Eswatini Civil Aviation Authority v Dlamini (13 of 2021) [2022] SZICA 1 (9 February 2022)

# Eswatini Civil Aviation Authority v Dlamini (13 of 2021) [2022] SZICA 1 (9 February 2022) [ __](https://api.whatsapp.com/send?text=https://eswatinilii.org/akn/sz/judgment/szica/2022/1/eng@2022-02-09) [ __](https://twitter.com/intent/tweet?text=https://eswatinilii.org/akn/sz/judgment/szica/2022/1/eng@2022-02-09) [ __](https://www.facebook.com/sharer/sharer.php?u=https://eswatinilii.org/akn/sz/judgment/szica/2022/1/eng@2022-02-09) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://eswatinilii.org/akn/sz/judgment/szica/2022/1/eng@2022-02-09) [ __](mailto:?subject=Take a look at this document from EswatiniLII: Eswatini Civil Aviation Authority v Dlamini \(13 …&body=https://eswatinilii.org/akn/sz/judgment/szica/2022/1/eng@2022-02-09) [ Download DOC (129.5 KB) ](/akn/sz/judgment/szica/2022/1/eng@2022-02-09/source) Toggle dropdown * [Download PDF](/akn/sz/judgment/szica/2022/1/eng@2022-02-09/source.pdf) Report a problem __ * Share * [ Download DOC (129.5 KB) ](/akn/sz/judgment/szica/2022/1/eng@2022-02-09/source) * [Download PDF](/akn/sz/judgment/szica/2022/1/eng@2022-02-09/source.pdf) * * * * * Report a problem __ ##### Eswatini Civil Aviation Authority v Dlamini (13 of 2021) [2022] SZICA 1 (9 February 2022) Copy citation * __Document detail * __Related documents Citation Eswatini Civil Aviation Authority v Dlamini (13 of 2021) [2022] SZICA 1 (9 February 2022) Copy Media Neutral Citation [2022] SZICA 1 Copy Court [Industrial Court of Appeal of eSwatini](/judgments/SZICA/) Case number 13 of 2021 Judges [Nkonyane J](/judgments/all/?judges=Nkonyane%20J), [Van der Walt JA](/judgments/all/?judges=Van%20der%20Walt%20JA), [Nsibande JP](/judgments/all/?judges=Nsibande%20JP) Judgment date 9 February 2022 Language English Court Roll [Download PDF](/akn/sz/judgment/szica/2022/1/eng@2022-02-09/attachment/eswatini-civil-aviation-authority-v-dlamini-2022-szica-1-9-february-2022.pdf) (582.5 KB) Summary Read full summary * * * Skip to document content # _IN THE INDUSTRIAL COURT OF APPEAL OF_ ___ESWATINI_ Case No. 13/2021 In the matter between **ESWATINI CIVIL** **AVIATION** **AUTHORITY** Appellant And **SABELO** **DLAMINI** Respondent **NEUTRAL CITATION:**_**Eswatini Civil Aviation Authority v Sabelo**_ ___**Dlamini [2021]**____**(13/2021) SZICA 01**_ _{_**9** _**Febro.ary**_ _**2022)**_ # CORAM: NSIBANDE JP, VAN DER WALT and NKONYANE JJA **HEARD:****20 October** **2021** DELIVERED: 9 February 2022 _**Summary**_ _Procedure_ \- _urgent enrolment of appeals_ \- _requirements stated_ \- _substantive application under certificate of urgency fully setting out facts and/or circumstances which render the matter urgent; why the applicant cannot be afforded substantial redress in due course; and prospects of success on appeal._ _Dismissal_ \- _distinction between unfair dismissal and invalid dismissal_ - _invalid dismissal a nullity and reinstatement accordingly not required_ ## JUDGEMENT _**Cur adv Vult**_ _**(Postea: 9 February 2022)**_ ## VANDERWALT, JA **INTRODUCTION** 1. It is common cause that: 1. The respondent (hereinafter refe1Ted to as the "Employee") was employed by the appellant (hereinafter refe1Ted to as the "Employer") on fixed contract, due to expire on the 30th November 2021. 2. In 2019 the Employer instituted disciplinary proceedings against the Employee and the evidence phase thereof was concluded in or around February 2021, after which the parties filed written submissions in March 2021. Both parties enjoyed legal representation. 3. On the 10th June 2021 the second respondent _a quo_(hereinafter refe1Ted to as the "Chairman") by way of electronic mail, proposed to deliver a verdict without any reasons, to which the Employee's attorneys objected, likewise by way of electronic mail, insisting on reasons to be provided. 4. The Chairman also unilaterally imposed a date for delivery of the verdict to be on the 16th June 2021. The Employee had been booked off sick and his attorney already was engaged in Court, facts of which the Chairman had been made aware of but the Chairman proceeded, on that date, in the absence of the Employee and his attorney, to deliver a verdict of guilty on one count and acquittal on the remainder, without providing any reasons for his decision and stating: _"However,_ _in_ _the_ _obtaining_ _circumstances,_ _with_ _both_ _the_ _Respondent_ _and_ _his_ _representative not_ _in_ _attendance_ _the_ _presentation_ _of_ _aggravating_ _and/or_ _mitigating/actors_ _will_ _be_ _deferred to a later date to be communicated to the parties through the normal mode of_ _**communication.