National Emergency Council On Hiv Aids ("nercha") v Presiding Judge Of The Industrial Court (73 of 2021) [2022] SZSC 4 (8 April 2022)

# National Emergency Council On Hiv Aids (&quot;nercha&quot;) v Presiding Judge Of The Industrial Court (73 of 2021) [2022] SZSC 4 (8 April 2022) [ __](https://api.whatsapp.com/send?text=https://eswatinilii.org/akn/sz/judgment/szsc/2022/4/eng@2022-04-08) [ __](https://twitter.com/intent/tweet?text=https://eswatinilii.org/akn/sz/judgment/szsc/2022/4/eng@2022-04-08) [ __](https://www.facebook.com/sharer/sharer.php?u=https://eswatinilii.org/akn/sz/judgment/szsc/2022/4/eng@2022-04-08) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://eswatinilii.org/akn/sz/judgment/szsc/2022/4/eng@2022-04-08) [ __](mailto:?subject=Take a look at this document from EswatiniLII: National Emergency Council On Hiv Aids \(&quot;nercha&quot;\) …&body=https://eswatinilii.org/akn/sz/judgment/szsc/2022/4/eng@2022-04-08) [ Download DOCX (36.9 KB) ](/akn/sz/judgment/szsc/2022/4/eng@2022-04-08/source) Toggle dropdown * [Download PDF](/akn/sz/judgment/szsc/2022/4/eng@2022-04-08/source.pdf) Report a problem __ * Share * [ Download DOCX (36.9 KB) ](/akn/sz/judgment/szsc/2022/4/eng@2022-04-08/source) * [Download PDF](/akn/sz/judgment/szsc/2022/4/eng@2022-04-08/source.pdf) * * * * * Report a problem __ ##### National Emergency Council On Hiv Aids (&quot;nercha&quot;) v Presiding Judge Of The Industrial Court (73 of 2021) [2022] SZSC 4 (8 April 2022) Copy citation * __Document detail * __Related documents * __Citations 1 / - Citation National Emergency Council On Hiv Aids (&quot;nercha&quot;) v Presiding Judge Of The Industrial Court (73 of 2021) [2022] SZSC 4 (8 April 2022) Copy Media Neutral Citation [2022] SZSC 4 Copy Court [Supreme Court of eSwatini](/judgments/SZSC/) Case number 73 of 2021 Judges [Mamba AJA](/judgments/all/?judges=Mamba%20AJA), [Masuku AJA](/judgments/all/?judges=Masuku%20AJA), [Vilakati AJA](/judgments/all/?judges=Vilakati%20AJA) Judgment date 8 April 2022 Language English Court Roll [Download PDF](/akn/sz/judgment/szsc/2022/4/eng@2022-04-08/attachment/national-emergency-council-on-hiv-aids-quotnerchaquot-v-presiding-judge-of-the-industrial-court-2022-szsc-4-8-april-2022.pdf) (365.5 KB) Summary Read full summary * * * Skip to document content _1_ __1_.· _¾_ ·· _:_ · _i:_ · ...,) ____ :.,_/ INTHE SUPREME COURT OF ESWATINI _RULING_ _HELD AT MBABANE_ In the matter between: NATIONAL EMERGENCY COUNCIL ON HIV /AIDS ("NERCHA") _CIVIL CASE NO.: 73/2021_ Appellant And # THE PRESIDING JUDGE OF THE INDUSTRIAL COURT PHUMELELE DLAMINI **THE ATTORNEY GENERAL** 1st Respondent 2nd Respondent 3rd Respondent **Neutral** **citation:**_National Emergency Council on HIV AIDS ("NERCHA'? v The Presiding Judge of The Industrial Court (CIV26/2021) [2022]_ SZSC _04 (08_ _th_ _April_ _2022)_ # CORAM: S.M. MASUKU AJA **M.D. MAMBA AJA** **M. VILAKATI AJA** **Date Heard: Date Delivered:** 23rd March 2022 oath April 2022 _Summary: An appeal with its genesis from the Industrial Court of Eswatini went on review to the High Court following Section 19 (5) of The Industrial Relations Act. High Court held it was seized with revisional jurisdiction and dismissed the review application. On appeal the Respondent raised an objection that appellant had not applied and obtained leave of the High Court as required by Section 147 (1) (b) of the Constitution, the Industrial Court being_ a _lower Court than the High Court was exercising its revisional jurisdiction when it decided the review._ _Considering: that the full bench of the Supreme Court has ordered_ a _consolidation_ _of_ a _number_ _of_ _appeals/ reviews similar to the present appeal to determine_ a _point_ _of_ _law_ _on_ _the_ _jurisdiction_ _of_ _the High Court to review matters emanating from the Industrial Court and so is appeal of those matters to this_ _Court;_ _Ruling:_ _That all interlocutory applications in casu including the determination of the jurisdictional point and the merits are postponed sine die pending the outcome of the decision of the full bench of the Supreme Court case of_ _**Nedbank Swaziland Limited and Others v Phesheya Nkambule case No. 70/2020.