THE COURT OF APPEAL OF SWAZILAND
the matter between:
FEDERATION OF TRADE
PRESIDENT OF THE INDUSTRIAL COURT
SWAZILAND First Respondent
MINISTER FOR ENTERPRISE
EMPLOYMENT Second Respondent
Court was moved by the Appellant to hear this appeal as a matter of
urgency. Considering it to be a matter requiring an urgent decision
the Court agreed to hear it during the present (April 1997) session
of the Court rather than having
matter stand over until the next session of the Court in October of
appeal was duly heard on 7 April 1997 and the Court then made an
order allowing the appeal, with costs, and granting certain further
relief consequent upon the appeal having been allowed. The full text
of the order appears at the conclusion of this judgment. At the same
time the Court stated that it would file its reasons for judgment in
due course. These are those reasons.
appeal involves the granting of an order by the Industrial Court on 1
February 1997 on an ex parte application by the second respondent to
whom, for convenience, we shall refer as the Minister and the
dismissing by Sapire ACJ in the High Court of an application for the
review and setting aside of the order of the Industrial Court. It is
the judgment of the learned Acting Chief Justice which the appellant
sought to attack and have varied in this appeal.
are the relevant facts. In his ex parte application which the
Minister brought in terms of section 70 of the Industrial Relations
Act No. 1 of 1996 ("the Act") , he sought
rule nisi calling upon the appellant, which is henceforth herein
referred to as the SFTU, to. show cause why the SFTU and every trade
union, and its officials and members, affiliated to the SFTU should
not be interdicted from "engaging in, instigating, promoting or
calling for" certain strike action, being a so-called "stay
away", planned to commence on 3 February 1997 and why the said
strike should not be declared to be unlawful and/or a threat to or
affect the national interest.
founding affidavit by the Minister contained, in summary, the
following relevant allegations viz that the SFTU had on 19 January
1997 resolved to call for and implement a national "stay away",
which meant a strike by all employees in the Kingdom of Swaziland;
that a copy of the resolution had been sent to the Prime Minister;
that it had received prominent publicity in the weekly and daily
press in Swaziland; that it concerned twenty-seven demands relating
to labour matters; and that all attempts to resolve the matters
raised in the demands by negotiation had failed. Having regard to a
similar stay-away called for by the SFTU in January 1996, the
consequences of a stay-away would, in his opinion, seriously and
adversely affect and threaten the national interest, as all
factories, industries and businesses would be brought to a halt,
public transport be dislocated, the supply of electricity and water
be terminated, workers be intimidated
incidents of violence occur. The country's economy would be
prejudiced; investor confidence be destroyed and the country's
education system be negatively affected. The strike was also illegal,
so the Minister averred, as the procedures in regard to a dispute
laid down by the Act had not been followed.
the aforegoing required the urgent granting of the order sought as
the alleged strike was planned to commence two days later i.
on 3 February 1997.
application was not served on the SFTU nor was it given notice of it.
The SFTU, however, heard that the application was to be made at 11.00
on Saturday, 1 February 1997 and instructed its attorney, Mr P.R.
Dunseith to attend the Industrial Court and oppose the application.
Mr Dunseith went to the Court and asked the Minister's counsel, Mr R.
Wise SC for a copy of the application papers, explaining that he
appeared on behalf of SFTU which was an interested party. Mr Wise
referred the request to the Attorney-General who refused to give Mr
Dunseith a copy of the papers or even allow him to look at them. Mr
Dunseith, however, obtained a copy of the papers from the Registrar
of the Court.
the matter commenced before the Court, Mr Dunseith asked for leave to
oppose the application on behalf of the SPTU which had a direct and
substantial interest in the application and the relief sought. He
conceded that the Minister was entitled to bring the application ex
parte and without notice to any interested party in terms of section
70 of the Act but submitted that as SFTU was then before the Court
and was clearly an interested party, it was entitled to be heard in
opposition to the relief sought against it. Counsel for the Minister
opposed this. The Court refused SFTU the right to be heard ruling
that section 70(1) provides only for an ex parte application by the
Minister and that no other interested party has the right to be
heard. The Court then granted an order in the following terms. It
issued a rule nisi "with immediate effect" directed against
the SFTU and its affiliates restraining and interdicting them from
"engaging, instigating, promoting and/or calling for the
'stay-away'" threatened to commence on Monday 3 February 1997.