**___ " 5. Item 6.(d) of the Disciplinary Code governing the relationship between the parties, stipulates that: _"If_ _the_ _employee is_ _found_ _guilty,_ _he/she_ _shall_ _be_ _given_ _an_ _opportunity_ _to_ _present evidence in mitigation to the Chairman at the hearing._ " 6. On the same day as the date of the verdict, i.e., the 16th June 2021 the Employer issued a letter dismissing the Employee and sought to serve it at the employee's residence at night and in his absence. 7. Upon learning of these developments and on the 17th June 2021, the Employee's attorneys wrote to the Employer to the effect that the letter of dismissal was viewed to have been invalidly issued in that the Employee was yet to present submissions on mitigation and the Employer was requested to withdraw the letter of dismissal. 8. The Employer declined to withdraw the letter of dismissal. 2. The above culminated in an urgent application launched on the 23rd June 2021 in the Court _a quo,_ wherein the Employee as applicant sought the following main relief, coupled with a prayer for punitive costs: 1. That the letter of dismissal be set aside; 2. That the Chairman's decision to hand down a verdict in the absence of . the applicant and without reasons, only promising the parties to hand down same in 10 weeks, be reviewed and/or set aside; 3. That the Chainnan be ordered and/or directed to provide a complete record of the proceedings of the hearing and a judgement spelling out full reasons for his verdict first before calling the parties to address him on aggravating and mitigating factors. 3. The Employer raised points _in limine_ pe1iaining to urgency, hearing of issues of procedural and substantial unfain1ess on motion proceedings and lack of jurisdiction absent compliance with the dispute procedure contained in Part VIII of the Industrial Relations Act, 2000 (hereinafter referred to as the "Act.) The Court _a quo_ delivered its judgment on the 28th September 2021. None of the points _in limine_ were upheld and the relief set out in [2] above was granted, with an ordinary costs order in favour of the Employee. 4. The Employer filed a Notice of Appeal on the 5th October 2021, the grounds contained therein reading as follows: _"1._ _The_ _Court_ _erred_ _in_ _law_ _and_ _in_ _fact,_ _in_ _assuming jurisdiction_ _on_ _a_ _matter_ _where_ _the_ _employer had_ _terminated_ _the_ _Respondent's_ _services_ _and_ _by_ _further_ _re-instating_ _the_ _Respondent_ _as_ _an injunctive relief without the Respondent following the mandatory provisions of Part 8 of the Industrial Relations Act. The Court can only re-instate once a finding of unfair dismissal has been made in accordance with Section 16 of the Industrial Relations Act. The_ _Court_ _aqua_ _re-instated_ _without_ _following_ _the_ _provisions_ _of_ _Section_ _16_ _of_ _the_ _Industrial Relations Act as_ _amended,_ _Alternatively_ 2. _The_ _Court_ _erred_ _in_ _fact_ _and_ _in_ _law_ _by_ _re-instating_ _the_ _Respondent_ _without_ _any_ _justification and/or identification of exceptional circumstances which might have led to gross miscarriage_ _of_ _justice,_ _in_ _that_ _the_ _Respondent_ _would_ _not_ _have_ _redress_ _at_ _a_ _hearing_ _in_ _due course. No exceptional circumstances were identified by the Honourable Court warranting such a departure from the well-established principles of the law relating to unfair dismissals, re-instatement and_ _re-engagement._ 2. _At worst, the Respondent's complaints at Court a quo would have given rise to procedural unfairness and re-instatement would not have been an appropriate remedy in terms of Section 16[2J[d} of the Industrial Relations Act 2000 as_ _amended."_ 5. The Employer sought to have the appeal heard on urgent basis _via_ Correspondence to the Registrar of this Court. 