IN THE INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 267/06
In the matter between:
VUSI GAMEDZE Applicant
and
MANANGA COLLEGE Respondent
CORAM:
P. R. DUNSEITH : PRESIDENT
JOSIAH YENDE : MEMBER
NICHOLAS MANANA : MEMBER
FOR APPLICANT : M. SIBANDZE
FOR RESPONDENT : Z JELE
R U L I N G – 12/6/06
The Respondent Mananga College is a prominent and reputable school situate in Swaziland. Prior to the termination of his services, the Applicant was employed by the Respondent as a teacher. In terms of the Applicant’s contract of employment, he was entitled to special discounted tuition fees for any of his children enrolled at the College or Mananga Primary School. The Applicant’s daughter Ayanda was enrolled at the College, and his son Banele was enrolled at the primary School. The discounted fees amount to only ten percent of the normal school fees, hence this was a significant benefit to the Applicant. The employment contract provided however that if the employment terminated before its stated term, the Applicant would be required to pay full fees from the date of termination in respect of any children who continued to attend the College.
During the latter part of 2005, criminal charges of indecent assault were preferred against the Applicant by a domestic worker employed in one of the staff houses owned by the Respondent. These charges attracted unwelcome publicity which the respondent considered was damaging to its reputation. The respondent requested the Applicant to resign for the good of the College. The Applicant failed to submit his resignation by the deadline set by the Respondent. The Respondent thereupon terminated the employment of the Applicant.
In the letter of termination dated the 12th April, 2006, the Principal of the respondent states that Clause 6.4.1 of the employment contract is effected. This clause provides for termination on notice, the applicable notice in the case of the Applicant being one academic term’s notice in writing alternatively payment in lieu of such notice “calculated at the salary rate herein.”
The letter explicitly informs the Applicant that, attendant on the termination of his employment:
“1. You will be paid out all monies due to you as detailed in the contract and by law and in lieu of notice. Your daughter, Ayanda, may remain at Mananga College as a weekly boarder at a cost to you equivalent to E290.00 per month plus and extra costs incurred.
The school will also pay for the 90% primary schooling for our son Banele at Mananga Primary for term two only.
Your provident fund payout will be used to settle your staff loan account and any amount remaining thereafter will immediately be refunded to you. The school will also deduct in advance the school fees due to it in terms of Ayanda’s schooling for the remainder of the year, as detailed in point 1 above.
Mananga College will meet your removal costs to Mbabane or similar as detailed in your contract. Such removal is to be affected on or before 30 April 2006”
The Applicant considered that the termination of his employment constituted an unfair dismissal, and he reported a dispute to the Conciliation, Mediation and Arbitration Commission (CMAC) in terms of Section 76 of the Industrial Relations Act, 2000 (as amended), as he was entitled to do.
The Respondent did not take kindly to the Applicant raising a dispute regarding the termination of his employment, and the Principal immediately wrote to the Applicant on the 27th April 2006 informing him that: “all offers made to you in writing regarding schooling and others are withdrawn with immediate effect, until a decision is made at CMAC or further in a court of law, if and when required. Please be guided accordingly.
Please note that your daughter may remain at Mananga College as a full fee paying weekly boarder until the matter is resolved. Such school fees due will be deducted in full upon receipt of your Provident Fund payment, as detailed in point 6 below. The same will apply to your son currently at Mananga Primary School, where Mananga College will continue to pay the school fees due for term two only but reserves the right to deduct any school fees paid in full from your Provident Fund payment, when received”.
The Applicant consulted an attorney, who wrote to the Respondent on the 12th May 2006 demanding that the Respondent reverts to the “undertaking” made in its letter dated the 12th April 2006 regarding discounted school fees. The respondent refused to discuss the matter further, and referred the Applicant’s attorney to its own legal representative.
On the 1st June 2006, the Applicant instituted an application claiming an order in the following terms:
“1. Dispensing with usual forms and procedures and time limits relating to the institution of proceedings and allowing this matter to be heard as matter of urgency.
