In
the High Court of Swaziland
Civ.
Case 1848/93
In
the matter between:
P.R.
Dunseith 1st Applicant
Nhlanhla
W. Nxumalo 2nd Applicant
And
President
of the Industrial Court Respondent
CORAM :
Hull, CJ.
FOR
THE APPLICANTS Mr. Dunseith
FOR
ATTORNEY GENERAL Mr. Wilamaratne
Judgment
(4/2/94)
This
is an application for a declaration that the second applicant has a
right of audience before the Industrial Court.
The
first applicant, Mr. Dunseith, is an attorney who is duly admitted to
practise in this court. The second applicant, Mr. Nxumalo, is his
articled clerk.
On
29th September 1993, Mr. Nxumalo was instructed by Mr. Dunseith to
appear on his behalf in the Industrial Court in order to receive a
reply and for the setting of a trial date in Industrial Court Case
No. 121/93. The learned President declined to hear him on the ground
that, as an articled clerk, he had no right of audience.
2
Section
15 of the Industrial Relations Act (No. 4 of 1980) provides that,
subject to any rules made by the Chief Justice in consultation with
the Attorney General under section 12, any party in proceedings under
the Act may be represented before the Industrial Court by a legal
practitioner or by any other person authorised by the party. The
Industrial Court Rules, 1984, which have been made under section 12,
do not affect the classes of persons who may appear before the Court.
The
Industrial Relations Act does not contain a definition of the
expression "legal practitioner", and the Interpretation Act
1970 (No. 21 of 1970) does not do so either. In ordinary language it
means, simply, a person who practises law, but in my view in section
15 it is being used in a particular context, namely in respect of a
right of audience before a tribunal which, whether or not it is
strictly a court, certainly has many of the attributes of such a
body. In those circumstances, I consider that the correct approach to
the meaning of the expression is that explained by Lord Esher in
Unwin V. Hanson (1871) 2 QB 115 at 119, in the following way:
"If
the Act is directed to dealing with matters affecting everybody
generally, the words used have the meaning attached to them in the
common and ordinary use of language. If the Act is one passed with
referred to a particular trade business, or transaction, and words
are used which everyone -conversant with that trade, business or
transaction knows and understands to have a particular meaning in it
then the words are to be construed as having that particular meaning,
thought it may differ from the common or ordinary meaning of the
words."
In
Swaziland the practice of law, and in particular practice as an
advocate, are regulated by the Legal Practitioners Act 1964 (No. 15
of 1964). Under section 26 (1), it is an offence for a person to
practise or to hold himself out
3
as
a legal practitioner (and more particularly to hold himself out as an
advocate), unless he is a legal practitioner within the meaning of
that Act. The expression "legal practitioner" is defined
for the purposes of that Act, in section 2. It means a person who is
duly admitted under the Act (or under the previous law) to practise
as an advocate or attorney (or as a notary or conveyancer).
The
significant difference between that definition and the ordinary
meaning of " legal practitioner", of course, is one of
status. To comply with section 26 of the Legal Practitioners Act, a
person must be admitted under the Act as a practitioner.
In
the context of section 15 of the Industrial Relations Act, the
expression "legal practitioner" is in my view to be taken
(on the principle to which I have just adverted) to refer to a legal
practitioner as defined in section 2 the Legal Practitioners Act.
There
is an exception in that last Act to the restriction imposed by
section 26 on the right to practise law. Section 19(3) provides that
an articled clerk who fulfills the requirements of any of paragraphs
(a) to (d) of that subsection "shall be entitled to appear in
any magistrate's court in Swaziland and before any board, tribunal or
similar body in or before which his principal is entitled to appear
instead of and on behalf of that principal ......".
The
expression "courts" is defined, in section 2 of the Legal
Practitioners Act for the purposes of that Act, in the following way:
"'courts'
means the Swaziland Court of Appeal, the High Court of Swaziland, the
Swaziland Water Court, the Judicial Commissioner's Court, the
magistrate's Courts established under the Subordinate Courts
Proclamation, Coroner's Inquests held in terms of the Inquests
Proclamation, liquor
4
licensing
boards constituted under a law relating to liquor licensing and all
other tribunals in which practitioners have the right of audience
but, subject to the provisions of any other law, does not include any
Swazi Court or Swazi Court of Appeal established under any law
relating to such courts". (1 have added the emphasis for
convenience of later reference.)
