THE
HIGH COURT OF SWAZILAND
BEN
M. ZWANE
Applicant
And
SWAZILAND
GOVERNMENT
Respondent
Civil
Case No 3709/2002
Coram S.B.
MAPHALALA - J
For
the Applicant MR. M. MKHWANAZI
For
the Respondent Advocate Ms. M. Van
Der
Walt (Instructed by the
Attorney
General)
JUDGEMENT
(On
points of law in limine)
(12/12/2002)
In
this application, which is brought under a certificate of urgency,
the applicant prays for an order as follows:
1. Waiving
the usual requirement of the rules of court regarding notice, service
and form of applications and hearing the applications as one of
urgency.
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2. Declaring
that the purported transfer of the applicant from his position as
Clerk to Parliament to the position of Principal Assistant Secretary
in the Ministry of Agriculture and Co-operatives is null and void and
is set aside.
3. Reviewing
and setting aside the recommendation of the Civil Service Board to
transfer the applicant out of Parliament.
4. Staying
and suspending the aforesaid transfer until such time as:
4.1 The
Labour Commissioner has made a determination in terms of Section 26
of the Employment Act 1980 whether the purported transfer results in
the terms and conditions of the applicant's employment being less
favourable than those applicable prior to the purported transfer.
4.2 The
application for review (this application) filed with the above
honourable court to review and set aside the recommendation of the
Civil Service Board has been determined.
5. In
the event of this honourable court granting a rule nisi in terms of
prayers 2 and 3 above or postponing the application, an interim order
is granted in terms of prayer 4 above pending final determination of
the application.
6. Costs.
7. Further/alternative
relief.
The
application is founded on the affidavit of the applicant Mr. Ben M.
Zwane together with pertinent annexures "A" to "J".
The application was set for hearing on the 4th December 2002, at
2.15pm. The respondent was to file its notice of intention to oppose
by not later than 4.30pm on Tuesday on the 3rd December 2002, and
further to file an answering affidavit by 12.00noon on Wednesday the
4th day of December 2002. According to the original court file
respondent was served with the application on the 3rd December 2002,
at 3.57pm. It is clear from this that respondent was given very short
service to respond to the application and the applicant therefore
approaches the court on an extremely urgent basis and it is incumbent
on him to make out a case justifying the urgency with which the
application was brought. This remains to be seen in this case.
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The
respondent has filed its opposition in the form of an answering
affidavit deposed to by the Attorney General himself Mr. Phesheya
Mbongeni Dlamini with pertinent annexures labelled from "SG1"
to "SG3". The respondent in his answer raises four points
of law in limine. Although I must say the last point on costs is not
exactly a point of law in limine and the court will treat it in the
normal way as to who will be the successful party on the points of
law in limine as a whole.
Before
getting into the points of law raised I wish to point out that when
the matter came before me on the 4th December 2002, Mr. Mkhwanazi
applied that the matter be postponed so that the applicant replies to
the answering affidavit. Miss Van Der Walt vigorously opposed this
application and urged the court to entertain submissions on the
points in limine raised by the respondent. I ruled in favour of the
respondent and ordered that the points be heard. It is not proper for
an applicant to bring an application at such an extreme urgent basis
and put the other side at extreme pressures to prepare an answer and
then when the matter comes to court to merely ask for a postponement.
Such a practice should not be encouraged, and I certainly do not want
to encourage it in the present case.
Reverting
to the points of law raised, these in their capsule form are as
follows:
1. Jurisdiction.
The
respondent contends that the subject matter of the application
concerns the transfer of the applicant as employee. This court
therefore has no jurisdiction in matters such as these in terms of
Section 8 (1) of the Industrial Relations Act No. 1 of 2000. This is
trite law. The applicant, under Case No. 20/2002 in the Industrial
Court, wherein Miss Van Der Walt was personally involved and wherein
the applicant was represented by the same attorneys brought a similar
application in respect of a previous transfer of the applicant, i.e.
the applicant knew the correct forum.
2. Urgency.
The
respondent denies that the matter is urgent and the applicant is put
to the st proof thereof. In this regard the respondent has given a
chronological account c events between the parties culminating in
this urgent application. Further that applicant furnishes no
particulars of the alleged irreparable harm to be suffered him should
the matter not heard as one of urgency.
3. Interim
relief sought.
