IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE
CASE
NO. 187/02
In
the matter between:
LUCKY'S
BAR AND RESTAURANT…………………APPLICANT
And
ALFRED
MAJAHONKE KUNENE……………………RESPONDENT
In
re:
ALFRED
MAJAHONKE KUNENE……………………APPLICANT
And
LUCK'S
BAR AND RESTAURANT…………………..RESPONDENT
CORAM:
N.
NKONYANE: ACTING JUDGE
D.
MANGO: MEMBER
G.
NDZINISA: MEMBER
M.
NDZINISA: FOR APPLICANT/RESPONDENT
S.
DLAMINI: FOR RESPONDENT/APPLICANT
RU
LI
NG-
19.05.05
This matter came
before the court on a certificate of urgency. The
Applicant/Respondent is seeking an order in the following terms:
"1. Waiving
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.
3. Costs
4. Further and or
alternative relief."
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.
The applicant's
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's application.
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.
From the
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.
A confirmatory
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
his father.
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.
The
respondent/applicant in its papers said the person who served the
application on Thamsanqa Hlatshwako was his representative, Selby
Dlamini.
From the
affidavit of Thamsanqa Hlatshwako, it appears that Selby Dlamini was
in the company of someone else.
Neither Selby
Dlamini nor the other person that he was with on that day filed
confirmatory affidavits.
The
respondent/applicant's story as to what actually happened when the
two people came to Thamsanqa Hlatshwako is therefore hearsay
evidence.
The court will
therefore come to the conclusion that the applicant/Respondent has on
a balance of probabilities, proved its case against the
respondent/applicant.
The application
is accordingly granted and order in terms of prayers 2.1, 2.2 and 2.3
is granted.
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.
N. NKONYANE
ACTING JUDGE - INDUSTRIAL
COURT
