IN THE INDUSTRIAL COURT OF ESWATINI
Case No. 36/18 (B)
In the matter between:
SWAZILAND NURSING ASSOCIATION Applicant
And
MINISTRY OF PUBLIC SERVICE AND
2 OTHERS Respondents
Neutral citation: Swaziland Nursing Association v Ministry of Public Service and 2 Others (36/2018 B) [2018] SZIC 40 (05 June 2018)
Coram: NSIBANDE S. JP
(Sitting with Nominated Members of the Court Mr N. Manana and Mr. M. Dlamini)
Heard: 03 May 2018
Delivered: 05 June 2018
RULING ON POINTS OF LAW
[1] The applicant has approach the Court on a certificate of urgency for an order:
1.1 Setting aside the decision of the 1st respondent and the Government Negotiating Team in the meeting of the 2nd respondent on the 7th March 2018 refusing the Secretary General of the applicant to represent the applicant.
1.2 Directing the 1st respondent to pay costs of the suit at attorney client scale.
1.3 Granting the applicant any further and/or alternative relief.
[2] The applicant is a trade union duly registered and recognised by the Government of Eswatini in terms of the Industrial Relations Act 2000 as amended. It came to court complaining that in a meeting between itself and the 2nd respondent (to discuss cost of living adjustment) on 7th March 2018, the respondent objected to the presence of applicants Sibusiso Lushaba and refused to proceed with the meeting in his presence. The objection has had the effect is stalling meetings between the parties as well as other meetings involving other parties wherein the applicant also sits in, hence the applicant has approached this Court.
[3] The application is opposed by the respondent and three points in limine were raised.
3.1 Urgency - The matter is not urgent within the contemplation of Rule 15.
3.2 Jurisdiction - The respondent submitted that the relief sought in prayer 1 of the Notice of Motion is essentially one of the judicial review. The Court is prayed to set aside the decision of an executive organ within the sphere of employment. The setting aside can only follow a review. This Court has no review jurisdiction, even over employment decision. The Court was referred to the case Alfred Maia v Chairman of the Civil Service Commission and Others High Court Case No. 1070/15.
3.3 Locus Standi - The respondent submitted that the applicant does not have the requisite substantial interest in the exclusion of Sibusiso Lushaba from the bargaining table so as to challenge same. It is Mr Lushaba himself who has such interest. The Union has representatives more than Mr. Lushaba. It was suggested in argument that because the Recognition agreement allows the applicant a number of representatives could adequately represent the applicant. It was submitted that he had a greater interest in the matter and ought to have been joined in the application.
[4] The point with regard to urgency was abandoned by the respondents at the hearing of the matter and no more need be said in that regard.
[5] Jurisdiction - It was submitted by the respondents that the application was review application in disguise and that in keeping with the Alfred Maia v Chairman of the Civil Service Commission and Others High Court Case No. 1070/15 (supra) the Court should refuse to hear it because of lack of jurisdiction.
Applicant argued that the time nature of the application was not a review but sought to ascertain whether the respondents could refuse to negotiate with a recognised union on the basis that they did not want a particular member of the union to participate in the negotiations. The question to be answered was whether the respondents were entitled to refuse the applicant’s representative to sit at the negotiating table.
It appears to us that the respondent is correct. The essence of the application is whether in the face of the recognition and collective agreements between the parties as well as Industrial Relations law, the respondent can lawfully exclude the Secretary General from participating in meetings/negotiations between the parties. In the circumstances we dismiss the point.
Locus Standi - The respondent argued that the applicant had no direct and substantial interest in the exclusion of its Secretary General from the bargaining process and that it was Mr Lushaba himself who had such an interest.
It is trite that an “applicant will have locus standi in judicio if the right on which he basis his claim is one that he personally enjoys, or if he has a sufficient interest in the person or persons whose right he seeks to protect and it is impossible or impractical for those person to approach the Court themselves” (Hebstein and Van Winsen) in this matter, it is clear that the Union seeks to protect its right to be represented by a person of its choice in the bargaining process. The Union, it appears to us, is seeking to protect its own interest. The ruling given by this Court will affect the Union and not Mr Lushaba, personally. He sits in the bargaining process not in his personal capacity looking out for his personal interest but on behalf of the Union looking after the interest of the Union and by extension its members.
The case of Media Workers Union of Swaziland on behalf of Hlengiwe Dlamini and African Echo (Pty) Ltd t/a The Times of Swaziland Case No. 161/07 is instructive in this regard.
For the above reasons the points in limine are dismissed.
We order that the matter proceeds to the merits.
The members agree.
S. NSIBANDE
PRESIDENT OF THE INDUSTRIAL COURT
For the Applicants: Mr S. Madzinane
For the Respondents: Mr M. Dlamini