It
is contended that the applicant has failed to show a right, prima
facie or otherwise. In any event, the applicant has another remedy
being Section 26 of the Employment Act, 1980.
4. Costs.
The
respondent contends that a punitive costs order is justified in view
of the following: The applicant's reckless and blameworthy disregard
of the Industrial Relations Act, 2000; the applicant's reckless and
blameworthy disregard of the rules of this court as regards urgency;
the unreasonable embarrassment and prejudice to the respondent by the
short notice and time periods, for instance only serving the
application at the time that a notice of intention to oppose was
required and dishonesty and/or gross failure to put before the court
a fact/s that was essential for the court to know and/or gross
remissness or negligence (see Paragraphs 17.4 (a); (b) and (c) of the
answering affidavit).
The
parties advanced arguments for and against the points in limine and I
reserved judgment thereto to today the 12th December 2002. I shall
proceed to consider the issues sequentially; thus,
1. Jurisdiction.
In
this connection I agree in toto with the submissions made by Miss Van
Der Walt on behalf of the respondent that this court does not have
jurisdiction to entertain this matter. The subject matter of the
application concerns the transfer of the applicant as an employee. It
is my considered view, after reading through the decided cases cited
by counsel that in this instance it is the Industrial Court which has
the exclusive
5
jurisdiction
in matters such as these in terms of Section 8 (1) of the Industrial
Relations Act No. 1 of 2000. This is trite law.
Further
it would appear that a similar matter appeared before the Industrial
Court where the same parties were involved in an application under
Case No. 20/2002 (annexure "SG1").
The
applicant in that case deposed in his founding affidavit in that case
as follows, at page 2 of the application:
"JURISDICTION.
4. This
Honourable Court [referring to the Industrial Court] has jurisdiction
to hear this
application,
which involves infringements of the Industrial Relations Act 2000 and
the Employment Act 1980 and the relief sought arises from the breach
of the employment contract between myself and the Swaziland
Government".
About
eleven months later he approaches the High Court and states that the
Industrial Court does not have jurisdiction on a similar issue where
a similar remedy is being sought. A point of potential substance was
made though by Mr. Mkhwanazi that the present case is to seek for a
review of the Civil Service Board and the High Court then would be
exercising its inherent jurisdiction to review decisions of such
bodies as the Civil Service Board. However, in my view, this point is
fragmented by the fact that the Employment Act provides for such a
mechanism in Section 26 as follows:
"26(1) Where
the terms of employment specified in the copy of the form in the
Second Schedule given to the employee under Section 22 are changed,
the employer shall notify the employee in writing specifically the
changes which are being made and subject to the following
subsections, the changed terms set out in the notification shall be
deemed to be effective and to be part of the terms of service of that
employee.
(2) Where,
in the employee's opinion, the changes notified to him under
subsection (1) would result in less favourable terms and conditions
of employment than those previously enjoyed by him, the employee may,
within fourteen days of such notification, request his employer, in
writing, (sending a copy of the request to the labour Commissioner),
to submit to the Labour Commissioner a copy of the form given to him,
under Section 22,
6
together
with the notification provided under subsection (1) and the employer
shall comply with the request within three days of it being received
by him.
(3) On
receipt of the copy of the documents sent to him under subsection
(2), the Labour Commissioner shall examine the changes in the terms
of employment contained in the notification. Where, in his opinion,
the changes would result in less favourable terms and conditions of
employment than those enjoyed by the employee in question prior to
the changes set out in the notification, the labour Commissioner
shall within fourteen days of the receipt of the notification, inform
the employer in writing of this opinion and the notification given to
the employee under subsection (1) shall be void and of no effect.
(4) Any
person dissatisfied with any decision made by the Labour Commissioner
under subsection (3) may apply in writing for a review to the Labour
Commissioner, who using the powers accorded to him under Part II,
shall endeavour to settle the matter. Where he is unable to do so
within fourteen days of the receipt of the application being made to
him he shall refer the matter to the Industrial Court which may make
an order. (My emphasis).
