IN THE HIGH COURT OF SWAZILAND HELD AT MBABANE CASE NO. 2382/2009

IN THE HIGH COURT OF SWAZILAND HELD AT MBABANE CASE NO. 2382/2009 In the matter between: BIG GAMES PARK TRUST t/a MLILWANE WILDLIFE SANCTUARY TERENCE EVEZARD REILLY 1 ST RESPONDENT 2 ND RESPONDENT AND FIKILE ZANDILE MBATHA LINDIWE NGCAMPHALALA N.O CONCLIATION, MEDIATION AND ARBITRATION COMMISSION CORAM FOR THE APPLICANT FOR THE 1 ST RESPONDENT 1 ST RESPONDENT 2 ND RESPONDENT 3 RD RESPONDENT OTA J MR K. MOTSA MR T. MLANGENI JUDGMENT 1

OTA J, The 1 st Respondent, Fikile Zandile Mbatha was employed by the Applicant on the 9 th of September 2006. On the 11 th of August 2008, when The Mponono Primary School visited the Applicants premises, the 1 st Respondent who was manning the gate, together with one Standard Mamba, had the responsibility to collect entrant fees, from all visitors to the Applicants premises. In consequence of some alleged discrepancies in the entrant fees collected from Mponono Primary School on that day, some allegations of dishonesty were levied against the 1 st Respondent, leading to certain preliminary investigations being conducted by the Applicant. Suffice it to say that these events led to 1 st Respondents subsequent transfer to another park. This development was not acceptable to the 1 st Respondent, and the activities that ensued thereafter, led directly to 1 st Respondent being charged with absenteeisin and served with 2

notice to attend a disciplinary hearing, which she refused to accept. It was against a backup of the foregoing facts, that the 1 st Respondent launched a dispute with the Concilliation Mediation and Arbitration Commission (CMAC), for unfair dismissal and an arbitration was held leading to an award in favour of the 1 st Respondent, on the 5 th of June, 2009. Dissatisfied with the arbitration award, the Applicant approached this Court by way of notice of motion, filed on the 3 rd of July, 2009, seeking a review of same, in the following terms:- 1. Dispensing with the form and time limits provided for in the rules of the above Honourable Court and dealing with this matter as an urgent matter in terms of Rule 6 (25) of the rules of the above Honourable Court. 2. That pending finalization of the review proceedings, an order be issued staying the execution of the award granted by the second respondent in favour of the first respondent dated the 5 th June 2009. 3

3. That a rule nisi issue returnable on a date to be appointed by this Honourable Court for an order in the following terms. 3.1. That an order issue reviewing and setting aside the second respondent s award dated the 5 th June 2009 in the arbitration proceedings between the first respondent and the first applicant under case number SWMB 390/08, and 3.2. That the third respondent be directed to issue the record of proceedings in case number SWMB 390/08, and 3.3. Costs of suit against the first respondent and any other respondent who chooses to oppose. 4. Further and/or alternative relief. The record reveals that a rule nisi was duly issued by Agyemang J, on the 9 th of July 2009, returnable on the 24 th of July 2009. Thereafter, the 1 st Respondent filed a notice of intention to oppose, simultaneously with a notice to raise a point of law which reads as follows:- i) The High Court has no jurisdiction to hear the present application as a court of first instance. 4

ii) The effect of the Industrial Relations legislation, read together with The Constitution, is to confer exclusive jurisdiction to The Industrial Court in respect of labour issues. It is the point in limine ante, that presently vexes the court. The parties filed heads of argument, supplementary heads of arguments and also tendered oral argument on the 19 th of January 2012, in support of their respective positions on the issues arising herein. It is the 1 st Respondents position that notwithstanding the clear wordings of section 19 (5) of the Industrial Relations Act 2000, (as amended), which confers jurisdiction on the High Court to review matters from both the Industrial Court and an arbitrator, that industrial laws in the country have however evolved in a manner that makes industrial matters, the exclusive domain of the Industrial Court, to the exclusion of all other courts. 1 st Respondent placed reliance on the decision of the Supreme Court in the case of Swaziland Breweries Limited and Another Vs Constantine Ginindza, 5