The rule nisi was made returnable on 20 February 1997. The Court at
the same time also made the following orders:
order that the said strike called by the Swaziland Federation of
Trade Unions to commence on the 3rd of February 1997 is hereby
declared to be unlawful and a threat to the national interest.
is further ordered that all persons are interdicted from
participating in the said strike".
is clear from the order that only the injunction restraining the SFTU
from "engaging in, instigation, promoting or calling for"
the stay-away was included in the rule nisi. The declarator was not
part of that rule. On behalf of the Minister it was argued that that
was the intention of the order. The wording of the order is clear
however. The declarator that the strike was illegal was not subject
to final determination on the return day of the rule. It was an
out-and-out order made on 1 February 1997.
Thursday 6 February 1997 the SFTU filed an application in the High
Court for an order setting aside the order granted by the Industrial
Court on 1 February 1997. It based its application on two grounds –
the relief sought and granted was not competent in terms of section
70 of the Act and that the Industrial Court acted ultra vires in
granting such relief; and
the Industrial Court acted unfairly and irregularly in denying SFTU
an opportunity to be heard, particularly where immediate interim
relief was sought and that the SFTU had been seriously prejudiced by
the Court's refusal to allow it to be so heard. In his supporting
which was jurat 5 February 1997, the second vice-president of the
SFTU, Mr J. Dlamini, submitted that the matter was urgent –
certain interim relief has been granted against the applicant which
seriously interferes with and inhibits the applicant's freedom of
association and political expression".
application came before Sapire ACJ on 10 February 1997 who, in an ex
tempo re judgment, dismissed the application, with costs. He did so
because, although he said that the Industrial Court's refusal to hear
the SFTU was a "flagrant contravention of the audi alteram
partem rule" which would "probably" have caused him to
exercise his powers of review and set aside the Industrial Court's
order, he would not do so because the SFTU had not brought its
application promptly and more importantly, it had not come to Court
"with clean hands". It was, he said, continuing "presently
to be engaged in promoting, supporting and maintaining the prima
facie illegal stay-away".
is necessary to set out in extenso. the learned Acting Chief
Justice's reasons for his decision. He said –
claim to a right to be heard is supported by the decision in
SCHLESINGER v SCHLESINGER 1919 (4) SA 342 (W) in which it was held
that, there is nothing inherently wrong or contrary to public policy
in an interested party opposing an ex parte application which has
come to his notice fortuitously or by informal notice: Rule of Court
6 (4) (b) provides for this very contingency. On principle any person
who shows a direct and substantial interest in proceedings, and whose
affidavit indicates that his opposition might contribute something to
a just decision of the case, should not be deprived of an opportunity
of being heard. In this case there was no opportunity for the
Applicant to file an affidavit but clear indication was given that
applicant wished to submit pertinent argument. In other circumstances
this court would probably exercise its powers of review and set aside
an order granted after a refusal by the court a quo to hear a person
against whom relief was claimed, who was in attendance when the
application was moved, and wished to be heard. Such a refusal by the
court a quo offends our sense of fairness, and seems to be in
flagrant contravention of the audi alterem partem rule, which is
basic to our system of justice.
this case however there are reasons why the court will not come to
the assistance of the applicant.
and this is not the most imoportant reason, is that the Applicant has
brought this application as a matter of urgency seeking waiver of the
usual requirements of the rules of court regarding notice and service
of applications. The matter is alleged to be urgent "since
certain interim relief has been granted against the applicant which
seriously interferes and inhibits the applicant's freedom of
association and political expression". It is difficult to see
how an interim order interdicting a prima facie illegal strike, and
restraining the Applicant from promoting it or participating therein
could impinge on the Applicants freedom of association or any
legitimate right of political expression it may have.
is no explanation as to why the Applicant waited six days before
presenting this application.
that period, it has ignored the order made by the Industrial Court
seeks to have set aside. I take judicial knowledge of the notorious
fact, that Applicant has persisted in promoting the stay away, which
started on schedule on 3rd February 1997, two days after the granting
of the order, and presently still continues. In these circumstances I
can see no urgency in reviewing the proceedings in the Industrial
Court. The Applicant will doubtless raise its legal objections on the
return day of the rule. The respondent if it feels hampered by the
interim order in the exercise of its legitimate rights may anticipate
the return day as it could have done almost as soon as the interim
order was granted. To come to Court as a matter of urgency to have an
order which is being ignored in any event set aside seems to me to be
an abuse of the process of the Court and a misuse of the urgency
the Applicant continues presently to be engaged in promoting
supporting and maintaining the prima facie illegal stay away, quite
apart from it being in contempt of the existing order of the
Industrial Court, it does not come to this court with clean hands.
