Court name
Industrial Relations Court
Case number
IRC PR Matter 511 of 2008

Mwenisongole v Toyota Malawi (IRC PR Matter 511 of 2008) [2010] MWIRC 2 (26 July 2010);

Law report citations
Media neutral citation
[2010] MWIRC 2




IN
THE INDUSTRIAL RELATIONS COURT



BLANTYRE
REGISTRY



MATTER
NUMBER IRC PR 511 OF 2008


IN
THE MATTER OF DISPUTE


BETWEEN


ALLAN
MWENISONGOLE................................. APPLICANT


AND


TOYOTA
MALAWI...................................... RESPONDENT


Coram


Jack
N'riva Deputy Chairperson


For
Respondent Lusungu Gondwe


Clerk
Ms Ngalauka






N'riva
DCP



RULING



This
is a motion taken by the respondent to dismiss the action or strike
out the statement of claim for being frivolous vexatious
and abuse of
the court process. The matter would have been coming for a
pre-hearing conference. However, there was also this motion.
The
Registrar directed that this matter should be dealt with first. The
motion is supported by an affidavit sworn by Mr Ralph Kasambara
whose
firm the respondent engaged for purposes of defending this action. Mr
Mwenisongole, the applicant also swore an affidavit opposing
this
motion.



In
the affidavit in support Mr Kasambara states that the applicant was
in the employ of the respondent and was dismissed on 10th
March 2004. The respondent paid the applicant all the terminal
benefits. The applicant was entitled to a pension scheme. He was paid
the pension less tax and an emergency loan. The respondent issued a
cheque to the applicant in the said sum. The respondent said
they
deposited the cheque in the business account of the applicant. The
business name was Maker General Dealers. The applicant further
states
that there are documents to support the payment and argues that the
applicant merely intends to defraud the respondent.



In
the applicant’s affidavit, he states that the respondent has never
called him to collect a cheque. He further states that he
has never
operated a business in the name of Maker General Dealers. He depones
that the normal procedure was that any payee of a
cheque had to sign
a cheque book maintained in the accounts section. The applicant did
not sign any cheque receipt book for the said
cheque. He did not
receive the cheque and he does not know the person who received the
cheque on his behalf.



The
question is whether or to dismiss the applicant’s action. As we can
note, there seem to be a factual dispute as to whether the
applicant
was paid the cheque in question. Much as the respondent insists on
having paid the pension into the applicant’s business
account, the
applicant denies ever having owned the said business. There are also
questions of procedure on payments of cheques.
These are questions of
facts. These are questions which would not, normally, be dealt with
in an interlocutory fashion. It might
not be procedurally and
substantively proper for this court to decide this matter in the
manner being suggested in this motion. Therefore,
this motion is
dismissed. I do not, however, agree with the applicant that this
dismissal of the motion should be with costs. I do
not take this
action, on its own, to be frivolous. There could be one or two issues
that are cloudy. However, it appears that the
respondents are quite
certain that they paid the applicant. On the other hand, the
applicant holds the view that he was not paid.
The fact that the
applicant was not paid could be out a mistake. Of course, I am not
pre-empting. But the bottom-line is that the
parties can actually
resolve the issue without the involvement of the Court. I, therefore,
encourage the parties to hold discussions
or pre-hearing conference
on the issue as is arising. This therefore is to require the parties,
under the authority of Rule 13 of
the Industrial Relations Court
Procedure, to hold a pre-hearing conference at a place and time
convenient to both the parties.








MADE
this day of 27th July 2010


















J
N'riva



Deputy
Chairperson