[1] The Applicant
was employed by the 1st
Respondent in April 1988 as a Television Producer. She served in
this position until 20th
June 2002 when she was appointed Acting Broadcast Manager with
effect from 17th
June 2002. The letter of appointment as the Acting Broadcast Manager
is annexed to the Founding Affidavit and is marked as annexure "A".
[2] The Applicant
served as the Acting Broadcast Manager for a period of four years.
She was however, by a letter dated 1st
August 2006, and signed by the 2nd
Respondent told to resume her previous position as Television
Producer.
[3] The Applicant
said that she was never consulted before such a drastic decision was
taken by the 2nd
Respondent. She stated in her affidavit that such conduct amounted
to a demotion. She averred further that the 2nd
Respondent's conduct constituted unfair labour practice.
[4] In her
Founding Affidavit, she also stated that the position of
Broadcasting Manager was thereafter advertised and the closing date
of applications was the 10th
August 2006. She stated that to her knowledge the position has not
yet been filled.
[5] The applicant
has consequently brought an urgent application to court and she
prays for the following orders:-
"1.
Condoning any non compliance with the rules of court, time limits
and hearing this matter as one of urgency.
Interdicting and
restraining the 2nd
Respondent from effecting an appointment to the vacant position of
Television Production Manager pending the finalization of the
dispute reported at CMAC.
That paragraph 2
shall operate with immediate and interim effect.
Costs of the
application.
Further
and or alternative relief."
[6] The matter
came before the court on 22.08.06. There is no affidavit of service
in the record. It transpired in court however that the Respondents
were served on the previous day, the 21.08.06 as the Applicant
initially intended that the application be heard at 2:30 P.M. on
that day.
[7] The
Respondents are properly represented by counsel. The Respondents did
not file a notice to oppose, but only filed a notice to raise points
of law. The Respondents also did not file any Answering Affidavits.
[8] Presently,
the only evidence before the court is that of the Applicant.
[9] It is trite
law that if a party elects to raise points of law only and does not
file these together with its Answering Affidavit, it runs the risk
of the court considering the only evidence before it, to wit, the
applicant's Founding Affidavit.
[10] Mr.
Mngomezulu raised three points of law on behalf of the Respondents.
These are (i) urgency, (ii) relief sought and (iii) nonjoinder.
[11]
URGENCY
Mr. Mngomezulu
argued that the Applicant failed to establish why the matter should
be heard by the court as a matter of urgency. He argued that the
Applicant having become aware of the advertisement of the post on
01.08.06, she cannot claim that the matter is urgent as she had
about three weeks within which to act but did not do anything.
[12] Mngomezulu
also argued that the applicant has no good cause to ask the court to
intervene, as she did not even apply for the post. The court was
referred to this court's decision in the case of LWAZI
MDZINISO VS CONCILIATION MEDIATION AND ARBITRATION COMMISSION CASE
NO. 150/2006.
The
court's decision in the Lwazi Mdziniso case was based on the
decisions in the cases of HUMPHREY
H. HENWOOD V. MALOMA COLLIERY LIMITED AND ATTORNEY GENERAL (HIGH
COURTS CASE NO. 1623/94 AND PHYLIP NHLENGETHWA AND 6 OTHERS V.
SWAZILAND ELECTRICITY BOARD (I.C.) CASE NO. 272/2002.
These cases were
however departed from in a subsequent decision of this court also
dealing with the question of urgency.
The court will
therefore follow the decision in the subsequent case of VUSIGAMEDZE
Vs. MANANGA COLLEGE (I.C.I CASE NO. 267/06.
In that case the
court was, inter
alia, referred
to the case of Zodwa
Mkhonta v. Swazliland Electricity Board (I.C.) case no. 343/2000
as authority that where the founding affidavit reveals a manifest
injustice or a grossly unfair labour practice, that in itself
constitutes a good ground for urgency.
In the present
case the applicant managed to show in her papers that she will be
substantially prejudiced if the application is not heard as a matter
of urgency, In paragraph 27 of the Founding Affidavit she said she
did riot even bother to apply because it would be ironic of her to
be reappointed after having been demoted from the position.
It seems to the
court therefore that the applicant cannot be faulted for bringing
this application to court after the passage of three weeks taking
into account the manner that she was treated by the 2nd
Respondent
and also that she had to instruct an attorney.
Furthermore, the
Founding papers show that the applicant was not consulted before she
was removed from the position. The applicant will indeed be
substantially prejudiced if the matter were to take the normal route
as the position might be filled and the respondents could then raise
the defence that the application has been overtaken by events.
[18]
RELIEF
SOUGHT:-
Mr. Mngomezulu
argued that the applicant has failed to satisfy the requirements of
an interdict. We do not agree with Mr. Mngomezulu. We are satisfied
from the applicant's founding affidavit that a prima facie case has
been made for an interim order. Whether a case for a final interdict
has been made cannot be properly determined at this preliminary
stage, but after hearing arguments on the merits of the case.
[19]
NON-JOINDER:-
It was argued
that the applicant's application was defective in that she had
failed to join International Development Centre for Africa
Consultancy, which was entrusted with the recruitment exercise. This
was a submission made from the bar. There was no evidence that the
applicant was aware of the said recruitment agency. Again, this
matter can only be determined by the court after hearing full
arguments on the merits.
[20] Taking into
account all aforegoing observations, the points of law will be
dismissed.
