IN THE
INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE
CASE NO.
239/99
In the matter
between:
MSOMBULUKO MAHLALELA &
15 OTHERS………..APPLICANT
and
ROYAL SWAZILAND SUGAR
CORPORATION……..RESPONDENT
CORAM:
NDERI NDUMA:
PRESIDENT
JOSIAH YENDE:
MEMBER
NICHOLAS MANANA:
MEMBER
FOR APPLICANT: M. SIMELANE
FOR RESPONDENT:
M. SIBANDZE
RULING
(ABSOLUTION FROM THE INSTANCE) - 17/11/2005
The Applicant
Msombuluko Mahlalela and 15 others were all employees of the
Respondent Swaziland Sugar Association.
The Applicants
were all employed in the harvesting department as drivers. They
allege their employment with the company was terminated on the 21st
May 1998.
It is common
cause that the harvesting season at the Respondent's undertaking
started around April of every year and would end around the month of
November.
It was not in
dispute that the Applicants would sign an agreement with the
Respondent at the commencement of the harvesting season and the same
would lapse at the end of the season.
That the
Applicants would then go to their respective homes and would be
recalled through a radio announcement to resume work, the following
year when the harvesting season commenced. The employees would then
sign a fresh contract of employment for the duration of the season. A
sample agreement was presented as exhibit XR1'.
In terms of the
agreement the seasonal employees were not eligible to be members of
the Pension Fund but the normal deductions and payments towards the
National provident Scheme were made.
Of importance,
clause 11 of the Contract reads as follows:
" If you
complete four or more contracts with the company and no longer able
to continue working due to old age or ill health or incapacitation,
you shall be entitled to an ex-gratia payment based on the formula
for severance allowance provided in the law".
This particular
clause of the seasonal employees contracts is lifted verbatim from
clause 20 of the Collective Agreement between RSSC and SAPWU, the
union recognized at the undertaking.
This was the
clause the Applicants relied upon to argue that although they were
employed as seasonal employees, they had been accorded a permanent
status upon completion of four or more contracts with the company.
Mr. Johnson Lukhele who testified in court for the Applicants told
the court that prior to the inclusion of clause 20 in the Collective
Agreement of 1998/2001, the seasonal employees got new employment
numbers at the commencement of every harvesting season. This however
came to a stop after the collective Agreement. The employees retained
same employment number. This was evidence of their continued
employment and therefore were no longer temporary. They also were
entitled to gratuity which was not available to them prior to 1995.
The witness told
the court that at the end of the harvesting season in 1997 contrary
to clause 20 of the Collective Agreement, the seasonal employees were
asked to return the keys to their company houses. Some of the
Applicants resisted this move.
All the
Applicants reported to work at the commencement of the 1998
harvesting season. The Applicants who had refused to return their
keys were subjected to a disciplinary hearing and their employment
was unlawfully terminated.
He said that the
refusal to renew the seasonal agreements amounted to an unlawful and
unfair dismissal in terms of the Employment Act. He did not
participate in the alleged disciplinary hearings.
The witness told
the court that he had participated in the Collective Agreement
negotiations that provided Clause 20 now relied upon by the
Applicants. He said that the intention of the union was for all
seasonal employees to enjoy permanent status. The clause improved the
terms and conditions of service of the Applicants but he admitted
that there was no written agreement to convert the Applicants from
seasonal to permanent status.
He said this was
a gentlemen's agreement between the union and the company.
There was no
record produced of the alleged disciplinary hearing. No letters of
dismissal were availed the court by the Applicants. The witness
however insisted that the disciplinary hearings took place when it
was put to him that this was a figment of his fertile imagination.
He denied that
the Applicants were not re-engaged in 1998 but was unable to produce
any written contracts to that effect. This is inspite of the fact
that the agreements in respect of the previous seasonal engagement
were available.
The second
witness for the Applicants was Msombuluko Mahlalela. He was first
employed as a seasonal employee by the Respondent on the 24th
March 1990. He worked every season until 1998. He was a tractor
driver. He admitted that he had signed a written seasonal contract of
service for every harvesting season he had worked. The signing of the
contract would at times be delayed and would happen long after the
season and work had commenced.
