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Published online by Cambridge University Press: 28 July 2009
When the Industrial Relations Act was enacted in Swaziland in 1980 its express object was to provide for the collective negotiation of terms and conditions of employment and for the establishment of an Industrial Court for the settlement of disputes arising out of employment. In turn, the avowed purpose for the establishment of the Industrial Court as the nerve centre and most important institution established by the legislative scheme was, and still is, “for the furtherance, securing and maintenance of good industrial relations and employment conditions in Swaziland”. As in the case of other industrial courts and labour adjudicatory institutions with special and limited jurisdiction elsewhere, issues surrounding the jurisdiction of the Industrial Court of Swaziland have given rise to a measure of controversy.
1 Act No. 4 of 1980.
2 See the short title to the Act. This Act swept away the half-hearted arrangements and laissezfaire approach embedded in the colonial Industrial Conciliation and Settlement Act, 1963, for the conciliation and settlement of labour disputes in Swaziland. There seems no record that the tribunal of enquiry and arbitration system introduced by the 1963 Act was ever used.
3 S. 4, Industrial Relations Act No. 1, 1996, which reproduces s. 4 of the now repealed Industrial Relations Act, 1980.
4 The establishment, powers, composition, appointment and jurisdiction of Industrial Courts and tribunals (by whatever name), have been subjects of constitutional challenges in some Commonwealth countries. See e.g. Australia, Waterfront Workers Federation of Australia v. Jll Alexander Ltd (1918) 25 CLR 434;Google ScholarCanada, Toronto Corporation v. York Corporation [1938] AC 415;Google ScholarSri Lanka, United Engineering Workers Union v. Devanayagan [1967] 2 All ER 367.Google Scholar
5 Although the Act was enacted in 1980, it did not come into operation until 1982 and the Industrial Court became functional as from July 1983 when its first President, Justice Hassanali, assumed office. See Department of Labour Annual Report 1996 at 45.
6 The status of the Industrial Court and similar such tribunals has been another source of controversy. Whereas Hull, C.J., conceded the Industrial Court of Swaziland “the status of a court of law” (see Standard Chartered Bank Swaziland Ltd v. President of the Industrial Court & Israel Mahlalela, Civ. Case No. 528/93), the South African Industrial Court created by the 1979 amendment to the Labour Relations Act. 1956, was denied the status of a court of law Amalgamated Clothing & Textile Workers Union of SA v. Veldspun (Pty) Ltd 1994 (1) SA 162 (A) at 173EGoogle Scholar; PPWAWU v. Pienaar NO & Ors 1993 (4) SA 621 (A) at 634A–B;Google ScholarSA Technical Officials Association v. President of the Industrial Court & Ors 1985 (1) SA 597 at 6211.Google ScholarContra, the status of the new Labour Court established by the South African LRA 1995 which enjoys the status of the High Court with powers inherent in such a court (s. 151(1)). It is the Labour Court that has review powers over the proceedings and awards of the Commission for Conciliation & Arbitration in accordance with the grounds laid down in s. 145.
7 SMAWU v Swaziland Bottling Co. (Pty) Ltd, Ind. Ct. Review No. 1/88. Fortunately, those doubts as to the status of the nominated members which inhered in the language of that same section 4 as were highlighted by Dunn, A.C.J., in David Scholes & HVL Asbestos Mines (Swd) Ltd v. President of the Industrial Court, Civ. Case No. 1413/95 have specifically been addressed by s. 4(3), (4) and (5) of the Industrial Relations Act, 1996.Google Scholar
8 S. 5(2), 1980 Act. s. 5(6) of the 1996 Act would have removed the ambiguity in the former subsection while by virtue of s. 4(3), that court is now validly constituted to decide anything when it comprises the President or the Judge presiding and two nominated members.
9 See for example Ubombo Ranches Ltd v. Pan Attendants, Civ. App. 6/90; Adelaide Mabuza v. Barclays Bank of Swaziland Ltd, Case No. 107/89.