From
the above it would appear to me that it is the Industrial Court which
has powers to grant any order to properly regulate the procedure
provided for by Section 26 of the Employment Act. It is common cause
that the applicant has submitted himself to the Industrial Court's
machinery by invoking Section 26. It goes without saying, therefore
that the applicant's first port of call should be the Industrial
Court which has powers to grant interim orders to regulate the
procedure outlined in Section 26. The Industrial Court may intervene
in terms of Section 26 (4) where one party has sought to defeat the
effect of the Section like in the present case. This will be in tune
with the spirit of Section 4 (1) of the Industrial Relations Act,
2000 which provides, inter alia as follows:
"Purpose.
5. (1)
The purpose and objective of this Act is;
a) Promote
harmonious Industrial Relations;
b) Promote
fairness and equity in Labour Relations;
c) Promote
freedom of association and expression in labour relations;
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d Provide
mechanisms and procedures for speedy resolution of conflicts in
labour relation;..........................
e) ................................................
f) ................................................
g) ................................................
h) ................................................
i) ................................................
j) ................................................
k)
................................................"
It
would appear to me that in casu the applicant has one foot in the
Industrial Court's jurisdiction and at the same time is seeking to
put the other foot in this court thus straddling the wells of
justice. This cannot be allowed as the proper court to entertain this
suit is the Industrial Court as I have outlined above.
Furthermore,
the provisions of the Industrial Relations Act of 2000 in Section
8(1) put the issue of jurisdiction in casu beyond doubt. The Section
reads in extenso as follows:
"8.
(1) The court shall, subject to sections 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 course of employment or
between an employer or employer's association and a trade union, or
staff association or between an employees' association, a trade
union, a staff association, a federation and a member thereof. (My
emphasis)".
It
is abundantly clear from the wording of the section that any
complaint or infringement of any provisions of the Employment Act
that it is the Industrial Court which is a proper court to determine
the infringement complained of.
I
thus find that the point of law in limine raised by the respondent is
good in law and is accordingly upheld.
2. Urgency.
8
The
applicant's application was served on the 3rd December 2002 at
3.57pm, yet called for a notice of intention to oppose to be filed by
not later than 4.30pm on the same day, and an answering affidavit by
not later than 12.00noon on the 4th December 2002. The applicant set
the matter down for hearing at 2.15pm on the 4th December 2002.
The
applicant therefore approaches the court on an extreme urgent basis
and it is incumbent on him to make out a case justifying the urgency
with which the application was brought. There is a long line of
decided cases both by this court and the courts in South Africa on
how practitioners are to proceed in these matters. Coincidentally,
one of them involves the present applicant being Ben M. Zwane vs The
Deputy Prime Minister and another, Civil Case No. 624/2000
(unreported) where my Brother Masuku J gave a lucid and comprehensive
analysis of the law in this regard. One would have thought that the
axiom "once beaten twice shy" would have prevailed on the
applicant. In Luna Meuber Vervaardigers [EDMS] BPK vs Makin and
another t/a Makins Furniture Manufactures 1977 (4) S.A. 135 (W) at
136 G en fin 137 G the learned judge in that case said the following,
and I quote:
"Practitioners
should carefully analyse the facts of each case to determine, for the
purpose of setting the case down for hearing, whether a greater or
lesser degree of relaxation of the Rules and of the ordinary practise
of the court is required. The degree of relaxation should not be
greater than the exigency of the case demands. It must be
commensurate therewith. Mere lip serve to the requirements of Rule 6
[12] (b) will not do and an applicant must make out a case in the
founding affidavit to justify the particular extent of the departure
from the norm, which is involved in the time and day for which the
matter be set down".
(See
also Gallagher vs Norman's Transport Lines (Pty) Ltd 1992 (3) S.A.
500; Patcor Quarries CC vs Issroff 1998 (4) S.A. 1069 [SE] at 1075;
Humprey H. Henwood vs Maloma Colliery Ltd and others Case No. 1623/94
per Dunn J and H.P. Enterprises (Pty) Ltd vs Nedbank (Swaziland) Ltd
Case No. 788 (unreported) per Sapire CJ.
I
must say from the onset that the applicant in the present case has
dismally failed to pass the test set by the cases I have cited. The
applicant knew as early as the 25th October 2002, that he was
transferred with effect from the 1st November 2002, as is
9
set
out in paragraphs 4 and 32 of his founding affidavit. The applicant
knew as early as 8th November 2002 with reference to paragraphs 40 of
the founding affidavit, that the respondent was maintaining its
stance on the transfer issue.