1. Before Court, the parties' legal representatives were _ad idem_ that no clear guidelines as to such urgent enrolment appear to exist although, naturally, the party seeking urgent enrolment should at the very least demonstrate why the matter is urgent and why substantial relief cannot be afforded in due course. 2. The Court proceeded to hear the matter on the merits on the basis that the consideration of the merits shall not be construed as a finding, implied or otherwise, that the matter is indeed urgent, and further, that the Court would examine and subsequently pronounce on the requirements for urgent enrolment. # A AD URGENT ENROLMENT OF APPEALS 6. Neither the Rules of this Court nor those of the Supreme Court expressly provide for this contingency. This is an evident _lacuna,_ which requires the Court to seek the most appropriate format for regulating and articulating its internal procedures in respect thereof, in the interests of the proper administration of justice. 1 7. As for case law: 1. Cases have been located wherein ordinary civil law and labour law appeals had been entertained on an urgent basis, but without clear requirements having been spelled out in the relevant judgments. 2. As regards criminal matters and in particular in respect of urgent bail appeals, the Supreme Court judgment in _**Bhekithemba Shongwe and Sifiso Sipho Mnisi v The King2**_ sets out requirements deemed apposite in respect of bail matters. To the extent that bail as an interlocutory and inherently urgent step is possessed of peculiar requirements, the application of this judgment would be of limited application to other matters. 1 This also is an important exercise for purposes of the current ongoing review of the existing 1997 Industrial Court of Appeal Court Rules _**2**_ _**/19/2020 and 20/2020) {SZSC} 1 {2020] {13**_ _**th**_ _**January 2021)**_ 3. The only other judgment located by the Court which appears expressly to allude to urgent appeal requirements, is the 2004 Supreme Court civil case of _**African Echo (Pty) Limited and The Minister of Finance and Others,3**_ wherein a substantive application for urgent enrolment had been made under a certificate of urgency and wherein it was held as follows per Leon JP (as he then was)4: _"Rule 17 provides that the Court of Appeal may on application and for sufficient cause excuse_ _any_ _party_ _complying_ _with_ _any_ _of_ _the_ _Rules._ _The_ _Court_ _of_ _Appeal_ _may_ _also_ _give_ _such directions_ _in_ _matters_ _of_ _practice and_ _procedure as_ _it_ _considers_ _just_ _and_ _expedient._ _I_ _am_ _of_ _the view that Rule 17 is wide enough for this Court to enrol and hear an urgent appeal."_ 8. It can be safely accepted, the Rules of this Court and the Supreme Court being similar and this Court enjoying, within its field of specialty, the same powers as the Supreme Court, that the findings in the _**African Echo**_ case above would apply _mutatis mutandis_ to this Court.' 9. In ordinary applications for condonation, it is trite that _"sufficient_ _cause"_ requires a reasonable explanation for the delay and prospects of success 3 _**Civil Appeal Case No 46/2004**_ 4 At p.6 and further of the judgment, Beck and Zietsman JJA concurring 5 _Rule_ ___17_ of the Supreme Court Rules reads;" _17.The_ _Court_ _of_ _Appeal_ _may_ _on_ _application_ _and_ _for_ _sufficient_ _cause shown,_ _excuse_ _any_ _party_ _from_ _compliance_ _with_ _any_ _af_ _these_ _rules_ _and_ _may_ _give_ _such_ _directions_ _in_ _matters_ _of_ _practice and procedure as it considers just and expedient"_ and _**Rule 17**_ of the Rules of this Court reads: _"17.The Industrial_ _Court_ _of_ _Appeal_ _or_ _any_ _Judge_ _thereof may,_ _on_ _application_ _and_ _for_ _sufficient_ _cause_ _shown,_ _excuse_ _any_ _party_ _from_ _compliance_ _with_ _any_ _of_ _these_ _Rules_ _and_ _may_ _give_ _such_ _directions_ _in_ _matters_ _af_ _practice_ _and procedure_ _as_ _it considers just and_ _expedient."_ on appeal. Logic would dictate, in the case of urgent enrolment, that the delay aspect be reversed and be substituted with the urgency aspect i.e., the applicant for urgent enrolment must clearly set out and demonstrate: 9.1 The facts and/or circumstances which render the matter urgent; and 3. Why the applicant cannot be afforded substantial redress in due course; and 3. Favourable prospects of success on appeal. 