Civil Appeal No. 33/06, contending that the effect of the case is that the High Courts review powers can only be exercised over a ruling or order made by the Industrial Court. The judgment, it was submitted for the 1 st Respondent, is the culmination of a conscious effort by the legislature to create a court that specialises in industrial matters, for the sake of speed and efficiency. It was further submitted that the battle to create the exclusivity of the Industrial Court in industrial matters, culminated in Section 151 (3) (b) of The Constitution Act No. 001, 2005, which vestes in the High Court review and appellate jurisdiction, in matters in which a Swazi Court or Court martial has jurisdiction under any law for the time being in force. 1 st Respondent also relied on Donald C. Mills ODI V Elmond Computer Systems (PTY) Ltd, 1987 1995 (1) SLR, 102, Paper Printing Word and Allied Worker Union V Pienaar N.O. and Others, 1993 (4) SA 621 A at 637 A-B. 6

On the other hand, the Applicant argued au contraire, that the High Court has review jurisdiction not only over decisions emanating from the Industrial Court, but also those from an arbitrator, pursuant to Section 19 (5) of the Industrial Relations Act. This fact it was contended, has been demonstrated fully by local jurisprudence in cases like Takhona Dlamini V President of the Industrial Court and Nantex (Swaziland) (Pty) Ltd Appeal Court Case No. 23/1997, pages 15-16 and Stanlib Swaziland (Pty) Ltd and Another V Abel Sibandze and Another High Court Case No. 3444/2009, pages 14-15. It was further contended for the Applicant that the case of Swaziland Breweries Ltd V Constantine Ginindza (supra), is distinguishable from the case instant, and that Section 151 (3) of the Constitution did not take away the review jurisdiction of the High Court over the decisions of an arbitrator. At the end of the day I see only to one question emerge for determination to wit: Does the High Court have review 7

jurisdiction over the decisions of an arbitrator pursuant to industrial and/or industrial related matters?. This issue questions the jurisdiction of this Court to entertain and determine the review application urged by the Applicant. It is the universal practice of Courts across National borders, that once the question of a Courts jurisdiction is put in issue, it behoves the Court to suspend every other business of the day and first ascertain for itself whether it has jurisdiction in the matter, before taking any further steps. The reason for this hallowed practice is not farfetched. As I said in my decision in the case of Clement Nhleko V MH Mdluli and Company and Another Civil Case No. 1393/09 (unreported) at page 14 I find it expedient to add here, that it is undoubtedly the duty of the Court to guard its jurisdiction jealously. It is however not the duty of the Court to expand its jurisdiction, that is the province of legislation. For a court to assume jurisdiction that it clearly lacks is to tow a dangerous path. This is because jurisdiction is the soul and foundation of every case. Without it all the labourers, the Court, 8

Attorneys as well as litigants labour in vain. This is due to the fact that the decision of the Court at the end of the day will amount to a nullity by reason of that lack of jurisdiction The subtractum of the point in limine is that the Constitution Act No. 001/2005 as well as the Industrial Relations Act, oust the jurisdiction of this Court to entertain reviews from the decision of an arbitrator in industrial matters. In considering this question, I must first advise myself that it is the tradition of every superior court of record to guard its jurisdiction jealously. So while a persons access to have his civil right adjudicated upon by a Court, can be restricted or ousted by statute, the language of such a statute must be construed strictly. A persons right to have access to the Court is a statutory right and the right can only be taken away by clear and unambiguous terms. But once with such an approached, it is clear that an ouster or restriction of the jurisdiction was intended, and from the facts of the particular case, it comes squarely within the four corners of the statute, the court has no alternative than to decline jurisdiction. The foregoing are 9

the principles that must guide the court in ascertaining whether a legislation ousts the jurisdiction of a court and are so well established across jurisdictions, that they have become sacroscant and beyond any per adventure. The cases abound. They include but are not limited to the following:- In Re Boaler (1915) 1KB 21 at 36 Scrutton J, demonstrated this position of the law in the following language:- One of the value rights of every subject of the King is to appeal to the King in his Courts if he alleges that a civil wrong has been done to him or if he alleges that a wrong punishable criminally has been done to him, or has been committed by another subject of the King. This right is sometimes abused and it is, of course, quite competent to parliament to deprive any subject of the King of it either absolutely or in part. But the language of any such statute should be jealously watched by the Courts and should not be extended beyond its least onerous meaning unless clear words are used to justify such an extension Furthermore, in Goldsack V Shore (1050) 1KB 708 at 712, Evershed MR, declared thus: 10