Mr.
Nxumalo is Mr. Dunseith's articled clerk within the meaning of
section 19 (3). He has fulfilled the requirements of the subsection.
Mr.
Dunseith submits that he is accordingly entitled in terms of the
subsection to appear in the Industrial Court on behalf of his
principal - i.e. on behalf of Mr. Dunseith himself.
He
contends that section 19(3) is not intended to confer, on a
qualifying articled clerk, any right of audience in superior courts.
But, he says, the Industrial Court is not a superior court: Citing
two South African decisions relating to the industrial court in that
country, (i.e. South African Technical Officers Association v.
President of the Industrial Court and Others 1985 (1) SA 597 and
National Union of Mineworkers v. East Rand Gold and Uranium Company
Limited 1992 (1) SA 700 - both Appellate Division decisions) he goes
a step further, arguing that for the same or similar reasons as
there, the Industrial Court in Swaziland is not a court either, but
rather a tribunal of the kind referred to in section 19(3), so that
Mr. Nxumalo has under the subsection a right of audience before it on
his behalf.
Mr.
Wilamaratne, appearing on behalf of the Attorney General, to whom
notice of the proceedings was given, agrees with Mr. Dunseith's view.
The
Industrial Relations Act was enacted some years after the Legal
Practitioners Act. It deals with a particular subject, namely
industrial relations. It did not amend consequently at all the
earlier Act.
5
On
a first reading of section 15, I think that it is easy to understand
why the learned President concluded that an articled clerk has no
right of audience in the Industrial Court. It is a short section
which says, simply, that subject to rules, a party may be represented
by "a legal practitioner or any other person authorised by (the)
party." At first sight that seems straight-forward.
For
myself, though not after some initial hesitation, I think however
that Mr. Dunseith's conclusion is right. I should perhaps add that my
reservations arose from the simplicity of the section and from the
fact that to accept Mr. Dunseith's submission does involve a process
of reasoning that cannot in my view be said to be immediately
obvious. However, on an overall consideration of both statutes I do
not have any real doubts that his conclusion is correct.
The
Legal Practitioners Act was intended clearly to regulate generally
the right to practise law, including the right to practise generally
as an advocate. Section 26 was itself a widely drawn provision. In
section 2, the word "courts" was given a very wide meaning.
Section 19(3) was made applicable not only to Magistrate's Courts,
but to any other board, tribunal or similar body in or before which
his principal (i.e. a legal practitioner) was entitled to appear.
I
agree with Mr. Dunseith that by expressly mentioning the Magistrate's
Courts, but not the High Court or the Court of Appeal, the
legislature is to be taken to have intended that articled clerks
should not have a right of audience under section 19(3) before either
of those two superior courts. Parliament, having specifically
referred to the Magistrate's Courts, is not to be taken to have
subsumed the superior courts of justice in the general wording that
then follows, i.e. "any board, tribunal or similar body."
6
I
agree too with Mr. Dunseith that the Industrial Court is not a
superior court. That does not necessarily mean that it is not a
higher body, in the legal hierachy, than a Magistrate's Court. The
expression "superior court" is a legal term of art. The
President of the Industrial Court must be a person who is qualified
to be a judge of the High Court. The qualifications for the High
Court are higher than those for magistrates. Moreover right of appeal
from the Industrial Court lies directly to the High Court.
Section
15 of the Industrial Relations Act is expressed permissively. It says
that a party "may" be represented by a legal practitioner
"or" by a person authorised by the party.
On
a proper view I do not think it is intended to mean "may"
be represented by the one "or" the other, at the choice of
the party, "and not otherwise".
I
can understand that there may be important reasons of policy why a
party before the Industrial Court, in the context of industrial
relations, ought to be free to authorise anyone of his choice to
speak for him, whether or not he has any kind of training in
advocacy.