There
is no explanation why the applicant only now approaches the court,
and then on such short notice. There is no earth shattering event
which has propelled the applicant to move this application on such an
extreme urgent basis reflected in the applicant's papers. It is my
considered view, on an objective assessment, that the grounds
advanced by the applicant in paragraphs 31 to 49, cannot found true
urgency, and certainly not urgency justifying the drastic abridgement
of the prescribed time periods in issue, which effectively amounts to
hardly any notice at all, and which pay mere lip service to the
requirement of Rule 6 (25) of the Rules of the High Court. This
application has a "steamrolling effect", as aptly put by
Miss Van Der Walt for the respondent.
For
the above reasons, I uphold this point of law in limine.
3. Interim
Relief Sought.
I
find it unnecessary to consider this point in view of my finding on
the point on jurisdiction. It is for a proper court to determine this
point. I expressed my reservations on this point when the matter was
argued that how can one apply for an interim interdict for an act
which has already been done. It is common cause that a new Clerk to
Parliament was appointed a few weeks ago and has assumed his duties
as such. It is trite law that a court will not grant an interim
interdict restraining an act already committed for the object of an
interdict is the protection of an existing right, it is not a remedy
for the past invasion of rights. (See Conde Nast Publications Ltd vs
Jaffe 1951 (1) S.A. 81 (c) and C.P. Prest - The Law and Practice of
Interdicts; Greyhound Racing International (Pty) Ltd vs Game
Supermarket (Pty) Ltd Civil case No.2714/96 (unreported); and Francis
vs Roberts 1973 (1) S.A. 507. I must stress, however, that the above
is a mere observation made obiter and the question is still open for
debate in a proper forum.
4. The
issue of costs.
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The
respondent has applied for punitive costs in the event that the court
upholds the points of law in limine. The respondent has premised such
an application for costs in its answering affidavit in paragraphs 17,
17.1, 17.2,1 17.3, 17.4(a), 17.4(b), 17.4(c).
An
award of attorney-and-client costs will not be granted lightly, as
the court looks upon such orders with disfavour and is loathe to
penalize a person who has exercised his right to obtain a judicial
decision on any complaint he may have (see DeVilliers vs Murraysburg
School Board 1910 CPD 535 at 538 and Herbstein et al, The Civil
Practice of the Supreme Court of South Africa (4th ED) at page 717
and the cases cited thereat).
The
grounds upon which the court may order a party to pay his opponent's
attorney-and-client costs include the following: that he has been
guilty of dishonesty or fraud or that his motives have been
vexations, reckless and malicious or frivolous (see Herbstein et al
(supra) at page 718 and the cases cited thereat). It appears to me
that in the present case the applicant has been reckless in a number
of respects. Firstly, the applicant disregarded the rules of court as
regards urgency as I have stated earlier on in this judgement.
Secondly, the applicant has been dishonest in not putting before the
court fact/s that was essential for the court to know and/or gross
remissness or negligence. One example of such remissness is found in
paragraph 28 of the applicant's founding affidavit where it is
alleged that there is no job description for Principal Assistant
Secretary. The said paragraph reads as follows:
"28. Though
no job description is available for the position of Principal
Assistant Secretary, to the best of my knowledge and belief this
position:
25.1 Is
not held by a controlling officer.
25.2 Is
only confirmed and limited to the Personnel section of the Ministry
of Agriculture and Co-operatives.
25.3 Has
limited responsibilities involving supervision of not more than five
officers.
25.4 Does
not carry the status and importance of the position of Clerk to
Parliament.
11
25.5 Cannot
be equated in rank to the position of quasi Head of Department held
by the Clerk to Parliament".
The
true position as reflected in the papers under Case No. 20/2002 at
the Industrial Court, such papers which have been incorporated into
the present proceedings the relevant job description is clearly
outlined in that document. This fact was known by the applicant when
he launched the present application. The applicant was not candid
with the court in this regard and the court frowns upon this lack of
candour on the part of the applicant.
I
agree in toto with the submissions by Miss Van Der Walt that this is
a case where the court is enjoined to grant costs at a punitive
scale.
The
Court Order
The
following order is thus recorded:
a) The
respondents point of law in limine are upheld and the application is
accordingly dismissed;
b) The
applicant is to pay costs at attorney-and-client scale including
costs of counsel.
S.B.
MAPHALALA
JUDGE