**_ # RULING **MASUKUAJA** [1] The appeal before us has its genesis from the Industrial Court of Eswatini in which the 2nd Respondent had reported a grievance as a dispute at the Conciliation, Mediation and Arbitration Commission (CMAC) that remained unresolved at that forum, resulting to its referral to the Industrial Court for determination. (2] The 2nd Respondent is a former employee of the Appellant who had been contracted for a period of 5 years (1st June 2014 to 31st May 2019) in the position of Project Processing and Monitoring Manager. The position was payable at Grade 8 within the Appellant's pay structure. [3] Within that term of 5 years she was appointed to two other positions namely, Grants Manager and later Program Manager HiV and TB. The program manager position was communicated by letter dated 10th December 2014 subject to a condition that her remuneration would change with effect from 1st April 2015, in compliance with Circular 4/2013. Her grievance at CMAC and Industrial Court was that the Appellant failed to fulfil the condition hence she demanded compliance of that condition. (4] The 2nd Respondent alleged that the Appellant's refusal to comply with that condition meant that she was being refused compensation by an increase in her salary for the added responsibilities and that constituted an unfair labour practice for a number of reasons as set out before the Industrial Court. 5. In its defence the Appellant in the Court a _quo_ raised a point in _limine_ to say that the Industrial Court lacked jurisdiction to entertain the dispute since it was a dispute of interest and not of an enforcement of a right. Such disputes it said were of economic type and can only be dealt with through collective bargaining. 5. The Industrial Court in its wisdom called for extrinsic evidence to interpret paragraph 4 of the letter of the 19th December 2014 which stipulated that **"a** ___**change**_**in your remuneration will be effected on the 1•****1** **April 2015, in compliance with Circular 4/2013".** The parties complied (by leading evidence). 5. The Industrial Court ruled on the 20th March 2021 after hearing of evidence that the dispute was one of right and not of interest. It dismissed the point in _/imine_ and directed that the matter should proceed to trial for the hearing and determination of the 2nd Respondent's claim on the merits. 5. Dissatisfied with the ruling and directive, the Appellant approached the High Court by invoking Section 19 (5) of The Industrial Court Act 2000 ("IRA") which empowers the High Court (HC) to exercise review jurisdiction on a decision or order of the Industrial Court or Arbitrator at the request of any party interested ... on grounds permissible at common law. 5. The High Court in the exercise of the powers under Section 19 (5) of the IRA as amended found that the ruling sought to be reviewed was not appealable, final and or definitive by any of the rights of the parties before the Court a _quo_ (paragraph [30] of the judgment). The High Court concluded that the proceedings in the Industrial Court were incomplete and therefore the intervention of the High Court was unwarranted at that stage. [1OJ Being dissatisfied further with the judgment of the High Court on review the Appellant filed a notice of appeal. The crux of the appeal is that the High Court erred in law and in fact to hold that the order of the Industrial Court was not final and/or definitive and not appealable or reviewable. Instead, the decision of the Industrial Court was final and definitive of the rights of the parties thus a subject of review. 11. When the matter came before us a few events relevant to this matter are worth noting, the first is that this appeal was noted on the 3rd November 2021 prior to the pronouncement of a decision from a full bench of this Court sitting on review in the judgment of **Cashbuild Swaziland (Pty) Ltd v Thembi Penelope Magagula (26B/2020)[[2021] SZC 31](/akn/sz/judgment/szc/2021/31) (09/12/2021). **(The Cashbuild judgment). The judgment as it will be briefly shown sets aside an earlier decision of the full bench of the Supreme Court (on appeal) in the matter of **Derrick Dube v Ezulwini Municipality** **[2018]** **SZSC** **49** **(30** **November** **2018)** (The Derrick Dube Judgment) 11. The **Derrick Dube** judgment for purposes of the judgment in _casu_ held that The Industrial Court and The Industrial Court of Appeal were not superior courts but **"inferior"** courts in terms of Section 151 (3) (b) of the Constitution and that the decision of these courts were reviewable by the High Court. 11. The **Cashbuild** judgment on the other hand disagrees with the decision and concluded that both the Industrial Court and the Industrial Court of Appeal are specialized courts established by an Act of Parliament and are not inferior or subordinate courts. They have exclusive jurisdiction over all labour issues and that the High Court and this Court have no jurisdiction to review any decisions of either the Industrial Court or the Industrial Court of Appeal. The Court went further to strike down Section 19 (5) of the IRA and declared it unconstitutional, totally disengaging The High Court's revisional powers under that Act which has been the basis of the reviews and subsequent appeals to this Court. 