Court name
High Court of eSwatini

Matiwane v Industrial Court of Appeal and Another () [2000] SZHC 26 (08 March 2000);

Law report citations
Media neutral citation
[2000] SZHC 26
Coram
Masuku, J









IN
THE HIGH COURT OF SWAZILAND


CASE
NO 2378/98


IN
THE MATTER BETWEEN:


MEMORY
MATIWANE APPLICANT


AND


THE
INDUSTRIAL COURT OF APPEAL 1st RESPONDENT


THE
CENTRAL BANK OF SWAZILAND 2nd RESPONDENT


CORAM
MASUKU J.


For
the Applicant MR A.S. SHABANGU


For
2nd Respondent MR P.E. FLYNN (Instructed by


Robinson
Betram)


JUDGEMENT


8/03/2000


This
is an application for the review of a decision of the Industrial
Court of Appeal. In his Notice of Motion, the Applicant prayed for
inter alia that:-


1. A
rule nisi do hereby issue calling upon the Respondent's (sic) to show
cause on Friday 30th October, 1998 why an order should not be made in
the following terms:-


2. The
proceedings of the Applicant and Second Respondent culminating in the
order of 1st July, 1998 involving the case number 110/93 by First
Respondent be reviewed, corrected and/or set aside.


3. Costs
of this application.


2


It
is clear that the application is made in terms of the provisions of
Rule 53 of the High Court Rules as the Notice of Motion called for
the dispatch of the record of proceedings and the taking of steps
within the time limits set out in Rule 53.


In
his Founding Affidavit, the Applicant states that in October, 1993,
he initiated proceedings before the Industrial Court for unfair
termination against the Central Bank of Swaziland. The Industrial
Court gave the Applicant an award of E25,663.00. The Central Bank of
Swaziland then lodged an appeal against that award to the Industrial
Court of Appeal. This appeal was successful. The Applicant has
launched these proceedings to review, correct and/or set aside the
decision of the Industrial Court of Appeal. (hereinafter referred to
as the "I.

C.
A.").


In
opposition to the Application for rescission, the Second Respondent
issued a Notice in terms of the provisions of Rule 6 (12) (c) in
which the following points of law were raised, namely;-


1. That
this Honourable Court has no jurisdiction to review the proceedings
of the Industrial Court of Appeal in that the said Court is neither
an inferior Court nor a tribunal nor board within the meaning of Rule
53 (1) on (sic) the High Court Rules.


2. Alternatively,
and only in the event of this Honourable Court deciding that it has
jurisdiction to review a decision of the Industrial Court of Appeal
of Swaziland, the 2nd Respondent raises the following question of
law:-


2.1. That
the decisions of the Industrial Court of Appeal herein, in the
exercise of its Appellate jurisdiction, on a points (sic) of law are
not reviewable on the basis set out in the founding affidavit. The
allegations in the founding affidavit that the said decisions are
grossly unreasonable do not, in law, constitute proper grounds for
review.


2.2. That
the findings of the Industrial Court of Appeal on issues of law do
not, in law, constitute irregularities as alleged in the Applicant's
Founding Affidavit and the said findings are accordingly not
reviewable.


3


Mr
Flynn raised certain arguments in support of the above points of law.
Firstly, it was his contention that this Court cannot review the
proceedings of the Industrial Court of Appeal because the Industrial
Court of Appeal is not an inferior court, tribunal or board as
envisaged in the provisions of Rule 53 (1) of the High Court Rules as
amended. Mr Flynn argued that it is an appellate Court exercising
appellate jurisdiction only and is not therefore a Court of record,
whose record of proceedings would be required, in terms of Rule 53
(3).


Mr
Flynn drew this Court's attention to the provisions of Section 4 (1)
of the High Court, which sets out this Court's powers of review.
According to that Section, this Court shall have full power,
jurisdiction and authority to review the proceedings of all
subordinate courts of justice within Swaziland. It was Mr Flynn's
argument that the Industrial Court of Appeal is not such a
subordinate court of justice and is therefore not subject to this
Court's power of review.


