IN
THE HIGH COURT OF SWAZILAND
CIVIL
TRIAL NO.1814/95
In
the matter between:
REUBEN
NDLANGAMANDLA & 91 OTHERS
VS
SWAZILAND
BREWERS LIMITED
FOR
THE
CORAM: S.W.
SAPIRE
FOR
THE PLAINTIFF: MR. A. SHABANGU
FOR
THE DEFENCE: ADU KUNNY
JUDGEMENT
19/12/95
The
first applicant is Reuben Ndlangamandla. He is joined in this
application, according to the citation, by 91 others. To establish
the identity and particulars of the individuals, the first applicant
refers in Paragraph 2 of the founding affidavit to a Schedule marked
A, attached thereto in which he says he as first applicant, and the
remaining 91 are listed:
Examination
of the Schedule reveals that,
(a) although
the names of the applicants are listed is numerical order from one to
ninety
two
no names appear against numbers 79 & 90.
There
are accordingly not 92 but 89 applicants.
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(b) not
one of the applicants has furnished particulars of his sex,
occupation and his place of residence or his place of business as
contemplated in Rule 4(b). This rule applies to the particulars
required of a plaintiff issuing the Summons. I see no reason why it
should not apply to persons seeking relief on motion.
It
would seem that the procedure is irregular but as no point has been
made by the respondent I will proceed to deal with the application as
if it had been presented in due form.
The
applicants seeking order in the following terms:
(a) That
the purpoted termination or dismissal of the applicants by the
respondent was wrongful, invalid and unfair.
(b) That
the applicants are granted leave to institute separate proceedings
before this court for the proof of the damages suffered by each one
of them as a result of the wrongful dismissal.
(c) That
each of the applicants be paid by the respondent the amounts as shown
in the eighth
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column
of schedule "A" of the founding affidavit being the total
of notice pay, additional notice pay and severance allowance made up
as shown in the fifth, sixth and seventh column respectively of
schedule "A".
(d) Interest,
a tempore morae, at the rate of nine percent per annum from the date
of 14th November, 1989 to date of payment.
(e) Costs
of this application.
The
facts and circumstances giving rise to these claims are
as
follows:
The
applicants are all former employees of the Respondent and the
SWAZILAND MANUFACTURING and ALLIED WORKERS UNION (SMAWU). In 1989 an
industrial dispute arose between SMAWU and the Respondent. The Union
was the Applicant's representative in the dispute which concerned the
Respondents' refusal to replace or remove one of its employees, of
whom the applicants disapproved.
The
dispute remain unresolved notwithstanding the reconciliation
procedures adopted in accordance of the INDUSTRIAL RELATIONS ACT
NO.4/1980. By March 1990 the INDUSTRIAL COURT had dealt with an
applicantion by SMAWU for an order:-
"that
the court orders the Respondent to
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reinstate
all the locked out workers immediately and unconditionally"
In
refusing the Order the President of the Court outlined the events
which eventually led SMAWU to make that application. As the judgment
is annexed to the Replying Affidavit I do not propose to quote
extensively therefrom. It is quite clear that the court was dealing
with the same dispute as is now before this Court.
The
final decision of the INDUSTRIAL COURT adverse to the applicants on
issues common to that case and to this is a bar to the granting to
the Applicants the relief they presently claim. The proceedings in
the industrial court were between the same parties as those now
before court. The Union was the representative of all the Applicants,
and the Respondent in this application was also the Respondent in
that case. The relief claimed and the issues canvased in the earlier
case are identical with those now advanced and raised in this
application. The applicants would have to succeed on Claim A in the
notice of motion of this application to entitle them to the relief
claimed in remaining prayers. The issue is whether the termination by
the Respondent of its employment of the applicants on 14/11/89 was
lawful or not.
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The
industrial court made a clear finding on this issue in the following
terms:
(a) that
there was no lock-out and;
(b) that
the applicants had been properly and fairly dismissed on the 14th
November 1989.
In
the light of this the relief claimed in prayer (a) of the Notice of
Motion must be denied. The issue between the same parties has already
authoratively, conclusively, and finally been decided adversely to
the applicants, in a court of competant jurisdiction.
The
determination of the labour contract and the lawfulness of the strike
was specifically referred to part of the ratio decidendi of that
case. I was referred in this connection to HOROWITZ V BROCK &
OTHERS 1988(2) SA.160A by Applicants' counsel who submitted that on
the reasoning and dicta to be found in the judgment of SMALBERGER JA
the crucial issue had not been decided.
There
is nothing in the judgment in that case which advances the
Respondent's contention. The requirements of a successful plea of res
juridata or (issue estoppel' considered in that case are to be found
to be satisfied in the present case. Although the relief claimed in
the first case was not formulated in the same terms as prayer (a) of
the Notice of Motion, the issues of the lawfulness of the
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strike,
and the lawfulness and fairness of the dismissal of the applicants
was decided and determined by a court of competant jurisdiction.
On
the facts, attested in the affidavits no conclusion different to that
of INDUSTRIAL COURT could have been reached. The decision of the
Industrial Court precludes this court from granting the relief
claimed by Applicant. The plea of res judicata must therefore be
upheld.
As
far as the remaining prayers in the Notice of Motion remain to be
dealth with. I observe as follows:
(a) The
applicants are free to take whatever actions they may be advised, and
it is not the function of this court to grant any leave in this
connection.
(b)
(i) None of the respondents are entitled to the several amounts
claimed by them: As they were justifiable summarily dismissed, no
notice pay is due to them. (ii)The severance allowances if claimable
at all (which in view of the present findings they are not) fall to
be claimed in the manner prescribed by 41(1) of the INDUSTRIAL
RELATIONS ACT. It is that act which creates the cause
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of
action and prescribes the steps to be followed in pursuing any claim
arising therefrom.
In
these proceedings it would not be or competent to make any order in
prayer (c) or (d).
The
Applicants have pursued their alleged claims over a long period in
the face of a decisive adverse judgment.
In
view of the way they have described themselves and have not given
their addresses or any indication of where execution can be effected
them, it is doubtful that the respondent will be able to enforce any
order for costs awarded against the applicants. I do not know if any
previous cost orders remain unpaid. Because of this I propose making
a special order to protect the Respondent from further litigation
commenced by Applicants until this order for costs has been paid.
The
application is dismissed with costs to be paid jointly and severally
by each of the applicants;
None
of the applicants may without the leave of the court first having
been obtained institutve any proceedings whether by action or
application against the Respondent in which the same or
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similar
relief to the present is sought unless and until the Respondent's
costs of this application have been paid in full.
A.W.
SAPIRE
JUDGE