That a rule nisi issue calling upon the Respondent to show cause why an Order in the following terms should not be made final:
That the Respondent be and is hereby interdicted from making any deductions in respect of school fees from the Applicant’s Provident Fund payment.
That the Respondent be and is hereby held to its undertaking contained in its letter of the 12th April 2006 in particular that the Applicant’s daughter AYANDA GAMEDZE may remain at Mananga College as a weekly boarder at a cost of E290.00 plus expenses.
That the Respondent be and is hereby ordered to pay 90% of the primary schooling fees for Applicant’s son BANELE GAMEDZE at Mananga Primary in respect of term two only.
That the orders in 2.1, 2.2 and 2.3 above operate with immediate effect pending the outcome of this application.
The application was set down for hearing on the 8th June 2006. By this date, the Respondent had managed to deliver its Answering Affidavit in which it raised two preliminary points of law, namely that the Applicant had not established proper legal grounds for enrolling the matter as one of urgency; and that the Applicant had not made out a prima-facie case for the granting of the interdict sought.
URGENCY
Normally, the Industrial Court will not take cognizance of any dispute which had not been through the conciliation process prescribed by Part V111 of the Industrial Relations Act No. 1 of 2000 and certified as an unresolved dispute. The present Applicant must not only satisfy the court that the matter is sufficiently urgent to justify the usual time limits prescribed by the rules of court being curtailed, but he must also establish good cause for dispensing entirely with the conciliation process. In order to do so, he must explicitly set forth the circumstances which render the matter urgent, and state the reasons why he cannot be afforded substantial relief if the matter were to be dealt with in the normal way.
The criteria which the court will consider in determining whether to treat the matter as urgent were listed in IL & B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd & Another 1981 94) SA 108 © as:
The prejudice that the Applicant might suffer by having to wait for a hearing in the ordinary course;
The prejudice that the Respondent might suffer by an abridgement of the prescribed times and an early hearing;
The prejudice that other litigants might suffer if the Applicant is given preference and allowed to jump the queue of cases awaiting hearing.
The Industrial Court will also consider whether the urgency of the matter precludes an attempt being made to resolve the dispute by means of the statutory conciliation process under the auspices of CMAC - See Phillip Nhlengetfwa & Others v Swaziland Electricity Board (Industrial Court Case No. 272/2002).
As grounds for urgency, the Applicant alleges in his Founding Affidavit that his two children are attending school (presumably at the College and the Primary School) and the withdrawal of the 90% discount on the school fees may result in his inability to afford the school fees. His concern is that if the Respondent deducts the full fees from his Provident fund payment (as it intends to do, according to its letter of 27th April 2006) there may be shortfall resulting in his children having to leave school, or he may not have the means to support his family.
Mr. Jele for the Respondent submitted that the Applicant’s concerns are groundless, because he has received four months salary in lieu of notice, and the deductions on his provident fund pay will only be made after 31 August 2006 when the payment falls due. In other words, the Applicant can afford to pay the full school fees in the short term, and he can institute legal proceedings in the normal course to recover any overpayment to which he is entitled.
This argument ignores the reality of the Applicant’s immediate situation. The Applicant may not wish to commit his entire provident fund benefits to an expensive education for his children. There is a considerable difference between, for instance, the discounted boarding fees for Ayanda of E290.00 per month, and the full fees of E2900.00 per month. From the Applicant’s point of view, it is urgent that his entitlement to the discounted school fees be determined immediately, not at a later stage when expenses which are beyond his budget may have already been incurred.
The issue for determination involves the education and welfare of two children. In such a case the court is always more amenable to dispensing with the requirements of the Rules and disposing of the matter with such expedition as the situation warrants.
Moreover, the issues for determination are narrow and may be swiftly disposed of without undue prejudice to the court roll or other litigants waiting their turn.
Any potential prejudice to the Respondent arising from the short notice may be cured by the Respondent seeking leave to supplement the Answering Affidavit which it was obliged to prepare in haste.
