SWAZILAND
HIGH COURT
TUNTEX
TEXTILES (PTY) LIMITED
Plaintiff
Vs
SWAZILAND
MANUFACTURING AND ALLIED WORKERS UNION
1st
Respondent
KENNETH
NKAMBULE N.O.
2nd
Respondent
Civ.
Case No. 3269/2001
Coram SAPIRE,
CJ
For
Plaintiff Mr. J. Hlophe
For
Defendant Mr. M. Dlamini
JUDGMENT
(23/07/2002)
This
is an application to review the decision of the Industrial Court.
The
applicant is a company which carries on business at Matsapha
Industrial sites. The first respondent is the Swaziland Manufacturing
& Allied Workers Union, a Labour Organisation duly established in
terms of the Industrial Relations Act, having power to sue and to be
sued of Agora Shopping Complex, King Mswati 111 Avenue, Matsapha
Industrial Site.
2
The
dispute before the Industrial Court was whether or not recognition
had to be given by the applicant to the 1st respondent in terms of
Section 43 (5) of the Industrial Relations Act. The matter went to
the Industrial Court, which gave a ruling on the 29th October last
year. In the ruling the presiding judge described the order which is
being sought, that was, directing the respondent to recognise the
applicant as the exclusive collective employee representative at the
respondent's undertaking concerning all terms and conditions of
employment including wages and hours of work.
The
applicant also sought an order directing the respondent to deduct 1%
subscription of the applicant's members at the respondent's
undertaking and paying them to applicant.
Ancillary
to this the Respondent sought an order declaring the conduct of the
respondent of threatening, harassing and victimising applicant's
members unlawful and illegal. Also further and/or alternative relief.
The
outcome was that the Industrial Court made an order on the
application that the respondent recognises the applicant's Union as
the exclusive collective employee representative at its undertaking
concerning all terms and conditions of employment including wages and
hours of work, that the respondent was to deduct 1% of the wages of
the applicant members as subscription and no further order was made.
The present applicant has opposed the proceedings and has filed an
answer to the founding papers lodged by the respondent.
The
nub of the matter is that the present applicant, that is the
applicant seeking review, with reference to Section 43(5) of the
Industrial Relations Act sought to indicate that the required number
of employees at the undertaking had not been reached and that the
claim by the applicant to have more than 50% of the employees was
incorrect.
The
present applicant gave particulars of the reasons why it says that
the number of percentage was not attained. This was that the number
as alleged by the applicant was inflated by the inclusion of a number
of names that were spurious. There were three categories. There were
names of those who had never joined the
3
union
and that their signatures were forged. These people, it is said,
disassociated themselves from the organisation. Another category
comprised those who had died and for this reason were no longer
members of the workforce. Others were names of individuals who had
left. Those were the three categories.
There
was indeed a dispute of fact. That is whether or not 50% of the
employees in respect of whom the union or industry staff association
sought recognition were fully paid up members of the organisation
concerned.
The
judge a quo refused to hear evidence in support of the respondent's
reply. In this the court a quo erred. Clearly this was an issue which
was relevant and in finding as it did that there are no disputes of
facts which need viva voce evidence, the court precluded itself from
conducting the matter in accordance with the audi alterem partem
rule. Those affected thereby should be given an opportunity of being
heard and presenting such evidence, as they considered relevant
before a decision was made. This being so the decision of the court a
quo is reviewable and the ruling as it was called must be set aside.
The matter must be and is referred back to the Industrial Court to
hear evidence to establish whether now or any other time 50% of the
workforce at the applicant's undertaking are members of the Union.
I
am not making any order as to costs at this stage.
SAPIRE,
CJ
