IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE
In
the matter between:
CASE
NO. 197/05
CEBSILE
NDLELA…………………APPLICANT
and
BEAR
LUBRICANT PTY) LTD…….RESPONDENT
CORAM
N.
NKONYANE: ACTING JUDGE
G.
NDZINISA: MEMBER
D.
MANGO: MEMBER
FOR
APPLICANT: B.S. DLAMTNI
FOR
RESPONDENT: S. NSIBANDE
JUDGEMENT
- 05.07.2005
This
matter came before the court on 21.06.05 on a certificate of urgency.
After
having heard the applicant's attorney the court granted a rule nisi
and was made returnable on 28.06.05.
The
matter was argued on 28.06.05 the respondents having served and filed
its answering affidavit.
The
applicant did not file a replying affidavit.
From
the Founding affidavit the applicant stated that she was employed by
the respondent as a clerical worker in January 2002. She said she was
earning El,800.00 per month.
She
said the respondents main business was to supply various vehicle
lubricants. She said on or about 03.06.05 she was served with a
letter notifying her that the respondent was going to close down on
grounds of operational requirements.
She
said no consultation was held between herself and the respondent. She
said she was not paid any terminal benefits.
The
respondent in its papers said that it was appointed as Engen
Swaziland's Lubricant agent for Swaziland in October 1999. The
respondent said it also had an agency agreement with Engen South
Africa.
The
respondent said the Engen Oil Company that controls Engen South
Africa and Engen Swaziland was taken over by a Malaysian company last
year. The new company cancelled the agency agreements in South Africa
and Swaziland.
The
respondent said due to the cancellation of the agency agreements it
had no option but to close down.
The
respondent said the applicant was well aware of these developments.
The respondent said the applicant refused an offer of a position in
Port Elizabeth. The respondent also said the applicant refused an
offer to work in a new company trading as Libhele Petroleum which the
respondent intends to hire to distribute its remaining stock.
The
respondent tendered to pay the applicants the sum of E4, 320.00 as
her terminal benefits.
The
respondent's answering affidavit was accompanied by a confirmatory
affidavit deposed to by one Jabu Manana.
Jabu
Manana stated that the workers, that is, the applicant and himself,
were advised about the imminent closure of the company. He said they
had been aware since April 2005 that the company was going to close
down in June 2005 due to the cancellation of the agency agreement.
It
was argued on behalf of the applicant that there was a dispute
whether consultation took place or not. It was also argued that the
respondent's conduct was nothing but a "Fly by Night." It
was further argued that this was a take over or transfer of the
business by a new company.
On
behalf of the respondent it was argued that the applicant's service
was going to be terminated in terms of Section 36(J) of the
Employment Act No.5 of 1980. It was also argued that since the
applicant did not file a replying affidavit the averments in the
answering and confirmatory affidavits remain unchallenged.
As
already pointed out herein the applicant did not file a replying
affidavit. The applicant did not see the need to do that even though
there was a confirmatory affidavit accompanying the answering
affidavit. Presently, the averments in the confirmatory affidavit
remain unchallenged.
When
the applicant's attorney was addressing the court in reply, he
applied for leave to file the replying affidavit. The application was
opposed on the basis that the matter has already been argued.
The
respondent after serving and filing its answering affidavit, and the
confirmatory affidavit by Jabu Manana, it was incumbent upon the
applicant to file a replying affidavit to address the issues raised
in those papers.
The
applicant's attorney was also at liberty to apply for a postponement
before the matter was argued to file the replying affidavit.
It
was argued on behalf of the applicant that there was a dispute of
fact whether consultation was held by the parties. This argument was
pursued so that the matter could be referred to oral evidence.
Reference
to oral evidence presupposes that all the affidavits would have been
filed. The applicant cannot fail to challenge issues raised in the
answering affidavit, and hope that the court would refer the matter
to oral evidence.
The
applicant also failed to prove that the company that will distribute
the remaining stock of the respondent has the same director or
directors as the respondent company.
The
court will therefore proceed on the basis that this was not a take
over or transfer of business by the respondent.
It
was also not in dispute that the respondent will close down business
in Swaziland on 30.06.05.
The
respondent is a South African based company. Presently its remaining
stock and assets are held by the Deputy Sheriff.
From
the papers as they stand, its clear that the applicant has failed to
prove its case on a balance of probabilities. That would ordinarily
mean that the court should order that the rule be discharged.
Such
an order however will not be fair and just especially in the light of
the undisputed evidence that the respondent will cease its operations
in the country on 30.06.05. The respondent has already tendered an
amount of E4, 320.00 as terminal benefits.
The
court therefore in a bid to promote fairness and equity in terms of
Section 4 (l)(b) of the Industrial Relations Act, 2000, will make an
order under prayer (e) of the applicant's application as follows:-
That
the parties' representatives meet and consider the terminal benefits
due to the applicant within five days from the date of this judgement
If
no agreement is reached as to the amount of terminal benefits, the
respondent's assets, excluding the Nissan 1400, to remain under
attachment to allow the applicant to report a dispute and to remain
so attached until the matter is finalized.
No
order for costs is made.
The
members agree.
N.
NKONYANE
ACTING
JUDGE - INDUSTRIAL COURT
