RULING ON POINT OF
LAW - 01/02/07
[1] In this matter the
applicant brought an application for the determination of an
unresolved dispute in terms of the provisions of the Industrial
Relations Act No. 1 of 2000 as amended.
[2] The respondent is
the Swaziland Government, it being the employer of the applicant.
[3] The applicant claims
in his papers that he was wrongfully, unlawfully and unfairly
dismissed by the respondent. He is therefore praying for an order
from this court that he be re-instated or alternatively that the
respondent pays him maximum compensation and all terminal benefits.
[4] The respondent filed
a notice to oppose and thereafter files its reply. The respondent
further filed a notice to raise a point of law.
[5] The court is
therefore presently called upon to consider the point of law raised
and to make a ruling.
[6] The point of law
raised by the respondent is that this court does not have
jurisdiction to review decisions of other statutory bodies.
[7]
It was argued on behalf
of the respondent that the grounds for the relief sought by the
applicant are grounds for review as the applicant claims that the
respondent failed to follow statutory procedures and regulations as
laid down in the Civil Service Order.
[8] It
was argued by Mr. Dlamini that this court being a creature of
statute, has no jurisdiction to review decisions of other statutory
bodies.
[9] Mr. Mthethwa, for
the applicant, argued to the contrary that this court does have
jurisdiction to entertain the application it being a Labour dispute,
and that this court has exclusive jurisdiction to hear Labour
related disputes.
[10] Both attorneys
filed heads of argument and referred the court to a number of
authorities.
[11] Mr. Dlamini
referred the court to the Industrial
Court of Appeal case
of Futhi
P. Dlamini and Others v Teaching Service Commission (1st
Respondent). The
School Manager (2nd
respondent), The
Headteacher / Nkiliji Secondary School (3rd
Respondent), The
Attorney General (4th
Respondent) and
Registrar of the Industrial Court of Appeal, case No. 12/2002, and
also to the Industrial Court case of Moses
Dlamini v The Teaching Service Commission and Attorney General Case
No. 402/2004 for
the proposition that this court does not have jurisdiction to review
decisions of other statutory bodies.
[12] The court will not,
however, consider case of Moses Dlamini as it was overruled by the
Industrial Court of Appeal in the case of Mathembi
Dlamini v Swaziland Government, appeal case No. 04/2005.
[13] The Mathembi
Dlamini case is a more recent decision of the Industrial Court of
Appeal in which a similar point of law was raised and addressed by
the court. In that case the respondent also raised a point of law in
its heads of argument that "the
Industrial Court does not have jurisdiction to review a decision of
an employer."
[13] The Industrial
court of Appeal pointed out at pages 16-17 that:
"The respondent
apparently lost sight of the enabling provisions of sections 6(1),
8(1) and 8(3) of the Act. Thus, in discharging its functions under
the Act, the Industrial Court may exercise the power to review
decisions of statutory boards and bodies acting
qua employer,
provided,
in terms of section 8(1) of the Act, that the decision related to an
infringement of Labour legislation or 'any matter which may arise at
common law between an employer and employee in the course of
employment'". (my
own emphasis).
This court is bound to
follow this latest decision of the Industrial Court of Appeal and
will accordingly come to the decision that it does have jurisdiction
to entertain the applicant's application as the applicant alleges
that there was an infringement of a Labour legislation when he was
dismissed by the respondent.
It was also argued on
behalf of the respondent that this court does not have jurisdiction
because the matter does not 'arise at common law' as envisaged by
section 8(1) of the Industrial Relations Act.
The respondent's
attorney relied on the Supreme Court of Appeal case of Swaziland
Breweries Limited and Sicelo
Mabuza v Constantine Ginindza Civil Appeal Case No. 33/2006
for his proposition. In
paragraph 16 of the judgement the following statement appears;
" It has not
been suggested, nor could it be, that the first appellant is
a subordinate court
or a tribunal. Nor, still less, is it an adjudicating authority. On
the contrary, it is common cause that it is a private body which is
for that matter not constituted by statute."
Mr. Dlamini argued based
on this passage, that the Supreme Court of Appeal put clear the
position that the review of decisions or acts of statutory bodies
fall under the provisions of the constitution which gives the High
Court "review
and supervisory jurisdiction over all subordinate courts and
tribunals or any lower adjudicating authority...."
The court is unable to
agree with Mr. Dlamini. Mr. Dlamini seems to rely on a statement
made obiter
by the
Supreme Court of Appeal.
The ratio
decidendi of
the Supreme Court case was that the Industrial Court has exclusive
jurisdiction in all Labour related matters in the country. I cannot
see how, nor is it to be found in the judgement that the Civil
Service Board is exempt.
Those bodies that are
excluded from the jurisdiction of the Industrial Court are expressly
mentioned in the Employment Act under Section 5. That section
provides that:
"Act binds
Government
5. Subject to
section 6, the provisions of this Act shall apply to employment
with, by, or under the Government, other than to employment in the
Royal Swaziland police Force, the Umbutfo Swaziland Defence Force
and the Swaziland prison Service."
Section 6 of the
Employment Act makes provision for exemption of any person or public
authority from the operation of all or any of the provisions of the
Act. it was not argued that the Civil Service Board is also exempt
from the operation of the Act.
Under Section 8(1) of
the Industrial Relations Act, the Employment Act is one of the Acts
mentioned whose operation is under exclusive jurisdiction of the
Industrial Court.
Contrary to Mr.
Dlamini's submissions, the effect of the Supreme Court decision is
that it puts to rest any doubt regarding the exclusive jurisdiction
of the Industrial Court in Labour matters. The High Court can only
entertain such matters when they come before it in review
proceedings in terms of Section 19 (5) of the Industrial Relations
Act.
[25] It is clear to the
court as to what led to the point of law being raised by the
respondent. There is a serious failure by litigants to discriminate
between the powers of this court when it sits to determine whether
an employer acted fairly or lawfully and/or procedurally when it
dismissed an employee, and the functions of the High Court when it
sits to determine a review application brought in terms of Rule 53
of the High Court Rules.
[26] When this court
sits down to determine whether an employee was fairly dismissed, it
must consider, inter
alia, whether
a fair procedure was followed before the dismissal was effected. If
it finds that it was not, it would have to find that the dismissal
was not fair. In the context of the present case, it means that the
court will have to consider if the Regulations laid down in the
Civil Service Order were followed before the applicant was
dismissed.
[27] The present
application is not an application for review. It was not brought in
terms of Rule 53 of the High Court Rules. To the contrary, it was
brought in terms of the provisions of the Industrial Court Act and
is accompanied by a certificate of unresolved dispute. The applicant
seeks a relief that this court is competent to grant in terms of the
Industrial Relations Act.
[28] When one takes into
account the head under which the present application was brought,
and also the relief sought by the applicant, there is no way that
anyone can successfully argue that this court does not have the
jurisdiction to entertain the application.
[29] Taking into
consideration all the above observations and submissions made before
the court, the court will dismiss the point of law raised.
[30] No order for costs
is made.
The matter is referred
to the Registrar's office for trial date allocation.
NKOSINATHI
NKONYANE A-J
INDUSTRIAL COURT
