IN THE SUPREME COURT OF SWAZILAND
HELD AT MBABANE CIVIL APPEAL NO. 20/2011
In the matter between:
SWAZILANDNATIONAL ASSOCIATION OF
CIVIL SERVANTS (SNACS) ON BEHALF OF
SWAZILANDNATIONAL FIRE AND
EMERGENCY SERVICES EMPLOYEES APPELLANT
CORAM : M.M. RAMODIBEDI CJ
: S.A. MOORE JA
: S. TWUM JA
FOR THE APPELLANT : MR. ANDREAS M. LUKHELE
FOR THE RESPONDENT : MR. SIFISO KHUMALO
HEARD : 23NOVEMBER 2011
DELIVERED : 30 NOVEMBER 2011
Application for adjournment – Lawyer on record not present in court – No application for adjournment made in writing or motivated in court – Adjournment granted – Case re-fixed – New date for Peremptory hearing – Principles governing applications for postponement – Government not under any obligation to consult Association before introducing the four shift system which involved a legitimate exercise of the employer’s management prerogative – Changing a work practice is a routine decision which does not require any consultation – Appeal dismissed with Costs including wasted Costs.
PRE HEARING OVERTURES
 In this judgment, the appellant is referred to as the Association and the respondent as the Government. Copies of the Supreme Court of Swaziland Court Roll for the November 2011 session were delivered to the offices of the Law Society at the High Court Building in Mbabane on the 26th September, 2011. Copies of the roll were also inserted into the lawyers’ pigeon-holes at the High Court Building. Several copies were inserted where several lawyers shared the same chambers.
 In keeping with a well established and well known custom, extra copies of the roll were made freely available in the Registry of the Supreme Court for collection by any lawyer who had not come into possession of a copy by any other means. Under the arrangements which were in place, any lawyer could access his or her individual copy of the roll if he or she wished to do so. Copies of the roll were also accessible to members of the public. Indeed the presence of Mr. Quinton Dlamini in Court on the morning of Monday 7th November 2011 was evidence that he, a layman, had found out, by some means or other, that the appellant’s case was listed for hearing in the Supreme Court on that morning. Page 1 of the roll bore the following notice:
“NB. There will be a roll call on Monday 1 November 2011. All Legal Practitioners involved or their representatives as well as litigants appearing in person are requested to attend the roll call. Take further notice that no postponements will be entertained except for good cause shown on written application and properly motivated in open court.”
 The above notice which was prominently displayed on page 1 of the roll speaks for itself. No practicing lawyer therefore, whose duty it is to obtain a copy of the roll and to familiarize himself with it, could properly contend that the notice reproduced above was not brought to his or her attention.
 Any lawyer therefore who was the lawyer upon the record in a matter listed in the Supreme Court roll, and therefore obliged to appear at the date and time listed in the roll, and who failed to appear at the stipulated time would, prima facie, have done so in defiance of the notice which was so prominently displayed on the face of the roll.
 When the matter was called before the duly constituted Supreme Court on the 7th November 2011, Mr. Quinton Dlamini, a non lawyer, rose from the Bar and sought leave to address the Court concerning the matter. The substance of what he said to the court is that:
He was speaking in his capacity of President of the Appellant Association.
He referred to the on-going boycott of the courts of the Kingdom by certain lawyers.
Dunseith Attorneys of Lansdowne House, Dabede Street Mbabane, AML/5873 (c) are the attorneys on record for the Appellant Association.
Mr. Lukhele is the lawyer of Dunseith Attorneys who has carriage of the instant appeal.
Mr. Lukhele was not present in court when the case was called or at all.
 The fact of the on-going lawyers’ boycott of the courts has been widely publicized both within the Kingdom of Swaziland and beyond. It has lifted off from this terrestrial plane and is now hurtling around the globe in cyber space. This court can therefore take judicial notice of the continuing boycott.
 Standing alone before the court, without the representation of the lawyer whom the Association had retained to represent it, Mr. Dlamini did the understandable thing. He pleaded for an adjournment. But there was nothing, beside his plea, upon which the court could properly exercise its discretion to postpone the matter. There was no communication whatsoever to the court from Mr. Lukhele, or from any other member of Dunseith Attorneys.