could be argued that a party would not be in contempt of an order
made, as in the present case, without affording the affected party an
opportunity to be heard, especially where such party requested a
hearing and was present at the time. It would seem however that as
the order remains valid until it is set aside, it may not just be
ignored.- The Industrial Court implicitly found that it had
jurisdiction in terms of Section 5 of the Act to entertain the
application before it and to make the order it made. This however is
not a matter for this court to decide and if the rule is confirmed,
would be a matter for adjudication by the Industrial Court of Appeal.
the applicant is in contempt of the order of the Industrial Court or
not, no argument was advanced to demonstrate the legality of the
promotion of the stay away. Mr Simelane who appeared for the Attorney
General submitted to the contrary that if the stay away is a strike
as envisaged by the Industrial Relations Act there is no suggestion
that the procedures therein have been observed. No strike other than
one permitted by the act and embarked upon in accordance with its
provisions is legal. In promoting a stay away and its continuation,
the applicant, as presently
appears to be committing not only a civil wrong against the
proprietors of those industries, businesses and undertakings which
may have been and are being adversely affected by the withdrawal of
their labour forces and the stoppage of their services; in addition
one or more criminal offences both at common law and in contravention
of the relative Statute may well have been committed. There appears
to be no counter to this argument on the papers before me. However
lofty or well intentioned its motives may be, for promoting and
encouraging the stay away and obviously I do not comment on this at
all, the applicant does not approach this court with clean hands.
is not a case where the Applicant may have been guilty of some
unacceptable conduct in the past, which rendered its hands unclean,
but from which it had purged itself by at least desisting therefrom.
illegal conduct is being persisted in even while this application was
fault can be found with the learned judge's comments in regard to the
Industrial Court's failure to observe the audi alteram partem rule.
audi alteram partem principle i.e. that the other party-must be heard
before an order can be granted against him, is one of the oldest and
most universally applied principles enshrined in our law.
no man is to be judged unheard was a precept known to the Greeks, was
inscribed in ancient times upon images in places where justice was
administered, is enshrined in the scriptures, was asserted by an 18th
century English judge to be a principle of divine justice and
to the events in the Garden of Eden, and has been applied in cases
from 1723 to the present time (see De Smith: Judicial Review of
Administrative Action p.156; Chief Constable. Pietermaritzburg v
Ishini  29 NLR 338 at 341) . Embraced in the principle is also
the rule that an interested party against whom an order may be made
must be informed of any possibly prejudicial facts or considerations
that may be raised against him in order to afford him the opportunity
of responding to them or defending himself against them. (See
Wiechers: Administratiefreg 2nd edn. p. 237).
is clear that the decision of the Industrial Court not to afford the
SFTU or its legal representative a hearing is in blatant violation of
these fundamental principles of natural justice.
it did so may be due to a complete misconception of what an ex parte
application is. A party can be brought before a Court either by way
of summons or by way of notice of motion. The latter is an admonition
in proper form calling upon a respondent to answer the complaint of
the applicant or to comply with what he demands and to hear the
judgment according to law. It is the commencement and foundation of
proceedings upon which the whole case is built. (See per
J in Simross Vintners (Pty) Ltd v Vermeulen. VRG Africa (Pty) Ltd v
Walters t/a Trend Litho.
Credit Corporation (Pty) Ltd v Van der Westhuizen 1978 (1) SA 779 at
781H. In both the case of a summons or a notice of motion, service
must in order to give him notice of the proceedings, be effected upon
the respondent who must, in accordance with the audi alterant partem
principle, be afforded every opportunity to answer the case against
him. However, there are certain instances in which, in respect of a
notice of motion, notice to other persons is dispensed with. These
are described as ex parte applications. Herbstein and Van Winsen:
Civil Practice of the Superior Courts of South Africa 2nd Ed. p. 58,
set out the circumstances in which this can occur. They say:
ex parte application is used:
the applicant is the only person who is interested in the relief
which is being claimed;
the relief sought is a preliminary step in the proceedings, e.g., an
application to sue by edictal citation or to attach property ad
though other persons may be affected by the Court's order, immediate
relief, even though it be temporary in nature, is essential because
of the danger in delay or because notice may precipitate the very
harm the applicant is trying to forestall, e.g., an application for
an interdict or an arrest suspectus de fuga under the common law. .