Articled
clerks who fulfill the requirements of section 19(3), are however
persons of some training and experience in law. There is a view of
course, the expression of which can be seen in the procedures
governing some tribunals -such as for example, small claims courts,
and also some domestic tribunals - to the effect not merely that
parties ought to have the choice of representatives other than legal
practitioners but that right of audience by lawyers should be
excluded. That view is perhaps not quite as fashionable now as it was
for a time earlier and I am not persuaded that, in cases in which it
is accepted that a person should be allowed to represented by
another, it stands up to close scrutiny.
7
In
the present case, section 15 does not exclude representation by a
lawyer. The governing principle of section 15 is not that a party can
be represented by a person of his choice. It is wider than that,
namely that he can be represented by a person of his choice or by a
legal practitioner.
On
one view, the reference to right of representation by a legal
practitioner is, at least in practical terms, superfluous. A lawyer
cannot represent anyone unless that person, or someone on his behalf,
instructs him.
But
Parliament has seen fit to mention legal practitioners specifically
in the section, and to mention them as the only category, other than
other persons authorised by parties, who have right of audience
before the Industrial Court.
I
consider that the better view is that the real purpose of section 15
is to extend, in the case of the Industrial Court, the categories of
person who may appear on behalf of others, but that the section is
not intended to curtail those other categories of persons who, under
the general scheme of the Legal Practitioners Act, are permitted to
represent parties. More particularly, and section 15 having referred
expressly to legal practitioners as persons having a right of
audience, I do not think that the legislature intended by it, i.e. by
that section itself, to restrict the circumstances in which by way of
a dispensation and under the general provisions of the Legal
Practitioners Act, a qualifying articled clerk may appear on behalf
of his principal before courts, boards and other tribunals in which
the principal has a right of audience.
Mr.
Dunseith may very well be correct in saying also that the Industrial
Court is not, at common law, a court of law. In making that
submission, I think that he is concerned to sustain an argument that
although by implication, section 19(3) does not apply to the Court of
Appeal or to the High Court, it does not follow that it is also
inapplicable to the Industrial Court.
8
Accordingly,
I make a declaration that by virtue of being an articled clerk who
fulfills the requirements of section 19(3) of the Legal Practitioners
Act 1964, the second applicant Mr. Nxumalo has a right of audience in
the Industrial Court of Swaziland.
A
person who is in fact authorised by a party to represent him before
the Industrial Court also of course has a right of audience before it
by virtue of the explicit terms of section 15 of the Industrial
Relations Act 1980.
The
Industrial Court is of course entitled to require that an articled
clerk or a person who claims to be authorised by a party is in fact
so qualified or otherwise to be granted audience under section 19(3)
of the Act of 1964 or under section 15 of the Act of 1980. The
modalities of the first of these things should be provided for under
section 12 of the later Act. At present they are not. I will deal
with this by way of amending rules, in consultation with the Attorney
General.
Pending
the making of such rules, an articled clerk who claims such a right
of audience should apply by notice of motion to the High Court, with
supporting affidavits, for an order declaring that he is so entitled,
if the need to do so arises.
The
rules made under the Act already deal with the other matter.
DAVID
HULL CHIEF JUSTICE
9
Accordingly,
I make a declaration that by virtue of being an articled clerk who
fulfills the requirements of section 19(3) of the Legal Practitioners
Act 1964, the second applicant Mr. Nxumalo has a right of audience in
the Industrial Court of Swaziland.
A
person who is in fact authorised by a party to represent him before
the Industrial Court also of course has a right of audience before it
by virtue of the explicit terms of section 15 of the Industrial
Relations Act 1980.
The
Industrial Court is of course entitled to require that an articled
clerk or a person who claims to be authorised by a party is in fact
so qualified or otherwise to be granted audience under section 19(3)
of the Act of 1964 or under section 15 of the Act of 1980. The
modalities of the first of these things should be provided for under
section 12 of the later Act. At present they are not. I will deal
with this by way of amending rules, in consultation with the Attorney
General.
Pending
the making of such rules, an articled clerk who claims such a right
of audience should apply by notice of motion to the High Court, with
supporting affidavits, for an order declaring that he is so entitled,
if the need to do so arises.
The
rules made under the Act already deal with the other matter.
DAVID
HULL
CHIEF
JUSTICE
Brands 