IN
THE HIGH COURT OF SWAZILAND
CASE
NO. 129/04
In
the matter between:
THE
COURIER & FREIGHT GROUP (PTY) LTD
APPLICANT
AND
PATRICK
MAZIYA 1st RESPONDENT
MASWAZI
NSIBANDZE N.O. 2nd RESPONDENT
INDUSTRIAL
COURT PRESIDENT 3rd RESPONDENT
CONCILIATION
MEDIATION
AND
ARBITRATION
COMMISSION 4™ RESPONDENT
CORAM
K.P. NKAMBULE-J
FOR
APPLICANT MR. J. MAVUSO
FOR
RESPONDENT MR. SIMELANE
ORDER
ON REVIEW 24/6/04
In
this application the applicant seeks an order in the following
respect:
Dispensing
with the rules of court and hearing this matter as one of urgency,
That
a rule nisi do hereby issue calling upon the respondents on a date
to be fixed by the court to show cause why;
The
sale in execution scheduled for the 30th January 2004 should not be
stayed.
1
The
Writ of Execution hereto marked "CFG 6" dated 9th January
2004, should not be set aside.
The
decision of the Industrial Court dated the 9th January 2004 which
endorses the Arbitration award (marked Annex CF64) as an order of
court, should not be reviewed, corrected and set aside.
And
further to review, correct and set aside the decision of the
commissioner of the CMAC awarding the respondent compensation for
unfair dismissal, the "award" dated the 2nd December 2003
contained in Annex "CFG4",
Costs
of suit.
Further
and/or alternative relief.
3)
That paragraph 2(a) and (b) operate with immediate effect, pending
finalisation of these proceedings.
There
is filed of record a launching affidavit by Jane Dlamini, applicant's
financial controller.
The
first respondent has raised preliminary points of law as follows:
The
Deponent Jane Dlamini has not been authorised to depose to the
affidavit and that an application to have her affidavit struck off
is moved.
2
The
applicant has not made fully her grounds for review and/or setting
aside of the Arbitration award.
Regarding
point No. 1 it is trite that an applicant can call upon one of its
servants to depose to an affidavit in as much as the facts deposed to
are within his personal knowledge true and correct and are relevant
to the issue under discussion. This is on condition that same has
been properly attested to.
There
are many judgements issued by this court and South African courts
regarding this point. This court will not go over them because
counsel should be aware of them by now. This objection fails.
Regarding
the second point that the applicant has not set out fully the grounds
for review and/or setting aside of the Arbitration award, is ill
founded. Applicant's grounds for review are concisely and fully set
out in paragraph 49 and 50 of its founding affidavit. In paragraph 49
applicant states that the Employment laws do not make a distinction
between compensation for procedural unfair dismissal and substantive
dismissal and that there is no justification to make two awards for
unfair dismissal. This is the correct interpretation of the law on
unfair dismissal in Swaziland - see Section 16 (1) of the Industrial
Relations Act. This objection fails as well.
Now
let us deal with the merits of the case. There are three applications
contained in the book of pleadings. The applicant brought under
certificate of urgency a review application. The first respondent
brought a counter application. The applicant has also instituted
contempt proceedings.
3
Regarding
the main application and the counter application the parties have
agreed that basically what they seek is one and the same thing and
that is that the Arbitration award be reviewed and corrected to be in
line with Section 16 (1) (a) of the Industrial Relations Act 2000.
The
point of departure, however, is that the applicant is against the
court correcting the arbitration award. The reason advanced is as
follows:
To
apply that the court should correct the award to be in line with
Section 16 (1) (a) would constitute an unwarranted usurpation of the
powers entrusted upon the Industrial Court and the CMAC by the
legislature in terms of Section 16 and 17 of the Industrial Relations
Act".
I
will not dwell much in this point because the parties themselves are
in agreement in so far as this point is concerned. According to
Baxter Administrative Law page 682, the courts recognise at least
four situations in which they will be justified in correcting the
decision by substituting their own. These are:
i)
Where the end result is in any event a foregone conclusion and it
would reconsider the matter.
ii)
Where further delay would cause unjustifiable prejudice to the
applicant
iii)
Where the tribunal or functionary has exhibited bias or incompetence
to such a degree that it would be unfair to require the applicant to
submit to the same jurisdiction again.
4
iv)
Where the court is in as good a position to make the decision itself.
It
is therefore clear from this authority that as a general principle,
the courts will not attempt to substitute their own decision for that
of the Public authority. If an administrative decision is found to be
ultra ,vires the court will usually set it aside and refer the matter
back to the authority for a fresh decision.
In
the instant case when one looks at page 116 of the Arbitrators
reasons for the award (second paragraph) he states as follows:
"Though
the respondent's side did not challenge re-instatement in my
considered opinion a reasonable person would objectively assume that
by this time the company must have already engaged somebody else to
fill the position. Moreover this is a senior position which the
company could not survive without for too long."
It
is clear from the construction of this passage I have just quoted
that the arbitrator did not take the provisions of Section 16 (1) (a)
and (2) of the Act into consideration. This was indeed a misdirection
on his part. No evidence was led to find out if the aggrieved party
(the employee) wished to be re-instated or re-engaged. No evidence
was led to find if under circumstances the dismissal was such that a
continued employment relationship would be intolerable. No evidence
was led to find if it was not reasonably practicable for the employer
to re-instate or re-engage the employee. All that the arbitrator did
was to opine that as the employee was dismissed on the 30th of May
2003 then it would be reasonably impracticable to re-instate the
employee at the time the matter came before him. He totally lost
sight of the legislation regarding re-instatement.
5
Regarding
the splitting of the award into two, I agree with the applicant that
the arbitrator misdirected himself. The finding was correct that the
employer was both procedurally and substantively unfair in the way he
dismissed his employee Mr. Maziya. However, the Employment Act deals
with how the award should be made in such an eventuality. These are
statutory awards. One has to work within the parameters of the
Employment Act.
Regarding
whether the Industrial Court was aware of the matter pending in their
books this court has a slightly different opinion. According to
Section 85 of the Industrial Relations Act parties have a discretion
whether they want their matter to be handled by the Industrial Court
or the Arbitrator under CMAC. It may happen that when somebody has
been dismissed from employment that he makes an urgent application to
the Industrial Court for re-instatement. He can make a successful
interim application to this effect and be re-instated pending
finalisation of the matter by either the CMAC or the Industrial Court
itself.
If
the parties thereafter decide not to take the matter to the
Industrial Court to be dealt with on merits, then one cannot say that
the matter is pending in that court. The discretion lies with the
parties.
Nothing
thereafter will stop the parties to file an application that the
Industrial Court adopts the decision of the Arbitration Tribunal as
an order of court. However according to law the decision of the
Arbitration is final. It is as good as the decision of the Industrial
Court.
Regarding
the issue of the contempt of court, the application was not opposed.
Respondent No. 1 is found guilty as charged. He is cautioned and
discharged.
6
For
the foregoing it is the opinion of this court that this matter should
be remitted to the CMAC to be dealt with by the Arbitrator more
particularly on the following points:
1.
Whether the splitting of the award is lawful having in mind the
provisions of the Employment Act 1980 as amended -Read with Section
85 of the Industrial Relations Act.
2.
To lead evidence regarding re-instatement having in mind the
provisions of Section 16 of the Industrial Relations Act.
No
order as to costs.
K.P.
NKAMBULE
JUDGE
7
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