Industrial Court’s warning to employers

MBABANE - The Industrial Court has warned employers against continuing with internal processes once legal proceedings are commenced.

Acting Judge Sikhumbuzo Simelane said this could defeat the whole purpose of litigation if parties could be allowed, without good and lawful justification, to run internal proceedings in workplaces with litigation in court ongoing.

The court said this had happened in several cases in the Industrial Court and it was a worrying trend that must be discouraged.

Acting Judge Simelane shared these sentiments in his judgment wherein he interdicted the Teaching Service Commission (TSC) from continuing with the transfer of Mbongwa Dlamini.

Dlamini, who is the President of the Swaziland National Association of Teachers (SNAT), is a teacher at Mhubhe High School and he was being transferred to Moyeni High School.

Suspension

The TSC first lifted his suspension and thereafter informed him that he was being transferred with immediate effect.

Acting Judge Simelane said: “Once legal proceedings are commenced, especially by way of an urgent application challenging certain decisions and seeking review and setting aside of such decisions, litigants must give the court an opportunity of hearing and determining the issues in such applications.”

He highlighted that there were exceptional cases where litigation was commenced for ulterior motives and for purposes of delaying the other party.

The acting judge said, where the court process was being abused, lawyers and the court were able to notice such abuse and there were sufficient legal ways of punishing dishonest litigators.

“We do encourage lawyers who represent parties in this court to advise their clients to give and accept appropriate undertakings in deserving cases so that litigation can run smoothly,” said Acting Judge Simelane.

He pointed out that in that way, the burden that was normally placed on the shoulders of the court by hearing urgent applications for interdicts at extremely short timelines could be removed.

Interdict

The court said Dlamini’s matter was, however, one that deserved hearing and determination of the application for interdict, especially because the parties’ counsel tried to exchange undertakings, but they failed to reach common ground hence the arguments.

“Having applied our minds to all the facts and legal principles applicable in this case, we make the following order; a rule nisi (interim order) is hereby issued operating with interim and immediate effect interdicting TSC from implementing the decision to transfer the applicant (Dlamini) from Mhubhe High School to Moyeni High School pending the hearing and determination of this matter,” ordered the court.

The order by the court came after Dlamini moved an urgent application where he, among other things, contended that his transfer was another form of harassment, victimisation and/or unfair labour practice perpetrated against him by his employer further to having exercised his rights in law relating to freedom of association.

He further contended that: “The transfer, if allowed to stand, would greatly prejudice my health as my psychological support is also based at Ngculwini. The decision to transfer me is grossly unreasonable and unfair.”

The SNAT president was represented by Alex Fakudze while appearing for the commission were attorneys from the chamber of the attorney general (AG).