IN THE SUPREME COURT OF SWAZILAND
Case No. 47/2011
In the matter between:
DOCTOR LUKHELE APPELLANT
SWAZILANDWATER & AGRICULTURAL
DEVELOPMENT ENTERPRISE LTD RESPONDENT
Neutral citation: Doctor Lukhele and Swaziland Water & Agricultural Development Enterprise Ltd  SZSC 24 (31 May 2012)
Coram: A.M. EBRAHIM JA, S.A. MOORE J.A., DR. S. TWUM J.A.
Heard: 21ST MAY 2012
Delivered: 31 MAY 2012
Summary: Employer and employee - Three year contract - Whether employee entitled to renewal - Whether Contract tacitly renewed - Whether section 19 (5) of the Industrial Relations Act applicable - Whether High Court had jurisdiction as against the Industrial Court of Appeal - Minister’s powers of dismissal under section 8 of the Public Enterprises (Control and Monitoring) Act permissive only - Appeal against judgment of the High Court dismissed with costs.
 This appeal has been brought by Doctor Lukhele, hereinafter referred to as the employee, against the Swaziland Water & Agricultural Development Enterprise Ltd hereinafter the employer. The grounds of appeal are that:
The Court erred in law and fact by holding that the Industrial Court had made a finding that the appellant’s contract was tacitly renewed. The Industrial Court had not yet determined the matter on the merits.
The Court erred by finding that section 19 (5) of the Industrial Relations Act was applicable.
The Court a quo erred in holding that it has jurisdiction over the matter as opposed to the Industrial Court of Appeal.
The learned judge erred in law by ordering that the Appellant pays the costs of the Application on a scale between attorney and own client.
 Counsel for the employer has confessed his inability to support the trial judge’s order that the employee pay the costs of the application at Attorney and client scale. He now claims only an order for costs, including the certified costs of Senior Counsel on the ordinary scale. The employer’s sensible concession means that the surviving three grounds of appeal can be condensed under the following heads:
The Industrial Court not determining the matter on the merits.
The applicability of section 19 (5) of the Industrial Relations Act.
The assumption of jurisdiction by the court a quo.
 The controversy arose out of a contract of employment between the employer and the employee dated 23rd May 2007. That contract was to run for a period of three years commencing on 1st October 2006 and ending on 30th September 2009. The all important clause of the Employment Agreement, as the contract is titled, deals with the keenly contested matter of DURATION OF EMPLOYMENT. The terms which are of critical importance to the instant appeal are:
2.1.3 “The Employee will notify the Board in writing of his intention to renew the contract at least four (4) months prior to the end of the contract period.
If the Board, having received formal notification from the Employee, as in Clause 2.1.3. above, has not given the Employee notice for non renewal of the agreement by 15 July 2009, the agreement shall be deemed to have been tacitly renewed.”
It is upon clause 2.1.4 that the employee has grounded his claim that his contract of employment had been tacitly renewed. But more on this later.
 On the 8th May 2009 - Well before the four month deadline - the employee wrote to the Board of the employer indicating his “intention to renew the contract as per clauses 2.1.3.” By letter dated 12 June 2009 Mr. W. P. Bennett, the then chairman of the Board conveyed to the employee the employer’s decision not to renew the employee’s contract when it expired by effluxion of time on the 30th September 2009.
 The employee has challenged the authenticity and the legal efficacy of Mr. Bennett’s letter contending that, since it was not written on the employer’s letterhead, but rather on Mr. Bennett’s personal stationery, it could and did not effectively communicate a decision of the employer not to renew his contract under the terms of clause 2.1.4. It did not effect “notice for non-renewal of the agreement” as required by that sub-clause. He also charged that Mr. Bennett’s letter was of no binding effect because the decision of the Board, even assuming that the Board did take a decision not to renew his contract, had not been approved by the Minister of Agriculture as required by section 8 of the Public Enterprise (control and monitoring) Act 8 of 1989, the Public Enterprise Act.