 The court was sympathetic with Mr. Dlamini who found himself in a quandary. It understood the importance of the appeal to the Association and to its members. Indeed, the public galleries of the spacious Court A were filled to near capacity with a number of persons – clearly Association members – who watched anxiously at the events which were unfolding.
 To his credit, counsel for the Government did not seek to take immediate advantage of the Association’s unhappy plight. He indicated that he was ready to proceed. But, in view of the Association being unrepresented by its lawyer, he would offer no objection to a single adjournment to a date later in the current session. He was doing so in order to allow the Association an opportunity to secure legal representation by a lawyer who would be ready to proceed with the appeal if the court was minded to grant the adjournment sought.
The Court and the parties consulted their respective calendars. Tuesday the 15th November was convenient to all concerned. The Court granted the Association’s request and re-fixed the hearing of the appeal to Tuesday the 15th November 2011 at 9:00 a.m.
 Since the work of the Court must proceed in the public interest, and cannot be stymied without good reason, in acceding to the Association’s request for an adjournment in the awkward and embarrassing situation in which it found itself through no fault of its own, the court adjourned the matter upon the clear understanding that, in the absence of sufficient and satisfactory reasons, no application for a further adjournment would be entertained. The fixture of the case for Tuesday the 15th November 2011 at 9:00 a.m. was a Peremptory Fixture.
 In doing so, the court was mindful of the principles governing an application for a postponement which were articulated in the case of McCarthy Retail Ltd v Shortdistance Carriers CC 2001 (3) SA 482 at 494 D – H where Schultz JA said:
“A party opposing an application to postpone an appeal has a procedural right that the appeal should proceed on the appointed day. It is also in the public interest that there should be an end to litigation. Accordingly, in order for an applicant for a postponement to succeed, he must show a ‘good and strong reason’ for the grant of such relief. Centirugo AG v Firstone SA (Pty) Ltd 1969 (3) SA 318 (T) AT 320c – 321B. The more detailed principles governing the grant and refusal ofpostponements have recently been summarized by the Constitutional Court in National Police Service Union and Others v Minister of Safety and Security and Others 2000 (4) SA 1110 (CC) at 1112C – F as follows:
‘The postponement of a matter set down for hearing on a particular date cannot be claimed as of right. An applicant for a postponement seeks an indulgence from the Court. Such postponement will not be granted unless this Court is satisfied that it is in the interests of justice to do so. In this respect the applicant must show that there is good cause for the postponement. In order to satisfy the Court that good cause does exist, it will be necessary to furnish a full and satisfactory explanation of the circumstances that give rise to the application. Whether a postponement will be granted is therefore in the discretion of the Court and cannot be secured by mere agreement between the parties. In exercising that discretion, this Court will take into account a number of factors, including (but not limited to): whether the application has been timeously made, whether the explanation given by the applicant for postponement is full and satisfactory, whether there is prejudice to any of the parties and whether the application is opposed.’”
That dictum makes a correct statement of the law of Swaziland on this matter.
 When the case was called on Tuesday 15th November 2011, Mr. Lukhele appeared for the Association and sought an adjournment for 1 week in order to bring himself up to speed. That application was vigorously opposed by Mr. Khumalo for the Government who complained that, for the second time, he had presented himself at the starting line only to discover that his opponent was not ready and prepared to go on. He asked the court to make an order in the respondent’s favour for the wasted costs which would be incurred by the two adjournments granted at the appellant’s behest. The court ruled that the question of costs be stood down until after the hearing of the appeal.
 The court considered the application carefully. It now appeared that the dust created by the lawyers’ boycott was beginning to settle. Counsel could best represent his client and assist the court only if he was fully prepared. It was in the public interest and in the interest of the parties concerned that the appeal should be determined upon the merits. Accordingly this court ordered that the matter be postponed to Wednesday the 23of November for hearing, and that the question of costs be stood over for consideration at a later stage.
 The appeal hearing was eventually completed on the 23 November 2011 when the matter of costs was again revisited. Mr. Lukhele for the Association gave the undertaking that if the Association prevailed, it would not seek costs for the 7th and 15th November: but that if the Government succeeded, it would be entitled to an order for the costs wasted on the two days when the hearing of the appeal was aborted at the instance of the Association.
 In the event the Government has succeeded and is entitled to costs on the ordinary scale including the costs wasted on the 7th and 15th November 2011. Now back to the appeal itself.
