IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 1504/2011
In the matter between:
DOCTOR LUKHELE APPLICANT
And
SWAZILAND WATER AGRICULTURAL RESPONDENT
DEVELOPMENT ENTERPRISES LTD
In re
SWAZILAND WATER AGRICULTURAL RESPONDENT
DEVELOPMENT ENTERPRISES LTD
And
DOCTOR LUKHELE 1ST RESPONDENT
NKOSINATHI NKONYANE N.O 2ND RESPONDENT
(JUDGE OF THE INDUSTRIAL COURT)
DAN MANGO N.O 3RD RESPONDENT
GILBERT NDZINISA N.O 4TH RESPONDENT
THE MINISTER OF AGRICULTURE 5TH RESPONDENT
ATTORNEY GENERAL 6TH RESPONDENT
CORAM OTA J
FOR THE APPLICANT MR M.P. SIMELANE
FOR THE RESPONDENT MR Z. JELE
JUDGMENT
OTA J,
The gist of this case briefly stated is that the Applicant who is a civil servant was seconded to the Respondent a government parastatal, as its Chief Executive Officer. The Applicant was employed on a series of fixed term contracts. The last of the contracts which preceded the dispute between the parties, was a three year contact for the period from the 1st of October 2006 to 30th September 2009.
By the terms of clause 2.1.3 and 2.1.4 of the Applicant’s contract of employment, the Applicant was required to notify the board of the Respondent in writing of his intention to renew the contract at least four months prior to the end of the contract period, and if the Board having received formal notification from the Applicant, has not given the Applicant notice of non-renewal of the agreement by 15th July 2009, the agreement shall be deemed to have been tacitly renewed.
In honour of the above stated terms and conditions of his employment, the Applicant wrote to the chairman of the board of the Respondent on the 8th of May 2009, seeking a renewal of his contract of employment. On the 12th of June 2009, the Chairman of the Board informed the Applicant, that after considering the matter, the Board resolved that his contract of employment would no be renewed.
On the 18th June 2009, the Applicant appealed to the Minister against the decision of the Board. Suffice it to say that, upon the expiration of the Applicants contract on the 30th September 2009, that the Applicant was given a three months contract, which expired on 31st December 2009. This contract was extended by a further 3 months to the 31st March 2010, and was further extended by one month to the 20th April 2010. Thereafter, the Applicant was given a 12 months contract effective 1st May 2010 by the Minister, who indicated whilst addressing the new board of the Respondent, that the post of Chief Executive Officer of the Respondent should be advertised and that Applicants three year contract would not be renewed.
This development triggered a series of correspondence and meetings between the parties, which saw the Respondent maintaining its position, that the Applicants contract would not be renewed and that the three year contract which terminated on the 30th of September 2009,had not been tacitly renewed. The Applicant on the other hand maintained that the three year contract had been tacitly renewed. The Applicant gave Respondent notice for the dispute that had arisen to be referred to concilliation in terms of clause 17 of the Applicant’s contract of employment. The Respondent refused to submit to concilliation. It was against a backdrop of the foregoing facts that the Applicant launched an application before the Industrial Court, under Case No. 107/2011, praying for the following reliefs:-
‘‘ PART I
Dispensing with the procedures and manner of service pertaining to form and time limits prescribed by the Rules of the above Honourable Court and directing that the matter be heard as one of urgency.
Pending the final determination of the relief sought in Part 2 of this Notice of Motion, the 1st Respondents are hereby restrained and interdicted from proceeding with the recruitment process to appoint any person to occupy the position of Chief Executive Officer of the 1st Respondent.
The costs of this application shall be costs as set out in Part 2 of this application.
PART 2
That the 1st Respondent be directed to comply with clause 17 of the Applicants contract of Employment.
Interdicting and restraining the 1st and 2nd Respondents from taking any steps towards terminating the Applicant’s contract on 30th April 2011, pending compliance with the order sought in part 2
The parties opposing this relief to pay the costs of this application including costs of counsel as certified in terms of Rule 68 (2) of the High Court Rules
Such further and or alternative relief’’
The Industrial Court per N. Nkonyane J, with Dan Mango N.O. and Gilbert Ndzinisa N. O., concurring, handed down its verdict on the 29th of April 2011, in the following terms
‘‘
The matter is to be enrolled as one of urgency
An interim order is granted interditing the 1st and 2nd Respondents from proceeding with the recruitment process of a new Chief Executive Officer and from terminating the Applicant’s contract on 30th April 2011, pending the finalization of this matter.
The parties are to agree in Court on the date of argument on the merits.
