Koekemoer v Usutu Pulp Company Ltd (21 of 2006) [2006] SZIC 51 (6 April 2006)

FOR THE APPLICANT

M. SIBANDZE : CURRIE & SIBANDZE ATTORNEYS

FOR THE RESPONDENT

ADV. P. FLYNN : INSTRUCTED BY

CLOETE/HENDWOOD /

DLAMINI ASSOCIATED

RULING 06.04.06

(1) The Applicant brought a Notice of Motion before the court for an order in the following terms :-

"1. The Respondent is hereby ordered to pay to

Applicant the amount of E140,163.76 being the Applicant's severance allowance.

2. Alternatively the Respondent is hereby ordered to calculate the Applicant's severance allowance based upon the Applicant's wages taking into consideration all earnings including allowances, however designated or calculated, capable of being expressed in terms of money which were subject of the employment agreement between the Applicant and the Respondent and to pay the amount to the Applicant.

3. The Respondent is ordered to pay the costs of this Application on the scale as between attorney and own client as the sign of the Court's disapproval of the Respondent's conduct.

4. Further and/ or alternative relief.

(2) The Applicant's Notice Motion was accordingly accompanied by a Founding Affidavit deposed to by the Applicant.

(3) The Respondent did not file any Answering Affidavit. The Respondent however filed a Notice of Intention to raise a question of law.

(4) It is on this question of law raised by the Respondent that the Court is presently called upon to make a ruling.

(5) The question of law raised by the Respondent was that the Applicant failed to follow the procedure of bringing a matter before this Court, in that the Respondent did not follow the provisions of Rule 4 of this Court's rules.

(6) On behalf of the Applicant it was argued that the Applicant was entitled to institute Motion proceedings, as there was no dispute of fact in the matter. It was argued further that since the rules of the Industrial Court do not provide for Motion proceedings, the Applicant rightly invoked Rule 10 which provides that the Rules of the High Court shall apply where the Industrial Court rules do not make provisions for the procedure to be followed in any matter.

(7) It was argued by Mr. Sibandze that Rule 4 of this Court's rules anticipates proceedings by way of action only. He argued that the Applicant was therefore not bound to bring the matter before the Court in terms of Rule 4, as there was no dispute of fact.

(8) Mr. Flynn argued that the Respondent acted irregularly by instituting Motion proceeding and disregarding the provisions of Rule 4, which do provide for the procedure to be followed. He argued that a litigant may only invoke Rule 10 (a) of this Court's rules where no procedure is provided for.

(9) What is clear however from this Court's rules is that there is a procedure for instituting proceedings before this Court. This procedure is found in Rule 4. That Rule provides in part as follows :-

"Institution of Proceedings.

4. (1) Proceedings before the Industrial Court shall be instituted by the Applicant presenting to the Registrar an applicant together with six copies thereof setting out the following: -

(a) Name and address of the Applicant

(b) Name and address of the person (hereinafter referred to as "the Respondent") against whom relief is sought.

(c) The nature and full particulars of each item of the claim involved in the dispute and as stated in the terms of reference to the Court "

(10) Mr. Sibandze made reference to other parts of the rules referring to the names of witnesses and opening addresses in court. He argued that these show that the Rules of this Court about instituting proceedings anticipated proceedings by way of action only.

(11) Granted that the provisions of Rule 4 (3) and Rule 7 (4) - (7) give the impression that the Rules anticipate proceedings by way of trial only, I do not however find that that is a reason to invoke the provisions of Rule 10(9).

(12) Rule 10(a) provides that:

"10. Subject to the Act and these Rules -

(a) where these Rule 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",

(13) Rule 10{9) therefore can be invoked only when the Rules of this Court do not provide for the procedure to be followed.

(14) It may be that the procedure provided by the Rules is cumbersome. Convenience cannot be allowed to take precedence over the Rules of the Court.

(15) The court is alive to the provisions of Section 11 of the Industrial Relations Act, which state that this Court shall not be strictly bound by the rules of evidence or procedure which apply in civil proceedings.

(16) I do not however think that the present matter is one which qualifies that this provision of the Act should be invoked.

(17) It was argued that the Applicant invoked the provisions of Rule 10$D of this Court's Rules because there was no dispute of fact and the Rules did not provide for a procedure in dealing with a matter where there are no disputes of fact. This submission was however not supported by the evidence placed before the Court. The Notice of Motion is supported by the Founding Affidavit deposed thereto by the Applicant.

(18) Paragraph 12 of the Founding Affidavit states that:-

"I was offered a position subsequent to such termination by Sappi Management Services in South Africa which I accepted because in terms of the letter of offer, I was not going to receive any severance pay from the Respondent whether or not I accepted the offer, contram to what the Respondent had said to me in "MK.3" The offer was therefore accepted under undue influence and duress. A copy of the letter of offer dated 16^th August 2005 is attached hereto marked "MKA".(my underlining).

(19) Clearly the contents of this paragraph show that there is a dispute.

(20) Further, in annexure "MK5" the Certificate of Unresolved Dispute, it is stated there that the nature of the dispute was unfair dismissal. In paragraphs 2.1 and 2.2 it is stated;

"2.1 The Applicant submitted that he was unfairly dismissed by the Respondent company as there was no prior consultation to the termination of employment and was not paid severance allowance in the amount of El40,163.76.

2.2 The Respondent submitted that there was no unfair

dismissal and no severance allowance due to Applicant.

(21) In terms of Section 11 (2) of the Industrial Relations Act 2000, it is provided that this court may admit as prima facie evidence a report filed under this Act, or a written report prepared by the office of the Commissioner of Labour or the Commission.

(22) Annexure "MK5" is clearly a report by the office of the Commission. In terms of paragraph 2.1 of that report it is stated that the Applicant submitted that he was unfairly dismissed. In paragraph 2.2 it reflects that the Respondent argued to the contrary that there was no unfair dismissal and no severance allowance due to Applicant.

(23) Again, this is a clear indication that there is a dispute of fact.

(24) In the light of the above-mentioned observations, it follows that the Court must uphold the question of law raised by the Respondent.

(25) The application is therefore dismissed with costs.

N. NKONYANE

ACTING JUDGE- INDUSTRIAL COURT