IN
THE COURT OF APPEAL OF SWAZILAND
APPEAL
CASE NO.
In
the matter between:
MEMORY
MATIWANE APPELLANT
AND
CENTRAL
BANK OF SWAZILAND RESPONDENT
CORAM :
BROWDE J
A
:
STEYN J
A
:
BECK
J
A
FOR
THE APPELLANT : MR. SHABANGU
FOR
THE RESPONDENT : MR. P. FLYNN
JUDGMENT
Browde
J
A:
The
question for decision in this appeal succinctly put, is whether the
High Court of Swaziland has jurisdiction to review a decision of the
Industrial Court of Appeal. Masuku J who delivered judgment in the
High Court on 8th March 2000 has comprehensively dealt with the issue
and has admirably analysed the powers of the courts with particular
reference to the Constitution, the High Court Act 20/94, the High
Court Rules, the Industrial Relations Act 1996 and the common law.
I
agree entirely with what the learned Judge said in the court below
and find it necessary only to accentuate one or two aspects of his
judgment.
Briefly
stated the facts were as follows:-
2
The
appellant initiated proceedings in the Industrial Court in October
1993 alleging that the Central Bank of Swaziland, second Respondent
in this appeal, had unfairly terminated the appellant's employment.
The Industrial Court awarded the appellant an amount of E25,663.00.
The second Respondent then appealed to the Industrial Court of Appeal
which court upheld the appeal holding that the Industrial Court had,
by excluding certain evidence, precluded itself from coming to a
proper decision. The judgment of the Industrial Court of Appeal ended
with the words, "it follows that the appeal must succeed on the
points of law raised and the decision of the court a quo be set
aside." It is against that decision of the Industrial Court of
Appeal that the appellant lodged an application to the High Court and
sought an order that the judgment of the Industrial Court of Appeal "
be reviewed, corrected and/or set aside."
In
his analysis of the powers of the High Court Masuku J referred to
Section 4(1) of the High Court Act 20 of 1954 which empowers the High
Court to review proceedings of all subordinate courts of justice
within Swaziland. Although there is no definition of "subordinate
courts" in the High Court Act nor in the Interpretation Act 21
of 1970 I am of the opinion that the learned Judge a quo was correct
in expressing "the firm view that the Industrial Court of Appeal
cannot be regarded as an inferior court of
justice."
It is not a court of record and has appellate jurisdiction which is
quite inconsistent with being an inferior court in this country.
Masuku
J also referred to provisions of the Constitution which in terms of
Section 97(1) created the High Court and by Section 104 defined that
Court's powers by, inter alia, providing that its "revisional
jurisdiction" was that which it possessed at the commencement of
the Constitution. As Masuku J, in my opinion correctly, inferred,
"revisional jurisdiction" means the power to review
decisions and proceedings. At the commencement of the Constitution
the powers of the court were those already referred to in Section
4(1) of the High Court Act which confer no power of the court to
review a decision or proceedings of the Industrial Court of Appeal.
In any event that Appeal Court was not in existence when the
Constitution became law in this Kingdom.
3
The
only other aspect of the matter which I wish to stress concerns
section 11 of the High Court Act. section 11(1) reads:-
"There
shall be a right of appeal against the decision of the Court on a
question of
law
to the Industrial Court of Appeal."
It
is obvious that in this sub-section "Court" means the
Industrial Court. This is further borne out by section 11(2) which
reads:
"The
Industrial Court of Appeal, in considering an appeal under this
section shall have regard to the fact that the Court is not bound by
the rules of evidence or procedure which apply in civil proceedings."
Section
11(5) reads as follows:
"A
decision, or Order of the Court shall at the request of any
interested party be subject to review by the High Court on grounds
permissible at common law."
It
is once again clear that "court" means the Industrial Court
as it could not have been the intention of the Legislature to use the
word "Court" in different senses in sub-sections of the
same section. That it was found necessary to express the power of the
High Court to review a decision or order of the Industrial Court
necessarily indicates that the High Court has no power to review a
decision of the Industrial Court of Appeal. As it was put by Masuku
J:-
"What
is abundantly clear therefore is that the Legislature gave
jurisdiction to the High Court to review the decisions of the
Industrial Court only. Had Parliament intended to extend that power
to reviewing the proceedings, decisions or orders of the Industrial
Court of Appeal, it would have expressed its intention in clear
language. What transpires therefore is that Parliament intended the
Industrial Court of Appeal to be the last port of call in all
industrial matters and with its decisions becoming final."
4
As
I have said I agree entirely with the judgment of the learned Judge a
quo and consequently the appeal is dismissed with costs.
J.
BROWDE J
A
I
AGREE:
J.H.
STEYN
J
A
I
AGREE:
C.
E.
L.
BECK
J
A
Delivered
on this 19th day of December 2000.