Mr
Flynn further drew the Court's attention to the provisions of Section
17 of the Industrial Relations Act, 1 of 1996, which established the
Industrial Court of Appeal. In his compelling argument, Mr Flynn
argued that the Parliamentary intention apparent from the provisions
of this Section was that the Court was to be in the same position as
the Court of Appeal for Swaziland. This he argued, could be
ascertained from the provisions of Section 17 (2) and (3), which
state that the Judges of the Industrial Court of Appeal shall have
the same qualifications and be appointed in the same manner as Judges
of the Court of Appeal. Furthermore, it provides that the tenure of
such Judges of Appeal, shall be similar to that of the Court of
Appeal Judges continued Mr Flynn. In this regard, Mr Flynn referred
the Court to VER VAN BO-GRONDSE MYNAMPT v PRESIDENT OF THE INDUSTRIAL
COURT 1983 (1) SA 1143.


On
the other hand, Mr Shabangu argued that it is a fallacy to say that
the jurisdiction of the High Court is governed by the Rules of Court.
He argued that the High Court's jurisdiction is set out in the
Constitution of 1968, which was repealed with savings. He argued
therefore that in order to determine whether this Court has the
jurisdiction to review the decisions of the Industrial Court of
Appeal one's attention must not solely be focussed on Rule 53 but on
the Constitution Law Act.


4


Mr
Shabangu continued to argue that the Industrial Court of Appeal is an
inferior Court because it's nature and the extent of its powers are
defined by Statute . In this regard, the Court was referred to
certain authorities, which include Baxter, "Administrative Law",
Juta & Co. page 244, NAPOLITANO v DE WET, N.O. AND OTHERS 1964
(4) S.A. 337 and NAPOLITANO v COMMISSIONER OF CHILD WELFARE,
JOHANNESBURG 1965 (1) S.A. 742 (AD). In sum, Mr Shabangu argued that
because the High Court can, in exercise of it's unlimited original
jurisdiction review the proceedings of the Industrial Court of
Appeal.


Rule
53 which deals with the question of review, and under which the
application was brought, provides as follows:-


(1) Save
where any law otherwise provides, all proceedings to bring under
review the decision or proceedings of any inferior court and of any
tribunal, board or officer performing judicial quasi judicial or
administrative functions shall be by way of notice of motion directed
and delivered by the party seeking to review such decision or
proceedings to the magistrate, presiding officer or chairman of the
court, tribunal or board or to the officer as the case may be, and to
all other parties affected .. .(my own emphasis).


From
a proper reading of the provisions of Rule 53, to which the Applicant
confined himself, it is abundantly clear that the High Court will
review proceedings of bodies or persons who are circumscribed. These
include inferior courts, tribunals, boards or officers performing
judicial quasi -

judicial
or administrative functions. Any notice of motion in respect of
review proceedings must be delivered to the magistrate, presiding
officer or chairman of the Court, tribunal or board or to the
officer, depending on the circumstances of the case.


The
question to be decided is whether it can be stated that the
Industrial Court of Appeal falls within the category of any of the
bodies set out in Rule 53. In my view, the Industrial Court of Appeal
is not inferior court, tribunal or board. It is a Court of law which
exercises appellate powers only and is not a court of record, it
being confined to the record of proceedings of the Industrial Court.


5


Mr
Shabangu argued that the I.

C.
A.
is an inferior court and at some stage stated that it is a public
body. In NAPOLITANO v DE WET, N.O. AND OTHERS 1964 (4) S.A. 337 at
342 A - B, Marais J. analysed the provisions of the Children's Act to
determine if the Courts created thereunder were courts of law or
merely an administrative or semi-judicial institution. His Lordship
had this to say:-


"The
mere description of the tribunal in question as "court" is
a strong indication that we are not dealing with an administrative or
semi-judicial institution but a court of law, which, failing contrary
indications, has to conduct its proceedings in substantial conformity
with the manner in which other courts of law in this country
are.....to function. As a matter of fact, the Act contains many
provisions indicating that the Legislature did regard a children's
court as a court of law and not an administrative tribunal. It is
presided over by a trained lawyer (mostly magistrates appointed
commissioner of child welfare)... A record of proceedings has to be
kept, parties to proceedings before the court are allowed legal
representation. In sec. 7 cross-examination is mentioned. The court
is authorised to make and issue orders, and it has the right to
punish for contempt of court. From certain decisions there is a right
of appeal to the Supreme Court. "


In
view of the foregoing excerpt it therefor behoves one to have regard
to the legislative nomenclature in order to ascertain whether it was
the Legislature's intention to regard the I.