There is no order as to costs. ’’
Aggrieved by the foregoing interim order, the 1st Respondent as Applicant, commenced an application on urgent basis, before the High Court per MCB Maphalala J (as he then was), seeking for an order reviewing, correcting and setting aside the Ruling of the Industrial Court under Case No. 107/2011 handed down on the 29th April 2011. The decision of the High Court was delivered on the 7th of December 2011, wherein the Court not only set aside the interim orders granted by the Industrial Court, but categorically held that there was no tacit renewal of the Applicant’s contract of employment.
The Respondent immediately catched in on these findings of the High Court, in its letter to the Applicant, dated the 8th of December 2011, wherein it posited that the effect of the judgment of the High Court was that Applicant ceased to be an employee of the Respondent. The Respondent further informed the Applicant that effectively and with immediate effect, that the conditions that obtained during the Applicants special leave will therefore cease as he was no longer an employee of the Respondent. The Respondent recognized the fact that Applicant had prior to its letter of the 8th of December 2011, and in the wake of the judgment of the High Court, indicated to the Respondents attorneys his intention to note an appeal against the said judgment. This notwithstanding, the Respondent expressed the view that an appeal against the judgment of the High Court, which set aside the interim order granted by the Industrial Court, cannot in law constitute a stay of execution of the judgment of the High Court. It is on record that the Applicant made good its intentions of an appeal, which it indeed filed under Case No. 47/2011 and upon the following grounds:-
‘‘ 1. The Court erred in law and in fact in that by holding that
the Industrial Court had made a finding that the Applicant’s
contract was tacitly. The Industrial Court had not yet
determined the matter on the merits.
The Court erred by finding that Section 19 (5) of the Industrial Relations Act was applicable.
The Court a quo erred in holding that it has jurisdiction over the matter as opposed to the The Industrial Court of Appeal.
The learned Judge erred in law by ordering that the Appellant pays the costs of the Application on a scale between attorney and own client’’
It is the foregoing facts that compelled the Applicant to approach this Court with the application instant, seeking a stay of execution of the High Court judgment under a certificate of urgency, in the following terms:-
‘‘
Dispensing with the procedures and manner of service pertaining to form and time limits prescribed by the Rules of the above Honourable Court and directing that the matter be heard as one of urgency.
Directing that the Respondent is not entitled to carrying into effect the judgment of this Honourable Court dated 7th December 2011 (annexure ‘‘DLI’’)
Declaring that Respondent’s letter dated 8th December 2011 be and is hereby set aside.’’
The Respondent for its own part filed a counter application on the 26th of January 2012, wherein it prayed that it be given leave to execute the judgment of the High Court handed down on 7th December 2011, as well as costs in the event of opposition.
It is on record that the parties filed affidavits and counter affidavits. They also filed heads of arguments and supplementary heads of argument, and I heard oral argument from both sides on the 27th of January 2012, on which day the Applicant was represented by Mr M.P. Simelane and the Respondent represented by Mr Z. Jele.
In the Respondent’s answering affidavit, Respondent had raised several points in limine on urgency, nullity of the notice of motion, hearsay and non joinder of the Minister for Agriculture. Mr Jele in oral argument submitted, that in view of the fact that the Court had ordered the parties to file papers and was thus effectively seized of the matter, that he was abandoning all the other points of law raised, save for the point on non joinder.
The Court then proceeded to hear argument on the point taken on non joinder of the Minister of Agriculture, as well as the merits of the case, for ease of convenience.
I will now proceed to deal with the point taken on non joinder of the Minister for Agriculture. It is the Respondent’s position that the Minister for Agriculture has a direct and substantial interest in the proceedings, not only because the relief sought in the Industrial Court was also directed at him but because he was also a party to the proceedings being appealed against. It was further submitted for the 1st Respondent, that the Minister is an integrat part of these proceedings, in that the order that may be issued by this Court, affects the Minister because in essence, the prerogative to appoint a new chief executive officer for the Respondent, lies with the Minister acting on the recommendation of the Board. It was contended that non joinder of the Minister was fatal. Respondent, relied on the cases of Amalgamated Engineering Union V Minister of Labour 1949 (3) SA 637 and Mfomfo Nkambule V Swaziland Government 1965/2006.
It was contended replicando for the Applicant that the joinder of the Minister is a joinder of convenience, not of necessity, as there is no relief sought against him.
Let me say it straightaway here, that upon the facts and circumstances of this case, that the non joinder of the Minister for Agriculture, is not of such necessity as to stall the entire proceedings. It is now the universally accepted practice that the substance of a matter ought to be considered in appropriate circumstances. This is in recognition of the trend of Courts towards substantial justice, and that reliance on technicalities, which do not go to the root of the matter, serves to render justice grotsque and in certain circumstances leads to outright injustice. This point in limine is accordingly dismissed in the circumstances, as it does not go to the root of the dispute between the parties.