10 This was the most vulnerable aspect of the court's adjudication. Betraying that endemic hostility characteristic of the common law courts, the High Court of Swaziland held in Ubombo Ranches Ltd v. President of the Industrial Court & Anor. (1982–86) SLR 264 that the provisions of section 13(1) of the 1980 Act did not empower the court to award the remedy of reinstatement to an unfairly dismissed employee in the absence in the legislation of clear and unambiguous words to that effect since no court of law or equity could order specific performance of a contract of employment. Consequently, any relief which was tantamount to reinstatement or consequential upon it was equally denied the logic being that if a court cannot make an order of reinstatement, it can also not make an order that will depend on that which it could not make—Swaziland Fruit Canners (Pty) Ltd t/a Swazican v. Leonard Themba Dlamini, Case No. 610/89; Royal Swazi National Airways v. Lynett Dlamini & Ors., Cases Nos. 201, 202 and 213 of 1990.
11 S. 13(1) 1980 Act; s. 15(1), 1996 Act.
12 In Ubombo Ranches, above, Will, C.J., (at 268–269) observed that these words are indeed very wide but that they must be limited to mean “an order granting such remedy as it may deem fit, subject to the condition that the order is one permissible in terms of the law” and that to grant the order of reinstatement of a dismissed servant was not permissible according to the common law of Swaziland.Google Scholar
13 See Swaziland Fruit Canners (Pty) Ltd v. Phillip Vilakati & Anor., Ind. Ct. App. No. 2/87 and the other cases discussed, below.
14 Part VII, 1980 Act; Part VIII, 1996 Act.
15 See Okpaluba, C., The Evolution of Labour Relations Legislation in Trinidad & Tobago, 1980, 88;Google ScholarOkpaluba, C., “Compulsory Labour Adjudication in Trinidad & Tobago: The Jurisprudence of the Industrial Court” (Unpublished PhD thesis, University of the West Indies, 1978) 174.Google Scholar
16 Compliance with the requirements of the dispute procedure has been held to be “peremptory” in Sihlongonyane v. Buildmore (Pty) Ltd, Case No. 34/85, per Hassanali, P., and must be “strictly observed” in Swaziland Fruit Canners (Pty) Ltd v. Phillip Vilakati, Ind. Ct. App. No. 2/87, per Hannah, C.J.
17 See Piet Bhembe v. Swaziland Dairy Board, Case No. 71/91. Contra, Numsa Khumalo v. SIDC Ltd, Case No. 88/89.
18 Such issues handled by the current Act include: the clarification of the status of nominated members in section 4; the strengthening of “remedial powers” of the court to include the remedies of reinstatement and re-engagement under section 15(2)(a)(b) & (3); and the special award of compensation in the event that the employer for “good cause” is unable to comply with the court's order to reinstate or re-engage the unfairly dismissed employee in section 15(5). The latter amendment was to take care of the situation encountered in Swaziland Railways v. Aaron Mandla Kunene, Civ. App. 12/92, where it was held that the Industrial Court lacked the jurisdiction to award special compensation to an unfairly dismissed employee in lieu of the employer's failure to comply with the court's order of reinstatement.
19 See Donald Mills-Odoi v. Elmond Computer Systems (Pty) Ltd, Civ. Case No. 441/87; Swaziland Development & Savings Bank Ltd v. SUFIAW, Civ. Case No. 1172/90.
20 Sapire, A.C.J., was right when, commenting on this section in Sibongile Nxumalo v. Attorney-General & Z Ors., Civ. Case No. 1872/96, he observed that the intention of the legislature “is obscured by fractured language and lack of clarity in thought and expression”.
21 Black's Law Dictionary (6th ed.), 1537.
22 See for example s. 96(1), Constitution of the Republic of Botswana 1966; s. 236(1) Constitution of the Federal Republic of Nigeria 1979. The term “unlimited” is missing from article 80(2) of the Constitution of the Republic of Namibia which vests “original jurisdiction” in the High Court of that country. Similarly, s. 169 of the Constitution of the Republic of South Africa Act No. 108 of 1996 does not stipulate for “unlimited” jurisdiction of the High Courts of South Africa.
23 See s. 104, Constitution of Swaziland, 1968.
24 Cf. the situation under the old South African system whereby the Industrial Court exercising its jurisdiction under the labour relations legislation shared concurrent jurisdiction with the Supreme Court in labour matters. See the illuminating article by Zondo, , “Forum-shopping: The Industrial Court versus the Supreme Court” (1987) 8 ILJ 571.Google Scholar
25 See in the Mills-Odoi case cited in note 1, and discussed below.
26 See case cited in note 20, and discussed below.
27 Civ. App. Nos. 25, 28, 29 and 30 of 1996 (hereinafter the Teachers' case).
28 Chapters 1 4 of my forthcoming book, The Concept of Jurisdiction in Nigerian Law, deal with the problem of definition of jurisdiction and its implications.