 The relevant segments of section 8 of the Public Enterprise Act provide that:
“(1) … shall nominate the Chief Executive Officer who shall be appointed, on or who may be dismissed, by the Minister responsible acting in consultation with the standing committee.
(2) … shall be appointed, and maybe dismissed, by the governing body in consultation with the Minister responsible, the Public Enterprises Unit and the Standing Committee.”
 Subsection (1) is applicable to the case before us. But subsection (2) affords an insight into the thinking of the draftsman of the statute. The use of the words shall and may in their strategic locations is not merely casual. Their use clearly indicates that the Minister’s power of appointment are imperative but that his powers of dismissal are permissive only. Counsel for the employer submitted that the Minister was not required, in terms of the contract of employment, or the Public Enterprise Act “to approve the Board’s decision not to renew the appellant’s appointment.” I agree.
 It is common cause that the employee wrote several letters to various parties with the objective of securing renewal of a three year contract, and that he never did secure a new three year contract. Hence his resort to legal action. However, he was offered, and did accept and perform, a number of what I would call short terms contracts to distinguish them from the longer three year term. These were:
15.1 On 27 October 2009 for 3 months from 1 October to 31
On 7 January 2010 from 1 January to 31 March 2010.
On 16 July 2010 for a period of one year from 1 May to
30 April 2011.
 A letter written by the Chairman of the Board to The employee dated 8th December 2010 captioned “Re: Contract of Employment” is of some importance. It refers to:
Various meetings on the captioned subject.
Several items of correspondence exchanged between the parties.
The board’s consideration of the many oral and written representations made by the employee to the employer.
The Board’s decision, subject to the approval of the Honourable Minister of Agriculture, not to renew the contract under which the employee was currently serving, beyond the date of its termination on the 30th April 2011.
The Board’s decision to advertise the position of Chief Executive Officer with immediate effect.
The Board’s invitation to the employee to submit a letter of application which would be considered together with other applications received in response to the advertisement.
The employer thanking the employee for his valued contribution to the organization.
 The employee’s response was swift. On the 12th December 2010 he wrote to the chairman of the Board and, for the first time, contended that “the contract signed between myself and the Board on 23 May 2007 was tacitly renewed on the 16th July 2009, and pursuant thereto, “my contract of employment with SWADE is expected to run until 30th September 2012.” For good measure, he added that “it may be prudent to invoke the provisions of Clause 17.”
 Clause 17 of the Employment Agreement is captioned CONCILIATION/ARBITRATION. I digress here to express the view that clauses such as clause 17 are not included in modern employment contracts for purely cosmetic purposes. They are inserted so that the parties may avail themselves of the expressed alternative dispute mechanisms - some contracts also include mediation - which experience has shown are capable of enabling employers and employees to resolve their differences much more quickly and inexpensively than the protracted and costly legislation which began in June 2009 and is now engaging the attention of a third court.
 The full text of clause 17 reads:
17.1 Should any disagreement, dispute or difference arise between the parties to this agreement as to the construction of the agreement or rights or obligations of either party hereunder or any matter arising out of or concerning the same or the Employee’s employment hereunder, any such dispute or matter in difference may at the first instance be referred to conciliation as follows:
Should the parties be unable to agree in writing within (14) days of the date on which the dispute arose upon the use of conciliation as a means of settling the dispute or upon the person to be appointed by them as a conciliator the dispute shall be resolved by submission thereof to arbitration;
Should both parties agree upon conciliation, such dispute shall be referred within a further period of (14) days for opinion of a Conciliator mutually selected by the parties. The parties shall not be entitled to be represented at such conciliation by a practicing attorney or an advocate.
17.1.3 The parties shall within (14) days of the appointment of the Conciliator or such period as the Conciliator considers reasonable submit written representations to him or her. Thereafter the Conciliator shall give his/her opinion in writing on the matter and furnish the Employer and the Employee each with a copy thereof, provided that the Conciliator may, in his/her discretion, convene a hearing of the parties and their witnesses, or may hold discussions with either or both parties, before giving his/her opinion, with the objective of reconciling the opposing views or stances of the parties.
