THE
HIGH COURT OF SWAZILAND
DUMSANI
MASONDO
Applicant
And
THE
JUDGE OF THE INDUSTRIAL COURT
1st
Respondent
ELLERINES
HOLDINGS LIMITED
2nd
Respondent
Civil
Case No. 2158/2001
Coram
S.B. MAPHALALA – J
For
the Applicant MR. M. SIMELANE
For
the Respondents MR. M. SIBANDZE
JUDGMENT
(07/05/2004)
The
Applicant seeks the following relief:
Reviewing,
correcting and setting aside the judgment of the Industrial Court of
Swaziland delivered on the 8th May 2001, under Industrial Court Case
No. 4/98;
Granting
the Applicant costs of this application only in the event that same
is opposed;
2
Granting
any further and/or alternative relief as this above Honourable Court
may deem just.
The
Applicant had commenced proceedings before the Industrial Court for
unfair dismissal. On the 8th May 2002, the Industrial Court delivered
a judgment dismissing his application against the 2nd Respondent.
In
support of his contention that the order of the Industrial Court be
reviewed, corrected and set aside the Applicant states in paragraphs
5, 6and 7 of his founding affidavit, that:
5.
I am dissatisfied with the said judgment of the court by reason that
the court a quo grossly misdirected itself on material issues.
5.1
As a result of the misdirection the court dismissed rny claim and
found that it was reasonable for the 2nd Respondent to terminate my
employment with it.
6.
The court a quo misdirected itself in that:
6.1
It allowed evidence of an offence allegedly committed by me in 1996,
to prove a charge of dereliction of duty, which took place in 1997.
6.2
Despite the fact that no evidence was led by 2nd Respondent to prove
a charge of dereliction of duty on my part from the 31st March 1997
to 30th June 1997, the court a quo found that previous warnings given
against me in 1996, were sufficient to prove that I was guilty on the
offence for which I was dismissed. Evidence brought by the Respondent
included dates when I was not working for Respondent let alone being
a branch Manager.
6.3
There is no evidence on record to prove that from 31st march 1997 to
30th June 1997, I did not sign a receipt book, which is subject
matter in this matter. In any event the 31st March 1997 was a public
holiday, and from the 30th June 1997 I was not branch Manager at
Respondent's Manzini branch. I had been transferred to Nhlangano.
6.4
The Respondent's only witness Christopher Bock testified that Credit
Manager would sign a summary of all receipts captured as confirmation
of correctness of the information. The witness further stated that
thereafter the branch Manager would also check and sign the summary.
6.5
I submit that from the afore-going, it is clear that the branch
Manager has discretion not to sign the summary or any other books
used by the undertaking if he is not satisfied as to the correctness
of same.
6.6
I further submit that I did not sign the receipt book in question
because I was not satisfied with what appeared in the individual
receipts captured on the 31st March
3
1997.
I also stated this in my evidence in court. Otherwise I signed all
other subsequent receipt,
7.
I submit that the court a quo grossly misdirected itself as its
findings are groundless. The
court
a quo's findings resulted in a failure of justice.
The
2nd Respondent has filed an answering affidavit and has raised a
preliminary point of law and also answered on the merits. This
judgment pertains to the point of law raised. The said point is found
in paragraphs 4 of the answering affidavit and it reads as follows;
"The
Applicant sets out no ground permissible in common law, which can
form the basis of an application for review of the judgment of the
1st Respondent in that the grounds of review stated by Applicant are
that the 1st Respondent firstly misdirected himself, considered or
allowed the evidence of an offence committed by the Applicant in 1996
to prove a charge of dereliction of duties, which according to the
Applicant, occurred in 1997".
The
question therefore is whether the alleged irregularity complained of
fall within the grounds permissible in common law, which can form the
basis of an application for review of the judgement of the 1st
Respondent.