29 Per Diplock, L.J., in Anisminic Ltd v. Foreign Compensation Committee [1967] 3 WLR 382 at 394.Google Scholar
30 Halsbury's Laws of England, vol. 10 (4th ed.) para. 715. The most acceptable definition of this term in English law is provided by Pickford, L.J., in Guarantee Trust Company of New York v. Hannay & Co. [1915] 2 KB 536 at 563; andGoogle ScholarDiplock, L.J., in Garthwaite v. Garthwaite [1964] P. 356 at 387–388.Google Scholar
31 A–G of Anambra State & Ors v. A–G of the Federation of Nigeria & Ors (1993) 6 NWLR (302) 692 at 742 per Ogundere, J.S.C.Google Scholar
33 Black's Law Dictionary (6th ed.) 853.
33 Per Idigbe, J.S.C., in Uwaifo v. A–G of Bendel State of Nigeria (1983) 4 NCLR 1 at 35, 43 and 57.Google Scholar
34 Per Bairamian, F.J., in Madukolu & Ors. v. Nkemdilim (1962) 2 All NLR 581 at 589–590.Google Scholar
35 This problem is not limited to labour courts. For further illustration, see the interesting Nigerian cases of Ikenye Dike & Ors v. Obi Nzeka II & Ors. (1986) 4 NWLR (34) 144;Google ScholarPatrick Okhae v. Governor of Bendel State & Ors (1990) 4 NWLR (144) 327;Google ScholarIshola v. Ajiboye (1994) 6 NWLR (352) 506.Google Scholar
36 If defect in number of members can vitiate a court's proceedings, it follows that the participation of non-members in the court's deliberations would be even more serious. Both defects would render the adjudication and the orders made consequent thereto a nullity. See e.g. JS Olawoyin v. COP (1961) All NLR 213;Google ScholarMallam Ado & Anor. v. Hajiya Dije (1984) 5 NCLR 260.Google Scholar
37 The South African case of BTR Industries SA (Pty) Ltd & Ors v. Metal & Allied Workers Union & Anor. 1992 (3) SA 673 (A)Google Scholar presents an interesting reading for it specifically concerns the suspicion of bias of the judge of the Industrial Court in these circumstances.
38 No better illustration of the condition precedent to adjudication of a court can be found than the dispute procedure prescribed by the Industrial Relations Act, non-compliance with which deprives the court of jurisdiction and robs the complainant of access to its adjudication of his/her grievance. See the cases already referred to in notes 12 and 16 above. See also the South Atrican cases of: United Mining & Metal Union of SA & Anor. v. Winterveld Chrome Mines Ltd (1987) 8 ILJ 413 (IC):Google ScholarTornado Transport (Pty) Ltd v. Apostoleris NO & Ors. (1992) 13 ILJ 125 (LAC);Google Scholar and Hlatswayo v. Sub-Nigel Gold Mining Co. Ltd (1994) 15 ILJ 431 (IC) where the courts emphasized the need to comply with jurisdictional requirements.Google Scholar
39 See e.g. Photocircuit SA (Pty) Ltd v. De Klerk.NO & De Swardt & Ors 1989 (4) SA 209 (CPD) at 216GGoogle Scholar; PPWAWU v. Pienaar NO 1993 (4) SA 621 (A).Google Scholar
40 Per Oputa, J.S.C., in Attorney-General of Lagos Slate v. Dosunmu (1989) 3 NWLR (111) 552 at 566.Google Scholar
41 See Kloof Gold Mining Co. Ltd v. NUM & Ors (1986) 7 ILJ 653 (T) at 673E-F;Google ScholarBenicon Earthworks, & Mining Services (Edms) Bpk v. Jacobs NO & Ors (1994) 15 ILJ 801 (LAC ) at 803I–804E; Shoprite Checkers (Pty) Ltd v. Commission for Conciliation, Mediation and Arbitration, Case No: J852/9 7 (LC);Google ScholarSA Motor Industry Association & Anor. v. NUMSA & Ors (1997) 18 ILJ 1301 (LAC).Google Scholar