. " .
add, however, in regard to the latter category of cases the
the rights of other persons are involved, notice should wherever
possible be given to all such persons who might be affected".
was having regard to the aforegoing that Coetzee J in the cases just
referred to said, at p. 781A-B:
seems to me therefore that an ex parte application in our practice is
simply an application of which notice was as a fact not given to the
person against whom some relief is claimed in his absence".
fact that an application is brought ex parte does not exclude a
respondent's right to appear and be heard. Where therefore the person
against whom the relief is claimed has notice of the proceedings, the
audi alteram partem principle must be applied and he must be afforded
an opportunity of being heard, whether he obtains notice of the
proceedings by way of service on him or by coming to hear of them in
some other manner.
is for this reason that it was held in Schlesinger v Schlesinger 1979
(4) SA 342 (W) at 347F that –
is nothing inherently wrong or contrary to public policy in an
interested party opposing an ex parte application which has come to
his notice fortuitously or by informal notice".
was exactly the position before the Industrial Court. Its
misconception of what an ex parte application is undoubtedly led it
into disregarding the principles of natural justice and giving an
order which was invalid.
Industrial Court was created for "the furtherance, securing and
maintenance of good industrial relations and employment conditions in
Swaziland". (See section 4(1) of the Industrial Relations Act
No. 1 of 1996).
the Botswana Court of Appeal in an unreported decision in Botswana
Railways Organisation v J. Setsogo and 198 Others Civil Appeal No. 51
of 1995, delivered in June 1996, Steyn JA said this:
resolution of industrial disputes is a minefield in which fairness,
objectivity and manifest independence are pre-requisites for
confidence and acceptance of decisions - more specifically as these
impact upon emotive, volatile, indeed explosive issues. Great care
must therefore be taken to ensure that ... in the
through which its deliberations are conducted, the objectivity ...
and impartiality of the court are beyond legitimate question"
subscribe completely to those views. The need for the Industrial
Court to observe one of the essentials of fairness - if not the most
cardinal one - and one of the most basic requirements of natural
justice viz the audi alteram partem rule is therefore not only
manifest but indeed imperative. It failed in casu to do so.
first part of its order viz the interdict against the SFTU is thus
invalid. Sapire ACJ clearly recognised this.
the same reason the order declaring the threatened strike "called
by the Swaziland Federation of Trade Unions" unlawful was also
invalid, the interested party SFTU having not been heard in regard
thereto. The learned Acting Chief Justice should have recognised this
as well. That, however, is not the only reason why this order was
invalid. The Minister was not entitled in terms of section 70 of the
Act to apply for such a declaratory order. That section only entitles
him to apply for an injunction restraining the parties concerned. It
If any strike or lockout is threatened or taken, whether in
conformity with this Act or otherwise, and the Minister considers
that the national interest is threatened or affect thereby, he may
make application to the Court ex parte for an injunction restraining
the parties from commencing or from continuing such action, and the
Court may make such order thereon as it considers fit having regard
to the national interest."
order declaring that a strike or threatened strike is unlawful can
only be brought under the provisions of section 71 of the Act and
then the only person who can competently bring it is not the Minister
but the Attorney-General. Section 71(1) reads as follows:
Notwithstanding the provisions of section 70, where the
Attorney-General has reason to believe that a strike or lockout taken
or threatened is not in conformity with this Act or any other law, he
or she may apply to court ex-parte for a declaratory order to that
Attorney-General was not a party to the application before the
Industrial Court. The declaratory order it made declaring the
threatened strike unlawful was therefore invalid on this ground as
recognised the failure of the Industrial Court to apply the
principles of natural justice in the form of the
alteram partem rule as a good ground for reviewing and setting aside
the Industrial Court's order, the learned Acting Chief Justice's
refusal to do so for the reasons he gives, becomes not only
inexplicable but also unacceptable. In fact, he fell into the same
error as did the Industrial Court in choosing to exercise his
discretion against the SFTU.
the Minister it was argued before us that judicial review is a
discretionary remedy and that a court is entitled to refuse an
application for review notwithstanding its possible merits, in the
exercise of that discretion. Counsel cited inter alia. Wade:
Administrative Law 6th ed. at 535-6 where with reference to a refusal
to grant a discretionary remedy, the learned author said:
time to time the Court will do so for some special reason, even
though there has been a clear violation of natural justice".
the utmost respect to the learned author, that proposition cannot be
correct. A clear violation of natural justice will, in every
instance, vitiate an order and no room for judicial discretion as to
whether to set it aside can, in such instances, exist.