In giving this opinion in writing the Conciliator shall be deemed to be acting as an expert and not as arbitrator.
The cost of the conciliation and the appointment thereof shall be determined by the Conciliator.
17.2 Unless either party disputes the opinion of the Conciliator in writing to the other party within fourteen (14) days of the furnishing to them by the conciliator of his/her opinion, in which event the dispute shall be resolved by the submission thereof to arbitration, the opinion shall be deemed to have been accepted by the parties as binding.
Where the dispute is submitted to arbitration, the arbitration shall be held in terms of the Arbitration Act of 1904 and shall be conducted in accordance with the Rules for the Conduct of Arbitration and Conciliation (CMAC) or any other rules for the conduct of arbitrations as shall be agreed by the parties, and the arbitration shall be heard by a sole Arbitrator unless otherwise agreed by the parties.
17.3 The Arbitrator shall be a person nominated and selected by agreement between the parties. Should no agreement be reached as to the person to act as Arbitrator within (10) days or should the person so selected be unwilling or unable to act, then the arbitrator shall be chosen by the Chairman of CMAC from four names, each party nominating two, at the written request of either party within 7 days of receipt of notice advising the names of the nominees. Failing all the above, the Chairman of CMAC shall appoint the Arbitrator.
17.4 In the arbitration the rights of the parties shall not be prejudiced in any manner whatsoever by anything said or done at the conciliation or by the opinion of the Conciliator.
17.5 The Arbitrator shall have power to open up, review and revise any opinion, decision, requisition or notice relating to all matters in dispute submitted to him and to determine all such matters in the same manner as if no such opinion, decision, requisition or notice had been issued.
17.6 Reference to either conciliation or to arbitration shall not relieve either party from any liability or the due and timeous performance of his obligations in terms of this agreement.
17.7 Nothing contained herein shall deprive the Employee of the right to institute immediate court proceedings in respect of failure by the Employer to pay any contractual sums due or to refund any amount or funds retained for whatever reason on its due date for refund.
17.8 The validity of Clause 17 shall not be affected by the cancellation of or the validity of the agreement as a whole.
 Counsel for the employee, at paragraph 18 of his heads of argument, reproduced the text of clause 17.1 only. He has thus, either wittingly or unwittingly, failed to draw this Court’s attention to the remainder of clause 17 and more particularly to those portions which have been emphasized in bold print.
 As has been pointed out in paragraph  above, alternative dispute resolution clauses such as clause 17 are specifically designed to save time and money. The references to time accordingly, lie at the very core of clause 17 and similar stipulations. It is for this reason that counsel for the employer was undoubtedly correct when he set out the employer’s case on this aspect of the matter at paragraph  of the respondent’s heads of argument in these terms:
“22 When announcing the new Board, the Minister indicated that the appellant would be given a twelve month contract, and that at the end of that contract, the position would be advertised. The appellant was present at this announcement. He did not object to it nor did he protest.
23 In December 2010, when the Board indicated its intention to commence a recruitment exercise for a new chief executive officer, the appellant raised a dispute contending that his contract of employment had been tacitly renewed for a three year period more than a year earlier, that is in September 2009.”
 Counsel for the employee submitted with much vigour that:
A section of an act of parliament was an entity unto itself.
It remained separate and apart from other sections: particularly those contained in another Act.
It remained hermetically sealed and could not influence, or be influenced by, a section of another act of parliament.
 Counsel was unable to produce any authority for this novel proposition. He undertook to provide this Court with relevant authorities after the end of the hearing.
 Black’s Law Dictionary Eighth Edition defines the verb dismiss as to release or discharge (a person) from employment. A dismissal is defined as a release or discharge from employment. A dismissal for cause is a dismissal of a contract employee for a reason that the law or public policy has recognized as sufficient to warrant the employee’s removal. A dismission is an act of dismissing; a removal, especially from an office or position for example the dismission of an employee. The word dismissed is not defined in the Public Enterprise (Control and Monitoring) Act. Counsel for the employee was unable to ascribe any technical meaning for that word which must accordingly bear its ordinary English meaning in the context of section 8 of the Act.
