IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE
CASE
NO. 130/98
In
the matter between:
SIMON
MVUBU APPLICANT
And
NGWANE
MILLS (PTY) LTD RESPONDENT
CORAM:
NDERI
NDUMA
: PRESIDENT
JOSIAH
YENDE : MEMBER
NICHOLAS
MANANA : MEMBER
RULING
The
Applicant has filed a Notice of Motion to amend his application in
the following manner:
"
Replacing paragraph four of the Notice of Motion with the following
:
"prohibiting
the Respondent from preventing the Applicant from carrying on with
the activities of the union known as the Swaziland Manufacturing and
Allied Workers Union in the undertaking of the Respondent.
Adding
a new paragraph 5 as follows : further and or alternative relief.
Adding
a new paragraph 6 as follows: costs".
The
Respondent opposes the proposed amendments on the grounds that the
amendment sought attempts to introduce a new cause of action which is
not substantiated by any allegations in the Founding Affidavit and
the Respondent has not been able to
2
reply
to same in its opposing Affidavit. Further, the Respondent states
that no averments in the Founding Affidavit support a prayer for
costs in terms of Section 10 of the Industrial Relations Act.
Rule
10 (9) of the Industrial Court Rules provides that where these Rules
do not make provision for the procedure to be followed in any matter
before the Court, the High Court Rules shall apply to proceedings
before the court with such qualifications, modifications and
adaptations as the President may determine.
The
rules of this Court do not provide for the amendment of Pleadings and
Documents before it and therefore we have resorted to the High Court
(Amendment) Rules, 1990.
Rule
28 (8) provides:
"The
Court may during the hearing at any stage before judgement grant
leave to amend any pleading or document on such terms as to costs or
otherwise as to it seems fit".
In
this case, pleadings have been closed and when the matter came before
former Judge of this Court, Justice Parker on the 14th July, 1998 he
made an order as follows:
"The
Applicant's prayer in paragraph one shall be determined by this
Court. But in our view paragraph two and three thereof cannot be
entertained by the Court. The Respondent is to file papers in
response to paragraph one of the Applicants's prayer on or before the
30th July, 1998".
Prayer
one of the Notice of Motion reads as follows :
"Application
will be made on behalf of the Applicant for an order in the following
terms :
Declaring
the written warnings issued against the Applicant by the letter of
24th October, 1997 unlawful and invalid and setting the said warning
aside."
The
Respondent was ordered by this Court to specifically file a reply
addressing this particular prayer. On the 31st July, 1997 the
Respondent filed their Replying Affidavit in compliance with the
order of this Court.
3
It
is now common cause that the warnings issued against the Applicant by
the letter of the 24th October, 1997 have since lapsed and no longer
hold and therefore this application has been overtaken by events.
The
Applicant however now seeks to amend the application in the manner
stated to keep the matter alive as it were.
The
question we are called upon to answer is whether this amendment is
permissible in the circumstances alluded to here before.
The
court has a discretion in terms of the High Court Rules to allow an
amendment anytime before judgement. This is the case even if the
amendment can be said to introduce a cause of action which did not
exist when the application was launched, though we do not think this
is the case here. The test to be applied in this case is whether the
amendment will prejudice the Respondent in a manner that cannot be
remedied by way of filing Supplementary Pleadings and/or Affidavit or
by way of costs.
It
appears to us the new prayer is inextricably intertwined with prayer
one which is now said to have been overtaken by events.
We
dare say that the Founding Affidavit clearly details the alleged
harassment and attempts to obstruct the Applicant from engaging in
Union activities which the introduced amendment seeks this court to
restrain and these averments have been extensively met in the
replying affidavit. If the allegations have not been responded to
adequately this would be remedied by way of filing supplementary
affidavits with no real risk of prejudice to Respondent's case.
We
are fortified in our finding by the views of Nathan CJ. as he then
was in the case of MOTSA v CARMICHAEL INVESTMENTS (PTY) LTD, 1979 -
1981 S.
L.
R.
166 at 169.
In
this case the Respondent had objected to the filing of Supplementary
Affidavits by the Applicant on the basis that they introduced a cause
of action that had not occurred at the time of institution of the
application. The learned judge stated :
"There
can be no prejudice to the Respondent in the permitting of
Supplementary Affidavit to remain on the papers. Even if this can be
said to introduce a cause of action which did not exist when the
application was launched
-and
I am by no means certain that this is the case- the court has a
discretion in the matter (See De Bryn v Centenary Finance Co (Pty)
Ltd 1977 (3) SA 37 (T) at 42.
It
appears to us reasonable that this discretion in the circumstances of
the present case be exercised against the Respondent.
4
In the final analysis we will make the following order :
The
application to amend is allowed.
The
Respondent is granted leave to file any further replies.
Applicant
to pay costs in respect of any further papers filed by the
Respondent pursuant to this amendment.
NDERI
NDUMA
PRESIDENT OF THE INDUSTRIAL COURT