42 Ejofodomi v. Okonkwo (1982) All NLR 299 at 310;Google ScholarBronik Motors Ltd v. Wema Bank Ltd (1983) 1 SCNLR 296 al 310.Google Scholar
43 Oloba v. Akereja (1988) 3 NWLR (84) 508;Google ScholarKatto v. Central Bank of Nigeria (1991) 9 NWLR (214) 126.Google Scholar
44 Per Craig, J.S.C., in Military Governor of Ondo State & Anor. v. Adewumi (1988) 3 NWLR (82) 280 at 313; perGoogle ScholarDonovan, Lord, London Borough of Ealing v. Race Relations Board [1972] 1 All ER 105 at 108B–D.Google Scholar
45 Per Lord Evershed, M.R., in Goldsack v. Shore [1950] 1 All ER 276 at 277H;Google ScholarSalami v. Chairman, LEDB & Ors (1989) 12 SCNJ 130 at 144;Google ScholarBronik Motors Ltd v. Wema Bank Ltd (1983) 1 SCNLR 296.Google Scholar
46 Commissioners of Customs & Excise v. Cure & Deeley Ltd [1962] 1 QB 340 at 356;Google ScholarWelkom Village Management Board v. Leteno 1958 (1) SA 490 (A) at 502G–H.Google Scholar
47 See especially Fatayi-Williams, J.S.C., speaking for the Supreme Court of Nigeria in Barclays Bank of Nigeria Ltd v. Central Bank of Nigeria (1976) All NLR 326 at 334.Google Scholar
48 The courts always resort to this principle of interpretation whenever their jurisdiction is attacked. For instance, in Standard Chartered Bank Swaziland Ltd v. Israel Mahlalela (of 1/7/94), Schreiner, J.A., for the Court of Appeal, made it clear that an analysis of the jurisdictional provisions of the Industrial Relations Act, the High Court and the Court of Appeal Acts must take place against the background of the reluctance of a court to accept statutory exclusion or limitation upon its jurisdiction unless this is effected unambiguously by express words or by necessary implication. Accordingly, the failure specifically to mention the Court of Appeal in section 5(4) of the Act dealing with reviews and the express mention of it in sub-section (2) may be curious but does not preclude the Court of Appeal from exercising its appellate jurisdiction on appeals from the High Court on reviews of the Industrial Court's decisions.
49 See for example the often-cited passage of Friedman, J., in Photocircuit SA (Pty) Ltd v. De Klerk NO & De Swardt NO & Ors 1989 (4) SA 209 at 214H-J, approved by the Appellate Division in PPWAWU v. Pienaar NO & Ors 1993 (4) SA 621 (A) at 635A–B.Google Scholar
50 See note 48. See also per Sutherland, A.J., in Kilpert v. Buitendach & Anor. (1997) 18 ILJ 1296 (W) at 1298A;Google Scholarper Goldstone, J., in Mathope & Ors v. Soweto Council 1983 (4) SA 287 (W) at 289A. Cf.Google Scholarper Botha, J.A., who said in PPWAWU v. Pienaar NO 1993 (4) SA 621 (A) at 637A–C that the structure of the Labour Appeal Court was certainly closely akin to that of the well-known specialist courts that there is “substantially less reason… for close scrutinizing the provisions in question or for jealously guarding against interference with the jurisdiction of the ordinary court”.Google Scholar