11. The **Cashbuild** judgment has put a spanner on the works as it has been stated in the minority judgment stated that; "it signifies a turning point in the laws normal process". It has affected a lot of litigants that have found themselves caught in between the two judgments. Those that had their matters on review at High Court from the Industrial Court pending and those finding themselves in a similar predicament like the parties before Court whom when the appeal was filed, the basis obtaining was the **Derrick Dube** judgment. 11. The Cashbuild judgment has been implemented retrospectively by this Court in the matter between **Swaziland** **Commercial** **and** **Allied** **Workers** **Union** **o.b.o** **Zanele****Mamba and Twelve Others and Lewis Stores (63/2020)[[2021] SZSC 47](/akn/sz/judgment/szsc/2021/47) (21/12/2021).** The Court in that appeal held that the High Court has no jurisdiction to hear reviews relating to labour related matters emanating from structures formed in terms of the provisions of the IRA (as amended). It set aside The High Court review judgment and referred back to GMAC an arbitration matter to be heard by a new arbitrator. 11. The Supreme Court, by consent of a number of appellants and/or reviewers in the session commencing February 2022 to June 2022 consolidated by order of Court. matters similar to the one before us to be heard as consolidated in due course in this session. What was germane to the appeal is the question of the jurisdiction of the High Court to review decisions of the Industrial Court, Industrial Court of Appeal and that of arbitrators. The striking down of Section 19 (5) of the IRA (as amended) and the application of the Cashbuild judgment apparently with retrospective effect by the **SCAWU v Lewis Stores** case _(supra)._ 11. A number of appellants /and or applicants including the Appellant in _casu_ joined forces by consent with the respondents and applied before a full bench of this Court for a consolidation of their appeals and /or reviews (under Case 70/2020) for the determination inter alia whether the High Court had jurisdiction to review judgments of the Industrial Court and Industrial Court of Appeal, and whether the striking down of Section 19 (5) has not created a vacuum in the law. These questions of law are jurisdictional issues and pre-cursor to the merits of those matters. 11. The respondent in _casu_ objected to the consolidation of her matter and was granted her wish to have the matter dealt with on the 23rd March 2022, a date on which this Court heard the matter and reserved its ruling for a later date. 11. It is relevant to state further in this ruling that the full-bench of the Supreme Court set-up to hear the consolidated matters issued orders consolidating three matters except for **NERCHA v Phumelele Dlamini**(in _casu)._ It issued a stay of proceedings in the **African Echo v Innocent Maphalala** and directed that the Attorney General be joined as party to the proceedings. It invited any other interested parties to join as _amicus curiae._ The matter was set-down to be heard on the 6th May 2022. 11. At the hearing of the matter i.e. 23rd March 2022, the following interlocutory applications emerged; a Condonation Application by the Appellant for the late filing of its Heads of Argument and Bundle of Authorities; an application to stay the main appeal pending the outcome of the consolidated matters before the full bench of this Court under Case No. 70/2020 and that the main appeal in this matter, in so far as it relates to legal questions raised, to be consolidated with the other cases under the Supreme Court Case No. 70/2020. 11. The Respondent raised two crucial jurisdictional points of law for which the Court ruled it should be determined foremost. The Respondent submitted on the first point that this Court had no jurisdiction to hear the appeal because it was improperly before it, no leave was applied for and granted by the High Court when it did not hear the matter in the exercise of its original jurisdiction a _quo._ 11. The second point which Respondent readily abandoned in its Answering Affidavit was that the Cashbuild judgment had ruled that the High Court and this Court have no jurisdiction to review any decisions from the Industrial Court and the Industrial Court of Appeal. I point out that no further arguments were advanced for the withdrawal of the