Dlamini v Swaziland Development And Savings Bank (1 of 1994) [1994] SZSC 6 (5 May 1994)

Jurisdiction: Eswatini
Citation: Dlamini v Swaziland Development And Savings Bank (1 of 1994) [1994] SZSC 6 (5 May 1994)
Media Neutral Citation: [1994] SZSC 6
Court: Supreme Court of eSwatini
Case number: 1 of 1994
Judgment date: 5 May 1994
Language: English
Type: Judgment
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IN

THE HIGH COURT OF SWAZILAND

Civ.

Case No. 1/94

In

the matter between:

Jason

Dlamini

And

Swaziland

Development and Savings Bank

CORAM:

Hull, CJ.

FOR

APPELLANT Mr. Dunseith

FOR

RESPONDENT Mr. Sapire S.C. and

Mr.

Millin

Judgment

(5/5/94)

For

the purposes of this appeal, the following allegations of fact are to

be assumed. The appellant is employed by the respondent. He used to

be a computer operator in its branch at Manzini. However on 6th April

1993, the respondent decided to remove him from that position because

of alleged shortcomings, and to transfer him to Siteki, and assign

him there to clerical work, at least in the meantime.

He

subsequently applied to the Industrial Court for orders (inter alia)

</ol>

<ol>

<li>

The

appellant is not seeking reinstatement as such, and the rule of law

or of practice whereby a court will not order reinstatement of a

dismissed employee does not apply; and

<li>

In

any event the rule, for reasons explained by Van Dijkhorst J in

National Union of Textile Workers and Others v. Stag Packings (Pty)

Limited and Another 1982 (4) S.A. 151, is one of practice rather

than law.

</ol>

On

this last point, Mr. Dunseith submits that in the present case, there

is no sufficient reason why a court should not grant in effect a

remedy of specific performance. As I understand his argument, he also

submits that in the exercise of its discretion the Industrial Court

should not have disposed of the issue by a ruling in limine, but

should instead have reserved it for determination in light of the

whole of the evidence.

Mr.

Sapire's response can be put very shortly, I think, without the risk

of injustice. He says that the rationale for the rule that the courts

will not order the reinstatement of dismissed employees is that it

amounts to an order for specific performance. As explained in the

leading South African case of Schierhout v. Minister of Justice 1926

S.A. 99 A.D. at page 107 (which has been followed in a line of

subsequent South African decisions) the reasons are, first, the

inadvisability of compelling one person to employ another whom he

does not trust in a position that imports a close relationship, and

secondly the absence of mutuality (in that a court could not

effectively compel an employee for his part to work faithfully and

diligently).

4

What

the appellant is seeking is in effect reinstatement and in any event

relief by way of specific performance because on the alleged facts on

which he himself relies, the respondent removed him from his post as

computer operator.

In

principle, there is no difference between that situation and

dismissal from service, and thus the same objections to the granting

of the relief arise as in the latter case.

Moreover,

says Mr. Sapire, whether or not National Union of Textile Workers

modifies the decision in Schierhout (which, as I understand it, Mr.

Sapire does not concede) the position in Swaziland is governed by the

decision of the High Court in Ubombo Ranches Limited v. President of

the Industrial Court and Another 1982 - 1986 (1) SLR 264, in which

Will CJ. and Dunn A.J held that at common law, specific performance

was not an available remedy for unfair dismissal and that section 13

of the Industrial Relations Act 1980 did not confer jurisdiction on

the Industrial Court to order reinstatement.

In

the present case, Mr. Sapire concludes the appellant's correct remedy

(if any) can only be in damages.

In

my view, the learned President correctly decided the point in issue.

I

am inclined to think it is usually better to determine legal issues

on a consideration of the whole of the evidence rather than on

preliminary points in limine. The first approach, to my mind, is more

conducive to creative judicial decision - making. On a full

consideration of all the evidence, it may become apparent that there

are good reasons why an apparently settled rule of law ought to be

modified. The risk in deciding a dispute on a preliminary issue is

that this will not necessarily, at the outset, be evident.

In

the present case however I think, with respect, that Mr.

Sapire

has correctly stated the rationale for the rule that

5

a

court will not order the reinstatement of an employee who has been

dismissed. I can see no difference at all in principle between that

situation and the one, as here, where an employer decides that an

employee is unsuited to a particular post within the employer's firm

or company. To insist in that situation that the employer should

"reinstate" him to the particular post raises, even though

in a narrower context, the same issue of the advisability or

otherwise of seeking to require a person to employ in a particular

role someone whom he does not trust in that position. It also raises

(though I tend myself to think that this is more of a theoretical

consideration) the same issue of mutuality - again in narrower

circumstances, though not in ones which are in essence different.

Furthermore,

even if Mr. Dunseith is right on saying that the better view is that

the rule, in cases of reinstatement following dismissal, is one of

practice - and thus to be applied individually according to the

circumstances of each particular case - rather than an inflexible

rule of law, points of this nature are not to be decided in a

theoretical vacuum. No specific basis at all has been shown in the

present case why it may be one in which specific performance may be

justified. It is, at best, a theoretical or intellectual possibility

and I do not think that is enough.

Mr.

Dunseith referred me to section 26 of the Employment Act 1980. As I

understood him, he conceded that the application to the Industrial

Court did not seek to rely in that section, but he was saying that it

illustrates the point that the industrial Court, under the scheme of

that Act, does have power to make orders of the kind that the

appellant has sought. The problem that the appellant has in that

regard, however, is that it was not alleged in his application to the

Industrial Court (in any way that is still a live issue) that the

actions of the respondent resulted in less favourable terms and

conditions of employment than these previously enjoyed by him. He did

not

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allege

(in any way that is still maintained) that his removal from the post

of computer operator led to a reduction in income or that his

transfer to Siteki would cause hardship.

What

he alleged, and all that he alleged, was that these actions were made

unreasonably, unfairly and mala fide. His proper recourse for that,

if true and if he can show loss, is in my view by way of damages.

For

these reasons, the appeal is accordingly dismissed, with costs to the

respondent.

DAVID

HULL

CHIEF

JUSTICE

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