 The Public Enterprise (Control and Monitoring) Act, 1989 date of commencement 3rd August 1989 is entitled “an Act to provide for the control and monitoring of Public Enterprises and partly owned Public Enterprises.” The Employment Act No. A.51 1980 date of commencement 1st January 1981 is entitled “an Act to consolidate the Law in relation to employment and to introduce new provisions designed to improve the status of employees in Swaziland.” That title is suggestive of the Act’s width in scope; and would tend to indicate that its provisions ought to be read broadly and inclusively rather than narrowly and restrictively.
 Conflicting submissions have been advanced by counsel for the parties concerning the meaning and effect of section 35 (1) of the Act. Section 35 falls within PART V - TERMINATION OF CONTRACTS OF EMPLOYMENT. It comes under the heading: Employees services not to be unlawfully terminated. Section 35 (1) lists four categories of employees to whom the “section shall not apply.” It begins in terse but imperative terms. “This section shall not apply to”. There can be no equivocation, unclearness, or uncertainty about the plain and obvious meaning of six simple ordinary and unambiguous English words. The patent import of sub-section (1) of section 35 of the Employment Act is that sub-section 35 (1) (d) shall not apply to:
“An employee engaged for a fixed term and whose term of engagement has expired.”
 The ingenious but wholly unappealing argument of counsel for the employee concerning the definition of words in statutes and the application of the Latin expression “in pari materia, do not support his contention that section 35 (1) of the Employment Act does not apply to section 8 of the Public Enterprises (Control Monitoring) Act.
 The first of the employee’s grounds of appeal which raised the above issue was comprehensively addressed in paragraph  of counsel for the employer’s heads of arguments which reads as follows:
“5 First: the High Court was correct in concluding that the appellant’s contract of employment was not tacitly renewed. This is because:
5.1 The appellant received proper notice from the respondent’s Board of Directors, issued on 12 June 2009 notifying him that his contract of employment would not be renewed when it expired in September 2009.
5.2 Upon receipt of this notice, the appellant exercised his right of appeal and noted an appeal to the Minister of Agriculture. The appeal sought to challenge the Board’s decision not to renew the contract of employment.
The Minister acted on the appeal. He set about investigating the allegations made by the appellant, and he appointed a Commission of Enquiry to investigate the respondent’s operations. This culminated in the Minister sanctioning steps to place the appellant on a series of short term contracts.
5.4 The letter written by the Board’s chairman communicating the non-renewal of the contract of employment was a valid and official letter, written in the usual form of correspondence exchanged between the parties, and was relied upon by the appellant as a basis for his appeal. There is no ground to challenge the authenticity or validity of this letter, being a communication from the chairman of the Board and on its behalf.
5.5 The Board’s notice constituted a valid notice of non-renewal as contemplated in clause 2.1.4 of the appellant’s contract of employment.
5.6 The Minister was not required, in terms of the contract of employment, or the Public Enterprises (Control and Monitoring) Act 8 of 1989 (“the Public Enterprises Act”), to approve the Board’s decision not to renew the appellant’s appointment. But in any event, the Minister by his conduct endorsed the Board’s decision not to renew for three years. The Minister approved only the short-term renewals which were granted to the appellant.”
 The above submissions were in response to the employee’s argument that:
‘33 The Industrial Court found that there were at least five factors which lent “support” to the appellant’s argument that the contract had been tacitly renewed:
33.1 The appellant continued to report for work after 30 September 2009 (i.e. the date on which the contract was meant to terminate unless extended) without demur from the respondent.
33.2 The respondent’s letter confirming that the appellant’s contract was extended was only written on 27 October 2009 and made the reemployment effective from 1 October 2009, indicating an acknowledgment by the respondent that the appellant’s employment was considered to be continuous.
33.3 The reemployment was on the same terms and conditions as the written agreement, indicating that the rights contained in clause 17 had been preserved.
33.4 There were certain “end of contract benefits” which would have become due had the contract terminated on 30 September 2009. The fact that these were not paid to the appellant was indicative of an intention to continue with the contract.