10. The above requirements are not cast in the alternative; all three requirements must be met. Also, there does not appear to be any legal impediment to a respondent, as applicant, seeking an urgent enrolment. 11. As for fonn and in order to accommodate procedural fairness, a substantive application is required: - 1. Under a certificate of urgency; 2. With a notice of application setting out the relief sought and affording the respondent/s the opportunity to file a notice of intention to oppose and an answering affidavit/s should they elect to do so; and 3. Supported by an affidavit/s setting forth explicitly the circumstances which the applicant avers render the matter urgent and the reasons why he/she claims that he/she could not be afforded substantial redress at an appeal hearing in due course, as well as setting out why it is averred that there are favourable prospects of success on appeal where the applicant is the appellant, or where the applicant is a respondent in the appeal, why it is averred that there are no favourable prospects of success on appeal. 4. Should opposing papers be filed, the applicant may file a replying affidavit.6 12. Further, taking into account the _forum,_ a ruling on urgency has to issue first. Should the matter be held to be urgent, an urgent date and/or time 6 In the _**Bhekithemba**_ ___**Shongwe**_ ___**and**_ ___**Sifiso**_ ___**Sipho**_ ___**Mnisi**_ __ matter reference to replying papers evidently was inadvertently omitted for hearing would be allocated; should the matter be held not to be urgent, the appeal shall await its tum in the ordinary course i.e., there should not be a _"hybrid_ _hearing."_ 2. ## AD APPEAL 1. **CENTRAL LEGAL** **ISSUE** 13. Fair or unfair dismissal is statutorily defined in _**sections**_ ___**35**_ and _**36**_ of the **Employment** **Act,** **1980.** Invalid dismissal, on the other hand, is a common law concept. The instant appeal is understood to be based on the premise that there was reinstatement, which may be ordered, in accordance with _**section 16**_ of the (Industrial Relations) Act pursuant to a finding of unfair dismissal, but that there had been no requisite finding of unfair dismissal _in_ _casu._ 14. In the Founding Affidavit, the case painted by the Employee was that there had been an incomplete disciplinary hearing _contra_ the provisions of the Disciplinary Code and the Employee submitted that the Employer therefore had unlawfully dismissed him. The Employee further repeatedly referred to the letter of dismissal and/or the dismissal as being _"invalid._ " 15. The relief sought by the Employee and eventually granted by the Court _a quo_ was setting aside the letter of dismissal, and not reinstatement. The Employee's cause of action was invalid dismissal and in Employee's heads of argument it was submitted, with reference to the South African Labour Court judgment in _**Solidarity and Others**_ ___**v**_ _**South**_ ___**African**_ ___**Broadcasting**_ ___**Corporation**_**7****,** that an invalid dismissal, in the eyes of the law, never occurred and an employee whose dismissal was invalid, does not need an order for reinstatement. Paragraphs [70], [71] and [72] of this judgment read as follows: _"[70} The appropriate relief in this instance given that the claim rests on unlcmfulness is that_ _th_ _e dismissals_ _shoul_ _d be nullified.__A_ _s_ _th_ _e_ _cour_ _t_ _state_ _d_ _i_ _n Steenkam_ _p_ _8_ _(paras_ _189_ _and_ _192):___**'An invalid dismissal is a nullity. In the eves of the law an emplovee whose dismissal is**__ ____**invalid has never been dismissed. If. in the eves of the law, that employee has never been**__ ____**dismissed, that means the employee remains in his or her position in the employ of the**__ ____**employer....**__ __**It is an employee whose dismissal is unfair that requires an order of reinstatement**__ _**.**__An employee whose dismissal is invalid does not need an order of reinstatement.__ff_ _an employee whose dismissal has been declared invalid is prevented by the employer fom_ _entering the workplace to perform his or her duties, in an appropriate case a court may interdict the employer ji'om preventing the employee from reporting for duty or from pe1forming his or her duties. The court may also make an order that the employer must allow the employee into the workplace for purposes of pe1forming his or her duties. However, it cannot order the reinstatement of the employee.'