Mr. Jele for the Respondent submitted that the Applicant cannot seek an urgent hearing when he himself delayed unduly in bringing the application.
See Humphrey Henwood v Maloma Collieries (High Court case No. 1623/94).
This case was decided on its own facts. In our view it is not authority for the proposition that a party who first engages in extracurial efforts to settle a dispute thereby loses the right to approach the court on an urgent basis when his efforts bear no fruit. The court should be approached as a last resort, after negotiations have failed. In the case of an urgent matter, such negotiations must however be conducted expeditiously, and the court must be approached as soon as it becomes clear that the Applicant cannot obtain relief without the aid of the court.
In the present matter, it was reasonable for the Applicant to consult an attorney and to make prior demand that the Respondent reinstates the terms contained in the termination letter, before instituting legal proceedings. We do not consider the subsequent period of just over two weeks, which elapsed before service of the court application to be an undue delay in the circumstances of this particular matter.
Mr. Sibandze for the Applicant referred to the judgement of this court in the matter of Zodwa Mkhonta v Swaziland Electricity Board (Industrial Case No. 343/200) as authority for the proposition that where the founding papers reveal a manifest injustice or a grossly unfair labour practice, this in itself constitutes good cause for hearing the matter as one of urgency. No doubt it is the function and duty of this court to grant relief to the victims of injustice and unfair labour practices, but this can equally be achieved in terms of the normal procedures and time limits. It is only where the Applicant will be substantially prejudiced if the matter is not summarily dealt with, that the court will permit an urgent enrolment.
Nevertheless, in the exercise of our discretion, the court holds that there is sufficient reason to dispense with the usual procedures and time limits and hear the matter as one of urgency.
Before leaving the question of urgency, one further issue must be addressed.
The Respondent has submitted that the Applicant willfully failed to disclose material facts to the court which have a direct bearing on the question of urgency. In particular, the Applicant failed to attach the letter dated 27th April 2006 to his Founding Affidavit, and in quoting portions of this same letter in support of his case, he willfully omitted material portions. Also, the Applicant failed to disclose that he had already received four months pay in lieu of notice.
The Respondent’s criticisms are well-founded. Since the Applicant’s grounds of urgency are based on his ability to pay his children’s school fees and support his family, he should have disclosed the above facts to the court. It is remarkable that other relevant letters are annexed to the Founding Affidavit, but the letter containing information which detracts from the Applicant’s grounds of urgency is withheld and only selected portions are quoted in the body of his Affidavit.
Mr. Sibandze for the Applicant denied any willfulness in this non-disclosure, and the court will accept this assurance from an officer of the court. Suffice it to say that there is duty upon Applicants to disclose all relevant facts truthfully and honestly and the suppression of material facts need not be willful to incur the court’s displeasure. If the Applicant had obtained an ex parte order, the court may well have discharged such order and dismissed the application. For present purposes, the court’s deprecation will be expressed at the end of this judgement when dealing with the question of costs.
PRIMA FACIE CASE
At the hearing, the parties agreed that the Applicant is now seeking a final interdict. The Respondent has filed its Answering Affidavit (subject to any leave to supplement it may be granted on application). If the points in limine are not successful, the matter may be finally determined on its merits.
To determine whether the Applicant has made out a prima facie case at this stage would be to anticipate the argument of the matter on its merits. It certainly cannot be said that no case whatsoever has been made out in the Founding Affidavit. For the grant of a final interdict, the Applicant must establish a clear right; an interference with that right; and that he has no other satisfactory legal remedy.
At this preliminary stage, all that need be stated is that if the letter dated 12 April 2006 (annexure VG2) creates obligations which are binding on the Respondent, then the repudiation of such obligations may well entitle the Applicant to the remedies he seeks. This however remains to be determined after hearing full arguments on the merits.
In the result, the points of law raised in limine by the Respondent are dismissed.
To express the court’s disapproval of the non-disclosure of material facts in the Founding Affidavit, the Applicant is denied an award of costs.
The members agree.
P. R. DUNSEITH
PRESIDENT – INDUSTRIAL COURT
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