No 2156/02 Coram SAPIRE, CJ
is an application for review of a judgment of the Industrial Court of
Swaziland. The basis of the review is that the court a quo wrongly
rejected as inadmissible evidence a statement made by the Respondent
in which he admitted theft from his employer, the Applicant.
is a point of law, which could have founded an appeal in terms of
section 19 (1) of the Industrial Relations Act1. Section 19(5),
however, provides that 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. This seems to create an
overlap because one of the grounds for review at common law is that,
as in this case the court rejected evidence, which it should have
a litigant indeed has a choice, and chooses to seek relief by way of
appeal, the appeal forum would be comprised of three judges and their
decision would be final, On the other hand reviews are normally heard
by a single judge of the High Court from whose judgment a further
appeal lies to the Court of Appeal. If a litigant seeks redress in
the Industrial Court of Appeal, legal costs are restricted and the
danger of having to pay the opponent's costs if unsuccessful are not
a serious consideration. In the High Court and in the Court of
Appeal, the position is otherwise as costs normally follow the
does not seem likely that the intention of the legislature was to
afford litigants this choice. The intent of the Industrial Relations
Act seems to be to provide for the speedy, less formal and less
costly form of dispute resolution in labour matters, than by recourse
to the High Court and the Court of Appeal. The review procedure, if
this end were to be attained should be confined to instances other
than those which could more conveniently be dealt with by the
Industrial Court of Appeal. Where therefore a litigant seeks to set
aside a judgment of the Industrial Court the Appeal procedure would
be the preferable if not the only way of prosecution of the case.
Respondent developed this point in argument and urged that the real
basis of the review was the applicant's dissatisfaction with the
result of decision and is not concerned with the method by which the
decision was arrived at. This is not an accurate or valid assessment.
The Applicant's dissatisfaction is primarily with the ruling of the
court a quo to admit or consider the evidence of a confession by the
wording of Section 19 is such that it cannot be said definitively, on
the ordinary meaning of the words, that a litigant has not a choice
in the present circumstances whether to go by way of appeal or
review. I will accordingly proceed to consider the point raised.
Respondent was an employee of the Applicant. In Sept 1997 an amount
of E207 000.00 was discovered to have been stolen from the Applicant.
Suspicion seems to have fallen on the Respondent who was arrested on
19th September, i.e. the following day. On That day the police
accompanied the Respondent to his flat where E30 000 in cash was
found secreted in speakers. On the following day 20th September,
while under arrest, the Respondent wrote and signed a document in
which he admitted that he was responsible for the loss of the money.
The Respondent was later acquitted in the Magistrate's court on a
charge of theft.
a disciplinary tribunal constituted by the applicant, relying to a
large extent on the contents of the Respondent's statement, and the
other evidence pointing to the Respondent's implication in the loss,
found him guilty of theft, and dismissed him. The respondent did not
avail himself of the internal appeal procedure but perused a claim
for unfair dismissal in the Industrial Court. The court, which heard
his case found in his favour. In so doing it struck out and
disregarded the evidence of the confession, which had been tendered.
It is this decision, which I now review.
court a quo demonstrably failed to distinguish between criminal law
and procedure, and the approach to be adopted in civil proceedings.
The statement made by the Respondent may not have been admissible in
criminal proceedings having regard to the provisions of the Criminal
Evidence and Procedure Act. The law in criminal cases requires for
admissibility of an incriminating statement that the person making
the statement should in some circumstances have received a warning
and explanation of his rights especially his right to remain silent.
It also has to be explained to him that if he chooses to make a
statement it may be used as evidence against him at a subsequent
trial. It also requires that the statement should have been made
freely and voluntarily and
him being unduly influenced thereto. Where a statement amounting to a
confession is made to a police officer below certain rank it is
inadmissible unless reduced to writing and confirmed before a peace
officer, usually a magistrate. Moreover there is an onus on the
prosecution to establish beyond reasonable doubt that the conditions
for admissibility exist. The judgment in the court a quo has a number
of indications that the court treated the statement as f it were a
the present case the Respondent said in his statement to the police
that it was freely and voluntarily made. This is in conflict with his
subsequent contentions that he was forced to make the statement by
torture and duress. In a civil case the onus is not the same as in a
criminal prosecution and it was for the Respondent to have
established that the statement was made under duress. The statement
may have been true notwithstanding the duress.
court should have approached the matter from a different standpoint
and have considered whether the Applicant with the facts at its
disposal at the time, including the statement and the finding of the
E30 000 in the accused's possession did not fairly dismiss the
basic error into which the court fell, makes the proceedings fatally
faulty, and unfair to the Applicant. The court a quo has made
statements and findings, which make it undesirable that the matter be
remitted to the court comprising the same judicial officer and
assessors who heard the case.
proceedings are set-aside in toto and the Respondent may proceed
afresh before a different judicial officer and assessors.
will be no order as to costs as the matter could have been the
subject matter of an appeal where no costs would have been awarded.