51 The Concept of Jurisdiction, op. cit. 431–432.
52 Ubombo Ranches Ltd v. President of the Industrial Court & Anor. (1982–86) SLR 264 at 269D-E. Tebbutt. J.A., also applied this principle in the Teachers' case, below. He held the legislature is presumed to know the state of the law including the interpretation placed on any of its sections at the time of enactment and would not set out to change it without doing so in express words Mersey Docks & Harbour Board v. Cameron (1865) 11 HL Cases 443 at 480;Google ScholarTerblanche v. South African Eagle Insurance Co. Ltd 1983 (2) SA 501 (N) at 504F.Google Scholar This was the main basis upon which Stafford, J., came to the conclusion he did in Marievale Consolidated Mines Ltd v..NUM & Ors (1986) 7 ILJ 108 (W), see below.Google Scholar
53 See also s. 18(1) of the Namibian Labour Act No. 6 of 1992 which confers “exclusive jurisdiction” on the Labour Court over the matters listed in that sub-section and s. 157(1), Labour Relations Act 66 of 1995 (RSA). In view of the experience garnered by South Africa in respect of the duality of her labour adjudication, it is not surprising that one of the changes introduced by the Labour Relations Act, 1995, is the establishment of an entirely new Labour Court of South Africa as a court of law (s. 151(1)) and to confer on it “exclusive jurisdiction in respect ol all matters that elsewhere in terms of this Act or in terms of any other law are to be determined bv the Labour Court” (s. 157(1)). To place the matter beyond question lest the High Court finds its way around labour matters through its inherent review powers, the status of the Labour Court is that of a superior court of record with powers equal to that of the High Court (s. 151(2) & (3)). It is only in constitutional/administrative labour matters involving the State as an employer that the Labour Court enjoys concurrent jurisdiction with the High Court (s. 157(2)(a) & (b)). Since the Labour Court is now on the same level with the High Court in the judicial hierarchy and since the latter has not been vested with unlimited jurisdiction by the founders of the new South African Constitution, 1996, the question now is whether the jurisdiction of the High Court can be said to have been completely ousted in those matters within the Labour Court's jurisdictional competence.
54 From the definition of “jurisdiction” given above, a court cannot hear and determine a matter if it has not been vested with jurisdiction in that regard by statute. It is in this light that the following derisions of the High Court can be seen. For instance, Claassen, A.J., held in Ubombo Ranches v. Pan Attendants, Civ. App. 6/90, that the Industrial Court neither had jurisdiction to decide unfair labour practice matters nor to order forced promotion in the guise of labour adjudication. While in Adelaide Mabuza v. Barclays Bank of Swaziland Ltd, Case No. 107/89, Rooney, A.C.J., held that the applicant bank-teller was a probationary employee (s. 32(2) & (3)) who could not present a claim for unfair dismissal by virtue of section 35(1) of the Employment Act and hence the Industrial Court had no jurisdiction to hear and determine her case.
55 It is to be noted that reinstatement as a relief for unfair dismissal has been expressly granted the Industrial Court by section 15 of the 1996 Act.
56 The idea of approaching the Industrial Court by way of application, it would seem, is to circumvent the tedious process of the statutory dispute procedure, reporting and conciliation and thereby save valuable time and perhaps also, expense.
57 Act No. 5 of 1980.
58 See the Workmen's Compensation Act No. 7 of 1983 and the Regulations made thereunder. Claims arising under this Act are most often settled out of court hence the scanty number of available Industrial Court decisions in this regard. See Ellen Ginindza & Anor. v. Msekelave Bus Service & 2 Ors., Case No. 42/87; Thandiwe Dube & Anor. v. BCCI Swaziland Ltd, Case No. 4/89; Moses Msibi v. Roberts Construction (Swd) Ltd & Anor, Case No. 7/1988.
59 The other important labour legislation in Swaziland's statute book include: the Factories, Machineries and Construction Works Act No. 17 of 1972 with the Regulations of the same title of 1974; the Wages Act No. 16 of 1964 and the 13 Wages Councils established thereunder and the numerous Wages Regulations made by these Councils for those industries where workers are not unionized.
60 On the one hand, the court has the powers of the High Court in the discharge of its functions, including the power to grant injunctive relief, and at the same time, it has the power to make any order it deems reasonable which will promote the objects of the Act—ss. 5(3) and (4), IRA 1996.
61 S. 48.
62 S. 46(1).
63 S. 45(5).
64 See generally “Collective labour rights and the Industrial Relations Legislation of Swaziland” in C., Okpaluba et al. , Human Rights in Swaziland: The Legal Response, 1997, 333 at 365 and 401 respectively.Google Scholar
65 See s. 43(5)(c), (6), (7) and (8).
66 S. 38(1). See also s. 42 dealing with the powers of the Court in respect of the statutory limitations on non-occupational activities of organizations and federations.
67 S. 70(1). The Attorney-General is also given the right to apply to the Court ex parte for a declaratory order where a strike undertaken or threatened is not in conformity with the Act or any other law (s. 71).
68 The following laws were repealed by the Employment Act of 1980: the Employment Act, 1962; Labour Advisory Board Act, 1966; Employees Wages Protection Order, 1973, and the Registration of Employers Order, 1975.
