IN THE HIGH COURT OF ESWATINI
HELD AT MBABANE CASE NO. 448/2018
In the matter between:
THE SWAZILAND GOVERNMENT Applicant
PHUMELELE DLAMINI-ZULU 1st Respondent
THE EXECUTIVE DIRECTOR OF THE CONCILIATION
MEDIATION AND ARBITRATION COMMISSION 2nd Respondent
Neutral Citation: Swaziland Government v Phumelele Dlamini-Zulu and another (448/2018) (2018) SZHC 149 [10th July 2018]
Coram: MAPHANGA J
Date Heard: 29/06/2018
Date Delivered: 10/06/2018
Summary: Civil – Application for Review decision of CMAC Executive Director in terms of Section 81 (7) of Industrial Relations Act – Point – in Limine taken by Respondent objecting to review application on basis that it is time barred in terms of Section 85 (4) of IRA on amended – quaere – whether Section applies to decisions of Executive Director – Point in Limine dismissed.
RULING ON A PRELIMINARY POINT OF LAW (IN LIMINE)
 In this application the Applicant seeks the following orders:
- The review and setting aside of the proceedings before the 2nd Respondent under CMAC Case No. SWMB 448/16 in which the 2nd Respondent dismissed the Applicant’s rescission (sic) application for rescission), be reviewed and set aside;
- That the default judgment upheld in those proceedings be set aside;
- That the matter be referred back to conciliation for rehearing on the basis that Part VIII of the Industrial Relations Act has to be complied with.
 In order to place these prayers and the relief presently in context a brief outline of the background facts is necessary.
 The aforementioned CMAC Case No. SWMB 448/16 is concerned with a claims brought against the Applicant by the 1st Respondent in respect of certain sums for the award of certain terminal benefits and compensation allegedly occasioned upon the former’s dismissal by the latter – predicated on a cause of unfair dismissal. It is common ground that in that case the 1st Respondent was granted a default award for want of appearance of the Applicant to defend or contest the claim in terms of Section 81 (7) (b) of the Industrial Relations Act, 2000 (as amended) ‘IRA’; which award was to the order of E 19, 729.30 as an aggregate of the sums claimed;
 It is common cause that the default award was subsequently made an order of court before the Industrial Court under Case No. 366 on the 27th October 2017. Apprised of this order, probably upon the 1st Respondent seeking to execute and redeem the order, on the 30th November 2017, the Applicant made an application for the rescission of the arbitral award to the 2nd Respondent in term of Rule 34 of the CMAC Rules regulating and catering for the procedural niceties in respect of rescission applications against such awards.
 By way of slight digression I note that there seems to be a procedural anomaly affecting the procedure for rescission of an award which has been sealed under an order of the Industrial Court. That should arise simply by reason of the fact that whilst CMAC, under the auspices of the 2nd Respondents office, may well be conferred with power to rescind a default award, it has no jurisdiction to rescind the order of the Industrial Court once granted. That order may of course be abandoned by the party in whose favour it is granted but unless that is the case it remains in force. But that as I say as a by-the-way.
 In the event, when the matter came before the 2nd Respondent on the 19th February the Applicant again failed to appear and in the outcome the 2nd Respondent dismissed the application for rescission. That has given rise to the present application for review.
 When the matter was placed before me for the hearing of the review motion, it was made plain that by consent the parties had agreed that the parties preference was to have the point in limine heard first and separate from the issues on the merits of the review. Depending on the finding of this court the matter could thereafter be set down for the hearing on the merits.
The point in limine taken by the 1st Respondent is simply that in terms of Section 85 (4) as amended (Section 5 of the Industrial Relations Amendment Act of 2010 or ‘the amendment section’) the application for rescission was filed out of time and as such became time barred by effluxion of the dies prescribed therein for the launching of rescission applications.
 The amendment subsection to Section 85 (4) of the IRA states:
(b) a party who is aggrieved by a determination made by an arbitrator in terms of paragraph (a) may apply, within a period of 21 days after making of such determination, to the High Court for a review”
 The crisp point for determination before me as discerned from the parties submissions and indeed canvassed during their submissions is this – whether the above provision includes or is applicable to determinations by the executive director of CMAC in the exercise of his discretion in determing applications for rescission of an arbitrator’s default award.
