(ii) The
Court a
quo erred
in fact and law in holding
that it lacked the jurisdiction to
entertain the
Appellant's application challenging an
unfair
dismissal on the basis of unfair procedure.
(iii) The
Court a
quo erred
in law in holding that fair
procedure provided in the Act does
not entail the
application of the audi
alteram partem principle
in
unfair dismissal cases.
[2]
The first two grounds of appeal can conveniently be dealt with
jointly, each being focussed on the jurisdictional empowerment of
the Industrial court. The third ground is without merit and does not
require to be dealt with. Suffice to say that the court a
quo never
made such a finding in its judgment.
[3]
The teaching profession is a noble and honourable calling where the
education of school-going learners is entrusted to their teachers
for many hours a day during the formative years of children. An
education is the passport towards a productive and enriched lifetime
while the absence thereof leads towards a life of servitude in the
lower echelons of society. The right to quality education is
inalienable in our society, constitutionally and morally imbedded as
a sine
qua non for
a better life.
[4]
Public primary and secondary schools in Swaziland resort under the
auspices of the Teaching Service Commission, which exercises control
over the appointment and discipline of teachers in those public
schools. Their aim is to ensure quality education by dedicated
qualified teachers, in whose care learners are placed during school
hours. Teachers not only impart academic knowledge to learners but
also become role models of impressionable students during their
formative years.
[5]
It is therefore incumbent on the Teaching Service Commission (TSC)
to ensure that adverse and perversive behaviour by deviant teachers
is nipped in the bud because the position of trust held by teachers
can readily lead to abuse of those young ones.
[6]
It is a commonly known fact that those same young children are
easily impressionable, also to the extent that suggestion and
prompting can readily lead to the fabrication of events that
never occurred in reality but thrives in their imaginative minds.
Precisely because of this phenomenon, when an accusation of
impropriety is levelled against a school teacher, it is absolutely
imperative that a tribunal which deals with such a complaint must be
alive to this and by necessity, meticulously apply the rules of
natural justice, giving a fair hearing and at the same time, keep an
open and unbiased mind.
[7]
A disciplinary tribunal under the auspices of the TSC is not
expected to be seasoned jurists, knowledgeable in the intricacies of
law relating to admissibility of evidence, procedure and such like,
but the minimum requirements of a fair hearing are universal and
well established. These include, without placing a limitation on
such aspects, the right of an accused person to hear evidence
against him in his presence and the right to test the veracity of
such evidence through cross-examination, either personally or
through his or her legal representative. Moreover, the tribunal at
such hearing must demonstrably be unbiased, retaining an open mind
during the full course of proceedings. In the absence of that, the
outcome of such disciplinary proceedings may well be set aside on
review or appeal, as the case may be.
[8]
The difference between these two remedial procedures is often
clouded in obscurity and may well overlap to some extent. In our
domestic jurisprudence, Nathan CJ condensed some case law, such
as REX V SINGH 1948 (3) SA 554(N); REX V DE MEYER 1949(3) SA892(0);
REX V IMPEY AND ANOTHER 1960(4) SA 556(E), when he stated at page
410 of the judgment in R V MKHABELA 1970 - 1976 SLR 408 as follows:-
"Before
dealing with these matters I should mention briefly the difference
between appeal and review proceedings. Proceedings by way of review
- I am not here referring to automatic review - are resorted to
where there has been some gross irregularity in the conduct of the
case. An appeal is appropriate where the judgment is attacked as,
for example, being bad in law, or against the weight of evidence, or
where the sentence is submitted to be excessive. The improper
admission or rejection of evidence may be regarded as an
irregularity; but the more usual, and I think the more proper way to
raise this question, especially in regard to the application of
Section 199 of Act 67 of 138, is by way of appeal, and not by way of
review."
[9]
As a general rule, another way of formulating the difference
between the two avenues would be that where the complaint is against
the result
of the proceedings, the general remedy is by way of an appeal and
where the method
of the proceedings is attacked, the remedy is to bring the matter on
review. See ELLIS V MORGAN 1909 TS 576 at 581; VISSER V ESTATE
COLLINS 1952(2) SA 546(C) at 551; PRIMICH V ADDITIONAL MAGISTRATE,
JOHANNESBURG 1967(3) SA 661(T) at 671 or BESTER V EASIGAS (PTY) LTD
1993(1) SA 30(C) at 43B in this regard, pertaining to the
distinction between appeal and review.