_ 7 **2016 (6) SA 73 (LC)** 8 i.e., _**Steenkamp and Others v Edcon Ltd**_**2016 (3) SA 251 (CC) ((2016) 37 IU 564;[[2016] ZACC 1](/akn/za/judgment/zacc/2016/1)** _[71] Consequently, an order declaring the applicants' dismissals invalid, will have the legal effect_ _that_ _their_ _dismissals_ _never_ _took_ _place and_ _can_ _be_ _accompanied_ _by_ _an_ _order_ _that_ _the SABC_ _must_ _allow_ _them_ _into_ _their_ _workplaces_ _for_ _the_ _purpose of_ _performing_ _their_ _duties._ _[72_ _J_ _There_ is _also the question of the suspensions and the incomplete enquiries which were_ _initiated prior to the applicants' dismissals. It was argued by the SABC that those would fall away as the fact of the applicants' dismissal would have that effect. However,__if_ _the legal_ _consequence_ _of_ _the_ _final_ _relief_ _is_ _that_ _the_ _dismissals_ _did_ _not_ _happen,_ _it_ _does_ _not_ _seem_ _to_ _follow_ _in_ _my_ _view_ _that_ _eve,ything_ _preceding_ _them_ _has_ _no_ _application._ _As_ _those_ _enquiries were_ _essentially_ _initiated_ _for_ _the_ _same_ _reason_ _as_ _the_ _dismissal_ _or_ _because_ _of_ _the_ _applicants' disagreement_ _over_ _adopting_ _the_ _policy,_ _it_ _would_ _follow_ _from_ _the_ _analysis_ _above_ _that_ _those instructions_ _and_ _steps_ _were_ _unlawful_ _because_ _they_ _were_ _premised_ _on_ _the_ _enforcement_ _of_ _an unlawful policy."_(Own emphasis and underlining9) 16. The substance of the above exposition was restated as follows by the South African Constitutional Court in _**Maswanganyi v Minister of**_ ## _Defence And Military Veterans and_ ___Others:__10_ _"{46]_ _I_ _am_ _fortified_ _in_ _this_ _conclusion_ _by_ _this_ _court's_ _reasoning_ _in_ _Steenkamp_ _[Para_ _118]_ _where it clarified the distinction between unlawful, unfair and invalid dismissals. The court stated:_ __**"The common law which gives us the concept of the invalidity of a dismissal is rigid. It**__ ____**says**__ ______**that if**__ ______**a**__ ______**dismissal**__ ______**is**__ ______**unlawful**__ ______**and**__ ______**invalid,**________**the**__ ______**employee**__ ______**is**__ ______**treated**__ ______**as**__ ______**never**__ ______**having**__ ____**been dismissed irrespective of whether the only problem with the dismissal was some**__ ____**minor**__ ______**procedural**__ ______**non-compliance.**________**It**__ ______**says**__ ______**that**__ ______**in**__ ______**such**__ ______**a**__ ______**case**__ ______**the**__ ______**employer**__ ______**must**__ ______**pay**__ ______**the**__ ____**employee the whole back-pay, even if. substantivelv, the employer had a good and fair**__ ____**reason to dismiss the emplovee.'**__ _**It**_ _stated further:_ _'The distinction between an invalid dismissal and an unfair dismissal highlights the distinction in our law between lawfulness and fairness in general and, in particular, the distinction between an unla\1ful and invalid dismissal and an unfair dismissal or, under the 1956 Labour Relations Act a dismissal that constituted an unfair labour practice. At_ _common la\11 the termination of a contract of employment on notice is la\1ful but that termination may be unfair under the Labour Relations Act_ _if_ _there is no fair reason for it or_ _if_ _there was no compliance with a fair procedure before it was effected. This distinction_ _has been highlighted in both our case la\11 and in academic writings._ 9 _Ditto_ emphasis and underling in further extracts from cases below 10 **2020 (4) SA 1 {CC)** __**It is an employee whose dismissal is unfair that requires an order of reinstatement**__ _**.**___**An employee whose dismissal is invalid does not need an order of reinstatement**__ _**.