----the jurisdiction of the Kings Courts must not be taken to be excluded unless there is quite clear language in the Act alleged to have that effect Similary in Commissioner of Customs and Exercise V Cure & Deeley Ltd (1962) IQB 340 at 357, the Court held that: It is an important rule of interpretation of statute that a strong leaning exists against construing statute so as to oust or restrict the jurisdiction of the superior courts. It is also well known rule that a statute should not be construed as taking away the jurisdiction of the Courts in the absence of clear and unambiguous language to that effect Then there is the case of Anisminic V Foreign Compensation Commission (1969) I All ER 208, where Lord Reid stated as follows:- It is well established principle that a provision ousting the ordinary jurisdiction of the Court must be construed strictly----- meaning I think that, if such a provision is reasonably capable of 11

having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the Court. The foregoing position was amplified by Halsbury s Laws of England Vol 9, 3 rd edition, as follows:- The right of the subject to have access to the Courts may be taken away or restricted by statute but the language of any such statute will be jealously watched by the Courts and will not be extended beyond its least onerous meaning, unless clear words are used to justify such extension. It is overwhelmingly apparent from the authorities detailed ante, that the jurisdiction of the Court can only be ousted, by the clear and unambiguous words of a statute. Since the Constitution also holds sway in this application, I find it expedient to add, that, in interpreting the Constitution, a judge must bear in mind that he is dealing with an instrument which is not only the primordial source, the fons et origo of all Acts, is itself the Supreme Act, but it also delineates, controls and regulates the powers, functions and obligations of 12

Government, the law-makers and the law-interpreters. It establishes the hierarchy, jurisdiction, status and powers of the Courts, enumerates and protects the fundamental rights and freedom of the citizens and generally provides for the peace and stability of the society. It follows therefore, that the Court must have regard to its permanency and its relations to the past, present and future. I apprehend that the Constitution must be interpreted liberally and broadly so as not to thwart the intent of them that made it. Now, there is no doubt that the exclusivity of the Industrial Court over industrial matters, has had a checkered history over the decades. This history saw the emergence of several statutes, culminating in the Industrial Relations Act, 2000, as amended and the Constitution Act No. 001 2005, all in an effort to create and develop a Court that specialises in labour matters. It is beyond dispute, that parliament achieved its aim in this respect, via the combined effect of section 8 (1) of the Industrial Relations Act and Section 151 (3) of the 13

Constitution, as far as the original jurisdiction of the Industrial Court is concerned. Now, for avoidance of doubts, Section 8 (1) of the Industrial Relations Act, 2000 (as amended), provides as follows: 8 (1) The Court shall, subject to Sections 17 and 65, have exclusive jurisdiction to hear, determine and grant any appropriate relief in respect of an application, claim or complaint or infringement of any of the provisions of this (Act), the Employment Act, the Workers 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 employees association, a trade union, a staff association, a federation and a member thereof It is beyond any per adventure, that the foregoing statute conferred exclusion original jurisdiction in the Industrial Court, in Industrial matters to the exclusion of all other 14

Courts, including the High Court. This fact was recognized by the Supreme Court in the case of Swaziland Breweries Ltd and another V Constantine Ginindza (supra) at paragraph 11, per Ramodibedi JA (as he then was) in the following words:- The effect of this change, read with the use of the word exclusive in the section makes it plain in my view that the intention of the legislature in enacting Section 8 (1) of the Act was to exclude the High Courts jurisdiction in matters provided for under the Act and thus to confer. exclusive jurisdiction in such matters on the Industrial court. The legislative intent in this regard was further amplified by Section 151 (3) (a) of the Constitution, which provides as follows (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. (emphasis mine) 15

Ramodibedi JA (as he then was) commenting on the import of the foregoing section in the case of Swaziland Breweries Ltd and Another V Constantine Ginindza, (supra), at paragraph 14, declared thus:- 14 In my view Section 151 (3) does two things in so far as is relevant to this case:- (1) In plain and unambiguous language, the Section ousts the jurisdiction of the High Court in any matter in which the Industrial Court has exclusive jurisdiction. To that extent, therefore, it stands to reason that there can be no question of the High Court and the Industrial Court enjoying concurrent jurisdiction. (2) In terms of the Section the inherent original jurisdiction ordinarily vested in the High Court does not detract from the exclusive jurisdiction of the Industrial Court in dealing with matters provided for under the Act. It is worthy of note that Ramodibedi JA (as he then was) concluded as follows, in paragraph 15 of Swaziland Breweries Limited and Another V Constantine Ginindza (supra) 16