 The 1st Respondent was represented by Mr. S. Simelane who in support of the point firstly urged that the subsection was set in peremptory terms limiting the time frame in which a review of a determination made by either an arbitrator or a commissioner can be brought to court. In essence he urges that the words arbitrator should be construed broadly, to include by implication a ‘commissioner’ or the executive director of CMAC. It was contended further that the arbitrators award was made on the 7th July 2017 and the determination dismissing the application for rescission was delivered on the 19th February 2018. The application thence became time barred upon the lapse of the 21–days prescribed dies; the application for rescission having only been launched 2 days after the deadline.
 Mr L Hlawe, the learned attorney who appeared for the Applicant, argued on the other hand that the wording of the section ought to be given its plain and literal interpretation, hence in so far it expressly refers to an application for rescission against a determination by an ‘arbitrator’ in respect of matters referred to an arbitrator in terms of the act, it precludes a decision by the executive director of CMAC. Further it was contended on behalf of the Applicant that the provision invoked by the 1st respondent was thus inapplicable so that the applicant was at liberty to bring a review against the executive director’s decision in terms of the common law ‘within a reasonable time’. In the alternative the Applicant maintained that in any event the 21 days prescribed by the section had not elapsed, if reckoned from the date on which the decision of CMAC director was transmitted and served on the Applicant or alternatively when it became aware of it- that date being 17th November 2017.
Applicability of the Section
 The foremost issue as regards the relevance and applicability of the section relied on by the 1st Respondent in the point, involves an interpretation of that provision in accordance with the well known principles governing the construction of statutes which have been followed and applied from time to time by our courts.
 The first principles in the construction of statutes is that words in a statute must be given their ordinary grammatical meaning within the context of the provision; which ‘context includes the language of the rest of the statute, the subject matter of the statute, its apparent scope and purpose, and within limits, its background. When interpreting the words in the statute, the Court must, from the outset, consider the language and the context together’.(See Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs & others 2004 (4) SA 490 (CC) para 89; Jaga v Donges NO & another; Bhana v Donges NO & another 1950 (4) SA 653 (A) at 662G-663A)
 Secondly and as an integrated rule, the courts must also seek to assign such meaning to the words of a statute that will give effect to the object and purpose of the legislation (c.f. Standard Bank Investment Corporation Ltd v Competition Commission and Others; Liberty Life Association of Africa and Others v Competition Commission and Others 2000 (2) SA 797 (SCA) paras 16-22)
 From a plain and ordirary meaning of the words of the section it appears clear that the section refers not only to a ‘determinations made by an arbitrator but it is also specific in referring to decisions ‘in terms of paragraph (a)’. Therefore in my judgment it could not be more specific; regard being had to the nature and source of the decision or determination governed by the prescribed time lines. It becomes apparent further that by reference to a ‘determination in terms of paragraph (a) is meant determination by an arbitrator of a dispute in a matter referred to CMAC for resolution by way of arbitration in terms of Section 84 of the Act. That is a clear and unambiguous meaning deriving from an unadorned reading of the wording of the sections.
 Contextually the matter must be also viewed in regard to the specific powers conferred by the statute on the executive director to determine appeals from awards made against a party by an arbitrator by default (in the absence of that party) in terms of section 81 (7) (b) in an unresolved dispute referred to the arbitrator for adjudication. That subsection must be seen in context of Section 81 (7) which reads as follows:
(7) If the dispute concerns the application to any employee of existing terms and conditions of employment or the denial of any right applicable to any employee in respect of his dismissal, employment, reinstatement or re-engagement, the commissioner appointed under section 80(1) may —
(a) reject the report if the party that reported the dispute fails to attend conciliation meeting; and
(b) refer the matter to arbitration and the arbitrator may grant default judgment against any other party that fails to attend a conciliation meeting.
(c) Before granting default judgment the arbitrator shall require the party in attendance to adduce evidence in support of his complaint or defence and the relief he seeks.
(d) A default judgment entered by an arbitrator shall have the same status in law as that of an arbitrator award.
(8) If the dispute concerns matters other than those referred to in subsection (7) and one of the parties to the dispute fails to attend a conciliation meeting, the commissioner appointed under section 80(1) may, at the request of the party that is in attendance —
(a) issue a certificate in terms of subsection (5)(a); or
(b) extend the period contemplated in subsection (1) for up to 21 days.