33.5 The respondent and the Minister unilaterally decided to extend the appellant’s contract for varying periods. It could therefore not be contended that the appellant’s failure to object to these unilateral extensions constituted a waiver.’
 Needless to say, in the context of this case, the submissions of counsel for the employer clearly and logically prevail over those of counsel for the employer.
FINDINGS OF THE INDUSTRIAL COURT
 Counsel for the employer submitted that the Industrial Court had committed a number of reviewable errors in granting interdicts in favour of the employee. These were:
Holding that the employee had established a prima facie case to have the dispute referred to reconciliation/arbitration.
It had applied an incorrect test in making the above determination.
Finding that the employee’s contract had been tacidly renewed.
Finding that urgency had been established.
Holding that the employer was not entitled to terminate the contract of employment.
This Court is in respectful agreement with the Court a quo whose decision in effect upholds the soundness of the above submissions.
 The employer’s submissions under this head were:
“7 Third: the High Court, in the exercise of its review powers, was entitled to consider the dispute in its entirety and make a determination of the issues placed before it. It is submitted with respect that the High Court was correct in finding that the Industrial Court had made prima facie findings on the tacit renewal of the employment contract and that on review it was entitled to enquire into that issue.
8 Fourth: the High Court correctly held that it had the power and jurisdiction to review interlocutory decisions of the Industrial Court in terms of Section 19 (5) of the Industrial Relations Act.
9 Fifth: the High Court correctly found that there were reviewable irregularities and that grounds of review at common law had been established, including a failure by the Industrial Court to apply its mind to the relevant issues and considerations in accordance with the Industrial Relations Act and the principles of natural justice. The High Court was entitled, in reviewing the decision of the Industrial Court, to identify as reviewable irregularities errors of law and decisions arrived at arbitrarily or misconception of powers and discretions.
10 Sixth: the High Court was justified in finding that the Industrial Court’s conclusion that the appellant’s contract of employment had been tacitly renewed were manifestly wrong and unsustainable in the light of the evidence and that on that basis the grant of interim relief was irregular and reviewable.”
This Court finds that the above submissions are clearly correct and accordingly upholds them.
THE INDUSTRIAL RELATIONS ACT
 The employee charged that the court a quo erred by finding that section 19 (5) of the Industrial Relations Act was applicable. That subsection reads as follows:
“A decision or order of the [Industrial] Court or arbitrator shall, at the request of any interested party, be subject to review by the High Court on grounds permissible at common law.”
 The classic exposition on the law of review in Swaziland is to be found in the case of Takhona Dlamini v President of the Industrial Court and Another case No. 23/1997.
The opening sentences of Tebbutt J.A. expressed the pith of the matter before the Appeal Court for Swaziland with his accustomed clarity where he wrote at page 1:
“The issue in this appeal is whether a decision of the Industrial Court that it would not hear an application which an employee sought to bring before it because the matter was “not properly before it” should be taken on appeal to the Industrial Appeal Court by the aggrieved employee or brought by the latter on review to the Swaziland High Court.”
 Takhona Dlamini’s case was also one of employer and employee. The employee was handed a letter of dismissal from her employment. She complained that her dismissal was invalid, wrongful and unfair. At page 7 Tebbutt J.A. described the route by which the matter reached this Court’s predecessor and highlighted some of the important landmarks along the way:
‘The matter came before Dunn J who did not consider whether the Industrial Court’s decision was correct or not but held that any attack on that decision should not have been brought by way of review to the High Court but should have been taken on appeal to the Industrial Court of Appeal. The relevant portion of his judgment reads as follows:
“The point in this application is that the Industrial Court considered the jurisdiction conferred upon it by section 5 together with the mandatory procedures to be followed under Part VIII of the Act and held, as a matter of law, that it had no jurisdiction. The applicant is not seeking to rely on any irregularity or impropriety in the process and procedures followed by the Court in deciding the point (in limine). The cases relied upon by the applicant dealt with the question of the proper exercise of a discretion conferred by statute. The applicant’s remedy is one by way of appeal to the Industrial Court of Appeal established by section 11 of the Act.”