**__If an employee whose dismissal has been declared invalid is prevented by the employer from entering the workplace to perform his or her duties, in an appropriate case a court may interdict the employer from preventing the employee from reporting for duty or fi·om performing his or her duties. The court may also make an order that the employer must allow the employee into the workplace for purposes of pe1jorming his or her duties. However, it cannot order the reinstatement of the employee.'" [Steenkamp Paras 191- 192]"_ 17. During the course of consideration of its judgment, it became evident to the Court that the concept of _"invalid dismissal"_ lies at the centre of the controversy and the Court invited the parties through the Registrar to submit supplementary heads of argument thereon if they so wished. Mr Gamedze for the Employer responded by submitting firstly, that the _**Maswanganyi**_ _judgment_ related to the South African Defence Act, 2002, that the Eswatini Industrial Relations Act does not apply to the armed forces and that the High Court has jurisdiction over the armed forces. Secondly, that it is evident from the _**Steenkamp**_ case referred to, that the South African Labour Relations Act (hereinafter referred to as the "LRA") does not contemplate invalid dismissals. Mr Jele for the Employee abided by the arguments already advanced on behalf of the Employee. 18. From the outset, the Court must echo the prudent caution that one should not summarily superimpose foreign legislation onto Eswatini law. As for labour law, there are significant differences in the hierarchy, composition, jurisdiction and powers of the South African labour courts, which includes that the Labour Court does not enjoy exclusive jurisdiction over labour matters, as is the case with the Eswatini Industrial Court. Also: 1. _**Section**_ ___**193**_ of the LRA provides only for reinstatement, reemployment or compensation for unfair dismissal or unfair labour practice. It was held in the _**Solidarity**_ matter11 that it did not follow, because the LRA did not provide for a remedy, that a remedy did not exist at all in that the Labour Court had certain powers under another statute to grant orders for specific performance compelling employers to honour contractual obligations to hold disciplinary hearings; and to set aside dismissals in breach of such obligations; consequently the Labour Court was entitled to ente1iain claims based on any alleged invalid termination of their employment contracts and to make the competent orders. 12 11 Paragraphs (44] to (47] 12 See also Paragraph [52] of the _**Steenkamp**_ _iudgment_ 2. The position in Eswatini is quite different. _**Section 16**_ of the Act at first glance appears to be restricted to unfair dismissals. However, _**subsection 8**_ leaps to the eye, reading: _"(8) Where the Court,___**in settling any dispute or grievance, finds that the employee has been**__ ____**disciplined or otherwise disadvantaged or preiudiced**__ ___contrary to a registered collective agreement or any other law relating to employment,___**the Court shall make an order**__ ____**granting such remedy as it may deem iust**__ _**.**__"__13_ 3. Moreover, further unlike in South Africa, express and specific provision is made for jurisdiction over common law matters, which would include invalid dismissal, in that _**section 8(1)**_ of the Act which sets out the jurisdiction of the Industrial Court, includes: " ..., __or in respect of any matter which may arise at common law between an employer and employee in the course of employment_ _.... " 19. It then follows that the common law concept of invalid dismissal forms part of our law and is justiciable by the Industrial Court. 13 Read with§§ **8(3)** and **(4)** i.e. _"/3)_ _In_ _the_ _discharge_ _of_ _its_ _functions_ _under_ _this_ Act, the _Court_ _shall_ _have_ _all_ _the_ _powers_ _of_ _**th**_ _**e**_ ___**Hig**_ _**h**_ ___**Court**_ _**,**____**includin**_ _**g**_ ___**th**_ _**e**_ ___**power**_ ___**t**_ _**o**_ ___**grant**_ ___**injunctiv**_ _**e**_ ___**relief**_ _**/**_____**and** _**1**_ _**1**_ _**(**__**4**_ ___**}**____**I**_ _**n**_ ___**deciding**_ ___**a**_ ___**matter**_ _**,**____**th**_ _**e**_ ___**Cour**_ _**t**_ ___**ma**_ _**y**_ ___**mak**_ _**e**_ ___**any**_ _**other order**_ _**it**_ _**deems reasonable which will promote the purpose and objects of this**_ ___**Act."