second point and there would be no merit either to comment or speculate on the Respondent's reasons. It simply means that she wished to rely on the first point and we granted her wish. 11. Citing Section 147 1 (b), the Respondent argued that the Appellant required the leave of the High Court because it was not exercising its original jurisdiction when it heard the matter that is now a subject matter of the appeal. The matter commenced in a lower Court than the High Court (the Industrial Court). In any event the argument was made that the Appellants filed for leave with the High Court without waiting for its outcome and simultaneously rushed to this Court without an outcome. The leave was therefore pending, Appellant was blowing hot and cold at the same time, so it was argued by the Respondent. 11. On the other hand, the Appellant argued that it had filed the leave with the High Court out of extra caution to safeguard its interest, implying that we should not read too much into its application for leave at the High Court, as the matter is pending in that Court and the Respondent has not filed its Opposing Affidavit. The Respondent argues that the **Cashbuild** Judgment stopped the High Court on its tracks from entertaining reviews under Section 19 (5) of the IRA. That unless and until that judgment is over-turned the Court cannot get to the merits of this case. 12. The Appellate jurisdiction of the Supreme Court in Section 147 (1) (a) and (b) of the Constitution Act 001 of 2005:- _"147 (1) An appeal shall lie to the Supreme Court from a judgment, decree or order of the High Court_ - 1. _As of right in_ a _civil or criminal cause or matter from_ a _judgment of the High Court in the exercise of its original jurisdiction;_ _or_ 2. __With leave of the High Court. in any other cause or matter where__ ______the__ __case was commenced in a Court lower than the High Court__ _and where the High Court is satisfied that the case involves a substantial question of law or is in the public interest."_ 11. The revisional jurisdiction of the High Court relevant to the issues serving before the full bench of this Court in the matters consolidated is found _inter a/ia_ under Section 151 (1) (d) of the Constitution. It reads:- _"151 (1) The High Court has_ - _(d) Such additional revisional jurisdiction as may be prescribed by_ or _under any law for the time being in force in Swaziland"_ 11. We must accept that every Court's jurisdiction is limited to that conferred by its statute. We refer to R v PENNINSTON 1997 (4) SA 1076 (CC) at page 86, Chaskalson P. states thus:- _"At common law_ a _Court has no jurisdiction_ _to_ _hear appeal against_ a _decision of another Court. It can only do so if that authority is conferred on it by the statute under which it is constituted and then it must function in terms of that statute."_ [28) The analogy must follow that although revisional jurisdiction is generally a product of common law, there are instances where the common law review jurisdiction is limited by statute and in that case the Court must function in terms of that statute. 29. Similarly it is clear in the context of Section 147 (1) (b) that the sole purpose of the sub-section is to limit the Supreme Court's powers where it decides a matter which originates from a Court lower than the High Court. 29. The High Court itself is given additional revisional jurisdiction when a statute or any law for the time being in force in Eswatini so prescribe (Section 151 (1) (b)). 29. The appeal before us is not as straight forward as other appeals that have graced this Court before the **Derrick Dube** and the **Cashbuild** judgment. For example in a criminal case that originates from the Magistrate's Court - with an imposed sentence in that Court which is later reviewed at the High Court and the High Court's outcome is appealed at the Supreme Court as a final Court, the Supreme Court will deal with the appeal clearly because the Magistrate's Court is a _lower_ _Court_ than the High Court. When dealing with that imposed sentence, the Supreme Court cannot increase the sentence beyond the jurisdiction of the Magistrate's Court. See **Swazi Observer (Pty) Ltd and Hanson Ngwenya****& ****68 Others Appeal No. 19/2006 per Browde, AJP page 16** and **Doctor Victor Mkhabela v Rex (28/2017)[[2019] SZSC 59](/akn/sz/judgment/szsc/2019/59) (28 November 2019 Ruling).** 29. The jurisdictional point raised by the Respondent in _casu_ constitute part of the questions that the full bench of this Court is vexed with in the consolidated matters that are to be determined on the 6th May 2022 as ordered by the Court on the 17th March 2022. 