C.
A.
as an inferior court or tribunal, thereby rendering its decisions or
proceedings amenable to review by the High Court.


Section
17 (1) established the I.

C.
A.,
which, according to the provisions of section 17 (2), shall consist
of a Judge President and two Justices of Appeal "all of whom
shall have the same qualifications and be appointed in the same
manner as judges of the Court of Appeal but in consultation with the
Minister and the Minister of Justice."


Section
17 (3) provides as follows:-


"The
tenure of office of the Judge President and the Justices of Appeal
shall be similar to the tenure of the Judge President and Justices of
Appeal of the Court of


6


Appeal."


Regarding
the jurisdiction of the I.

C.
A.,
Section 19 (1) and 19 (3) provide as follows:-


"(1) The
Industrial Court of Appeal shall have power to hear and determine any
appeals from the Industrial Court and such appeal shall lie to the
Industrial Court of Appeal only on a point of law. "


(3) "After
hearing an appeal, the Industrial Court of Appeal may confirm, amend
or set aside the decision or order against which the appeal has been
noted or make any other decision or order including an order as to
costs, according to law and fairness ".


In
my view, it is clear form the foregoing that even the most benevolent
interpretation given to the legislative language above cannot lead to
a conclusion that the Legislature intended creating an inferior court
which is subject to review by the High Court. The Judges who sit in
that Court according to Section 17 shall have the same qualifications
and be appointed in the same manner as Judges of the Court of Appeal.
Furthermore, their tenure shall be similar to that of the Judges of
the Court of Appeal. It is therefore abundantly clear that the
Legislature intended to create a Court which is on a similar standing
with the Court of Appeal in so far as matters of Industrial relations
are concerned. The I.

C.
A.
cannot be regarded as an inferior court or tribunal, regard being had
to the legislative nomenclature. To do so would cause serious
violence to the expressed legislative intent.


Mr
Shabangu further argued that the jurisdiction to review the decisions
of the I.

C.
A.
does not depend upon any special machinery created by the Legislature
but is a right inherent in the Court i.e. the High Court. In this
regard, the Court was referred to the case of JOHANNESBURG CON.


INVESTMENT
CO. v TOWN COUNCIL 1903 TS. There, Innes C.J. propounded the law as
follows at page 115;-


"But
there is a second species of review analogous to the one with which I
have dealt, but differing from it in certain well-defined respects.
Whenever a public


7


body
has a duty imposed upon it by statute, and it 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 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. "


I
regard this excerpt as good law emanating from an eminent judge and
jurist. In considering the dictum of Innes C.J., sight must not be
lost of the use of the words "public body", occurring in
the second sentence. A court of law is not and cannot be regarded as
a public body. It is just a court of law. The species of review in
issue does not in my view apply in this case but is confined to
public bodies, and only in cases where gross irregularity or clear
illegality in the performance of duties imposed by the Legislature
has been alleged.


Mr
Shabangu further stated that the power of this Court to review the
decisions of the I.

C.
A.
is given by the Constitution of Swaziland. I propose to consider the
applicable provisions, accepting that due to the appalling state of
our statutes, one cannot be certain that the conclusion is correct,
as there are some amendments that may have not been considered.
However, my research revealed that Parts 1 and 2 of Chapter IX of the
Constitution were saved.


The
High Court is established by the provisions of Section 97 (1) of the
Constitution, which reads as follows:-


There
shall be a High Court for Swaziland and subject to the provisions of
this Chapter the judges of the High Court shall be the Chief Justice
and such number of puisne judges as may be prescribed.


Section
104 deals with the jurisdiction of the High Court and reads as
follows:-(1) The High Court shall be a superior court of record and
shall have -


8


(a) unlimited
original jurisdiction in civil and criminal matters;


(b) such
appellate jurisdiction as may be prescribed by or under any law for
the time being in force in Swaziland;


(c) such
revisional jurisdiction as the High Court possesses at the
commencement of this Constitution in accordance with the provisions
of this Constitution and any other law then in force in Swaziland;
and


(d) such
revisional jurisdiction, additional to the jurisdiction mentioned in
paragraph (c) as may be prescribed by or under any law for the time
being in force in Swaziland.


