This is an application that was brought to court by the applicant on
a certificate of urgency.
applicant is the Secretary General of the 1 respondent. He is
currently on suspension and is challenging the suspension.
applicant is seeking an order in the following terms:
Dispensing with the forms and time limits as prescribed in the
Industrial Relations Act 2000 as amended and the rules of the above
Honourable Court and hearing the matter as one of urgency.
the fmalization of this matter a rule
calling upon the respondents to show cause, on a date to
determined by the Honourable Court why a final order
be made in the following terms;
Interdicting and restraining the 2nd
respondents from calling a special delegates congress or any general
meeting of 1st
That prayer 2.1 only operates with immediate and interim effect.
the suspension and charges preferred by the 2nd
respondents on the applicant void ab
Interdicting and restraining the 2nd
respondents from interfering and or preventing the applicant in any
unlawful manner whatsoever, from executing his duties as prescribed
by the 1st
respondent's constitution and trade union customs and conventions.
Ordering and/or directing the 1st
respondent's entire N.E.C. those cited herein and not, to involve
the Swaziland Federation of Labour in the appointment of an
independent mediator to resolve their internal disputes.
That the Matsapha, Sigodvweni Police Station Commander and or his
lawful agents be present in all meetings of the N.E.C. to keep the
peace and/or protect life and property during the joint N.E.C.
meetings pending mediation.
Granting punitive costs against 2nd
Granting any further and/or alternative relief against the
respondents as the Honourable Court deems fit."
the matter was argued before the court on 15 August 2007 there were
some new developments. The applicant's attorney told the court that
they were abandoning prayers 2. 2.1 and 2.2. The main issue left to
be decided by the court therefore is that contained in prayer 3
being a prayer to have the suspension and charges preferred against
the applicant declared void ab
facts of the matter revealed that there is serious animosity between
the applicant and the 2nd
respondent. These personal differences have unfortunately filtered
down to the other members of the 1st
respondent's National Executive Committee (hereinafter referred to
as "NEC"). As a direct consequence of this, the NEC is now
split into two factions, one is following the applicant and the
other is following the 2nd
respondent. It is thus difficult to execute the duties for which
these members were elected into office because whenever a meeting is
called, only the members of one faction show up.
facts present a very unfortunate situation wherein the people who
were elected into office to serve the subscribing members of the
union, are not doing that, instead they are only busy pushing
personal agendas. The parties have been to court several times. In
case No. 306/2007 where the 1st
respondent was the applicant and the 2nd
respondent was the respondent the President issued an ex
in which he held at pages 5-6
parties would be well-advised to either involve an independent
mediator to resolve their internal disputes, or to urgently call a
Special General meeting to enable the members of the organization to
resolve the conflict within the NEC. "
The court was informed that the mediation part was tried and it
failed. The parties have not tried the second part of the
recommendation that of urgently calling a Special General Meeting to
enable the members of the organization to resolve the conflict
within the NEC.
In terms of Rule 8.2.3 of the Union's Constitution, the NEC has
power to fine, suspend or dismiss any officer or member for neglect
of duty, dishonesty, incompetence, refusal to carry out the
decisions of the NEC, or any other reason which it deems good and
sufficient in the interests of the Union. The Rule further provides
that there shall be a right of appeal to the Annual General Meeting
or Special General Meeting.
The parties did not however address this question whether or not
this court has jurisdiction to entertain the matter when the
constitution provides that an affected party has a right of appeal
to the Annual General Meeting or Special General Meeting. The court
is therefore precluded from making any finding based on the
interpretation of this Rule as the parties did not specifically
address the court on it.
What is clear however is that the NEC is now divided into two
factions. When a meeting is convened, it is only those members of
one of the factions that attend the meeting. The court does not
think that that is what the members of the organization want. The
observations of the President in the case of THE
SWAZILAND MANUFACTURING AND ALLIED WORKERS UNION V. ALEX FAKUDZE
case no.306/2007 at page 3 are relevant to this application where
the court pointed out that;
a dispute arises between two factions in the executive committee of
an organization, it is important for the court to determine at the
outset whether the application, brought in the name of the
organization, indeed has the blessing and authority of the
organization, or whether it is merely one faction suing in the name
of the organization to obtain greater legitimacy for its claims. The
best proof of authority is a resolution of the executive committee
passed and signed in accordance with the constitution."
this case the application was brought by the applicant in his
personal capacity. The fact remains however that there are now two
factions of the NEC. The applicant has his own supporters. It would
clearly be difficult for the NEC to function normally.
of the charges preferred against the applicant relates to incidents
that occurred in 2004. It is not clear why these charges were
brought up three years later. The only conclusion that the court can
arrive at is that the 2nd
respondent and the members of his faction want by all means to
extend the net so that the applicant cannot escape. This act of the
respondent and his followers only shows mala
the whole exercise.
was no evidence that in the meeting of the NEC in which the charges
against the applicant were preferred that the quorum was formed. No
minutes of the meeting were produced to court. The applicant also
stated in paragraph 10.5 of the founding affidavit that some of the
charges were never deliberated upon and a resolution passed. The
burden of proof shifted to the respondents to show that the quorum
was formed and the charges were deliberated upon and a resolution
respondents only responded to paragraphs 10 - 10.2 of the
applicant's founding affidavit.
this ship is sinking and something must be done quickly to save the
court having taken into account all the evidence before it and all
the circumstance of this case will make the following order: -
THAT THE SUSPENSION OF THE APPLICNT IS DECLARED VOID AB
IS SET ASIDE.
THAT A SPECIAL GENERAL MEETING BE CONVENED IMMEDIATELY BY
THE NEC OR THE MEMBERSHIP
IN TERMS OF RULE 7 OF THE UNION'S CONSTITUTION TO DISCUSS AND
RESOLVE THE INFIGHTING WITHIN THE NEC.
THERE IS NO ORDER AS TO COSTS.
- INDUSTRIAL COURT