According
to the learned author, LA Rose-Innes in the Book Judicial Review of
Administrative Tribunals in South Africa, 1963 at page 8, there are
seven grounds with common law upon which the proceedings of
administrative bodies may be subject to review and these are as
follows:
Where
the proceedings are ultra vires and this will include bad faith or
fraud by the tribunal or official exercising his power,
Violation
of the principles of natural justice,
Failure
to give reasons for a decision where there is a duty upon a tribunal
to do so,
Mistake
of law or fact in certain circumstances,
Unreasonableness
of decisions in certain circumstances,
Non-compliance
with the rules of evidence in limited circumstances, and
Where
the power exercised was unlawfully delegated.
4
Of
the above grounds it is clear that none are present in the
Applicant's founding affidavit. Grounds 1, 2, 3 and ? can be
disregarded forthwith and grounds 4, 5 and 6 may be considered with a
view to establish whether the facts in casu fits in any one of them.
It
was contended for the Respondent that in this matter the application
is not directed at correcting any irregularity as in fact no
irregularity, gross or otherwise is alleged in the Applicant's
founding affidavit. To support this proposition the court was
referred to LA Rose Innes (supra) at page 201 where the learned
author expressed himself in the following terms:
"Review
is a remedy directed at correcting any irregularity of a procedural
nature or any illegality in the proceedings of a tribunal, the court
of review is not concerned with the merits of the decision arrived at
by the administrative body, provided that the procedures and method
adopted by that body are regular, the review court does not enter
into the correctness in substance of the decision that was made. It
has repeatedly been held that where a statute confirms authority upon
an administrative body to decide a matter left to its discretion, the
courts have no power to substitute their own decision for that of the
administration body, especially authorised to make that decision".
It
was further contended for the Respondent that the Applicant is asking
the court to examine the merits of the decision arrived at by the 1st
Respondent and the Applicant furthermore has not attacked the methods
or procedures adopted by the 1st Respondent, he merely places the
findings of the court a quo before this court, alleges that the
findings were wrongly arrived at due to a misdirection by the 2nd
Respondent and asks the court to substitute its own decision for that
of the 1st Respondent. Again in this regard the court was referred to
the writings of the learned author Rose-Innes (supra) where at page
201 the following appears:
"...A
mistake of law or a wrong conclusion of fact duly arrived at is not
an irregularity such as may justify a review. Such a mistake is not a
gross irregularity within the meaning of the Supreme Court Act".
The learned author goes on to say, "an incorrect ruling on
appoint of law or a misapprehension of fact by an administrative
tribunal or official, while itself not reviewable nevertheless may
produce a consequential irregularity. If as a consequence of a
mistake of law of fact, an irregularity is committed the proceedings
are reviewable. To take once again the example of arbitration
proceedings, if an award is so excessive as to point to irregularity
or partiality on the part of the arbitrator, that may be a ground for
review".
5
Mr.
Sibandze for the Respondents further cited the authority of Herbstein
and Van Winsen, The Civil Practice of the Supreme Court of South
Africa at page 992 where the learned authors formulated the test
which is to say that, where it is the outcome of the trial, in other
words the conclusion, and not the method of the trial which is
challenged, the appropriate way to proceed would be by way of appeal.
On
the other hand Mr. Simelane advanced argument in opposition. He
relied heavily on the dicta in the South African case of Hira vs
Booysen 1992 (4) S.A. 69 (A) at 93 where the Appellate Division of
the Supreme Court of South Africa following English cases adopted a
wider and more active approach on judicial review of administrative
acts where a mistake of law is committed by the administrative body
entrusted with the decision making power. The Appellate Division
further held that the question as to whether an error of law is
reviewable depends upon the intention of the legislature and is
therefore a matter of statutory interpretation towards ascertaining
that intention upon whether or not the legislature intended the
tribunal or statutory body to have exclusive authority to decide the
question of law concerned.
Mr.
Simelane further relied on what was said by Shabangu AJ in the case
of Standard Bank Swaziland Limited vs Thembi Dlamini and another,
Civil Case No. 3420/2000 where the learned Judge in this case said
the following:
"...The
time has arrived in Swaziland to jettison the narrow approach of
gross unreasonableness".