Administrative Law at 540 puts the position clearly. The learned
author says thus:
principles of natural justice are considered to be so important that
they are enforced by the Courts as a matter of policy, irrespective
of the merits of the particular case in question. Being fundamental
principles of good administration their enforcement serves as a
lesson for future administrative action. But more than that, and
whatever the merits of any particular case, it is a denial of justice
in itself for natural justice to be ignored. The policy of the Courts
was crisply stated by Lord Wright in 1943 –
the principles of natural justice are violated in respect of any
decision, it is, indeed, immaterial whether the same decision would
have been arrived at in the absence of the departure from the
essential principles of justice. The decision must be declared to be
General Medical Council v Spackman,  AC 627, 644-5).
learned judge a quo refused the SFTU relief on two grounds:
not having brought its application before him with sufficient
having come to Court "without clean hands".
to the first of these reasons, the learned judge made a factual error
which is germane to his finding as to the urgency of the application
before him. He said "there is no explanation as to why the
applicant waited six days before ' presenting this application".
In stating this, the learned judge was palpably wrong. The
application before the Industrial Court was made on Saturday 1
is no evidence that SFTU became aware of the Industrial Court's order
until Monday, 3 February 1997 when the order was published in the
"Times" newspaper and the Government Gazette or that it was
served on SFTU before then. It did not have to be. Section 70(3) of
the Act provides that the order must be published in the Gazette and
in a newspaper circulating in Swaziland and that this will be deemed
to be service of it. That the SFTU immediately sought to have the
order set aside is evidenced by the fact that Mr Dlamini's affidavit
was signed on Wednesday 5 February 1997 i.e. two days after the order
was published and the SFTU's application filed a day later on
Thursday 6 February 1997 and served on the respondents on the same
day. The SFTU therefore brought its application within three days of
service of the order which is, of course, perfectly reasonable, and
did not wait six days before doing so, as stated by the learned judge
can see no urgency in reviewing the proceedings of the Industrial
Court" was accordingly based on entirely incorrect facts.
to the second of his reasons, the learned judge based his finding
that the SFTU had not come to Court with clean hands largely on the
take judicial knowledge of the notorious fact that applicant has
persisted in promoting the stay-away".
is here with respect to him, that the learned judge has fallen into
the same error as the Industrial Court. While the fact of the
stay-away may have been notorious, he has made the positive finding
that SFTU "has persisted in promoting the stay-away"
(emphasis added) without affording it a ' hearing in regard thereto,
and therefore in obvious violation of the audi alteram partem rule.
has frequently been stressed in the South African courts and by
writers on the law of evidence in England and America,
the doctrine of judicial knowledge must be confined within very
narrow limits. In R v Tager 1944 AD 339 at 343, an authority that has
been approved and applied in numerous cases since then, Watermeyer CJ
doctrine of judicial notice is, by all the authorities on the law of
evidence which I have consulted ... still to-day rightly confined
within very narrow limits. Thus Phipson says that Judges and juries
can only take notice of matters 'so notoriously or clearly
established that evidence of their existence is unnecessary ...
Although, however, Judges and juries may, in arriving at decisions,
use their general information and that knowledge of the common
affairs of life which men of ordinary intelligence possess . .. they
may not ... act on their own private knowledge or belief regarding
the facts of the particular case... . Wigmore in sec. 2569 (a) draws
the same distinction: 'It is therefore plainly accepted that the
Judge is not to use on the Bench, under the guise of judicial
knowledge, that which he knows as an individual observer. The former
is in truth 'known' to him merely in the peculiar sense that it is
known and notorious to all men, and the dilemma is only the result of
using the term knowledge in two senses. Where to draw the line
between knowledge by notoriety and knowledge by personal observation
may sometimes be difficult, but the principle is plain.'"
the present instance the learned judge a quo appears to be importing
as judicial knowledge, his own private beliefs as an individual
observer. He cites no facts nor provides any evidence from which it
can be said to be so clearly established that the SFTU was
"promoting" the stay-away that he could take judicial
notice of it.
learned judge also stated that no argument was advanced "to
demonstrate the legality of the promotion of the stay-away".
