IN THE INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE
CASE NO.150/2006
In the matter between:
LWAZI MDZINISO APPLICANT
and
CONCILIATION MEDIATION
ARBITRATION COMMISSION RESPONDENT
CORAM:
NKOSINATHI NKONYANE: ACTING JUDGE
GILBERT NDZINISA: MEMBER
DAN MANGO: MEMBER
FOR APPLICANT: J. N. HLOPHE
FOR RESPONDENT: Z. D. JELE
RULING 27.04.06
[1] This is an urgent application brought by the applicant against the respondent.
[2] The applicant is seeking an order in the following terms:-
"1, Dispensing with the normal provisions of the rules of this Honourable Court as relate to form, service and time limits and hearing this matter as an urgent one.
2. Interdicting and restraining the respondent from recruiting or conducting further recruitment of respondent's non-employees for the post of Commissioner-Siteki pending the outcome of this application.
3. Alternatively declaring the purported recruitment of respondent's non-employees for the post of Commissioner-Siteki, null and void and of no force or effect pending the outcome of the dispute to be lodged by Applicant.
4. Directing and compelling the respondent to forthwith release the applicant's results for the interview of Commissioner-Siteki conducted by respondent in December 2005.
5. Directing that prayers 2, 3 & 4 above operate as a rule nisi with immediate and interim effect returnable on a date to be determined by this Honourable Court.
6. Granting applicant the costs of this application.
7. Granting applicant any further or alternative relief."
[3] The respondent filed a notice to oppose and also its Answering Affidavit. The applicant also filed its Answering Affidavit.
[4] The application came before the court on Wednesday 12 April 2006. The respondent raised points of law. These were argued on the 20th April 2006. Although all the set of papers were before the court, the court was only addressed on the preliminary points raised by the respondent.
[5] The preliminary point that was raised by the respondent and argued before the court was that of urgency. The respondent argued that the applicant has failed to show why the matter should be heard as of urgency.
[6] Mr. Jele submitted that the applicant having become aware of the external advertisement of the post on the 10th March 2006, there was no justification for him to wait for a whole month and bring the matter to the court on 12.04.06 and claim that the matter was urgent.
[7] Mr. Hlophe for the applicant argued to the contrary that urgency has been shown in that the respondent is violating its own internal policy on recruitment and that the recruitment process was continuing. He further argued that if the applicant were to follow the ordinary route of bringing an application before this court, the respondent would have long concluded its external recruitment exercise and the applicant would suffer irreparable harm.
[8] It was further argued by Mr. Hlophe that the applicant was not just sitting idle, but was trying to have the matter resolved with his employer.
[9] The applicant first saw the external advertisement on the 10 March 2006. He now wants the court to intervene on an urgent basis a month later on the 12th April 2006. Mr. Jele argued that because of this lapse of time the applicant has failed to establish urgency in this matter.
[10] The court was referred to the High Court case of HUMPHREY H. HENWOOD V MALOMA COLLIERY LIMITED AND ATTORNEY-GENERAL CASE NO. 1623/94 and also to the Industrial Court case of PHYLYP NHLENGETHWA AND 6 OTHERS V. SWAZILAND ELECTRICITY BOARD, CASE NO. 272/2002 in support of the proposition that the applicant has failed to establish urgency.
[11] In the Henwood case the 1st respondent first came into the applicant's farms in 1989. The 1st respondent installed its equipment in about October 1992 and actual mining began in about July 1993. The applicant in that case brought an urgent application on the 16th September 1994 claiming, inter alia, that the 1st respondent be interdicted and restrained from continuing with mining operations upon the applicant's farms.
[12] The evidence in that case also showed that the applicant obtained legal advice on the matter prior to May 1993 and that he made numerous attempts to negotiate with the 1st respondent. The High Court, per Dunn 3, as he then was found that urgency had not been established as the matters complained of by the applicant were long standing. The court also noted that much time was lost during the negotiations between the parties before the matter was brought to court on a certificate of urgency. The court pointed out at page 11 that:-
"Whatever sympathy one may have for the applicant, he cannot have it both ways. He elected to allow the operations whilst negotiating with the first respondent and he cannot after some 18 months seek to enforce his rights in an application brought out with the provisions of Rule 6."
The court accordingly refused to entertain the matter on the basis of urgency.
Similarly, in this matter when the applicant saw the respondent's external advertisement on the 10th March 2006, he did not seek the court's intervention immediately. He decided to engage the respondent in some negotiations. Upon seeing that he is not getting the answers that he desires, he then decides to come to this and he says the court must hear his matter as a matter of urgency. Like Dunn J pointed out in the Henwood case, he cannot have it both ways.
If according to him the respondent was violating his right by putting up the external advertisement, he should have approached the court immediately for a relief. Instead he chose to engage the respondent. Now that he does not seem to get quick answers from the respondent, he then says the matter is urgent.
(16) In the Phylyp Nhlengethwa case the seven applicants also brought an
urgent application before this court for an order, inter alia,
interdicting and restraining the respondent from implementing a
restructuring exercise. The evidence in that case revealed that the
restructuring exercise was initiated on the 12th August 2002. The
applicant's did not come to court immediately to stop the process but instead engaged other forums to resolve the matter. They only approached this court on by way of an urgent application on the 9th October 2002 when their efforts did not seem to bear fruit.
This court dismissed the application to hear the matter on an urgent basis, as there was a two months delay in bringing the matter to court.
In the present case there was a month's delay in bringing the matter before the court. Each case must however be decided on its own merits. In the present case there was all the more reason for the applicant act as soon as possible after he saw the advertisement on the 10 March 2006 and was not aware when the external recruitment exercise was going to be finished. He clearly should not have delayed up to the 17th March 2006, which was the deadline for applications according to the advertisement.
In the Hunphrey Henwood case and the Phylyp Nhlengethwa and others case it was apparent that the applicants only remembered to rush to court because their attempts to resolve the issues had failed and they contented that their applications were urgent. That is not however a good ground to approach a court with an urgent application. The fact that ones attempts to resolve the matter have failed is not a ground for urgency.
(20) I agree with the observations made by the President of this Court in
the Phylyp Nhlengethwa case that, before the Industrial Court, unlike
at the High Court, an applicant bears the further onus of showing
why he did not follow the laid down disputes procedure in terms of the Industrial Relations Act of 2000.
The reason for that is not hard to find. The spirit behind the Industrial Relations Act is that disputes must be conciliated, mediated upon or arbitrated before they come to court. The Industrial Court is the last resort in case all else fail.
[22] Had the applicant reported a dispute, the matter would have been attended to within four days in terms of Section 18 (i) of the Industrial Relations (amendment) Act which states that:-
*On receipt of a dispute being reported in terms of Section 76, the Commission shall appoint a commissioner within (4) days who shall attempt to resolve the dispute through conciliation."
[23] In the light of the aforegoing observations, the applicant's application to hear the matter on an urgent basis is dismissed.
[24] The respondent is however urged to treat this matter with diligence and transparency as its reputation might be tarnished if does not do so.
[25] No order for costs is made.
The members agree.
NKOSINATHI NKONYANE A.J,
INDUSTRIAL COURT