In
my view, the use of "revisional jurisdiction", occurring in
(c) and (d) above must be taken to include the power to review
decisions and proceedings. With regard to (c) above, the revisional
jurisdiction which the Court had at the commencement of the
Constitution in accordance with any other law then in force is to be
found in the provisions of Section 4 (1) of the High Court Act 20 of
1954 which read as follows:-


"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".


The
above in my view is the power set out in the Constitution and the law
then in force at the commencement of the Constitution. According to
the above Section, the High Court can review proceedings of
subordinate courts of justice in Swaziland. The subordinate courts of
justice have not been defined in the High Court Act, nor in the
Interpretation Act 21 of 1970. That notwithstanding, it is however
clear that the use of the word "subordinate court" in legal
parlance in Swaziland is normally associated with Magistrate's
Courts. This is apparent when one has regard to the Magistrate
Court's Act, 1938. The reference to subordinate courts of justice in
Section 4 (1) must in my view be regarded to refer to Magistrate's
Courts. I am again of the firm view that the I.

C.
A.
cannot be regarded as an inferior court of justice within the meaning
of Section 4 (1) above and I hold that it is not.


9


From
the aforegoing, I come to the view that the Constitution of Swaziland
does not in terms of Section 104 (1) (c) clothe the High Court with
jurisdiction to review decisions of the I.

C.
A..
which was in any event not then in existence.


I
now turn to consider the implications of the provisions of Section
104 (1) (d) of the Constitution which refer to "such revisional
jurisdiction, additional to the jurisdiction mentioned in paragraph
(c) as may be prescribed by or under any law for the time being in
force in Swaziland".


One
such law, which is for the time being in force in Swaziland and which
confers "additional revisional jurisdiction" to the High
Court is the Industrial Relations Act No. 1, 1996, which is the same
enactment that established the I.

C.
A.
Section 11 thereof provides as follows: -


(1) There
shall be a right of appeal against the decision of the Court on a
question of law to the Industrial Court of Appeal.


(2) The
Industrial Court of Appeal, in considering an appeal under this
section shall have regard to the fact that the Court is not bound by
the Rules of evidence or procedure which apply in civil proceedings.


(5) A
decision, or order of the Court shall at the request of any
interested party, be subject to review by the High Court on grounds
permissible at common law.


Section
2 of the Industrial Relations Act defines "Court" as
follows:-"In this Act, unless the context otherwise requires -


"Court"
means the Industrial Court established under Section 4 and the
Industrial Court of Appeal established under Section 17. "


The
context of Section 11 referred to above makes a clear distinction
between the two Courts. "Court", in the various
sub-sections of Section 11 refers to the Industrial Court and


10


the
I.

C.
A.
is referred to as the Industrial Court of Appeal. What is abundantly
clear therefore is that the Legislature gave jurisdiction to the High
Court to review the decisions of the Industrial Court only.


Had
Parliament intended to extend that power to reviewing the
proceedings, decisions or orders of the Industrial Court of Appeal,
it would have expressed its intention in clear language. What
transpires therefore is that Parliament intended the Industrial Court
of Appeal to be the last port of call in all industrial matters and
with its decisions becoming final. This is so regardless of whether
some litigants may be dissatisfied with its decisions. This is also
the intention of the Legislature apparent from the provisions of the
Court of Appeal Act, No.74 of 1954. To render decisions of the I.