(9) Any party against whom a decision has been made under subsection (7) may, within fourteen (14) days from the date on which he had knowledge of such decision, apply to the Executive Director of the Commission in the prescribed form and manner to have the decision rescinded. (Added A.3/2005.)”
(Underscore added for emphasis)
 The Act defines an ‘arbitrator’ as ‘a person who arbitrates under this Act. The function carried out by the executive director of CMAC in the terms of the powers conferred by subsection 9 of Section 81 under the Act is specific to determining rescission applications or appeals submitted to him as distinct to the jurisdictional remit of an arbitrator. This function in my view cannot conceivably be properly regarded as equivalent to an arbitrators award or adjudicative powers so as to bring it within the fold of regulation of reviews from an arbitral award. It that was the case the legislator would have said so in express terms. From the scheme of arrangements of the relative sections it seems clear that the legislators intended a separation of the procedures and fora between default awards and rescission thereof under Section 81 as contrasted with substantive awards made in terms of Section 85 (4) as well as the rescission thereof
 A determination by an executive director of the Commission under the above subsection of Section 81 appears to me to be a distinct decision from an arbitrator’s award referred to in Section 85(4) (b). I think the legislator was mindful of and sought to separate the provision for default awards as well as redress therefrom on the one hand and on the other substantive decisions or awards adjudicating disputes referred to them for arbitration from which an avenue for common law review could lie.
 It appears to me from a contextual wording of the provisions that the intention of the legislator in prescribing the time lines for bringing of review proceedings under the amendment of Section 85, intended to create a dedicated procedure to regulate ‘substantive and reasoned arbitral awards and to define time limits in that regard. To construe the section and extend it to review of determinations of the CMAC chief executive under section 81 would be doing violence to the clear meaning and intention of the law- makers as expressed in the clear language of the statute.
 To the principles of Statutory interpretation above I would add the exhortation in the latin maxim expressio unius est exclusio alterius; for in specifying with the stated precision the object of the provision as to the prescribed time lines or dies in the language and terms of the statute as read together with the provisions of Section 81, the provision bears a restricted application and thus cannot be extended to determination in respect of rescission applications concerning of default awards. I would liken the grant of default awards to that of default judgment in terms of the High Court Rules where any application for rescission may be made separate from that of proceedings for setting aside of substantive judgments on specified grounds and proceedings.
 Now the Industrial Relations Act is replete with various provisions whose purport is to confer judicial, quasi-judicial and administrative powers on various persons in their designated functional and institutional capacities, as well as various for a including the industrial court, tribunals and other bodies to carry out and execute those adjudicative and administrative functions. Over these bodies this Court reserves an inherent revisionary powers and jurisdiction entrenched in terms of Section 152 of the Constitution. I was referred to that section by learned counsel for the applicant and it is convenient to recall the wording thereof which reads:
“The High Court shall have and exercise review and supervisory jurisdiction over all subordinate courts and tribunals or any lower adjudicating authority, and may, in exercise of that jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its review or supervisory powers”
 It cannot be doubted that the High Court, in terms of its inherent supervisory jurisdiction under the common law, reserves powers of review equally over administrative and quasi-judicial decisions of the 2nd Respondent in his or her exercise of statutory powers. Had Parliament intended to place certain procedural precepts in regard to regulating timelines in that respect it would have expressly done so as it did in respect of the review procedures against arbitration awards.
 Having heard the Parties submissions , and considered their written submissions as well as the authorities relied on I come to this conclusion –that with regard to the point of law as to the applicability of the section (Section 85 (4) of the Industrial Relations Act (as amended) on proceedings for review of decisions of the 2nd Respondent in terms section 81 of the Industrial Relations Act, for the reasons stated above I find that the section relied on for the point of law is inapplicable and thus dismiss the point.
 For this reason it will be necessary to set the matter down to hear the substantive issues on the merits in respect of the review application at the earliest opportunity.
For the Applicant: Mr. S Hlawe
Attorney General’s Chambers
For the Respondent: Mr S. M. Simelane
Simelane Mntshali and Associates
 Corplo 2290 CC t/a U-Care v Registrar of Banks (755/2011)  (755/2011) per Southwood AJA at paragraph 30.
 Section 2 of the Industrial Ref Act of 2000.