15 In the context of the legislative scheme and object of the Act as fully set out above I am satisfied that the intention of the legislature was to confer exclusive original jurisdiction on the Industrial Court in matters provided for under the Act. Put differently, all such matters must first go to the Industrial Court. It is only after the latter Court has made a decision or order in the matter that an aggrieved party may approach the High Court for review on Common Law grounds.(emphasis mine) The question of the exclusivity of the original jurisdiction of the Industrial Court in industrial matters to the exclusion of the High Court is therefore beyond disputation. The inherent original jurisdiction of the High Court over these matters is clearly ousted by the clear and unambiguous words of statute. The question however is. Do the Constitution and the Industrial Relations Act oust the review jurisdiction of the High Court, over industrial matters emanating from the decisions of an arbitrator? The review jurisdiction of the High Court over industrial matters derives from statute. The 17

enabling statute is Section 19 (5) of the Industrial Relations Act, 2000 (as amended), which provides as follows:- 19 (5) A decision or order of the Court or arbitrator shall, at the request of any interested party, be subject to review by the High Court on grounds permissible at Common Law. The 1 st Respondent contends that this review jurisdiction of the High Court over the decisions of an arbitrator is ousted by statute. She has urged Section 151 (3) (b) of the constitution and the case of Swaziland Breweries Ltd V Constantine Ginindza (supra) in support of her position. Now Section 151 (3) (b) of the Constitution, provides as follows:- 3 Notwithstanding the provision of sub-section (1), the High Court (b) has no original but has review and appellate jurisdiction in matters in which a Swazi Court or Court Marhall has jurisdiction, under any law for the time being in force. 18

As I have already demonstrated in this judgment, for a statute to oust or limit the ordinary jurisdiction of a superior Court, it must do so in clear and unambiguous language. There is absolutely nothing in Section 151 (3) (b) or the whole of Section 151, for that matter, to suggest that the review jurisdiction of the High Court over the decisions of an arbitrator, as prescribed by Section 19 (5) of the Industrial Relations Act, is ousted or limited or restricted by the Constitution. The mere fact that Section 151 (3) (a) ousts the original jurisdiction of the High Court over these matters, does not detract from this review jurisdiction. The mere fact that Section 151 (3) (b) specifically confers review jurisdiction in the High Court over the decisions of a Swazi Court and a Court Marshall does not detract from this fact. And the mere fact that the Supreme Court suggested in paragraph 15 of Swaziland Breweries Ltd V Constantine Ginindza (supra), that all such matters must first go to the Industrial Court, and then come on review to the High Court, does not also detract 19

from this review power of the High Court over the decision of an arbitrator. I must also add here that I agree entirely with the Applicant, that the case of Swaziland Breweries Ltd V Constantine Ginindza (supra), in which the Court made the pronouncement in paragraph 15, which is urged by the 1 st Respondent, is distinguishable from the case instant. In the Swaziland Breweries case, the Respondent who was applicant in the High Court, invoked the original jurisdiction of the High Court to review and set aside the termination of his employment by his employers. The High Court acceded to his entreaties, reviewed and set aside the said termination. The Supreme Court in setting aside the decision of the High Court - on appeal, made the pronouncement in paragraph 15. I apprehend, to demonstrate that such original jurisdiction over industrial matters was the exclusive preserve of the Industrial Court which is subject to review by the High Court. Furthermore, the Constitution must be read in context, not in piecemeal or in isolation. I say this because in as much as section 151 (3) (b) of the Constitution appears to restrict the 20

review power of the High Court to the decisions of the Swazi Courts and Court Marshall, Section 151 (1) ( c) and (d) of the Constitution, however expressly preserve the pre and post Constitution revisional power of the High Court in the following terms 151 (1) The High Court has ( c ) such revisional jurisdiction as the High Court possesses at the date of commencement of this Constitution And (d) such additional revisional jurisdiction as may be prescribed by or under any law for the time being in force in Swaziland It appears to me therefore, that the Constitution, in clear and unambiguous words, via Section 151 (1) ( c ) thereof, preserved the pre Constitution revisional jurisdiction of the High Court, which must be read to include the High Court s power of review over the decision of an arbitrator, pursuant to Section 19 (5) of the Industrial Relations Act, a pre Constitutional era statute, which has not be repealed or struck down, but is valid and subsisting. 21