C.
A. reviewable would be tantamount to subverting the intention of the
Legislature in my view.


In
EX PARTE MILLSITE INVESTMENT CO. (PTY) LTD 1965 (2) SA 582 at 585 F-
H, Vieyra J stated as follows regarding the use of the Court's
inherent power, which Mr Shabangu advocated should be invoked in
casu:-


"The
jurisdiction of the Supreme Court is laid down in section 19 of Act
59 of 1959 in terms similar to those to be found in the statute
setting up the various pre-Union courts. It is clear from the decided
cases that those statutes confer on the Supreme Court the same kind
of jurisdiction and powers as were enjoyed by the Courts of
Netherlands.... So that, apart from powers specifically conferred by
statutory enactments and subject to any specific deprivations of
power by the same source, a Supreme Court can entertain any claim or
give any order which at common law it would be entitled to entertain
or give. It is to that reservoir of power that reference is made
where in various judgements Courts have spoken of inherent power
claimed is not merely one derived from the need to make this Court's
order effective and to control its own procedure, but also to hold
the scales of justice where no specific law provides directly for a
given situation. "


It
is my view that to resort to this repository power in this case would
collide with the expressed intention of the legislature. In this
case, Parliament did not make provision for the review of the
decisions, orders and proceedings of the I.

C.
A.
because it would run counter to the wider objectives of the Act. The
use of this reservoir of power should not result in dislocating the
Legislative's expressed intention.


11


Regarding
the situations when recourse must be had to this repository power,
Hefer J. stated as follows in MOCH v NEDTRAVEL (PTY) LTD t/a AMERICAN
EXPRESS TRAVEL SERVICE 1996 (3) SA 1 (AD) at 7 D - E:-


"The
short answer is that the Court's inherent reservoir of power to
regulate its procedures in the interests of the proper administration
of justice (per Corbett J.A. in UNIVERSAL CITY STUDIOS INC AND OTHERS
v NETWORK VIDEO (PTY) LTD 1986 (2) SA 734 (A) at 754 G), does not
extend to the assumption of jurisdiction not conferred upon it by
statute. As explained in R v MILNE AND ERLEIGH (6) 1951 (1) SA 1 (A)
at 5 in fin, 'this Court was created by the South Africa Act and its
jurisdiction is to be ascertained from the provisions of that Act as
amended from time to time and from any other relevant enactment. "


It
is my view that the above excerpt needs no amplification as it
establishes the applicable principles, which are relevant to this
case with absolute clarity and devastating candour. The residual
power must therefor be resorted to in proper cases, the instant one
clearly excepted.


On
a practical assessment, the use of the residual power would cause
practical and ethical difficulties as well. At the present moment,
the Justices of the I.

C.
A.
are three High Court Judges, including the Honourable Chief Justice.
Exercising the inherent power would require a single Judge of the
High Court where he considers it fit, to overturn a decision of three
of his Brethren, including the Chief Justice. In other divisions in
South Africa, and common sense dictates that it should be the other
way round i.e. three Judges reviewing a decision of one of their
Brethen. I dare say that an argument that sitting as Justices of
Appeal the High Court Judges are cloaked with different apparel as it
were and are sitting in a different capacity is only superficial and
does not sufficiently address the realities of the situation. It is
necessary, in company law parlance, to "pierce the 'Judicial'
veil", to see who exactly sit as Justices of the Industrial
Court of Appeal.


One
of the unfortunate ramifications of reviewing I.

C.
A.
decisions would be that the channels open to dissatisfied litigants
would firstly be too long, too costly and also result in considerable
delay, regard being had to the notorious fact that there is a serious
backlog


12


in
both the Industrial Court and the High Court. A dissatisfied litigant
would first have to undergo the conciliation procedures set out in
the Industrial Relations Act, approach the Industrial Court, appeal
to the I.

C.
A.,
review the decision of the I.

C.
A.
and if still dissatisfied, then Appeal to the Court of Appeal of
Swaziland. This would indeed be burdensome financially and otherwise
and can hardly be said to have been Parliament's intention.


In
summary, the Applicant has in his papers evinced a clear intention to
submit to and confine himself to the provisions of Rule 53. He cannot
now because of the attack on the applicability of Rule 53 ask the
Court without amending his Notice of Motion to regard the review to
be based on some other foundation. I have also found that the other
foundations for this Court's power to review I.

C.
A.
decisions and orders suggested by Mr Shabangu, for reasons above
stated, constitute sinking sand as it were.


In
view of the conclusion that I have reached, I find it unnecessary to
consider alternative points of law raised by the Second Respondent.


The
first point of law is upheld with costs.


T.S.
MASUKU


JUDGE