69 S. 35(1).
70 S. 35(3). This is the so-called automatic unfair dismissals for which see especially. Leonard Themba Dlamini v. Swazi Fruit Canners (Pty) Ltd. Case No. 33/89.
71 S. 36 of the Employment Act itemizes the various grounds upon which the employer can fairly dismiss the employee.
72 S. 42(2). The fact that the employer dismissed the employee for any of the reasons listed in section 36 does not automatically make the dismissal fair. The employer must go further to show, by virtue of section 42(2), that he/she acted reasonably in terminating the service of the employee in the circumstances. On this, see the judgment of Hannah, C.J., in Susan Dlamini v. President of the Industrial Court & Anor., Ind. Ct. App. 13/88; and Hull, C.J., in Standard Chartered Bank Swaziland Ltd v. President of the Industrial Court & Israel Mahlalela. Civ. Case No. 528/93.
73 S. 41(1).
74 Civ. Case No. 441/87.
75 S. 5(1).
76 Civ. Case No. 1172/90.
77 Cf. the recent case of Kilpert v. Buitendach & Anor. (1997) 18 ILJ 1296 (W) at 1300H–I Sutherland, A.J., held that the jurisdiction of the High Court of South Africa to entertain a cause based on an allegation of a reviewable irregularity in regard to the termination of a contract of employment is not ousted by the provisions of the LRA Act, 1995, hence the applicant was accordingly entitled to litigate in the the High Court. He said: “There is nothing in the Act which leads me to conclude that an aggrieved employee is not entitled to approach both the CCMA and the High Court for relief even if the result which he seeks to achieve is for all practical purposes identical.” The only difference in the approaches of Dunn, J., and Sutherland, A.J., is that according to Dunn, J., once the Act's dispute machinery is put in motion, the High Court jurisdiction is ousted whereas for Sutherland, A.J., the two systems can be put in motion simultaneously without doing damage to the intention of the legislature. In other words, Dunn, J., would, given the facts of Kilpert, decline jurisdiction.Google Scholar
78 The confusion which such an arrangement can generate is easily illustrated by those conflicting judgments produced by the Supreme Court and the Industrial Court of South Africa in the controversial Marievale litigation in 1986. See the High Court decision in Marievale Consolidated Mines Ltd v. NUM & Ors (1986) 7 ILJ 108 (W) at 122B–C; the Industrial Court decision to the contrary effect inGoogle ScholarNUM v. Marievale Consolidated Mines Ltd (1986) 7 ILJ 123 (IC);Google Scholar and the fortunate dismissal of the employer's further application for review by Goldstone, J., in Marievale Consolidated Mines Ltd v. The President of the Industrial Court & Ors. (1986) 7 ILJ 152 (T). Cf. the later developments on the award of reinstatement in strike situations and the attitude of the Appellate Division in the following cases:Google ScholarPACT v. PPWAWU & Ors. (1994) 15 ILJ 65 (A);Google ScholarNUMSA v. Henred Freuhauf Trailers (Pty) Ltd 1995 (4) SA 456 (A);Google ScholarNUM & Ors. v. Free State Consolidated Gold Mines (Operations) Ltd (1995) 12 BLLR 8 (AD).Google Scholar
79 A good illustration of the pathetic state of the common law of master and servant is the relief awarded the dismissed employees by Sapire, A.C.J., in Themba Mdluli & 7 Ors; Jabulani Dlamini & Ors. v. Emaswati Coal (Pty) Ltd, Civ. Case Nos. 1398/92 & 404/93 of 8/5/96. Contra, the Court of Appeal's decision in this case (delivered on 23 September, 1997) which marks a radical departure from the traditional common law approach to the award of the remedy ol specific performance in master and servant cases.
80 S. 15(2), (3), (4), (5) and (6), Industrial Relations Act, 1996.
81 The Court of Appeal in th e Teachers' case answered this question in the negative: the 1996 Act had certainly not widened the Industrial Court's jurisdiction.