He accordingly dismissed the application with costs.
It is against the decision of Dunn J that Appellant now comes on appeal to this Court.
The sole issue which this Court must decide is what the current forum is in which a party aggrieved by a decision in the circumstances such as the present must seek to have that decision corrected. In other words, is it a matter for review by the High Court or for appeal to the Industrial Court of Appeal? This Court is not called upon to decide if the Industrial Court’s ruling was right or wrong as neither of the tribunals mentioned has as yet adjudicated upon that matter and accordingly there is no decision or judgment from either of them in respect of which an appeal would lie to this Court.’
 At page 314 Tebbutt J.A. cited section 11 (2) of the Industrial Relations Act No. 1 of 1996 which provided that:
“A decision or order of the Court shall, at the request of any interested party, be subject to review by the High Court on grounds permissible at common law.”
It is to be noted that the above wording is industrial to that of section 19 (5) of the Industrial Relations Act No. 1 of 2000 save for the addition of the words “or arbitrator” in the later statute.
 What follows thereafter is of critical importance to the outcome of the instant appeal. It is this:
“It is quite clear from the aforegoing that the Legislature was conscious of the differences between an appeal and a review and although it created an Industrial Court of Appeal it confined its jurisdiction to hear appeals from the Industrial Court to questions of law only and specifically retained by section 11 (5) the jurisdiction of the High Court to review decisions of the Industrial Court on common law grounds. Those grounds embrace inter alia the fact that the decision in question was arrived at arbitrarily or capriciously or mala fide, or as a result of unwarranted adherence to a fixed principle, or in order to further an ulterior or improper purpose, or that the Court misconceived its function or took into account irrelevant considerations or ignored relevant ones, or that the decision was so grossly unreasonable as to warrant the inference that the Court had failed to apply its mind to the matter. (See Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd & Another 1988 (3) SA 132 (AD) at 152 A - E). Those grounds are, however not exhaustive. It may also be that an error of law may give rise to a good ground for review (see Hera and Another v Booysen and Another 1992 (4) SA 69 (AD) at 84 B).”
 Having made reference to Local Road Transportation Board and Another v Durban City Council and Another 1965 (1) SA 556 (A)); Goldfields Investment Ltd and Another v City Council of Johannesburg and Another 1938 TPD 551, and Theron en Ander v Ring Van Wellington Van die NG Sendingkerk in Suid Afrika Andere 1976 (2) SA 1 (AD), Tebbutt J.A. reproduced what he described as the crystallization of the present-day position in regard to common-law review which Corbett J.A. had made Hira and Another v Booysen and Another which I will not copy here as it can be sourced in the judgment itself.
 Dealing specifically with the appeal before him, Tebbutt J.A. concluded his analysis of the complex law involved and its application to circumstances of that case at page 323 of that judgment which reads:
“In casu by wrongly deciding (as it must at this stage be assumed) that de jure, because of the nature of the Labour Commissioner’s certificate the Appellant’s application was not properly brought before it, the Industrial Court never applied its mind to the issue before it. That was accordingly an irregularity justiciable on review.
It follows that although the learned judge a quo was alert to the fact that a matter of law was involved, he erred in not finding that an error of law by the Industrial Court in the circumstances in question was an irregularity justiciable on review by the High Court and not a matter for appeal to the Industrial Court of Appeal. The appeal from the High Court’s finding must therefore succeed and the matter must be referred back to it for review.”
M.C.B Maphalala J, using Takhona Dlamini’s case as his compass, steered a true course through the principles governing the power of the High Court in review proceedings. Having correctly applied these principles to the facts and circumstances of the instant case, the conclusion reached by him cannot be faulted. The appeal must accordingly be dismissed.
It is the order of this court that the appeal be and is hereby dismissed with costs, including the certified costs of senior counsel.
JUSTICE OF APPEAL
JUSTICE OF APPEAL
DR. S. TWUM
JUSTICE OF APPEAL
For the Appellant : G.I. Hully
For the Respondent : P.M. Kennedy