[10]
In JOHANNESBURG CONSOLIDATED INVESTMENT COMPAY V JOHANNESBURG TOWN
COUNCIL 1903 TS 111 at 114, Innes CJ stated of review proceedings,
that it is:
"...the
process by which, apart from appeal, the proceedings of interior
courts of justice, both civil and criminal, are brought before the
court (i.e. the reviewing superior court) in respect of grave
irregularities or illegalities occurring during the course of such
proceedings".
[11]
In the present appeal, the learned Judge of the Industrial Court
held that the proceedings before him, though not coached in such
words, in fact amounted to a review of the proceedings before a
tribunal of the Respondent. At page 4 of his judgment, he found
that:
"Although
in the present case the Applicant has not specifically stated in its
papers that it (sic) wants the disciplinary proceeding of the First
Respondent to be reviewed and set aside on grounds of the patent
irregularities, it is clear that the grounds upon which he
challenges his dismissal are grounds for review. His complaint is
that he did not have a fair hearing taking into account the way that
the chairman conducted the hearing. In order for this court to make
a ruling that the dismissal was unfair, it must make a finding on
the irregularity or impropriety in the manner that the chairman
conducted the disciplinary hearing. That can be done by way of
review."
In
my view, the Industrial Court correctly found that the proceedings a
quo were
in fact proceedings on review. It is this finding, made in
limine, which
is challenged in the appeal before us, with the crux of the matter
being the vexed question as to whether or not the Industrial Court
has the power to review proceedings of statutory bodies.
[13]
The learned judge a
quo, as
he was bound to do under the well established principle of stare
decisis, relied
upon a decision of the Industrial Court of Appeal, to hold that such
jurisdiction is excluded. In FUTHI P. DLAMINI AND OTHERS V THE
TEACHING SERVICE COMMISSION AND OTHERS, unreported Industrial Appeal
Case No. 12/2002, two members of the present court decided the
question of the power of the Industrial Court to review proceedings
of the Teaching Service Commission (T.S.C.).
[14]
In the judgment, the decision in MUSA GWEBU VS MANZINI CITY COUNCIL,
Civil Case No. 2802/2002 was cited with approval. Therein, the High
Court held that its jurisdiction regarding review of proceedings of
the TSC qua
statutory
body was not ousted by the legislature and that the Industrial Court
could not
review such matter.
[15]
In coming to these conclusions, the High Court emphasised Section
8(1) of the Industrial Relations Act of 2000 (I.R.A.) regarding that
court's jurisdiction, vis-a-vis Section 104 Chapter IX Part 1 of the
saved provisions of the 1968 Constitution. The latter states that:
"The
High Court shall be a Superior Court of record and shall have (a)
unlimited jurisdiction in all civil and criminal matters ..."
whereas
the I.R.A. states that:
"The
court shall, subject to Section 17 and 65, have exclusive
jurisdiction to hear, determine and grant appropriate relief in
respect of an application, claim or complaint or infringement of any
of the provisions of this Act, the Employment Act, the Workmen's
Compensation Act, or any other legislation which extends
jurisdiction to the court, or in respect of any matter which may
arise at common law between an employer and employee in the course
of employment or between an employer or employers association and a
trade union or staff association or between an employees3
association, a trade union, a staff association, a federation and a
member thereof.
[16]
In both MUSA GWEBU (Supra) and FUTHI DLAMINI (Supra) strong reliance
was placed on the Court of Appeal judgment in SIBONGILE NXUMALO AND
THREE OTHERS VS ATTORNEY GENERAL AND TWO OTHERS, unreported Appeal
Case No. 25/96 (including case No. 30 of 1996, 28/96 and 9/96). In
Gwebu (supra) the Court referred at page 6 to the latter decision as
follows:
"...that
Section 5(1) of the 1996 Industrial Relations Act confined the
Industrial Court jurisdiction solely to those matters set out in the
Act, those disputes which had run the gauntlet of the dispute
procedure, and those issues arising from the other legislation
specifically set out in Section 5(1). The learned Judge of Appeal
said the following:
'Having
regard to the principle that in order to oust the jurisdiction of
the ordinary courts, it must be clear that the legislation intended
to do so and that any enactment which seeks to do so must be given a
strict and restricted construction, it is in my view, clear that
save for specific provisions mentioned, Section 5(1) does not
disturb the common law of the master and servant."'