I must also stress here, that the Constitution cannot be read in isolation of the Industrial Relations Act. The Act via Section 62 thereof, established the Conciliation, Mediation and Arbitration Commission ( CMAC). One of the functions of the CMAC as is stipulated in Section 64 (1) ( c ) (ii), is that 64 (1) The Commission shall: ( c ) where a dispute referred to it remains unresolved after Concilliation, arbitrate the dispute if:- (iii) the parties to a dispute in respect of which the Industrial Court has jurisdiction consent to arbitration under the auspices of the Commission (emphasis mine) It would thus appear to me, that notwithstanding the exclusivity of the jurisdiction of the Industrial Court in industrial matters, that the Act relinquished some of this jurisdiction to the CMAC, if the parties to a dispute consent to arbitration. It is the decision emanating from such arbitration, that is subject to review by the High Court pursuant to Section 19 (5) of the Act. There is absolutely nothing in the Act or the Constitution, to suggest that the decision of such an arbitrator or the dispute already disposed 22

of by such an arbitrator, must first be ventilated by the Industrial Court before it qualifies to proceed on review to the High Court. We must not also lose sight of the fact that the CMAC is a tribunal established by law. By Section 152 of the Constitution, the High Court has review jurisdiction over the decision of such tribunals. That legislation is couched in the following language:- 152 The High Court shall have and exercise review and supervisory jurisdiction over all subordinate Courts and tribunals or any lower adjudicatory authority, and may, in exercise of that jurisdiction, issue orders and direction for the purpose of enforcing or securing the enforcement of its review or supervisory powers The High Court therefore has review jurisdiction over the decisions of a tribunal. The decision of the arbitrator in casu, which is a tribunal established by law, falls squarely within the contemplation of Section 152 of the Constitution and can be reviewed by the High Court. 23

I hold the firm view, that if it was the intention of Parliament to oust the review jurisdiction of the High Court over the decision of an arbitrator as is specified by Section 19 (5) of the Act, it would have said so in clear and unambiguous language. There is nothing in the Constitution or the Act to suggest such a position, and these instruments cannot be read or expanded to include such. Until Section 19 (5) is amended to exclude the decision of an arbitrator, that provision remains in force and must be read in context as conferring review jurisdiction on the High Court, not only over the decisions of the Industrial Court but also that of an arbitrator. This means that a party aggrieved by the decision of the Industrial Court or an arbitrator may invoke the review jurisdiction of the High Court in challenge of same. It is thus not supprising to me in the circumstances, that the Courts have persistently referred to and relied on Section 19 (5) in the post constitution era. A case in point is the case of Swaziland Breweries Ltd and Another V Constantine Ginindza (supra), at paragraph 15, where although the Court 24

did not elaborate on this provision, it however made references to Section 19 (5) of the Act. Furthermore, is the case of Stanlib Swaziland (Pty) Ltd and Another Case No. 3444/09, judgment of 16 th day of November 2009, at page 14, wherein Aygemany J, declared as follows:- As aforesaid the present application invokes the review jurisdiction of this Court over judgments of the Industrial Court which is grounded on S.19 (5) of the Industrial Act of 2000 Finally there is the position of MCB Maphalala J (as he then was), in the case of Swaziland Water and Agricultural Development Enterprises Ltd V Doctor Lukhele and Others Civil Case No. 1504/11, judgment of 7 th December 2011, at paragraph 72, wherein his Lordship said the following:- 72 It is apparent from Section 19 (5) of the Industrial Relations Act that a decision or order of the Industrial Court or arbitrator is subject to review by the High Court on Common Law grounds at the 25

instance of any interested party. This section does not distinguish between a final order or an interim order. What matters is that there has to be an order or decision made by the Industrial Court or arbitrator to which there is an aggrieved party. It would not be in the interest of justice and fairness to prevent an aggrieved party from seeking redress merely because the order in question is interim in nature. Grave injustice would result if an aggrieved party were to await the finalization of the matter on its merits. It cannot therefore be gainsaid from the totality of the foregoing, that even though parliament laboured over the decades to confer exclusive jurisdiction on the Industrial Court, it however specifically retained in the High Court the power of review over the decisions of the Industrial Court and arbitrator on common law grounds. On these premises, it is apparent to me, that the point taken in limine by the 1 st Respondent on the jurisdiction of this Court, is bad in law. It fails in its entirety. I accordingly make the following orders. 26

1) That the point of law on the jurisdiction of this Court to entertain the review application be and is hereby dismissed. 2) 1 st Respondent is to pay the costs of this application. DELIVERED IN OPEN COURT IN MBABANE ON THIS THE DAY OF..2012 ------------------------------ E. OTA JUDGE OF THE HIGH COURT 27