THE HIGH COURT OF SWAZILAND
Case No. 565/95
the matter between:
GOVERNMENT OF THE KINGDOM OF SWAZILAND
SECRETARY-GENERAL OF THE SWAZILAND FEDERATION
THE APPLICANT Mr. Masuku
THE RESPONDENT Mr. Dunseith
is an application brought by the Government of Swaziland against the
Secretary-General of the Swaziland Federation of Trade Unions.
Government seeks a rule nisi calling on the Secretary-General to show
cause why orders should not be made -
that a mass meeting called by the Secretary-General for tomorrow,
Sunday 26th March 1995, is unlawful;
that strike action "threatened" by the Secretary-General to
commence on Monday 27th March 1995, "or at any time thereafter",
is unlawful and contrary to the provisions of the Industrial
Relations Act 1980;
the Secretary-General and the Federation from inciting, promoting,
causing or encouraging any of the Federation's affiliates or other
persons from carrying out the strike action.
the return of the rule, the Government also seeks interim relief.
Although the application does not say so explicitly, I take this to
mean that it seeks interim interdicts against both the holding of the
meeting tomorrow and against any strike action.
is, I think, understood that the mass meeting will be of all members
of trade unions in the country, and not merely the office -holders or
representatives of the individual unions that are affiliated to and
make up the Federation.
am satisfied that the subject matter of the application is such that
urgency should be accorded to it.
essential questions arise in my view.
first is whether, on the evidence, the Secretary-General has called
an unlawful meeting for tomorrow.
second is whether, on the evidence, there is a sufficient basis for
apprehending that an unlawful strike will be held on or after Monday,
so that on the balance of convenience an interim interdict should be
issued now, pending the return of the rule.
Minister responsible for labour and public service, the Honourable
Albert Shabangu, has sworn the founding affidavit in support of the
application. In it, he has recounted events relating to the mass stay
away that began in the country on 13th March and continued until the
afternoon of the following day. He has referred to the facts that
this action led to wide disruption of public and private business, as
well as violence. He has also deposed that because of national
concern about the mass action, and its adverse implications socially
and economically for the nation, the House of Assembly established a
select committee to investigate and to report. It is common ground
that the select committee has already done so.
Minister has gone on to set out the Government's concerns in respect
of the matters to which the relief now sought in this application is
has not been disputed that a mass meeting of union members has been
called for tomorrow. In a report published in the Times of Swaziland
on 15th March headed "Strike Over", the Federation was
reported as having given the Government seven days to act on its
concerns. The report, it is said, also indicates that if those
concerns are not met, strike action will be resumed. It is also said
that the Secretary-General had not refuted the report.
Minister has further stated that he has been advised and believes
that the meeting to be held tomorrow is unlawful, and he also
apprehends that the strike would have irreparable effects on the
nation's ailing economy, disrupt essential services, and cause grave
social and economical disorder. He has expressed specific concern
about the dangers of violence.
this hearing before me Mr. Dunseith stated from the bar, in the
Secretary-General's presence and on his instructions-
the purpose of the Secretary General in calling the mass meeting
tomorrow is to inform all trade union members of the progress in
negotiations with the Government;
Secretary General and (I think) the Federation do not consider that
negotiations have broken down at this time;
this time, no decision has been taken to institute any further strike
Government's submissions that the mass meeting would be illegal are
based on its interpretations of section 33(2) of the Industrial
Relations Act 1980. The relevant part of that subsection, so far as
the facts that have been led here are concerned, can be summarised in
the following way, namely that no federation shall act, either by
instruction to its members or by taking instruction from its members,
any manner that might be construed as giving the federation the
status or function of an industry union. (What I am saying, so that
there is no misunderstanding about that, is that I do not consider
that the evidence shows any other basis on which the provisions of
that subsection could arguably apply.)
members of a federation are organisations (see section 33(1)) - in
other words unions. It is clear from section 2 of the Act that
"industry union" refers to a union in a particular
Masuku, for the Government, submits that the effect of section 33(1)
is that a federation cannot deal with the individual members of
unions at all. The Act contemplates that it should deal with the
unions themselves, in other words their committees. The Federation
cannot therefore convene a mass meeting of trade union members. It
can only meet with the committee members of unions.
is apparent from the report of the select committee that it also
construes section 33 in the same way.
great respect, I am not able to agree. That is a restrictive
interpretation. In my opinion, nothing in section 33 precludes a
federation from holding a general meeting with the rank and file of
its constituent unions, as long as it does not contravene any of the
specific restrictions in section 33(2) in doing so. The significance
of the reference to the functions of an "industry union" in
that subsection, in my view, is only that it is not for a federation
to take upon itself the functions of a union responsible for a
is no evidence before me, now, that the meeting that is to be held
will contravene section 33(2). No other basis has been advanced for
saying that it is illegal. In particular, it has not been contended
that the mass meeting itself is likely to be violent. All public
gatherings must be held in a law-abiding way, of course, but the
maintenance of good order is a responsibility of those convening such
meetings and the law enforcement agencies.
am of the view that the application for an interdict against
allegedly illegal strike action is premature, particularly in view of
the statement that Mr. Dunseith has made on the Secretary-General's
Minister's evidence as to the national implications of a strike, of
course, carry heavy weight - (I would say they carry very heavy
weight.) This court can and will, however, sit at any time and
grant-urgent interim relief where sufficient grounds exist. At
present, I do not consider that they do.
relief is therefore refused, and the application itself in those
costs must follow the event.