In
FUTHI DLAMINI {supra)
the
two members of the Industrial Court of Appeal stated (at page 6)
that the issue to decide (mutatis
mutandis also
presently the issue), is that:
"The
crisp point to be addressed is whether or not the review, correction
and setting aside of the proceedings leading to the termination of
the officer
(Applicant)
and the Respondent which is a statutory body whose authority to
discipline and terminate the services of any of its officer is
created, defined and regulated by Urban Government Act, 1969 and its
subsidiary legislation, is not the kind of "appropriate relief
which Section 8 of the Industrial Relation Act, 2000 contemplates to
be within the exclusive jurisdiction of the Industrial court."
At
page 8 of FUTHI DLAMINI (supra)
it
was held that:
"The
High Court has, in addition to reviewing the conduct of statutory or
public bodies, always asserted and has inherent power to review the
conduct of non-statutory quasi-judicial bodies and domestic
disciplinary tribunals. Clearly the Respondent is a public body.
Furthermore, the employment of the Applicant was determined inter
alia by
statutory provisions in that only the council was empowered by the
Act to appoint and discharge members of staff.
The
decision of the Respondent, to terminate the employment of the
Applicant, and the recommendations of the disciplinary inquiry to
that effect were unquestionably proceedings of a
disciplinary nature, which may be reviewed by this court.
Had
the 2000 act intended to oust the jurisdiction of the High Court in
this respect it would have done so in more clearer language (see
page 8 of the Court of Appeal judgment in SIBONGILE NXUMALO (supra)"
[19]
Before this court, Mr. Maseko persuasively argued that when proper
regard is had to all prevailing circumstances presently applicable,
the above cited findings cannot properly be followed anymore.
[20]
In the Law of South Africa (LAWSA), First issue Vol. 13 Part 1 at
431 para 890, the learned authors refer to the status of the South
African Labour Court as a "Court
of law and equity (having) the same authority and inherent powers
and standing as a high court in relation to matters that fall under
its jurisdiction".
[21
] Specific reference to it being a court of equity
is found in Section 155(1) of the South African Labour Relations
Act, 1995 (Act 66 of 1995), and it was held in CEREBOS FOOD
CORPORATION LIMITED VS DIVERSE FOODS SA (PTY) LTD 1984(4) SA 149(T)
at 173, echoed in KLOOF GOLD MINING COMPANY LIMITED VS NUM 1987 ILJ
99
(T), that the labour court is therefore not only responsible for
applying the law, but should ensure that justice is done on a basis
of fairness based on society's concept thereof.
[22]
In Swaziland, the Industrial Court is also clothed with the mantle
of equity.
It is a specialist court established under Section 6 of the Act (the
IRA), which same Act has as a primary objective the promotion of
fairness and equity
in labour relations (Section 4(i)(b) of the Act). In doing its duty,
the Industrial Court daily deals with issues relating to alleged
unfair or arbitrary dismissal, defined in LAWSA paragraph 701
(op.cit.)
as:
"The
essence of the doctrine of unfair dismissal is to protect an
employee against arbitrary dismissal, that is, dismissal without
substantive grounds in a procedurally
unfair manner. (It) constitutes one of the basic labour rights in
all western countries."
[23]
This principle, or doctrine, was adopted by the International Labour
Organisation in Recommendation 119 of 1963. In NUM V HENRED FREUHAUF
TRAILERS (PTY) LTD 1994 ILJ 1257(A) this principle is described as
follows at 1263 C:-
"Where
an employee is unfairly dismissed he suffers a wrong. Fairness and
justice require that such wrong should be redressed. The Act
provides that the redress may consist of reinstatement, compensation
or otherwise."
[24]
In its daily dealing with matters of alleged unfair dismissal, our
Industrial Court, as court of fairness and equity, is required to
determine if dismissals were fair, having regard to inter
alia whether
it qualifies as a dismissal in terms of the Act, whether an employee
is one as defined in the Act and entitled to protection afforded by
the doctrine of unfair dismissals, whether the reasons for dismissal
are fair and also, importantly, if the procedure was also fair, in
order to decide if a dismissal of an employee can be regarded as
fair and reasonable.