They used to
vacate the company houses at the completion of each harvest season.
This however stopped to happen around 1995. They also started to
contribute to the Pension Fund in 1995. They stopped getting new
employment numbers every season as well. This led them to believe
that their status was permanent inspite of the seasonal agreements
they signed every year.
In 1998 upon
hearing a radio announcement he reported to work. He underwent
medical check up as usual. He got food rations. This process took a
few days. They were then separated into groups. Those in his group
were taken into an office where he was questioned as to why he had
not surrendered the keys to his home at the end of the 1997
harvesting season.
He and others
explained their case. According to him their employment was then
terminated on grounds that they had locked their homes and had
engaged in a go slow.
He admitted that
he was never re-engaged, nor did he sign a written contract of
engagement for the 1998 harvesting season..
At the close of
the Applicant's case, the Respondent moved an application for
absolution from the instance. The application was on the basis that
the Applicants had failed to show that they were employees to whom
Section 35 of the Employment Act No. 5 of 1984 applied in that they
were all employees engaged for a fixed term and whose term of
engagement had expired as provided in terms of Section 35 (1) (d) of
the Act.
Accordingly all
the Applicants had failed to discharge the onus placed on them by
Section 42 (1) of the Act which stated:
“In the
presentation of any complaint under this part the employee shall be
required to prove that at the time his services were terminated that
he was an employee to whom Section 35 applied".
A close analysis
of the evidence presented by the two witnesses for the Applicants
shows that the Applicants were employed seasonally in terms of a
written contract that expired at the end of each harvesting season.
The Applicants
were unable to show that they were re-engaged for the harvesting
season of 1998.
Clause 20 of the
Collective Agreement that they purported to rely upon to claim
permanent status clearly did not accord them such. AW1 admitted as
much in his testimony before court.
In terms of Rule
39 (6) of the Uniform Rules of the Supreme Court of South Africa,
which is equivalent to the corresponding rule of the High Court of
Swaziland:
"At the close of the
case for the plaintiff, the defendant may apply for absolution from
the instance, in which event the defendant or one advocate on his
behalf may address the court and the plaintiff or one advocate on his
behalf may reply. The defendant or his advocate may thereupon reply
on any matter arising out of the address of the plaintiff or his
advocate"
This procedure
was followed in this matter. The test to be applied by the court at
this stage of the trial is:
Is there evidence upon
which a court might reasonably find for the plaintiff? See the cases
of:
Gascovne v
Paul and Hunter 1917 TP 170
Claude Neon
Lights fSA) Ltd v Daniel 1976 4 SA 403.
Carmichele v
Minister of Safety and Security 2000 4 ALL SA 537 fA):
2001 1 SA 48
(SCA1; 2001 4 SA 938 (CO 951
Another approach
is to enquire whether the plaintiff has made out a prima facie case.
To the extent that the plaintiff relies upon inferences, it is
sufficient if the inference the plaintiff wishes to draw is a
reasonable one; it need not be the only reasonable inference. See
Build-a-brick BK v Eskom 1996 ISA 115 (CO 122 3 -123
F
In the present
matter it is clear that the Applicants were employed by the
Respondent every year at the beginning of the harvesting season and
in terms of a written contract that terminated at the end of the
harvesting season. All the Applicants had served the Respondent for a
considerable period of time and were well aware of this arrangement.
It is indisputable that the Applicants did not enter into a written
contract of re-engagement at the beginning of 1998, harvesting
season. The Applicants therefore were not employees of the Respondent
at the time they purport, their employment was terminated in 1998.
The Applicants
have failed to show that they were employed at all in 1998 let alone
establish that they were employees to whom terms of Section 35 (1) of
the Employment Act applied.
It would be an
act in futility to ask the Respondents to lead evidence on a matter
that is clearly a non-starter.
The Respondent is
accordingly absolved from the instance. The application is dismissed.
The members agree.
NDERIN NDUMA
JUDGE
PRESIDENT-INDUSTRIAL COURT
