THE INDUSTRIAL COURT OF SWAZILAND
the matter between:
BAR AND RESTAURANT…………………APPLICANT
BAR AND RESTAURANT…………………..RESPONDENT
NKONYANE: ACTING JUDGE
NDZINISA: FOR APPLICANT/RESPONDENT
DLAMINI: FOR RESPONDENT/APPLICANT
This matter came
before the court on a certificate of urgency. The
Applicant/Respondent is seeking an order in the following terms:
the usual requirement of the rules of court regarding notice service
and form of application in view of the urgency.
2. That a rule nisi,
returnable on a date to be fixed by the above Honourable court,
calling upon the respondent to show cause why a final order should
not be granted"-
2.1 Staying execution of
the judgement of the above Honourable court entered against it on the
10 September 2004.
2.2 Rescinding and setting
aside the order granted by this court on the 10 September 2004.
2.3 Granting the applicant
leave to oppose the proceedings instituted by the respondent.
4. Further and or
A rule nisi was issued by
the court on 17.09.04 returnable on 28.09.04. The matter was finally
argued on 14.12.2004.
main contention was that he was never made aware of the proceedings
before court, thus he did not file his intention to oppose the
respondent/applicant argued to the contrary that the
applicant/respondent was served with the notice of application
through a certain Thamsanqa Hlatshwako at the applicant/respondent's
place of business on 17.07.2002.
applicant/respondent's founding affidavit the evidence reveals that
the applicant/respondent was out of the country when the matter was
heard in court. He said he learnt through the local newspaper on his
return that a judgement has been entered against his business.
affidavit was filed by Thamsanqa Hlatshwako.
In his affidavit
he said that two gentlemen came to the business premises and
introduced themselves as union members and that they had come to see
He said, as his
father was away, he told them to come back when he had returned. The
two men left together with an envelope that they had with them that
they intended to give to his father.
respondent/applicant in its papers said the person who served the
application on Thamsanqa Hlatshwako was his representative, Selby
affidavit of Thamsanqa Hlatshwako, it appears that Selby Dlamini was
in the company of someone else.
Dlamini nor the other person that he was with on that day filed
respondent/applicant's story as to what actually happened when the
two people came to Thamsanqa Hlatshwako is therefore hearsay
The court will
therefore come to the conclusion that the applicant/Respondent has on
a balance of probabilities, proved its case against the
is accordingly granted and order in terms of prayers 2.1, 2.2 and 2.3
The applicant is to file
its replies within seven days after the date of this ruling. The
matter will accordingly appear before the court on 27.05.05. No order
for costs is made. The members agree.
ACTING JUDGE - INDUSTRIAL