IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE
CASE
NO.287/04
In
the matter between:
SWAZILAND
MANUFACTURING
AND
PROCESSING INDUSTRY STAFF
ASSOCIATION.......................................................APPLICANT
and
SWAZI
TIMBER PRODUCTS (PTY) LTD............RESPONDNT
CORAM:
NKOSINATHI
NKONYANE :A.J.
GILBERT NDZINISA :
MEMBER
DAN
MANGO : MEMBER
FOR
APPLICANT : MR. SELBY DLAMINI
FOR
APPLICANT :MR. SIFISO NSIBANDE
JUDGEMENT
-02/02/05
This
is an urgent Application brought by the Applicant against the
Respondent for an order in the following terms :-
"(1)
Dispensing with the normal provisions of the rules of this Honourable
Court as relate to form, service and time limits and hearing this
matter as an urgent one.
(2)
That
an order be and is hereby issued directing the Respondent to pay
terminal retrenchment benefits of Applicant members amounting to One
Hundred and Seventy Nine Thousand One Hundred and Ninety One
Emalangeni and Twelve Cents (E179,191.12),covering salaries for
August 2004.
(3)
Interdicting and
restraining Respondent from disposing removing all immovable and
movable properties and assets within Respondent premises pending the
payment of the monies under prayer (2).
(4)
Directing
that prayers 2 and 3 operate with immediate and interim effect
returnable on a date to be determined by the above Honourable Court.
(5)
Costs of suit:-
(6)
Further
and /or alternative relief."
The
evidence before the court revealed that the Respondent engaged in a
retrenchment exercise as from December 2003. Since that period, over
300 employees have been laid off.
Some
of the retrenched employees agreed to be paid their terminal benefits
over a period of 8 to 12 months.
Some
of the retrenched employees however did not want that arrangement,
but wanted to be paid their terminal benefits at once, hence this
present Application before the court.
It
was argued on behalf of the Respondent that the spreading out of the
payments was the most viable means of settling in full, the amounts
due to each creditor of the Respondent.
It
was further argued on behalf of the Respondent that if it were to be
made to pay the terminal benefits at once, the company would have to
go the route of liquidation wherein the payment in full of the
terminal benefits would not be guaranteed.
On
behalf of the Applicant it was argued that the retrenched employees
feared that the Respondent would disappear without having fully paid
them.
The
evidence however showed that the Respondent has a lease agreement for
12 months with SIDC. The evidence also showed that the Respondent has
machinery worth E3,000,000:00 at its premises.
The
Respondent's attorney told the court that as a guarantee, the court
may make an order restraining the Respondent from disposing or
removing the machinery.
The
Applicants' Representative made an offer of four months. This offer
was not accepted by the Respondent.
The
court must now make a final ruling on this matter. The Respondent's
attorney asked the court to exercise its discretion in this matter
and consider that it would not be a favourable option to the
employees if the company was to undergo liquidation.
In
this matter the employees have made their choice. They want to be
paid a lump sum, or the payment to be spread over four months only.
No
financial statement was shown to the court. The court however
believes that the retrenchment exercise was genuinely carried out and
based on reasons provided by the law because the union was involved.
The
court believes that it is in the best interest of the employees that
they receive their payments in full. If the payment in a lump sum
would mean that the company will undergo liquidation, that would not
be in their best interest as they will have to compete with creditors
who may be preferred. They will end up not receiving their full pay.
There
is evidence that some of the payments are being spread over a period
of eight to twelve months. If that arrangement guarantees payment in
full, it is not clear why the employees would not opt for it.
Taking
into account all the above factors, the court will make an order that
the Respondent pays all the terminal benefits of the Applicant's
members within a period of eight months from the date of this
judgement, and that the Respondent is not to remove or dispose of the
machinery until all the affected employees have been paid in full all
their terminal benefits.
No
order for costs is made.
The
members agree.
N.
NKONYANE
ACTING
JUDGE – INDUSTRIAL COURT