[25]
Section 3 of the Act holds that the I.R.A. shall apply to employment
by or under the Government in the same way and to the same extent as
if the Government were a private person, but excluding service under
the Umbutfo Swaziland Defence Force, the Royal Swaziland Police
Force and His Majesty's Correctional Services. It was not argued,
nor could it be so, that the Appellant could be excluded from the
provisions of the IRA on this basis and therefore not entitled to
approach the Court. The point is that the court upheld a legal point
and found that it lacked jurisdiction to deal with the merits of the
matter since it would effectively mean a review of the proceedings.
The
essence of the application brought before the court a
quo, is
that procedural requirements for a fair hearing were allegedly not
met, wherefore the hearing and its consequences could not be
regarded as fair and just. Inter
alia, the
applicant averred that he was not given fair opportunity to properly
state his case because of alleged absence of opportunity to cross
examine witnesses testifying against him, to properly state his own
case and to make submissions or representations, caused in the main
by bias against him and the absence of objectivity and open minds.
Before
turning to the issue of the jurisdiction of the Industrial Court and
whether it also encompasses the power to review the decision reached
by the First Respondent or whether it is ousted by statute, I refer
to an instructive passage by Corbett CJ in HIRA AND ANOTHER VA
BOOYSEN AND ANOTHER 1992(4) SA 69 (AD) at 83 I - 84 I.
"The
Judge a
quo ....held
that an error of law alone, with no consequential irregularity, is
not a sufficient ground for review. Here, the magistrate made a mere
error of law: there was no consequential irregularity. This error
was therefore 'regrettable but not reviewable.' The question as to
when an error of law gives rise to a good ground for review in our
law is a vexed one and one upon which the decisions of the Courts
are not altogether harmonious. In the JOHANNESBURG CONSOLIDATED
INVESTMENT case supra, Innes C.J. described common law review in the
following terms (at 115):
'Whenever
a public body has a duty imposed upon it by statute, and disregards
important provisions of the statute, or is guilty of gross
irregularity or clear illegality in the performance of the duty,
this Court may be asked to review the proceedings complained of and
set aside or correct them. This is no special machinery created by
the Legislature; it is a right inherent in the Court, which has
jurisdiction to entertain all civil causes and proceedings arising
within the Transvaal. The non-performance or wrong performance of a
statutory duty by which third persons are injured or aggrieved is
such a cause as falls within the ordinary jurisdiction of the
Court. And it will, when necessary, summarily correct or set
aside proceedings which come under the above category.'
This
formulation is not to be regarded as precise or exhaustive. It is
clearly established by a long series of cases that, for instance,
common law review applies also to cases where the statute creates a
power rather than a duty; where the duty or power invested in an
individual official, as distinct from a public body; where the
decision under review is taken without proceedings, in the sense of
a hearing, having occurred; and where the duty or power is created
not by statute but consensually, as in the case of a domestic
tribunal. Over the years, too, the grounds of review have been
elaborated and defined. Recently these grounds were restated by this
court (with reference to a decision of the president of the
Johannesburg Stock Exchange) as follows:
'Broadly,
in order to establish review grounds it must be shown that the
president failed to apply his mind to the relevant issues in
accordance with the "behests of the statute and the tenets of
natural justice"(see NATIONAL
OTHERS
VA MINISTER OF PRISONS AND OTHERS (supra at 48D - H); SULIMAN AND
OTHERS VA MINISTER OF COMMUNITY DEVELOPMENT 1981(1) SA 1108(A) at
1123A.) Some of these grounds tend to overlap.'"
[28]
It is the "failure
to apply his mind to the relevant issues in accordance with the
behests of the statute and the tenets of justice", alleged
by the Applicant in the court a
quo, which
resulted in the finding referred to further up in this judgment,
that resulted in a dismissal of the matter before it, holding it to
be a review in respect of which the court had no jurisdiction, that
gave rise to the appeal before this court.
[29]
Was the court a
quo correct
to find as it did?
[30]
Section 4 of the High Court Act, 1954 (Act 20 of 1954), under the
heading "Powers
of Review", holds
that:
"4(1)
The High Court shall have full power, jurisdiction and authority to
review the proceedings of all subordinate courts of justice within
Swaziland, and if necessary to set aside or correct the same."
[31]
Section 151 of the Constitution of the Kingdom of Swaziland, 2005
(Act 1 of 2005) under the heading "Jurisdiction
of the High Court" reconfirms
its revisional jurisdiction but it goes on to say that:
"151(3)
Notwithstanding the provisions of subsection (1), the High
Court -(a)
has no
original or appellate jurisdiction in any matter in which the
Industrial Court has exclusive
jurisdiction."
