IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
CIV.CASE
NO.95/92
In
the matter between:
SWAZILAND
CHARCOAL (PTY) LTD Applicant
and
THE
PRESIDENT OF THE INDUSTRIAL COURT
OF
SWAZILAND 1st Respondent
RAYMOND
DLAMINI 2nd Respondent
C
O R A M : DUNN J.
FOR
APPLICANT : MR SHILUBANE
FOR
THE 2ND RESPONDENT : MR NDZIMANDZE
RULING
ON APPLICATION FOR REVIEW
12
March 1993
This
is an application to review and/or set aside a decision of the
Industrial Court given in favour of the second respondent on the 26th
November 1991. I made a ruling on the 18th September 1992 remitting
the matter back to the Industrial Court for purposes of enabling
preparation of the record relating to what transpired on the 26th
November prior to the delivery of the Industrial Court's decision. I
believe that the distribution of my ruling of the 18th September was
limited. As such ruling has to be read together with the present
ruling it will be convenient for purposes of completeness to
reproduce what is set out in the earlier ruling at this stage. The
ruling was as follows-
"
The second respondent (as applicant) instituted an action against the
applicant (as respondent) in the Industrial Court, claiming
compensation for injuries he
2
sustained
in the course of his employment with the applicant. The applicant
opposed the action and filed the necessary papers setting out its
defence. The matter was set down for hearing and it appears from the
judgment of the learned president of the court that some evidence was
led on behalf of the second respondent and that Mr Shilubane appeared
for the applicant. In the course of this evidence it became necessary
that two further parties be joined as respondents in the action.
There was an adjournment of the proceeding's to the 16th August 1991
to enable the joinder of the parties. The matter could not be
proceeded with on the 16th August and was post-poned to the 17th
September.
On
the latter date Mr Shilubane was not available but had a professional
assistant standing in to request a further post-ponement. The matter
was thereupon post-poned to the 26th September and from then to the
12th of November.
It
is set out in the judgment, that none of the respondents were present
on the 12th November and that the court "decided to proceed with
the hearing pursuant to Rule 7(14) of the Industrial Court Rules".
The rule in question reads –
7(14)
where the respondent fails to appear, the court may –
proceed
with or adjourn the hearing; or
after
hearing the case for the applicant make a decision.
The
court proceeded with the case and ordered that the second respondent
"be paid a sum of E11,232.00 by way of compensation by the three
respondents." The learned president dealt with the question of
the post-ponements that
3
had
been made in the course of the trial and concluded, "The
respondents have acted with deliberate delay in defending these
proceedings then falling out completely. They are condemned in costs.
The applicant is awarded the costs of the proceedings pursuant to
Section 11(1) of the Industrial Relations Act."
It
is set out in the papers filed on behalf of the applicant that the
applicant's default on the 12th November was due to an error by Mr
Shilubane who had inadvertantly diarised the matter for the 12th
December 1991. It is set out and confirmed by Mr Shilubane that the
Industrial Court was approached on the day (26th November) when
judgment was to be handed down, with a request that the matter be
re-opened to enable the applicant to cross-examine the 2nd
respondent's witnesses and to present its own case. This request, it
is stated, was refused by the court.
The
gist of the grounds upon which the present application is concerned
is that the Industrial Court erred in proceeding with the matter on
the basis that it was an uncontested matter in the light of the
defence filed and the applicant's appearance and participation in the
proceedings to the stage when the order for joinder was made. The
submissions in support of the applicant's case call for a
consideration and the proper application of Rule 7(14). The Rule
confers a discretion on the Industrial Court in cases . where a
respondent fails to appear. Such discretion must, however, be
judiciously exercised to ensure fairness and the harmony in
industrial relations which the dispute procedures under the
Industrial Relations Act seek to facilitate. The court was not
functus officio at the stage when the application to re-open the case
was made. The court was in the circumstances obliged to consider the
application and give a reasoned ruling thereon. The application
before me
4
does
not, however, contain any record of the proceedings on the 26th
November. All that I have is the statement by Mr Shilubane that he
applied to have the case re-opened before judgment was given.
There
is no record of what reasons were advanced in support of the
application and no indication as to the reasons given by the court
for refusing the application. There is the suggestion in the judgment
that the respondents were deliberately delaying the proceedings. It
would, however, not be correct to conclude that that was the reason*
for refusing the application for the simple reason that the learned
President was, at that stage of the judgment, dealing with the
question of costs. It is essential in my view, that a record of the
proceedings of the 26th November be made available setting out the
application that was made together with the court's ruling and
reasons therefore. It would then be open to the applicant to seek
appropriate relief on review, to this court.
The
matter is in the circumstances remitted to the Industrial Court for
purposes of preparing, if one does not exist, a record of the
proceedings of the 26th November reflecting the applicant's
application, the court's ruling and its reasons therefore.
Leave
is granted to the applicant to renew the present application on the
same papers, supplemented as may be necessary, in the light of the
record of proceedings."
The
record kept by the President has now been filed and the matter has
been argued before me. The record reflects that on the 26th November
Mr Shilubane applied to lead the evidence of the second respondent
(present applicant). Mr Motsa who appeared on behalf of the present
respondent is recorded as having objected to the application on the
grounds that there was no explanation in support of the application.
5
The
question of an error in diarising the matter for the 12th December
1991 was not raised on the 26th November. There was, in the
circumstances, no explanation given for the applicant's default on
the 12th. November. The Industrial Court was not at any stage called
upon to address its mind to the reason/s for the applicant's default.
The applicant was, in my view, under a duty to show, at the very
least, that it was not in wilful default, along the lines of
applications for the removal of a bar or rescission of a default
judgment under the High Court Rules. The matter ought to have been
raised and decided before the Industrial Court and not raised as a
new issue before this court on review.
The
applicant cannot in the circumstances of this case be heard to
complain that it was not given an opportunity of being heard. An
opportunity was granted but the applicant defaulted. There is in the
circumstances no ground upon which the decision of the Industrial
Court can be brought on review before this court.
The
application is dismissed with costs.
B.
DUNN
JUDGE