The
gravamen of the arguments advanced against the preliminary point of
law is that the court a quo did not have evidence to justify the
final verdict and as such it ought to be reviewed. In this regard Mr.
Simelane cited what is said by Rose-Innes (op cit) at 213 as follows:
"Where
an administrative tribunal makes a decision, its proceedings will be
irregular and may be set aside on review if there is no evidence
whatsoever to support its findings".
6
In
this regard it was further argued that the decision was not justified
by the evidence before the Industrial Court and it induces a sense of
shock.
Mr.
Simelane 's parting shot was that the Industrial Court did not
satisfy itself in terms of Rule 42 of the Employment Act 1980 (as
amended) that it was fair and reasonable for Respondent to terminate
Applicant's employment. On this argument the court was referred to
the case of University of Swaziland vs President of the Industrial
Court and another (unreported) Civil Appeal No. 16/02. Without
further ado however, this argument is not raised in the Applicant's
founding affidavit it is only raised in the Heads of Argument, and
therefore it does not deserve any further consideration in this
judgment. The general rule which has been laid down repeatedly is
that an Applicant must stand or fall by his founding affidavit and
the facts alleged in it, although sometimes it is permissible to
supplement the allegations contained in that affidavit, still the
main foundation of the application in the allegation of facts stated
there, because those are the facts that the Respondent is called upon
to either affirm or deny, (see Herbstein et A1 (supra) at 366 and the
cases cited thereat).
On
the main, it is my considered view, that the present application is
an appeal clothed as a review. I say so for a number of reasons.
Firstly,
in this matter it is clear that the review application is not
directed at correcting any irregularity as in fact no irregularity,
gross or otherwise in the Applicant's founding affidavit. In essence
the Applicant is asking the court to examine the merits of the
decision arrived at by the 1st Respondent. Following what is stated
by the learned authors Herbstein and Van Winsen (op cit) at page 932
the Applicant has not attacked the methods or procedures adopted by
the 1st Respondent. The learned authors stated the following at page
932:
"The
reasons for bringing proceedings under review or appeal is usually
the same, to have the judgment set aside. Where the reason for
wanting this is that the court came into a wrong conclusion on the
facts or the law the appropriate procedure is by way of appeal. Where
the real grievance is against the method of the trial, it is proper
to bring the case on review ... the giving of a judgment not
justified by the evidence would be a matter of appeal and not of
review from this test. The essential question in review proceedings
is not the correctness of the decision on the review but its
validity".
7
On
perusal of the Applicant's founding affidavit, it is clear that the
Applicant's contention is that the court a quo grossly misdirected
itself on material issues, in other words that the conclusion it came
to based on the evidence was not justified. Therefore following was
stated by the authors cited above the Applicant's contention cannot
be correct in law.
Secondly,
in so far as the Applicant alleges misdirection which suggests that
there has been a mistake of either fact of law the learned authors
Herbstein and Van Winsen (supra) put the position in the following
terms at page 934.
"
A bona fide mistake of law is grounds for appeal only, not for
review. Where therefore a Magistrates refuses to allow an amendment
or to strike out an allegedly defective portion of a plea, the matter
cannot be taken on review, the same applies to an incorrect decision
as to the party on whom the onus of proof lies, the consequences of a
mistake of law will however amount to a gross irregularity if the
judicial officer through a mistake of law does not direct his mind to
the issue before him and so prevents the aggrieved party from having
his case fully and fairly determined in that event the proceedings
are reviewable".
In
the present case, in so far as it is suggested that there was a
mistake of law or fact, there are no averments in the Applicant's
founding affidavit that such mistake was not bona fide and
furthermore there is no allegation that such mistake amounted to a
gross irregularity in the proceedings or that there was a mistake of
law which caused the Presiding Judge not to direct his mind to the
issue before him and thereby preventing the Applicant from having his
case fully and fairly heard. It is further not the Applicant's case
that the decision that was reached was so unreasonable as to lead to
the conclusion that no reasonable court could have come to the same
conclusion.
In
the result, the preliminary point of law is upheld with costs.
S.B
MAPHALALA
JUDGE