 There are four prongs to the appeal in this matter as set out in the Notice of Appeal. They are:
The learned court a quo erred in fact and in law in finding that the Respondent had properly filed a review instead of an appeal.
The Learned court a quo erred in fact and in law in finding that the Respondent had alleged and proved sufficient grounds of review entitling the court a quo to review and set aside the decision of the Industrial Court.
The Learned court a quo erred in law in finding that the Appellants ought to have been consulted, as opposed to the Respondent negotiating with them, on the four shift system.
The Learned court a quo erred in fact and in law in setting aside the decision of the Industrial Court of Swaziland.
 The judgment of M.C.B. Maphalala J is published online at the Swazilii Swazi Legal Information website, Case No. 4276/2010  SZHC 102 judgment date 7th April 2011. It is a comprehensive judgment which fully sets out and considers the relevant evidence, the applicable law, and the submissions of counsel so aptly and amply that it is unnecessary to reproduce much of what the judge has written except for those passages which are germane to the resolution of this appeal. The judge’s decision ended in a manner which commends itself to this court and which this court finds to be correct. Paragraphs [63 – 64] read:
“63. The Court concluded that the Respondents were not under any obligation to consult the Applicants before changing the work practice, the court considered the change to be a routine decision not requiring any consultation. The court was of the view that only significant changes give rise to consultation; and that it would not be in the interests of efficiency if management had to consult over routine decisions.
64. In the circumstances the decision of the Industrial Court of Swaziland in case No. 494/2010 and delivered on the 18thOctober 2010 is hereby set aside.
There is no order as to costs.”
 That decision was given after the hearing of the application brought by Notice of Motion in which the government sought urgent orders:
“2. Reviewing and setting aside the decision of the Industrial Court of Swaziland Case No. 494/2010 delivered on 18thOctober 2010.
3. Ordering that the decision of the Industrial Court be substituted by a decision dismissing the application brought by the First Respondent under case no: 494/2010; alternatively referring the matter back to the Industrial Court for it to be heard de novo.”
 By Notice of Motion in the Industrial Court of Swaziland – Case No. 494/2010 bearing the Registry 2010 stamp 04 October 2010 the Association sought an order in the following essential terms:
Staying and suspending the implementation of the new four shift system until such time as discussions with regard to the system are held between the Applicant and the Respondents and until the new four shift system is agreed between the Applicant and the Respondents.
That a rule nisi to operate with interim effect is to issue calling upon the Respondents to show cause on a date to be determined by this Honourable Court why an Order in terms:
that pending finalization of this application and/or determination of the matter by C.M.A.C. the Respondents be and are hereby interdicted and restrained from giving effect and implementing the new four shift work system;
that pending finalization of this application, the Respondents be interdicted and restrained from preventing the Applicant’s members from carrying out their functions following the old shift system.
Directing and ordering the Respondents to engage the Applicant and its members in discussions concerning all issues pertaining to the implementation of the new four shift work system. [Emphasis added]
It is to be noted that the Association was asking for Discussions, and not for Consultations or Negotiations.
 Founding, answering, replying and supplementary affidavits laden with numerous annexures were duly filed. The parties in that application were:
OF CIVIL SERVANTS (SNACS) (on behalf
of SWAZILAND NATIONAL FIRE AND
EMERGENCY EMPLOYEES) APPLICANT
THE SWAZILAND GOVERNMENT 1ST RESPONDENT
THE PRINCIPAL SECRETARY,
MINISTRY OF HOUSING AND
URBAN DEVELOPMENT 2NDRESPONDENT
THE PRINCIPAL SECRETARY,
MINISTRY OF PUBLIC SERVICE
AND INFORMATION 3RDRESPONDENT
 The underlying factors leading up to the instant appeal were framed by the appellant in its Heads of Argument in the following terms:
On the 18thOctober 2010 the Industrial Court (through Nkonyane J.) issued an Order under Industrial Court Case No. 499/2010.
The present Respondent (i.e. the Swaziland Government) was not satisfied with that judgment and orders made by the Industrial Court and it launched review proceedings of the decision of the Industrial Court before the High Court of Swaziland. i.e. the court a quo.
On the 7thApril 2011 the court a quo allowed the application for review and set aside the decision of the Industrial Court delivered on the 18thOctober 2010.