{my emphasis)
[32]
Section 8(3) of the IRA reads that:
"In
the discharge of its functions under this Act, the (Industrial)
Court shall have all the powers of the High Court, including the
power to grant injunctive relief"
[33]
The Industrial Court is a specialist tribunal with expertise in
labour or industrial matters. It deals exclusively with such cases,
day in and day out. It does not have the inherent civil jurisdiction
that the High Court retains, as is clear from the abovequoted
legislation. The High Court retains the jurisdiction to review
decisions of the Industrial Court.
[34]
Halsbury's Laws of England vol 37 para 14 has it that:
"The
jurisdiction of the court which is comprised within the term
"inherent" is that which enables it to fulfil itself,
properly and effectively, as a court of law. ... The inherent
jurisdiction of the court enables it to exercise ... control over
the powers of inferior courts and tribunals."
[35]
In CONNELLY V DIRECTOR OF PUBLIC PROSECUTIONS (1964) 2 All ER
401(HL) it was stated at 409 E that:
"There
can be no doubt that a court which is endowed with a particular
jurisdiction has powers which are necessary to enable it to act
effectively within such jurisdiction. I would regard them as powers
which are inherent in its jurisdiction. A court must enjoy such
powers in order to enforce its rules of practice and to suppress any
abuse of its process and to defeat any attempted thwarting of its
process."
[36]
That there is a clear distinction between the inherent jurisdiction
of the High Court and the particular jurisdictional powers of the
Industrial Court is thus quite clear. The legislature particularly
endowed the latter court with the powers it requires to fulfil its
specialist task. The Constitution does likewise. There is no doubt
in my mind that if this specialist particular jurisdiction were to
be partially divested of it by holding that it lacks the power of
review in labour matters and industrial disputes, which give rise to
approach that court to effectively deal with such disputes, it would
undermine the aim and purpose of the rationale behind the
establishment of the Industrial Court.
[37]
In PAPER, PRINTING, WOOD AND ALLIED WORKERS UNION V PIENAAR NO AND
OTHERS, 1993(4) SA 621(A) at 637 A - B, referred to with approval
and relied upon to reach its decision in SWAZILAND BREWERIES LIMITED
AND ANOTHER V CONSTANTINE GININDZA, unreported Supreme Court of
Appeal decision in Civil Appeal No. 33/2006 dated the 16th
November 2006, it was held that:
"The
existence of Specialist courts points to a legislative policy which
recognises and gives effect to the desirability, in the interests of
administration of justice, of creating such structures to the
exclusion of the ordinary courts."
[38]
It is in the same case of Swaziland Breweries (supra) that the
Supreme Court, per Ramodibedi J A with Browde AJP and Zietsman JA
concurring, held at paragraph 12 that:
"The
effect of this change read with the use of the word "exclusive"
(in
both the Constitution and the I.R.A.) in
the section makes it plain in my view that the intention of the
Legislature by enacting Section 8(1) of the Act was to exclude
(my
emphasis) the
High Court's jurisdiction in matters provided for under the Act and
thus to confer "exclusive" jurisdiction in such matters on
the Industrial Court".
[39]
I cannot but fully agree with this finding. Moreover, this court
made a similar finding in unreported Industrial Appeal Case No.
04/2005, MATHEMBI DLAMINI AND SWAZILAND GOVERNMENT, delivered in
February 2006. In dealing with a point of law raised in its heads of
argument to the effect that "(the)
Industrial Court does not have jurisdiction to review a decision of
an employer" (namely
the Teaching Service Commission), it was held at paragraphs 47 - 49
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
relates 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.'
The
decision of the Industrial Court in the case of MOSES DLAMNI V TSC
AND ANOTHER (case No. 402/04) seems to be clearly wrong."
It
is for these reasons that I conclude that the decision of the Court
a
quo in
the present appeal, by holding that it does not have the power to
review the decision of the First Respondent, should be set aside on
appeal. Accordingly, it is ordered that the matter be referred back
to the Industrial Court, which is to deal with the merits of the
matter before it, now that the point in
limine regarding
its jurisdictional powers of review which it upheld, has fallen
away.
No
costs order is made.
JACOBUS
P. ANNANDALE, JP
I
agree
J.M.
MATSEBULA, JA
I
agree
S.B.
MAPHALALA, JA
