IN THE INDUSTRIAL COURT
OF SWAZILAND
HELD AT MBABANE
CASE NO. 339/03
In the matter between:
JACOB P. MKHWANAZI……….APPLICANT
and
MANZINI CITY COUNCIL……..RESPONDENT
CORAM:
NDERI NDUMA: PRESIDENT
JOSIAH YENDE: MEMBER
NICHOLAS MANANA: MEMBER
M. SIM ELAN E : FOR APPLICANT
S. M. KUBHEKA: FOR RESPONDENT
JUDGEMENT -31/03/05
The Applicant is Jacob
Mkhwanazi an adult male of Madonsa in Manzini. The Respondent is the
Manzini City Council, a statutory body established by the Municipal
Laws of Swaziland.
In his particulars of claim,
the Applicant pleads that he was employed by the Respondent in 1989
as a grass cutter and was in continuous service of the Respondent
until December 2002. He earned One Thousand Six Hundred and Seventy
Three Emalangeni Ten Cents per month ( El,673.10).
The reason for the
termination of the services of the Applicant was that the Applicant
had reached the retirement age of 60 years.
The Applicant claims that the
retirement was unlawful because at the time of the termination he had
not attained the age of 60 years.
That he was not allowed
and/or given an opportunity to state his exact age before the
retirement and no hearing was conducted. He claims therefore he was
unfairly dismissed on the basis that he had not reached the
retirement age.
Upon termination, he was paid
Ten Thousand Eight Hundred and One Cents (E10,800.01) as gratuity and
Three Thousand Three Hundred and Fourty Six Emalangeni Twenty Cents
(E3,346.20) leave pay.
He has pleaded that the
aforesaid figures were not correct because he did not get additional
notice, balance on gratuity on the service, severance allowance and
loss of wages for the premature retirement.
The dispute was reported to
the Labour Commissioner who forwarded the same to the Conciliation
Mediation and Arbitration Commission (CMAC). The Commission was
unable to resolve the same and a certificate of unresolved dispute
was issued in terms of Section 85 (1) of the Industrial Relations Act
No. 1 of 2000.
In its reply to the
particulars of claim the Respondent admits the following:
1. That the Applicant was employed in
1989 and his services were terminated in December 2002.
2. That he earned a gross salary of El,
673.10 at the time of the termination.
3. That he was retired on the basis that
he had attained the retirement age of 60 years.
4. That upon such retirement he was paid
a gratuity of E10,878.01 and leave pay in the sum of E3,346.20.
The Respondent denies that
the Applicant had not reached the retirement age. It further denies
that he was entitled to any of the terminal benefits claimed in the
particulars of claim. The Respondent avers that in terms of
information given to it by the Applicant when he was first employed
on the 7th November 1989, the Applicant was born in 1938
and therefore at the time his services were terminated he was already
past the retirement age of 60 years.
The engagement form was
produced by the Applicant and marked exhibit Al.
Issues in Dispute
The bone of contention is
that sometimes on the 8th May 1996 the Applicant obtained
a birth certificate from the government of Swaziland indicating that
he was born on the 25th April, 1943.
In terms of the Births
Marriages and Death Registration Act of 1983, and in particular
Section 28 (3) a death certificate duly issued upon registration of
birth of a person "shall be prima facie evidence of the
particulars set forth therein in all courts of law and public
offices".
On the basis of the
certificate of birth of the Applicant produced as exhibit 'A3' it is
the Applicant's contention that the Respondent ought not to have
relied on any other information as to his actual date of birth other
than the certificate of birth.
That had it relied on the
certificate aforesaid, it would have realized that he was born in
1943, but not 1938. That therefore, it had retired him prematurely in
December 2002 and such termination of employment was unlawful and
contrary to law.
The arguments by the
Applicant were stiffly met by the Respondent. The Respondent stated
that it had relied solely on the information given by the Applicant
to it as to his date of birth to determine his retirement age.
That according to the company
records, 1938 was the correct date in which the Applicant was born
and therefore he was well above 60 years old at the date of
termination on the 31st December 2002.
The Applicant in his
particulars of claim and in the written submissions before the court
does not state if he had at all furnished the birth certificate dated
the 8th May 1996 to the Respondent. There is no
information on whether the Applicant had made an application to the
Respondent prior to the retirement, requesting that it amend the date
of his birth he had supplied to it when he was first employed in 1989
to accord to the date in the birth certificate.
No allegations appear at all
in the particulars of claim as to why the Applicant had first
informed the Respondent that he was born in 1938 if indeed this was
not his correct date of birth.
All the other documentation
provided by the Applicant such as the Swaziland Travel Document,
Swaziland National Identity Card and Swaziland National Provident
Fund Membership card reflect his year of birth to be 25th
April, 1943.
The documentation however
must have been acquired subsequent to the acquisition of the birth
certificate on the 8th May 1996 and therefore the date of
birth appearing on them was extracted from the birth certificate.
By agreement of the parties,
no oral evidence was adduced in this matter it being common cause
that the only issue in dispute was whether or not the employer could
disregard the birth certificate aforesaid and insist that the correct
date of birth of the Applicant was 1938.
I have looked at the papers
before court over and over again and it does not appear to me that
there is any averment from the particulars of claim that the birth
certificate had been presented to the employer at all prior to the
retirement of the Applicant.
All that the Applicant states
in paragraph 7 is that he was not allowed and/or given an opportunity
to state his exact age.
It is clear that the
Applicant provided the employer with his date of birth the first day
he was employed.
The Respondent was entitled
to rely on the said information to retire the Applicant.
The application fails in its entirety.
No order as to costs.
The members agree.
NDERI NDUMA
JUDGE PRESIDENT- INDUSTRIAL COURT