29. The point of law falling for determination by the full bench of the Supreme Court _inter alia_ is whether the High Court has jurisdiction to review judgments of the Industrial Court and the Industrial Court of Appeal. The Supreme Court in its wisdom has re-opened the debate on whether or not the two specialized courts are inferior or courts lower than the High Court for their decisions to be reviewed. The other point pertains to the striking down of Section 19 (5) which conferred the High Court with revisional powers over the decisions of the Industrial Court and Arbitrators. 29. The outcome of which may either sustain the **Cashbuild** judgment. Where the outcome sustains the **Cashbuild** judgment it would mean that the High Court had no business in reviewing the Industrial Court decisions and therefore no appeal lies with leave of the High Court to this Court. The appeal would have to be struck off the roll. Where the outcome of the points in _limine_ are upheld by the full bench in Case No. 70/2020 then the **Derrick Dube** judgment as revisited by the minority judgment in the **Cashbuild** judgment would prevail. The effect of which the High Court's revisional powers in Section 19 (5) is resuscitated. The Industrial Court would have been pronounced as a lower Court than the High Court and any appeal to this Court has to be with the leave of the High Court in terms of Section 147 (1) 13 (b} of the Constitution. It is only then that all the points raised including the jurisdictional question of the leave to appeal would be alive for determination. 29. The Court takes the view that even in light of the Respondent's abandonment of her second point that on the application of the Cashbuild judgment and also that she objected to the consolidation application, it cannot ignore the consolidation orders of the full bench of this Court. The issues raised before us are similar preliminary issues that are alive in the consolidated matters. 29. It is in the interest of justice not to prolong this litigation by deciding on this point when the outcome of a full bench of this Court (issued in terms of Section 145 (3) of the Constitution) would certainly supersede our decision whichever way it goes. We are of the view that we need to be cautious of the principles of _stare decisis,_ the hierarchy of the Courts, clarity and consistency. 29. In most cases such as this one where there is an objection on a jurisdictional point for appeal or reviews without leave, and where the point is upheld, the matters are struck off the roll with costs. See: **The Swazi Observer (Pty) Ltd (supra)** and **the Doctor Victor Mkhabela** case _(supra)._ We should not follow suit, but instead order a stay of the proceedings including the determination of whether or not leave ought to have been obtained from the High Court. Postpone all the other interlocutory applications such as the condonation for late filing of the Heads of Argument, Book of Authorities by the Appellant and that the merits of the appeal be stayed pending the outcome of the consolidated matters by the full b nch of this Court under Case 70/2020. 29. Further that this Court _mero_ _motu_ gives the parties an opportunity to exercise their rights if they so wish to apply to be joined as a party or parties to the proceedings of the 6th May 2022 before the full bench of this Court. The parties ought to pursue the merits of their appeals if they are so minded. 29. The Court therefore pronounces the following orders:- 1. The jurisdictional challenge by the Respondent under Section 147 (1) (b) is postponed _sine die_ pending the determination of the consolidated matters · ordered by the full bench of this Court on the 17th March 2022. 2. The other interlocutory applications such as the condonation for the late filing of Heads of Argument and Book of Authorities in the main appeal is postponed _sine die_ pending the outcome of the consolidated matters ordered by the full bench of this Court on the 17th March 2022. 3. The merits of this appeal is postponed _sine die_ pending the outcome of the consolidated matters ordered by the full bench of this Court on the 17th March 2022. 4. The parties are at liberty to apply to be joined as party or parties to the proceedings of the 6th May 2022 before the full bench of this Court. 5. Each party is to pay its own co*""'"' **AJA** _/ I agree I also agree FOR THE APPELLANT: __rJ;W:___(q_ _& <,_; **M. VILAKATI AJA** MR N.D. JELE of ROBINSON BETRAM ATTORNEYS FOR THE 2ND RESPONDENTS: MLK NDLANGAMANDLA of MLK NDLANGAMANDLA TTORNEYS 2 #### __Related documents ▲ To the top >