IN
THE
INDUSTRIAL
COURT
OF SWAZILAND
HELD
AT MBABANE CASE NO: 55/87
In
the matter between:
THE
LABOUR COMMISSIONER Applicant
VS
SWD.
TRANSPORT WORKERS UNION Respondent
CORAM: J.A.
HASSANALI President
MR
MAKHANYA for Applicant
MR
MOTSA for Respondent
MR
MOKGOKONG &
MR
MATSEBULA Assessors.
ORDER
(Delivered
on 8th June, 1989)
Hassanali,
P.
In
this Application the Commissioner of Labour is seeking an Order from
this Court against the Respondent on the follo-wing terms -
1) that
it submits a Return in terms of Sec. 22 of the Industrial Relations
Act on or before 30/9/87.
2)
that it be declared defunct in terms of Sec. 31(1) of the said Act.
The
Respondent, a registered Union in terms of Sec. 18 of the said Act
was required under Sec. 22(1) to submit to the Labour Commissioner
within 6 months after the end of each financial year a Return which
shall include-
a) Organisations
current postal addresses
b) Name
and postal addresses of its current officers.
c) Details
of any amendment made to its Constitution since the preceding return.
d) ...
its
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d) its
audited accounts for the preceding financial year.
The
Respondent however failed to submit any returns and this necessitated
the Labour Commissioner to write to the Union to comply with the
requirements under Sec. 18 of the Act or face in the alternative the
consequences contemplated under Sec. 31(1).
Section
31(1) reads as follow -
"upon
application by an affected person or by the Labour Commissioner, the
Court may after making such enquiries as it may consider necessary,
declare an Organisation to be defunct if the Organisation has not
filed a return under Sec. 22 or if the Court is satisfied that the
Organisation is no longer carrying on any of the activities of an
organisation."
Despite
the Commissioner's letter the Union remained silent and it was then
that he decided to initiate proceedings against it. Meanwhile the
Union submitted a Return for the period 1/4/86 to 31/3/87 which was
rejected by the Commissioner on the ground that the Return did not
comply with the requirements of Section 22(1) of this Act.
Though
there was no proper compliance in respect of (a), (b) & (c)
aforesaid, I directed the parties to centre their arguments mainly to
the question of the Audited Accounts.
In
this connection I now refer to the remarks of the Auditors which are
as follows - "A major part of the Unions income comprises
contributions from Members. There was no
3
system
of control over such income upon which we could rely for the purpose
of our audit and there was no alternative procedures which could be
adopted to verify the amount of contribution of income recorded
in the Union financal statements. Accordingly in our opinion the
Union has not complied with the requirements of Sec. 29 of the
Industrial Relations Act of 1980 in that it has not maintained a
satisfactory system of control over receipt."
Section
29 States -
"(1) All
funds received by or on behalf of an Organisation shall forthwith be
deposited to the Organisation's bank account, with a bank in
Swaziland duly licensed as a financial institution under the
Financial Institutions (Consolidation) Order, 1975 (Order No. 23 of
1975)
(2) Every
expenditure received by or on behalf of an Organisation shall be
evidenced by a written receipt or voucher, which shall be kept with
the Organisation's accounts.
(3) The
treasurer or other officers responsible for the custody of the
Organisations funds and property shall hand over such funds and
property to the Organisation when he leaves office, or earlier if so
directed by the Chairman and Secretay of the Organisation or a
general meeting.
(4) The
Court may make such Order as it deems necessary to secure compliance
with this section.
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Taking
into consideration the remarks of the Auditors, it is clear to me
that the Union has failed to maintain a proper accounting system as
envisaged under Section 29. This in my view constitutes a very
serious breach of the said Act. Mr Motsa representing the Union
argued that the Auditors Report and the Audited statement were
primarily meant for the Union so that it could rectify any accounting
errors. I am afraid I cannot subscribe to this view. Had this been
the position then there would not have been any necessity for the
Union to submit such a Return as required under Sec. 22(1) (a). In my
view the main purpose in submitting such a Return to the Commissioner
was for him to take remedial action provided for under Sec. 31(1) if
he so finds that Union Officials had been misusing the Union Funds.
Therefore I reject Mr Motsa's argument on this and hold that the
Respondent Union had failed to comply with the requirements
especially to the audited statement as contemplated under Sec. 22(1)
(d) of the Act.
What
has to be decided now is whether the Union should be declared defunct
under Sec.31(1) of the Act. Mr Fakudze, the present chairman of the
Union admitted that the Union had failed to maintain proper accounts
due to difficulties in collecting the subscriptions from the
sub-branch Unions. He also admitted that the Union had not forwarded
the Return for the period 1/4/87 to 31/3/88. However given another
opportunity, he said he would submit a Return to the Commissioner
for this period.
Though
there is no doubt that the Union is in contravention of and in
flagrant disregard of Sec. 22 of the Act I do not wish to declare the
Union defunct at this stage but to give it another opportunity to
submit a proper audited statement. In the light of this I wish
to make the following
XXX
5
that
the Respondent Union shall submit to the Labour Commissioner a Return
in terms of Sec. 22 of the said Act for the period 1/4/87 to 31/3/88
and the Statement of Account shall conform to Sec. 29 of the Act. The
said Statement shall be audited by a qualified Auditor and submitted
to the Commissioner on or before 28th July, 1989. If such statement
is accepted by the Commissioner, the application in this case will
then be dismissed. In the event the statement is not submitted or not
accepted by the Commissioner, the Commissioner then shall apply to
Court for an appropriate Order in this matter.
My
Assessors agree with my decision.
I
enter this decision as an Award of this Court.
J.A.
HASSANALI,
PRESIDENT