82 See Sibongile Nxumalo v. Attorney-General & 2 Ors. Civ. Cas e No. 1872/96.
83 This decision can be likened to two recent High Court decisions on the question of the exclusive jurisdiction of the new Labour Court. In both Mondi Paper (A Division of Mondi Ltd) v. PPWAWU & Ors (1997) 18 ILJ 84Google Scholar (D) and Coin Security Group (Ply) Ltd v. SA National Union for Security Officers & Other Workers & Ors. 1998 (1) SA 685 (CPD) the High Court resoundingly rejected the idea of cutting a slice out of the Labour Court's jurisdictional pie in favour of the High Court because: per Nicholson, J., in Mondi (at 90D F) it would offend against the court's duty to avoid a proliferation and multiplicity of court proceedings with the attendant costs; and per King, D.J.P., in Coin Security (at 691A–B) it “would run counter to the clear intention of the legislature and furthermore create a duality of jurisdictions—a veritable mish mash”Google Scholar. See also Sappi Fine Papers (Pty) Ltd (Adamas Mill) v. PPWAWU (South East Cape Local Division, 22/8/97). On the Labour Court's interpretation of its statutory jurisdiction, see e.g. Afrox Ltd v. SACWU & Ors (2) (1997) 18 ILJ 406 (LC) (Landman, A.J.);Google ScholarSchoeman & Anor. v. Samsung Electronics SA (Pty) Ltd (1997) 18 ILJ 1098 (LC) (Revelas, J.); Cf. perGoogle ScholarLandman, A.J., in Lomati Mill Barberton (A Division of Sappi Timber Industries) v. PPWAWU & Ors. (1997) 18 ILJ 178 (LC);Google ScholarFood & Allied Workers Union v. Premier Foods Industries Ltd (Epic Foods Division) (1997) 18 ILJ 1082 (LC) (Basson, J.). See further,Google ScholarFAWU v. Simba (Pty) Ltd [1997] 4 BLLR 408 (LC) (Landman, J..);Google ScholarCeramic Industries Ltd t/a Betta Sanitaryware v. NCBAWU & Ors [1997] 4 BLLR 404 (LC) (Basson, J.);Google ScholarSouth African Commercial & Catering Workers Union v. Edgars Stores Ltd & Anor. (1997) 18 ILJ 1064 (LC) (Zondo, J.).Google Scholar
84 Sibongile Nxumalo & 3 Ors. v. Attorney-General & 2 Ors., Civ. App. Nos. 25, 28, 29 an d 30 of 1996.
85 See also Jaga v. Donges NO & Anor. 1950 (4) SA 653 (A) at 662;Google ScholarRamajela v. Administrator, Cape 1990 (4) SA 11 (E) at 14B;Google ScholarTuckers Ltd v. Ceylon Mercantile Union (1970) 73 NLR (Ceylon) at 316.Google Scholar
86 Civil Case No. 51 of 1995.
87 Cf. the judgment of Sutherland, A.J., in Kilpert v Buitendach & Anor. (1997) 18 ILJ 1296 (W) at 1300F H where, distinguishingGoogle ScholarMondi Ltd v. PPWAWU & Ors (1997) 18 ILJ 84 (D), he held: “… it seems to me that the essential contention advanced by Mr Heyns that the fora created by the Labour Relations Act are not burdened with jurisdiction over all incidents which arise from the employment relationship is correct. Section 194 of the Labour Relations Act which provides for the form of relief which may be granted makes provision inter alia for financial relief which is strictly prescribed and limited, depending on the circumstances, to a maximum amount equal to what the aggrieved employee would have earned in a period of 24 months. Section 195 expressly states that the provisions of section 194 provide an amount which is obtainable by an aggrieved party in addition to any other amount ‘to which the employee is entitled in terms of any law, collective agreement or contract of employment’. This provision therefore contemplates a civil action flowing from the termination of the contract of employment.” This decision, unlike that in the Teachers' cast, seems to have overstated the issue to the point that the former concurrent jurisdiction is creeping back through the back door. One cannot agree more with the Swazi Court of Appeal that the legislature could not have intended that these courts share their “exclusive jurisdiction” with the High Court but that in those areas of employment not covered by the court's express jurisdiction, the High Court retains residual jurisdiction.Google Scholar
88 See e.g. Petros Mbhamali v. Meridien Bank Swaziland Ltd, App. Case No. 30/95; Eric Mthandazo Mahlalela v. Ubonbo Ranches Ltd, Civ. App. No. 32/95. both decided by the Court of Appeal.
89 Query, could a third party injured by the negligence of an employee in the course of employment bring a claim in damages for injuries sustained against the employer in the Industrial Court?