Now let us proceed to the merits of this application. The position of the Applicant briefly captured, is that the noting of an appeal against a decision of the High Court stays or suspends the operations of the decision appealed under the common law. That the High Court decision that is appealed against is not for an interim interdict to warrant the conclusion that the noting of an appeal would have the effect of reviving that interdict. The appeal is directed at the results of a review application. That a different rule will apply from then onwards, which is the common law Rule that the noting of an appeal acts as an automatic stay of execution of the judgment appealed against.
For its own part the 1st Respondents position is as detailed in paragraphs 4, 4.1-4.4 of 1st Respondents supplementary heads of argument, which is as follows:-
‘‘ 4 The respondent has taken the view that within the peculiar facts of this matter, the noting of an appeal does not constitute an automatic stay of the execution of the judgment handed down by the High Court on 7th December 2011. In this respect, the principal submissions by the respondent can be summarized as follows:-
where there is an application for a matter to be referred to arbitration and that matter comes before a Court, the Court has discretion to direct that the matter proceed to arbitration or to deal with the dispute itself. See Parekh V Shali Jehan Cinemas (Pty) Ltd and Others 1980 volume at page 301
Where a Court sitting on review considers a dispute and comes to the conclusion that a particular order ought to be set aside, it has the discretion to either remit the determination of that dispute to the lower court or tribunal or it can determine the dispute in the manner it considers appropriate or make an order it considers appropriate about the procedure to be followed to determine the dispute. See Inkosinathi Property Developers (Pty) Ltd and Another V Minister of local Government and Land Tenure 1991 (4) SA 639 at 645
The noting of an appeal against the refusal or failure to confirm an interim order does not revive the interim order unless the parties have specifically agreed the to the continued existence of the interdict pending appeal. See St Elmo’s Trading (Pty) Ltd V Hathorn NNO 2000 (4) SA 126 at 134.
A party who had obtained an interim interdict and desires further protection by way of that interdict pending dermination of the appeal can make an application for the renewal of the interdict. See Ismail V Kesharjee 1957 (5) SA 648 @ 688’’
Now the only question that arises for determination after a careful consideration of the papers filed of record, is, whether the appeal noted by the Applicant against the High Court judgment of the 7th of December 2011, constitutes an automatic stay of the judgment?
In answering this poser, it is apposite for me to recount the position of the law in this jurisdiction, which is the common law Rule. This was ably captured in paragraph 6.1 of Respondents supplementary heads of argument, in the following language:-
‘‘ 6.1 In 1991, the Swaziland Court of Appeal Rules were amended through the repeal of Rule 40 by legal notice no: 132/1999. The repeal of Rule 40 resulted in the reinstatement of the common law rule regarding the effect of the noting of an appeal on a judgment. The common law rule is simply to the effect that the execution or carrying into effect of a judgment is suspended upon the noting of an appeal. See: Reed & Another V Godart & Another 1938 AD @513 where De Villiers JA stated:
‘‘ Now, by the Roman Dutch Law the execution of all judgments is suspended upon the noting of an appeal; that is to say, the judgment cannot be carried out and no effect can be given thereto, whether the judgment be one for money (on which a writ can be issued and levy made) or for any other thing or for any form of relief granted by the Court appealed from. That being so, I see no reason why the Rules should be confined to judgments on which a sheriff may levy execution. The foundation of the common-law rule as to the suspension of a judgment on the noting of an appeal, is to prevent irreparable damage from being done to the intending appellant, whether such damage be done by a level under a writ, or by the execution of the judgment in any other manner appropriate to the nature of the judgment appealed from’’
This position was reaffirmed in the case of Swazi MTN Limited and Others Vs Swaziland Post and Telecommunication Corporation High Court Case No. 1896/2010 where Ramodibedi CJ stated at paragraph 12:
‘‘ Now, there is no statutory provision in this jurisdiction dealing with stay of execution. In some jurisdictions an appeal does not operate as an automatic stay of execution. In an absence of a statutory provision in this country it follows that resort must be had to the common law. At common law, the noting of an appeal operates as an automatic stay of execution’’.
It cannot be gainsaid therefore that the common law position which holds sway in this jurisdiction, is that the execution of a judgment is automatically suspended upon the noting of an appeal.