**_ 20. Reverting to the case under consideration, the Disciplinary Code, which fonns part of the terms and conditions of employment, requires certain steps to be followed; the starting point of most cases involving dismissal is the prevailing Code. 14 The failure by the employer to comply with the dictates of the Code prior to a dismissal may constitute a procedurally unfair dismissal but a dismissal may be both procedurally unfair and invalid, in which case it is. for the aggrieved party to elect which cause of action and consequent remedy to pursue.15 21. _In_ _casu_ the Employee elected to rely on invalid dismissal, and there being no dispute that the Employer had jumped the gun in dismissing without prior submissions on sanction, contrary to the Code, the Employee was entitled to rely on invalid dismissal as his cause of action in the Court _a_ _quo,_ and to seek appropriate relief in the fom1of the letter of dismissal being set aside (as opposed to unfair dismissal and reinstatement), the dismissal itself being a nullity in the circumstances. 16 14 See also, in broad terms, § 4 of the Act 15 See for instance _POPCRU v SACOSWU and Others_ 2019 (1) SA 73 {CC) at Paragraph [145) 16 _En passant:_ a prayer for an order declaring a dismissal to be invalid, or valid, as the case may be, would also have been appropriate (compare _NTE Ltd v SA Chemical Workers' Union and Others_ 1990 (2) SA 499 (N) at 501) and would serve as a springboard for any subsequent steps or documents, _ex lege,_ to be devoid of any legal force or effect 22. It then follows that the _"unfair_ _dismissal"_ and _"reinstatement"_ bases of the appeal were misplaced and cannot be considered and as such, that the appeal is bound to fail. 2. ## NATURE OF GROUNDS OF APPEAL 23. Within the current prevailing legal parameters, this Court is seized with adjudicating not only the merits of an appeal but also, usually as a preliminary exercise, the oft th01ny and vexing determination whether or not a particular ground of appeal constitutes a question of law, as is required by the Act in its existing form. 24. _In_ _casu_ a question of law had been posed in the context of the correct application of the law relating to unfair dismissal and reinstatement and as such an appeal to this Court was permissible in the circumstances. 25. However, the matter does not end there in that recent legal pronouncement prompts the following observations which, I must emphasise, are _obiter_ only: 1. The Industrial Court (created in 1980) and this Court (created in 1996) are creatures of statute and the Industrial Court was vested with exclusive original jurisdiction in labour matters in 1996. Neither Court has been declared by the Legislator to be _"subordinate"_ courts; the only legislation creating or defining subordinate courts was the **Subordinate Courts Proclamation** _**(Cap.**_**20)** which became the Magistrate's Courts Act, 1938. 17 2. On the contrary, in _**section 32**_ of the Constitution, workers' rights for the first time are recognised to be fundamental human rights. For purposes of this judgment possibly oppressive past practices and/or historical legacies pre-2005 need not be considered; suffice it to express the view that there no longer is room to portray a breach of employment contract as being inferior or subordinate to say breach of a building contract (where, ironically, the person ordering the construction generally is referred to as the _"Employer")_ or to maintain unequal playing fields between ordinary civil law, and labour law litigants. 17 See the End Note to the **Magistrate's Courts Act, 1938** reading: _"{NOTE: This Act was formerly styled the_ _Subordinate_ _Courts_ _Proclamation_ _{Cap._ _20)_ _and_ _the_ _courts_ _established_ _under_ _it_ _were_ _known_ _as_ _subordinate_ _courts.]"