(again emphasis added).
this may have been so, the SFTU was given no opportunity to place any
facts before either the Industrial Court or the Court a quo upon
which any such argument could be founded. The learned judge indeed
went further to find that the strike was illegal. This was based on
the ex parte averment by the Minister that the procedures laid down
by the Act had not been followed. It must once again be repeated that
the SFTU was given no opportunity to respond thereto and the learned
judge's finding once again is made in clear violation of the audi
alteram partem rule. So,too, is his finding that the SFTU appeared to
be committing not only a civil wrong against members of the community
but also possibly criminal offences. These findings were not based on
any facts or evidence before him and were made purely on the premise
that the SFTU is "persisting in promoting" an illegal
strike in regard to which there is, firstly, no factual evidence and,
secondly, in regard to which the SFTU was afforded no opportunity to
respond. The findings are not only therefore gratuitous and
far-reaching but also of a most serious and damaging import and made,
as they are, in disregard of the audi alteram partem rule, are both
and unjustifiable. The Court's finding that the SFTU had not
approached the Court with "clean hands" is accordingly also
the question of "clean hands" should be used in special
circumstances only (see Performing Arts Council v Paper, Printing,
Wood & Allied Workers Union 1994 (2) SA 204 (A) at 218).
the doctrine of "clean hands" may apply to situations in
which relief is sought which is discretionary in nature as far as the
judicial officer is concerned it cannot be applied when the
discretion of the Court is excluded such as the position in casu
where the appellant was entitled to an order, based as it was on a
failure to afford it the right to be heard. In our law as stated
above the entitlement to a hearing is invariable and inviolable. A
request to review a failure of it does not depend on the discretion
of the Court and the doctrine of clean hands, therefore, is
inappropriate and inapplicable.
follows that the further finding of the Court a quo that it could not
review and set aside the order of the Industrial Court, (despite it
having been given in flagrant
of the audi alteram partem rule and thus being invalid) because SFTU
had not approached the Court with clean hands, cannot stand.
learned judge a quo also found that –
come to Court as a matter of urgency to have an order which is being
ignored in any event set aside seems to me to be an abuse of the
process of the Court and a misuse of the urgency procedures".
the light of all the aforegoing that finding is without foundation
and is unwarranted and unjustified. In any event, an application to
set aside an invalid order which is in violation of one's rights
would seem to us per se a matter of urgency and one eminently
demanding urgent relief.
was for all the above reasons that the Court made the order it did on
7 April 1997.
Court would add one further comment. The appellant was, as the most
interested party in the ex parte proceedings in the Industrial Court,
clearly entitled to know what relief
being sought against it and what the case against it was upon which
the application for such relief was founded.
conduct of the Attorney-General in refusing to make available to the
appellant a copy of the papers in the application or even allowing
its legal representative to see them was therefore not only highly
irregular but an improper and flagrant disregard of the principles of
natural justice. It was conduct which ill-becomes an officer of this
Court concerned with the proper administration of justice and whose
function and duty it is to uphold the principles of justice and is
deserving of censure. This Court expresses, in the strongest terms,
its disapproval of the Attorney-General's actions.
was because of those actions and the failure of the Industrial Court
to apply the audi alterant partem rule that Mr Kuny, for the SFTU,
invited us to award his client its costs on the attorney-and-client
scale. We declined to do so for these reasons:
Attorney-General was not a party to the appeal;
costs were sought against the Industrial Court, a fact confirmed by
Minister was not responsible for the Attorney-General's action nor
for the failure of the Industrial Court to afford the SFTU a
Court accordingly made the following order:
appeal succeeds, with costs;
order of Sapire ACJ dismissing the appellant's application in the
High Court for an order setting aside the order of the Industrial
Court, is set aside and there is substituted therefor the following
order of the Industrial Court granted on 1 February 1997 in the ex
parte application of the Minister of Enterprise and Employment is
declared invalid and is set aside, with costs".