THE INDUSTRIAL COURT OF SWAZILAND
the matter between:
AGRICULTURAL AND ALLIED
ASSOCIATION (SIMUNYE BRANCH) APPLICANT
APPLICANT: M. MKHWANAZI
RESPONDENT: M. SIBANDZE
applicant instituted application proceedings on an urgent basis
against the respondent on 23 August 2007 for an order;
Dispensing with the normal and ordinary rules of court relating to
notices and service of documents and that this matter be enrolled as
one of urgency.
rule nisi do
hereby issue, calling upon the respondent to show cause, on a date
to be determined by the above Honourable court, why an order in
following terms should not be made final;
Restraining and interdicting the respondent from withdrawing the 10%
merit pay from applicant members remuneration / salary pending the
determination of a Notice in terms of SECTION
26 OF THE EMPLOYMENT ACT filed
by the applicant and pending before the Labour Commissioner.
Directing the respondent to pay to applicants' members their
performance bonus based on their performance appraisals for the
financial years 2005 / 2006 / and 2006 / 2007.
That prayer 2.1 and 2.2 above operate with immediate effect, pending
final determination of this application.
Further and or alternative relief."
The respondent filed its answering affidavit in opposition of the
application and also filed a notice to raise points in limine.
The court is presently called upon to make a ruling on the points
raised in limine.
was argued on behalf of the respondent that the applicant has failed
to satisfy the requirements of urgency. Mr. Sibandze argued that
there was no need for the applicant to approach the court on an
urgent basis because it has other remedies in terms of the
Employment Act and that a litigant is allowed to bring an urgent
application only if he has no other or alternative remedies
available to him.
The evidence revealed that the matter was reported to the
Conciliation, Mediation and Arbitration Commission ("CMAC")
and a certificate of unresolved dispute was issued and is marked
"annexure G" of the applicant's founding affidavit.
Mr. Sibandze's argument was premised on the understanding that the
members of the applicant's complaint was a financial one. He
submitted that financial loss is not a ground for urgency.
It is true, and this court has pointed out a number of times in
cases, that have come before it that financial prejudice is not a
ground for urgency. The cases where the court has pointed this out
however were cases of unfair dismissal. (See
Kenneth Makhanya v. The National Football Association of Swaziland
(IC) case no. 268/2004 ).
The court was referred to the case of SWAZILAND
AGRICULTURE AND PLANTATION WORKERS UNION V. UNITED PLANTATIONS
(SWAZILAND) LIMITED (I.C.) CASE NO. 79/98 and
the cases cited therein. With respect, the present case is
distinguishable in that the applicant's members have not been
dismissed or retrenched by the respondent. They are still the
employees of the respondent. The question now is whether the
respondent has a right to withhold a portion of their monthly
financial benefit which forms part of the terms and conditions of
their employment? The court does not think so. This court has in the
past entertained an application brought on a certificate of urgency
to stop an employer from unlawfully deducting certain monies due to
an employee. (See:Sonnyboy
Zwane v. Pincipal Secretary/Justice and Two Others (IC) case no.
A proper reading of the papers before court will show that prayers
2.1 and 2.2 are inextricably linked. The evidence as per "ANNEXURE
F" of the founding affidavit shows that the parties have had
numerous meetings and extensive negotiations on this issue of the
10% merit payment but have not been able to resolve the matter. The
applicant reported the dispute at CMAC. The dispute was not resolved
at CMAC hence the certificate of unresolved dispute dated 6 August
2007. Management has since written a letter to the applicant dated
13 August 2007 to the effect that it will discontinue the 10% merit
payment on 31st
August 2007. This has led to the applicant bringing the matter to
court on certificate of urgency. Clearly, since the matter is now
before the Labour Commissioner, both the respondent and the court
must wait for his determination.
Sibandze argued that the applicant's members have failed to
establish a prima
because there is no active collective agreement in place and the
merit increase is based on a collective agreement that expired on 31
December2004. It is true that the collective agreement between the
parties was for the period 1st
January 2004 to 31st
December 2004 in terms of clause 12.1 thereof. This collective
agreement was however agreed and signed by the parties on 15 March
2005. This conduct by both parties was a tacit agreement that
although on paper the collective agreement lapses on 31st
December 2004, they regarded it as binding even after that date. The
respondent can not approbate and reprobate.
Further,the provisions of the collective agreement became part of
the terms and conditions of employment between the parties. This
position is strengthened by "ANNEXURE Bl"
of the founding affidavit. This document is the letter of
appointment of one of the workers of the respondent signed by the
parties on 31st
October 1995. The 10% merit increment is mentioned there as part of
the terms and conditions of employment. The 10% merit payment being
part of the terms and conditions of employment of the workers, it is
clear therefore that the applicant's members have a prima
to claim continued payment of this amount.
is argued that there was no prima
that the matter was pending before the Labour Commissioner. Mr.
Sibandze argued that the applicant referred the matter to the Labour
Commissioner outside the fourteen days as required by SECTION
26 OF THE EMPLOYMENT ACT.
There was no evidence that the Labour Commissioner has refused to
deal with the applicant's request in terms of SECTION
26 OF THE ACT. This
court has no jurisdiction to determine the question whether the
Labour Commissioner should or should not entertain the applicant's
application. The Labour Commissioner is the one that must make that
determination. For the purposes of this application therefore all
that the evidence shows is that the matter is still before the
It is clear on this point that it will not be proper for the court
to entertain the application as the Labour Commissioner has not yet
made his determination on the matter in terms of SECTION
26 OF THE ACT.
The matter having been referred to the Labour Commissioner, it can
only come to court on referral by him in terms of SECTION
26 (4) OF THE ACT. It
follows therefore that the application must be dismissed. The court
will therefore make the following order;
THAT THE APPLICATION IS DISMISSED AS THE QUESTION FORMING THE BASIS
OF THE APPLICATION IS STILL PENDING BEFORE THE LABOUR COMMISISONER.
NO ORDER AS TO COSTS IS MADE.
- INDUSTRIAL COURT