The present appeal is against the decision of the court a quo.
REVIEW v APPEAL
 Under this head, the Association was content to recite several areas of the Industrial Relations Act, 200 (as amended) without indicating how those provisions supported the grounds of appeal under the above heading. Having listed the following authorities:
Takhona Dlamini vs. President of the Industrial Court and Another(Court of Appeal Case No. 23/1997}; Tebbut J.A.
Councillor Mandla Dlamini and Another vs. Musa Nxumalo(Appeal Case No. 10/2002); Leon J.P.
Memory Matiwane vs. Central Bank of Swaziland(Appeal Court Case No. 110/1993); Browde J.A.
Counsel was content to submit:
“that the court a quo erred in finding that there ought to be consultation and not negotiation between the parties.”
 The Oxford Concise Dictionary Eleventh Edition (revised) 2008, hereinafter the Oxford Concise, defines the noun “discussion” as “the action or process of discussing - a debate about or detailed written treatment of a topic”. The verb “discuss” is defined thus: “talk about (something) so as to reach a decision – talk or write about (a topic), examining different issues or ideas.” Black’s Law Dictionary Eight Edition 2004, hereinafter Black’s, defines “discussion” as “the act of exchanging views on something; a debate.”
 The Oxford Concise defines “consultation” as the action or process of finally consulting or discussing – a meeting with an expert or professional in order to seek advice. The verb “consult” means “to seek information or advice from (some one especially an expert or professional)”. Black’s defines consultation as “the act of asking the advice or opinion of someone - a meeting in which parties consult or confer; the interactive methods by which states seek to prevent or resolve disputes.”
 The Oxford Concise defines the verb “negotiate” as “to try to reach an agreement or compromise by discussion with others – to obtain or bring about by negotiating. Black’s defines “negotiation” as “A consensual bargaining process in which the parties attempt to reach agreement on a disputed or potentially disputed matter. Negotiation usually involves complete autonomy for the parties involved, without the intervention of third parties.” Black’s defines ‘negotiations” as “Dealings conducted between two or more parties for the purpose of reaching an understanding.” Webster’s New Twentieth Century Dictionary defines negotiation as “conferring, discussing or bargaining to reach agreement.”
 What may be described as the classical characteristic of negotiation, was the element of bargaining and haggling between parties to reach agreement, with each party seeking to get the better of the deal or bargain to the disadvantage of the other party. Thus, one party sought to emerge as the winner while the other was left to lick his wounds as the loser. In many cases, a stand off resulted with neither party gaining the advantage. This meant that the underlying problem remained unresolved and continued to fester.
 It was against this background that Roger Fisher and William Ury, members of the Harvard Negotiation Project developed the method of “principled negotiations” where the parties seek to find an acceptable compromise by focusing upon common interests and options for mutual gain. By this process, the negotiators hope to expand the pie so that the resulting consensus would enure to the enhanced benefit or both parties. This is the very antithesis of consultation where one party merely seeks the benefit of another party’s views as an additional input to his own consideration of the several options which he could pursue in the search for a solution to the problem with which that party is grappling.
 The subjects for negotiation as listed in Article 7 of the Recognition Agreement between the parties dated 18th March 1992 are:
“SUBJECTS FOR NEGOTIATIONS
It is agreed that the subjects for negotiation between the Employer and the Association are as follows:-
Principles of Engagement, Dismissal and Termination of Service, including Redundancy, Probation, Transfer, Promotion and Housing.
Leave and Leave pay including Public Holidays and Maternity Leave;
Hours of work;
Sick Leave and sick pay;
Rates of Pay – normal and overtime hours – and Allowances;
Uniforms and Protective clothing;
Sickness benefits/Medical Schemes;
Any other matters affecting conditions of service as may from time to time be agreed to by both parties.
 Counsel for the appellant stressed in argument that items c), e), and k) involved questions upon which the employer was under an obligation to negotiate with the union. In Article 3.1 however:
“The employer reserves to itself the sole right to conduct its business and manage its operations.”