In casu, the Respondent is of the posture, that this common law rule is inapplicable to this case, because what the decision of the High Court effectively archieved was to discharge the interim interdict granted by the Industrial Court. That by law, so goes the argument, where an interim order is discharged by a Court, the noting of an appeal does not revive the interim order unless the parties specifically agreed to the continued existence of the interdict pending appeal. For support, Respondent lent on a couple of cases, one of which is the case of Lourenco and Others V Ferela (Pty) Ltd & Others 1998 (3) SA 302, where Southwood J, stated as follows:-
‘‘ The effect of noting an appeal against an order discharging an interim order has been considered in a number of reported cases. In a number of cases, it has been held that it does not revive or perpetuate the order as set aside’’
I find that I cannot upon the facts and circumstances of this case agree with the Respondent, that the impugned judgment only discharged the interim interdict between the parties. I say this because the papers show that the impugned judgment went on to determine the substance of the dispute between the parties, by a finding that there was no tacit renewal of the Applicants contract of employment. Before the interim interdict, the status quo that obtained was that the Applicant occupied the position of Chief Executive officer of the Respondent. The effect of the interim interdict was to preserve this position by restraining the 1st and 2nd Respondents from appointing a new Chief Executive Officer and from removing the Applicant from that position, pending determination of the merits of the application pending before the Industrial Court, which was whether clause 17 of the Applicants contract should hold sway and the dispute between the parties referred to concilliation. Setting aside of the interdict simpliciter would have meant that the Applicant continued in his position as Chief Executive Officer pending further actions by the Respondent.
However, the assailed judgment did not have just this effect. It had the dual effect of also determining the merits of the dispute between the parties, by a finding that there was no tacit renewal of the Applicants constract. The Respondent itself recognised this fact in paragraph 5.4 of it’s supplementary heads of argument, where it was submitted thus:-
‘‘ 5.4 After a considerable delay, the High Court delivered a judgment, wherein it set aside the interlocutory ruling made by the Industrial Court, and substituted that ruling with finding that there had been no tacit renewal of the contract of employment. The High Court did not remit the matter back to the Industrial Court for adjudication’’
It is thus obvious that in discharging the interim order of the Industrial Court, the High Court in exercise of its review jurisdiction, found facts that determined finally the merits of the dispute between the parties. It was this state of affairs that gave the Respondent the latitude to write the letter of the 8th of December 2011, to the Applicant, wherein it stated as follows in paragraphs 3 and 4:
‘‘ 3. The judgment effectively confirms our earlier view, that there was no tacit renewal of your contract of employment. It correctly confirms the position that your contract of employment with SWADE terminated on 30th April 2011.
Effectively therefore and with immediate effect, we wish to confirm that the conditions that obtained during your special leave, will henceforth cease as you are no longer an employee of SWADE’’.
I am firmly convinced that since the High Court in the exercise of its review jurisdiction made specific findings on the merits of the case, that the Applicant has a Constitutional right to approach the Supreme Court by may of an appeal in challenge of those findings. This is precisely what the Applicant embarked upon, as is evident in his grounds of appeal hereinbefore setforth. An appeal in these respects does not seek to revive the interim order, which came to an end when set aside by the High Court, but lies to challenge the specific fidings of the High Court, which determined the rights of the parties on the merits. Once an appeal in these regards is noted, it operates as an automatic stay of execution or operation of the judgment under the common law, to preserve the status quo that obtained prior to those findings of the Court on the merits.
It therefore follows, that the Respondent in accordance with trite principles of law, can only execute the impugned judgment with the leave of Court. See Swazi MTN Limited V Swaziland Post and Telecommunications Corporation and others Civil Appeal No. 19/2011.
The Respondent now seeks leave to execute the assailed judgment via its counter application commenced on the 26th of January 2012, after the Applicant commenced the main application. This step by the Respondent, to my mind, is a recognition of the fact that the appeal launched by the Applicant, operated as an automatic stay of the judgment, notwithstanding Respondents strenuous contentions herein to the contray.
Having said this I say no more on this matter, this is because the Respondent failed to motivate the counter application either in oral argument or in any of the affidavits filed of record.
It is in the light of the totality of the foregoing, that I find that Applicants application has merits. It succeeds and I accordingly make the following orders:-
That the Respondent is not entitled to carry into effect the judgment of the High Court rendered on the 7th December 2011, pending the finalization of the appeal noted against same by the Applicant.
That the Respondents letter dated 8th December 2011, purporting to execute the said judgment, be and is hereby set aside.
No order as to costs.
DELIVERED IN OPEN COURT IN MBABANE ON THIS
THE……………………DAY OF………………………..2012
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E. OTA
JUGE OF THE HIGH COURT
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