_ 3. In the recent judgment of the Supreme Court in _**Cashbuild Swaziland (Pty) Ltd vs Thembi Penelope Magagula**_ _18_ it was held by way of a majority judgment that the Industrial Court and the Industrial Court of Appeal, respectively, are specialised courts operating in a parallel plane to the High Court and the Supreme Court respectively, and that the High Court has no revisional jurisdiction over the industrial courts. It then follows, the judgment continued, that _**section**_ _**19(5)**_ of the Act which refers to a review by the High Court is unconstitutional and as such, it was struck down. 4. Many such reviews previously laid before the High Court, on closer reading of those judgments, appear to be but thinly disguised appeals on questions of fact or judicial discretion, resorted to in the review arena by litigants because only a right to appeal on a question/s of law is provided for. 5. Labour law is but a specialised field of civil law, equipped with its own courts. The ordinary civil law litigant enjoys a right to a _''full"_ appeal in the sense of an um·estricted challenge on questions of fact and/or law 18 (26B/2020) [2021] _SZSC_ 3 I (09/12/2021) and/or judicial discretion. In contrast, the aggrieved labour law litigant is confined to an appeal on a question oflaw only and as a consequence, suffers from a distinct disadvantage _vis-a-vis_ his or her or its ordinary civil law counterpart. 6. This inequity _prima facie_ impacts on the right of labour litigants to equality before the law, with reference to _**section 20(1)**_ of the Constitution which reads: _**"All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law"**___ as well the _**"right to a fair hearing"**_ under _**section 21(1).**_ 7. In the Supreme Court a right to a _''full"_ appeal exists, as an appeal as of right against all final High Court judgments, and with leave as regards costs, _ex parte_ and interlocutory orders. Further, the High Court has the power to submit a stated case on a question of law to the Supreme Comi. 19There does not appear to be any rational impediment to the Legislature stipulating and implementing the same in respect of this 19§§ **14** and 17 of the Appeal (Supreme) Court Act, 1954 Court and the Industrial Court; in terms of _**sections 8(3)**_ and _**20(1)**_ of the Act these Courts are to have the same powers as their civil counterparts and the spirit of these provisions should be given proper effect to. 8. It is trusted that the current reviewers of the Act under the auspices of the Labour Advisory Board, will take these remarks to heart and give serious consideration to amending the Act accordingly and with reference to the possible constitutional implications, to do so with all expediency. # C CONCLUSIONS AND ORDER 26. In the result, it is held that: 26.l The common law concept of invalid dismissal forms part of our law and is justiciable by the Industrial Court; 20 20 _Vide_ again§ 16(8) of the Act and Paragraphs [18] and (19] _supra_ 2. A dismissal may be both procedurally unfair and invalid, in which case it is for the aggrieved party to elect which cause of action and which remedy to pursue; 21 2. An invalid dismissal is a nullity; in the eyes of the law an employee whose dismissal is invalid has never been dismissed and remains in his or her position in the employ of the employer. It is an employee whose dismissal is unfair, who requires an order of reinstatement;22 2. _In casu,_ the case of the Employee had as its cause of action invalid dismissal, which is a valid cause of action. (For purposes of this judgment, it is not to be decided whether, _de facto,_ there had been an invalid dismissal or not.) 2. The Employer's appeal was predicated on unfair dismissal supposedly resulting in reinstatement and the legal basis of the appeal, in the circumstances, therefore was inapplicable and misplaced. 21 _POPCRU v SACOSWU and Others_ 2019 (1) SA 73 (CC) - Paragraph [20] _supra_ 22 _Steenkamp and Others v Edcon Ltd_ 2016 (3) SA 251 (CC) ((2016) 37 IU 564; [[2016] ZACC 1](/akn/za/judgment/zacc/2016/1); _Solidarity and Others_ _v South African Broadcasting Corporation_ 2016 (6) SA 73 (LC); _Maswanganyi v Minister of Defence And Military_ _Veterans and Others_ 2020 (4) SA 1 (CC) - Paragraphs [15] and [16] _supra_ 27. Accordingly, the following order is made: 1. The appeal is dismissed, with no order as to costs. 2. The Registrar is requested to make available a copy of this judgment to the Attorney-General for consideration of amendment of the Industrial Relations Act, 2000, with reference to Paragraph 25.7 _supra._ ## _J_ _._ _WALT_ **JUSTICE OF APPEAL** I agree _...,...,.__**Je**_ ## S.NSIBANDE JUDGE PRESIDENT I agree _L_ __ .NONYANE ## JUSTICE OF APPEAL For the Appellant: Mr B Gamedze of Musa M. Sibandze Attorneys For the Respondent: Mr ND Jele of Robinson Bertram Attorneys #### __Related documents ▲ To the top >