This right has sometimes been described as the exercise of the managerial prerogative. This topic was succinctly described at paragraph  of the judgment of the court a quo which reads:
“Issues falling within Managerial prerogative include plans to restructure the workplace, the introduction of new technology and work methods, changes in the organization of work, partial or total plant closures, merges and transfers of ownership, product development plans and export promotion. The common law requires of the employer to consult the Employees’ Representatives the purpose of which is to provide them with the opportunity to be informed about, and possibly make suggestions and representations. The learned author John Grogan (supra) at page 296 continues and states the following:
“Consultation is to be distinguished both from joint decision-making and collective bargaining. It requires the employer to do no more than notify the forum of any proposal, and in good faith to consider any suggestions it may make. The obligation to consult arises only when the employer makes a proposal to change an existing policy; the workplace forum cannot itself initiate the process. Furthermore, the change proposed must obviously be significant if it is to give rise to an obligation to consult. It would clearly not be in the interests of efficiency if management had to consult extensively over routine decisions.”
In the cases of Morester Bande (PTY) Ltd v National Union of Metal Workers of South Africa & Others (1990) 11 ILJ 687 (LAC) at 688-0 as well as in the case of Transport General Workers Union v City Council of Durban (1991) 12 ILJ 156 (IC) at 159 C it was held that decisions taken by a company aimed at cutting losses or improving profits relate to Managerial Prerogative; and, that the employer has a right to implement its decision unilaterally after the process of consultation has been exhausted.
THE SHIFT SYSTEMS
[31 The emergence of modern shift systems arose out of the struggle going back to feudal times, through the industrial revolution, to the modern exploitation of industrial and agricultural workers. Gradually, over the years, the number of hours in a working week were reduced to forty and below, in many parts of the world. The number of hours per working week under consideration in this case, reflects a measure of progress in the continuing journey of working people along the path towards improving conditions of work.
 The internal evidence in the Recognition Agreement is that both parties accept that there are normal hours of work or “normal working time” which attract basic rates of pay, and overtime hours of work which attract premium rates of pay. As M.C.B. Maphalala J correctly found at paragraph  of his judgment:
“Working Hours refers to the normal hours of work agreed between the employer and the employee. According to John Grogan, Workplace Law, seventh edition, Juta & Co. Ltd, 2003 Publication at page 63, the learned author states the following:
“The Common Law leaves the parties free to regulate working hours. If their agreement makes no provision for maximum hours of work, the time during which the employee is obliged to render service is regulated by practice and custom.”
The judge a quo is equally correct when he held at paragraphs 40.5 and 40.6 of his judgment that:
“40.5 It is apparent from the pleadings that in terms of the four shift system, employees are expected to work the normal eight hours a day. What the new system does is to remove working overtime; it is against this background that Article 7 of the Recognition Agreement does not come into play because the normal working hours are not affected.
According to the Terms of Reference of the Arbitrator, the normal working week is forty eight hours over six days; this clearly means that the normal working hours per day is eight hours. Furthermore, the Award does not give the workers the right to work overtime, and they cannot demand to work overtime.”
 I am in complete agreement with the analysis of the four shift system which appears in paragraph [41 – 43] of the judgment under appeal. That analysis reads:
“[41 The four shift system does not deal or relate to the normal rate of pay of Members of the First Respondent; the wages of the workers are not affected by the new shift system. Furthermore, the rate of pay of overtime remains unchanged; it is still regulated in terms of the 2004 Award by the arbitrator. Furthermore, the terms and conditions of employment of the employees are not affected by the new four shift system; their normal hours of work as well as their wages remain unchanged.
 The introduction of the four shift system is a work practice that falls within Managerial Prerogative; and, the First Respondent has conceded to this fact at paragraph 9 of its Supplementary Affidavit and Replying Affidavit where they stated:
“9.1 Whilst accepting that the issue of the shift System might fall within managerial prerogative, any changes thereto and that affect our members that does not exonerate of the Respondent of the duty to consult us.”
 The Applicants as the employer have the prerogative to formulate policy position, improvement of efficiency and increased productivity as well as the reduction of operational costs. Such issues are not subject to the Arbitrator’s Award or the Recognition Agreement. The applicants as employer is not expected to negotiate with the First Respondent on issues relating to Managerial Prerogative.”
 In the light of the foregoing, it is ordered that:
The appeal be and is hereby dismissed with costs to the respondent including wasted costs for the 7thand 15thNovember 2011.
JUSTICE OF APPEAL
DR. S. TWUM
JUSTICE OF APPEAL
Delivered this the day of November 2011.