THE
HIGH COURT OF SWAZILAND
SWAZISPA
HOLDINGS LIMITED
Applicant
And
JONATHAN LANGWENYA
1st
Respondent
THE
PRESIDING PRESIDENT OF THE INDUSTRIAL COURT OF SWAZILAND
2nd
Respondent
THE
COMMISSIONER OF LABOUR, N.O.
3
rd Respondent
THE
ATTORNEY GENERAL
4th
Respondent
Civil
Case No. 3179/2002
Coram S.B.
MAPHALALA - J
For
the Applicant MR. M. NSIBANDZE
For
the Respondents ADVOCATE VAN DER WALT
(Instructed
by Maphalala & Co.)
JUDGMENT
(23/04/2002)
This
is an application for review. The order being sought is for the order
of the Industrial Court in Case No. 115/2002, granted on the 21st May
2002 be and is hereby reviewed and corrected or set aside and costs
of this application to be paid by the party or parties opposing the
application.
2
The
founding affidavit of one Howard Mabuza who is Human Resources
Manager is filed in support thereto. Pertinent annexures are attached
to the Applicant's papers. The 1st Respondent has filed an answering
affidavit in opposition. The matter came for arguments in the
contested motion of the 28th March 2003, where I reserved judgement.
Following is my judgment in this matter. On the 13th March 2000, the
1st Respondent applied to the Labour Commissioner (3rd Respondent)
for extension of time within which to report a dispute which appears
to have arisen somewhere in 1997. On the 20th March 2000, the Labour
Commissioner decided to intervene and called the parties to a
meeting, during which the Applicant inter alia agreed to pay the 1st
Respondent the salary claimed by him, which formed the subject matter
of the dispute. On the 15th May 2000, the Labour Commissioner
recommended that dispute be deemed to be reported in terms of Section
57 of the former Industrial Relations Act, 1996 and gave an
extension.
On
the 7th June 2000, the current Industrial Relation Act, 2000 came
into operation, and repealed the 1996 Act.
On
the 17th May 2001, the Industrial Court upheld a point in limine that
the dispute was not reported in time, that only the Minister and not
the Labour Commissioner could extend the time, that the intervention
by the Labour Commissioner could only take place where no report of
the dispute had been made, and that the Labour Commissioner therefore
acted ultra vires by purporting to intervene.
On
the 12th June 2002, the 1st Respondent re-applied to the Labour
Commissioner for an extension. There is an internal memorandum
wherein an acting Assistant Labour Commissioner states that their
office made a mistake in intervening, and recommended that the "case"
be rejected. This memorandum is dated the 21st August 2002. On the
21st May 2002, on the application by the 1st Respondent, under Case
No. 115/2002 the Industrial Court orders the Labour Commissioner to
grant extension of time. The Applicant was not cited as a party
therein. This is the order which forms the subject matter of the
current application. On the 5th July 2002, an internal memorandum
wherein
3
The
Labour Officer recommended the granting of the application following
the Industrial Court Order.
On
the 5th July 2002, the Labour Commissioner granted the 1st Respondent
a 29months extension, until August 2002.
The
issue in dispute is that the Applicant seeks that the order granted
by the Industrial Court on the 21st May 2002, be reviewed and
corrected or set aside. There does not appear to be any written
judgement, and the 2nd Respondent has apparently not dispatched his
reasons, as called for in the notice of motion.
In
the Book of Pleadings, the Applicant summarised its issues as
follows:
1. Whether
the Industrial Court in granting the order in case No. 115.2002 acted
in accordance with Section 76 (6) of the Industrial Relations Act No.
1 of 2000;
2. Whether
Section 76 (6) of the Industrial Relations Act was applicable in the
circumstances;
3. Whether
the Industrial Court may instruct the Commissioner of Labour to
extend the period with which a dispute may be reported, and
4. Whether
an extension of time was correctly ordered in the circumstances.
When
the matter came for arguments both attorneys filed very comprehensive
Heads of Argument and the court is highly appreciative to counsel for
the industry shown in both sets of Heads. I shall in the main adopt
the format followed by Mr. Nsibandze for the Applicant for
convenience not that Miss Van Der Walt's Heads are of a lesser
quality, but for the incisiveness in Mr. Nsibandze's Heads. Further
Miss Van Der Walt conceded the main points raised by Mr. Nsibandze.
