IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE
In the matter between:
CASE NO.
86/2005
COMMERCIAL AND
ALLIED WORKERS
UNION OF
SWAZILAND.............Applicant
and
THE MALL
SPAR..............................Respondent
CORAM:
N. NKONYANE A-J
D. MANGO :MEMBER
G. NDZINISA:MEMBER
FOR APPLICANT:
M. GINA
FOR
RESPONDENT:M. SIBANDZE
RULING ON
POINTS IN LIMINE - 08/03/05
This matter is
before the court on a certificate of urgency. It was brought before
the court on the 3rd March 2005.
The Applicant is seeking an
order in the following terms:
"1. Dispensing with
the usual forms and procedures and time limits relating to the
institution of proceedings and allowing this matter to be heard as a
matter of urgency.
2. That the
Respondent be ordered to restore the operation of the Recognition and
Procedural Agreement entered into on the 31st December
2002 with the Applicant.
3. That the
Respondent be and hereby interdicted from establishing a Works
Council Committee within its establishment
4. That the
Respondent be ordered to pay the Applicant the sum of Six Hundred and
Sixty Five Emalangeni (E665.00) in respect of Applicant membership
subscription fees for the month of February 20005, which Respondent
ceased collecting through stop order.
5. That the
Respondent be and hereby interdicted from approaching Applicant
members with promises of better employment condition upon resignation
from Applicant
6. That the
Respondent be further and hereby interdicted from
victimizing/intimidating and or harassing John Dlamini the Secretary
General of the Applicant in any way during his course of employment
with Respondent.
7. That all the
above operate with immediate interim effect pending the return date
to be appointed by the Honourable Court.
8. Costs be
awarded against the Respondent only in the event that the application
is opposed.
9. Granting
further and/or alternative relief."
The application
is grounded on the Founding Affidavit of Abednigo Ndlovu who stated
that he is the National president of the Applicant Union.
The Respondent's attorney
raised points in limine.
One of the
points raised was that urgency had not been established and therefore
the court should dismiss the application.
The Applicant in
its Founding Affidavit relies for urgency under paragraph 13. That
paragraph reads as follows:
"13 The
matter is urgent as Applicant membership will suffer irreparable harm
by being denied their right to associate freely. And further the
introduction of the Works Council shall be infact contrary with the
Industrial Relations Act No. 1 of 2000."
During the
submissions and from the papers before the court, it became clear
that the basis
of the application was the respondent’s conduct of the 21st
January 2005 of withdrawing from the Recognition and Procedural
Agreement entered into by the parties.
The Applicant's
representative was unable to come out clear as to why did the union
not take the matter up immediately after they had received the notice
of withdrawal from the Recognition Agreement by the Respondent.
Mr. Gina argued
on behalf of the Respondent that they did not take up the matter
immediately because it was being discussed following the report of a
dispute by the Respondent.
Paragraph 10 of
the Founding Affidavit states that:
"10 The
Respondent has since cancelled the stop order facility as from the
month of February 2005."
It seems that
the union had brought the matter to court on an urgent basis just
because the Respondent has stopped deducting the monthly
contributions from the workers.
It seems to the
court that the union is concerned only about its financial welfare
and not about the welfare of the workers that it represents.
From the
applicant's papers, it appears that the dispute was reported by the
Respondent on the 21st January 2005, the same day that it
withdrew from the Recognition Agreement. There was all the reason for
the Applicant to act immediately and seek the court's intervention as
the matter was before a forum that is recognized by this court and
also by the Industrial Relations Act No. 1 of 2000.
The court is
very concerned that employers and employees do not seem to follow the
code of practice as found in the Industrial Relations Act.
The court is
urging all role players at the workplace to adopt and follow the Code
of Practice.
in this matter,
the source of the grievance having arisen on 21st January
2005, no good reason has been brought forward why the Applicant had
to wait until 3rd March 2005 to bring the matter to the
court on a certificate of urgency.
It is the
court's finding that no good grounds exit for the court to hear the
matter as an urgent application.
There will be no
need for the court to address the other points of law raised herein,
the court having found that urgency has not been established.
The application
is accordingly dismissed with no order as to costs.
The members
agree.
NKOSINATHI
NKONYANE A-J
INDUSTRIAL COURT
