IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE
In
the matter between:
CASE
NO. 268/2000
KENNETH
THEMBA MAMBA………..APPLICANT
and
A.
A. INVESTMNENTS (PTY) LTD…RESPONDENT
CORAM:
NDERI
NDUMA: PRESIDENT
JOSIAH
YENDE: MEMBER
NICHOLAS
MANANA: MEMBER
FOR
APPLICANT: P. R. DUNSEITH
FOR
RESPONDENT
JUDGEMENT
- 06/07/05
The
Applicant was employed by the Respondent as a Commercial Manager on
the 16th September 1994. He worked continuously for the
Respondent until the 21st July 1999 when his services were
terminated by a letter annexed to the application and marked "KTM1".
In
terms of the letter of termination, the Applicant was informed that
the Respondent was not generating any income at the time and was
advised that his position had become redundant.
The
letter was written by one of the Directors of the company Mr. Lindifa
Mamba who is also the attorney on record for the Respondent in this
matter.
At
the time of the termination, the Applicant earned Five Thousand
Emalangeni (E5,000) per month.
Upon
the termination, he was still owed by the Respondent salary for the
months of May, June, July up to and including the 18th
August 1999 in the sum of Nineteen Thousand Five Hundred Emalangeni
(El9,500).
He
was not paid any terminal benefits upon dismissal, itemized as notice
pay E5,000.00 (Five Thousand Emalangeni), additional notice E4,900.00
(Four Thousand Nine Hundred Emalangeni) and severance allowance in
the sum of El2,250.00 (Twelve Thousand Two Hundred and Fifty
Emalangeni).
The
Applicant claims payment of all the aforesaid items.
In
addition, the Applicant was owed 65 days leave and was not paid money
in lieu of the same. He therefore claims E16,250.00 (Sixteen Thousand
Two Hundred and Fifty Emalangeni) in respect thereof.
Upon
filing the particulars of claim on the 26th September
2000, a Notice of Intention to Oppose the application was filed by
the firm of Shilubane Ntiwane & Partners on the 5th October
2000.
The
firm of Mamba & Associates later on took over the matter.
Mr.
Mamba without pleading on the merits, raised points in limine against
the Application. The matter was argued on the objections, and a
ruling delivered by Justice Kenneth Nkambule on the 3rd
August 2001 dismissing the points.
Leave
was not sought and non-was granted to plead over the merits belatedly
upon dismissal of the points.
The
court was told however that the Applicant's attorney tried to prevail
on Attorney Mamba to file a reply to the application. This did not
happen inspite that the matter was set down on at least seven
occasions wherein Attorney Mamba requested for and was granted
post-ponement to file the reply.
Mr.
Mamba finally filed a Notice of Withdrawal from the matter. On the
face of the notice, there is no indication whether same was served on
the Respondent.
Mr.
Dunseith however wrote to Mr. Mamba requiring proof of service of the
Notice of Withdrawal. Mr. Mamba did not respond to the same.
The
matter was set down for hearing and the Notice was nonetheless served
on the office of Mamba and Associates, the firm he now operated
under.
The
notice was also sent by registered post to the registered office of
the Respondent as appeared from the court papers.
When
the matter came for hearing on the 10th June 2005, neither
Mr. mamba who is also a Director of the Respondent, nor any other
representative of the Respondent made an appearance.
An
application to hear the matter ex-parte was made by Mr. Dunseith for
the Applicant and the same was granted by the court.
The
matter proceeded to an exparte hearing. All the particulars of claim
remain uncontroveretd therefore. The Applicant made a brief testimony
in support of the claim.
The
court is satisfied that all the Applicant's claims as contained in
the Particulars were proven on a balance of probabilities. His
testimony was credible and remains uncontrovereted. It is important
to note that no claim for compensation for the unfair dismissal was
made in the Particulars of Claim nor does this claim appear on the
report in terms of Section 41 of the Employment Act. The court will
therefore not consider same.
Accordingly
the Application is granted and the following order made:
The
Respondent is to pay to the Applicant:
1.
Notice
pay...........................
E 5,000.00
2.
Additional
Notice...............E
4,900.00
3.
Severance
Allowance........E12,250.00
4.
Arrear
salary......................E19,500.00
5.
Payment in lieu of leave
days E16, 250.00
TOTAL........................................E57,900.00
Due
to the dilatory tactics employed by the Respondent, the hearing of
the application was considerably delayed and the Applicant was put to
unnecessary expense. Therefore the Respondent is to pay the costs of
the application.
The
members agree.
NDERI
NDUMA
JUDGE
PRESIDENT-INDUSTRIAL COURT
