
KOTZE' P. :
I Agree
(Signed)
P.H.
TEBBUTT J.A. :
I Agree
Delivered
in Court on this 13th day of April 1996.
