1
IN
THE SWAZILAND INDUSTRIAL COURT OF APPEAL
Swaziland
National Provident Fund
v
Swaziland
Union of Financial Institutions and Allied Workers
ICA
CASE NO. 5/96
Coram Sapire
P
MatsebulaJ and
Maphalala
A
J
For
Appellant P.E.
FLYN
For
Respondent P.R.
DUNSEITH
Judgment
(03/06/98)
The
question has arisen in this appeal as to whether this court may and
should award the costs of appeal to the successful Appellant.
Section
10(1) of the Industrial Relations Act 1996 (the Act) provides
"
No costs shall be awarded by the Court except against a party held by
it to have acted frivolously or vexatiously or with deliberate delay
in the bringing or defending of a proceeding"
In
terms of Section 2 of the Act, "Court" means the Industrial
Court established under section 4 of the Act and the Industrial Court
of Appeal established under section 17.
2
On
reading these to statutory provisions it would seem that the
Industrial Court of Appeal may award costs in only the limited
circumstance stated in Section 10(1).
Section
19(3) however provides.
"After
hearing and appeal, the Industrial Court of Appeal may confirm, amend
or set aside the decision or order against which the appeal has been
noted or or make any other decision or order including an order as to
costs, according to law and fairness."
It
was argued that this section gave the Industrial Court of Appeal the
power to award the successful party the costs of appeal, on the basis
that costs follow the cause, even in those cases where the conditions
for the award of costs prescribed in section 10(1) are not present.
As
Sections 10(1) and 19(3) have to be read and interpreted to
complement and not contradict each other, any order as to costs made
in exercise of the powers conferred on the Industrial Court of
Appeal, can either be a variation of an order as to costs made by the
court a quo or as to the costs of appeal itself. In either case
however the limitation placed upon the circumstances in which an
award as to costs may be made applies.
It
follows that the Industrial Court of Appeal may only order costs of
appeal against the unsuccessful party, where the such party has been
guilty of frivolousness or vexatiousness,
or
with deliberate dilatoriness in order to delay the hearing of the
Appeal.
It
has not been argued that these conditions apply. There will
accordingly be no order as to costs.
S
W
Sapire
P
J.
Matsebula
S.
Maphalala