This judgment is merely for purposes of the record.
4
The
application for extension of time was made under the auspices of
Section 76 (4) of the Industrial Relations Act No. 1/2000 which
reads, " A dispute may not be reported to the Commissioner of
Labour if more than 6 months have elapsed since the issue giving rise
to the dispute first arose, but the Commissioner of Labour may
subject to subsection 5 in any case where justice requires extend the
time during which a dispute may be reported".
Subsection
76 (5) reads:
"The
Commissioner of Labour shall not have the power to extend the time in
which a dispute may be reported where a period of 36 months has
elapsed since the dispute first arose".
The
3rd Respondent considered the application for extension of time and
declined to extend the time within which the dispute can be reported
to him on the basis that a period of more than 36 months had elapsed
since the dispute first arose. The 1st Respondent aggrieved by the
decision of the Labour Commissioner (the 3rd Respondent), invoked his
rights in terms of Section 76 (6) of the Industrial Relations Act
which reads:
"Any
person aggrieved by the decision of the Commissioner of Labour under
subsection 4 may apply to the court and the court shall determine the
issue, taking into account any prejudice that may be suffered by any
one of the parties to the dispute", (my emphasis).
The
2nd Respondent granted an order in the following terms:
"That
the 1st Respondent [3rd Respondent herein] is hereby directed to
issue and/or grant the application for extension of time in the
matter between Jonathan Langwenya and Royal Swazi Spa Holdings within
14days upon service of this order".
I
agree with Mr. Nsibandze and this is also conceded by Miss Van Der
Walt for the other side that the order of the 2nd Respondent was
grossly irregular in the circumstances for the following reasons:
Section
76 (6) requires the court to;
i) "Determine
the issue"
5
ii) Determine
the issue "taking into account any prejudice that may be
suffered by anyone of the parties to the dispute". (my
emphasis).
The
irregularity arose in that the 2nd Respondent did not and could not
have taken into account any prejudice that could be suffered anyone
of the parties to the dispute in that the Applicant herein is clearly
a party to the dispute which the 1st Respondent wishes to pursue but
was not cited as a party and was not given any opportunity to place
any possible prejudice that he may suffer due to the granting of the
extension of time before the court.
Further,
it would appear that Mr.Nsibandze is correct in his contention that
the rules of natural justice required that before the extension of
time which is in the form of an application for condonation could be
granted, the Applicant who would be the defendant in any proceedings
thereafter should be given an opportunity to oppose if it so wished
to and state reasons why it was opposed to the granting of the
extension of time. The case cited by Mr. Nsibandze that Shadrack
Shabangu vs Nhlangano Casino Hotel Ltd Industrial Court Case No.
141/95 is authority to this proposition.
Furthermore,
the 2nd Respondent also committed an irregularity in that it is clear
that he did not apply his mind to the matter in that in terms of
Section 76, the court "shall determine the issue". The
issue before the Industrial Court was that the 1st Respondent was
seeking that he be granted an extension of time within which he be
allowed to report his dispute. It is common cause that the dispute
first arose in July 1997. Had the 2nd Respondent applied his mind to
the matter he would have realized that more than 36 months had
elapsed since the dispute first arose and that in the circumstances
the 3rd Respondent had no authority to grant the extension of time
sought. By logical implication if the 3 rd Respondent has no
authority to grant the extension of time than the 2nd Respondent has
no authority either to grant the extension of time or order the 3rd
Respondent to grant the extension of time.
6
At
the close of submissions Miss Van Der Walt urged the court to refer
the matter back to the Industrial Court for that court to rehear the
matter. Mr. Nsibandze agreed with this in view of the facts advanced
above.
In
the premise, the Applicant's order in Case No. 115/2002, that the
extension of time be granted is set aside and further the extension
of time granted by the Labour Commissioner consequent upon the order
is also set aside.
The
matter is referred back to the Industrial Court and that court to
follow the full strictures of Section 76 (6) of the Industrial
Relations Act No. 1 of 2000 more particularly to cite the Applicant
in those proceedings.
The
costs to follow the event.
S.B.
MAPHALALA
JUDGE
