Dlamini v Simelane And Another (567 of 2009) [2009] SZIC 79 (6 November 2009)

IN THE INDUSTRIAL COURT OF SWAZILAND

HELD AT MBABANE

CASE NO. 567/2009

In the matter between:

BONGINKOSI DLAMINI

Applicant

and

SiKHUMBUZO SIMELANE CONCILIATION, MEDIATION AND ARBITRATION COMMISSION

1^st Respondent

2^nd Respondent

CORAM:

S. NSIBANDE JOSIAH YENDE NICHOLAS MANANA

PRESIDENT

MEMBER

MEMBER

MS. L. NGCAMPHALALA MR. M. SIMELANE

FOR APPLICANT FOR RESPONDENT

RULING ON POINTS IN LIMINE - 6/11/2009

1. The Applicant, an employee of the 2^nd Respondent approached the

court by way of motion supported by an affidavit and under a certificate of urgency seeking an order:

1. "That the court dispense with the Rules of the above Honourable Court in terms of service, and time limits and hear this application as one of urgency.

2. Staying the execution of the decision made by 1^st Respondent in the Disciplinary hearing dated the 7^th of October 2009.

3. Setting aside the 1^st Respondent's decision made and issued on October 7^th 2009.

4. Directing that the Disciplinary hearing between the Applicant and the Second Respondent proceeds and the Applicant be allowed to present his defence.

5. That the Respondents pay the costs of this application in the event they unsuccessfully oppose it.

6. Granting any further and/or alternative relief as the court may deem appropriate."

7. The Applicant filed a founding affidavit and a confirmatory affidavit in support of his application. He sets out that there is an on going disciplinary hearing of which the 1^st Respondent is the chairman. He sets out further that the hearing was postponed on 13^th September 2009 to 2^nd October 2009 wherein it was expected to continue.

8. He states that on 2^nd October 2009 his representative informed him that he was not going to be able to continue with the hearing that day on account of an unforeseen issue he was attending to in Mbabane. He was advised by his representative that the chairperson has been

advised of the need to have the matter postponed and the subsequent Monday had been discussed as a date to which the matter could be postponed. He says he was told by his representative that he would be advised of the date to which the hearing would be postponed in due course.

The Applicant states that on the 9^th October 2009 he was called by the 2^nd Respondent's acting human resource manager who told him to collect a certain letter. When he did, he discovered that to the letter was attached a ruling made by 1^st Respondent. 1^st Respondent's ruling was that since the Applicant and his representative had absconded the hearing with full knowledge that it was scheduled to proceed on 2^nd October and that since no reasonable and substantive justification for the absence was given, the Applicant's (Respondent at disciplinary hearing) case was declared closed and the parties directed to file written submissions not later than 4.30 p.m. on 19^th October 2009 failing which the chairman would finalize the matter ^:~ ^The absence of submissions.

It is this decision that the Applicant wishes to have set aside. At the first hearing of the matter, the court issued a rule nisi staying the operation of the 1^st Respondent's decision pending the finalization of the application and the matter was postponed to 23^rd October 2009 for argument.

The 2^nd Respondent filed its answering affidavit and raised points of law namely that:

(i) There had been no compliance with Rule 6 (25) (a) and (b)

of the High Court Rules in that the Applicant has not set out explicitly the circumstances that he avers render the matter urgent and the reasons why he claims that he could not be afforded substantial redress at a hearing in due course;

(ii) The Applicant was applying for a final interdict in terms of
prayer 2, yet there was no allegation in the founding affidavit
showing that the requirements of a final interdict have been
met;

(iii) That the Applicant sought to review and set aside the 1^st
Respondent's ruling without alleging the facts necessary and
sufficient to enable the court to interfere with an on-going
disciplinary hearing.

9. With regard to urgency the 2^nd Respondent's gripe is that Applicant has made no allegation in his papers regarding urgency and that without explicit grounds being set out in the affidavit that set out what makes thp mp.tter urgent, then the court could not enroll the matter p.r ~r. urgent one.

10. In terms of Rule 15 of the Industrial Court Rules 2007, a party that applies for urgent relief shall set forth explicitly in his affidavit:

"(a) the circumstances and reasons which render the matter urgent;

11. the reasons why the provisions of Part V111 of the Act should be waived; and

12. the reasons why the Applicant cannot be afforded substantial relief or a hearing in due course."

9. The Applicant has not set forth explicitly the circumstances and
reasons which render his matter urgent. He has not stated reasons
why the provisions of Part V111 of the Act should be waived nor has
he outlined why he cannot be can-wet-be afforded substantial relief at a
hearing in due course. This court has consistently stated that since it
does not normally take cognizance of disputes that have not been
through the conciliation process prescribed by Part V111 of the
Industrial Relations Act No. 1 of 2000 as amended the Applicant needs
to satisfy the court not only that the matter is sufficiently urgent to
justify the usual time limits prescribed by the Rules of Court being
curtailed but also that there is good course for dispensing entirely with
the conciliation process.

Vusi Gamedze v Mananga College IC Case No. 267/06

10. In the absence of these allegations in his founding affidavit the
Applicant has failed to meet the requirements and the application must
fail. The point is upheld and the application is dismissed. There is no
order as to costs.

The members agree.

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