Attorney General v National Public Service And Allied Workers Union (9 of 2021) [2021] SZICA 206 (10 August 2021)

# Attorney General v National Public Service And Allied Workers Union (9 of 2021) [2021] SZICA 206 (10 August 2021) [ __](https://api.whatsapp.com/send?text=https://eswatinilii.org/akn/sz/judgment/szica/2021/206/eng@2021-08-10) [ __](https://twitter.com/intent/tweet?text=https://eswatinilii.org/akn/sz/judgment/szica/2021/206/eng@2021-08-10) [ __](https://www.facebook.com/sharer/sharer.php?u=https://eswatinilii.org/akn/sz/judgment/szica/2021/206/eng@2021-08-10) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://eswatinilii.org/akn/sz/judgment/szica/2021/206/eng@2021-08-10) [ __](mailto:?subject=Take a look at this document from EswatiniLII: Attorney General v National Public Service And …&body=https://eswatinilii.org/akn/sz/judgment/szica/2021/206/eng@2021-08-10) [ Download DOC (70.7 KB) ](/akn/sz/judgment/szica/2021/206/eng@2021-08-10/source) Toggle dropdown * [Download PDF](/akn/sz/judgment/szica/2021/206/eng@2021-08-10/source.pdf) Report a problem __ * Share * [ Download DOC (70.7 KB) ](/akn/sz/judgment/szica/2021/206/eng@2021-08-10/source) * [Download PDF](/akn/sz/judgment/szica/2021/206/eng@2021-08-10/source.pdf) * * * * * Report a problem __ ##### Attorney General v National Public Service And Allied Workers Union (9 of 2021) [2021] SZICA 206 (10 August 2021) Copy citation * __Document detail * __Related documents Citation Attorney General v National Public Service And Allied Workers Union (9 of 2021) [2021] SZICA 206 (10 August 2021) Copy Media Neutral Citation [2021] SZICA 206 Copy Court [Industrial Court of Appeal of eSwatini](/judgments/SZICA/) Case number 9 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 10 August 2021 Language English Court Roll [Download PDF](/akn/sz/judgment/szica/2021/206/eng@2021-08-10/attachment/attorney-general-v-national-public-service-and-allied-workers-union-2021-szica-206-10-august-2021.pdf) (158.6 KB) Summary Read full summary * * * Skip to document content _**IN THE INDUSTRIAL COURT OF APPEAL OF ESWATINI**_ Case No. 09/2020 In the matter between **ATTORNEY** **GENERAL** Appellant and I **NATIONAL PUBLIC SERVICE AND** **ALLIED WORKERS** **UNION** **(NAPSAWU)** Respondent **NEUTRAL CITATION:**_**Attorney General**_ _v_ _**National Public Service and Allied Workers Union (NAPSAWU) [2021] (09/2020) SZICA (10 August 2021)**_ **CORAM: S.** Nsibandze JP, J.M. van der Walt JA and N. Nkonyane JA **HEARD: 14/06/2021** **DELIVERED: 10 AUGUST 2021** _**Summary**_ _Appeal_ \- _deemed to abandoned in terms of_ __Rule 21(4)___where record submitted or resubmitted for certification out of time, unless an application for extension in terms of_ __Rule__ __16__ ___had been made_ \- _no other any occurrence other than such application for extension, can serve to ward off the relevant provision deeming the appeal to have been abandoned_ \- _appeal thus deemed to have been abandoned, can only be revived by way of a meritorious application for condonation_ **JUDGEMENT** **VANDERWALT,JA** 1. The background facts, in a nutshell, are that the Trading Account of the Central Transport Administration (CTA) was closed in tenns of a Circular No 1 of 2020/2021 and the cunent respondent trade union, representing CTA workers, instituted proceedings in the Comt _a quo_ against the Principal Secretaries of the Ministries of Public Works & Transp01t, Public Service and Finance respectively, as well as against the Accountant General: Treasury and Store Depaitment, fmther citing the cmTent appellant in his capacity as Governmental legal representative. 2. The Respondent as the applicant _a_ ___quo_ __ sought an order amongst others declaring the relevant Circular to be of no legal force or effect and directing consultations between the parties regarding the transformation of CTA into a parastatal. The proceedings culminated in a judgment in terms of which it was ordered, amongst others, that the Circular be stayed pending consultations. 3. The Appellant, being dissatisfied by the outcome, noted an appeal, the gravamen of which was that the Comt _a_ ___quo_ __ e1Ted and misdirected itself in refusing to stay the proceedings, in refusing to refer the issue concerning the nature of the powers exercised by the Principal Secretaiy in the Ministry of Public Works and Transp01t, to the High Court, and in suspending the operation of the Circular pending consultation between the Gove1mnent and the respondent. 4. The post-judgment chronology of filings can be summarised as follows, with reference to the applicable Rules of this Comt or sections of the Industrial Relations Act, 2000 (the "Act"): **DATE** | **ITEM** | **PROVISION** | **COMMENT** ---|---|---|--- 23.9.2020 | Notice of Appeal | Section 19(3): | Within 3 decision | Filed on same day as Judgment i.e. within statutorily prescribed period months of date of 23.10.2020 | Notice of Amendment of Notice of Anneal | Rule 12: The Industrial Comt of Appeal may allow an amendment on such terms as it mav deem fit | No formal application for such leave filed 25.11.2020 | Appeal Record | Rule _21(1):_ To be filed within I month of lodging appeal for cettification by Registrar Rule _21(4)_ : Failure to submit or resubmit for cettification, | Record only filed some 2 months after lodging of appeal and no application for extension or condonation in respect thereof | | subject to _Rule_ _16(1)_ i.e. application for extension for _"good and_ _substantial_ _**reasons"**_ appeal shall be deemed to be abandoned Rule 17: Condonation for | ---|---|---|--- non-compliance with any of the Rules, _"for sufficient_ _**cause shown"**_ | 23.4.2021 | Appellant's Heads of Argument | Rule _22(1):_ No later than 14 days before hearing of appeal | Matter initially set down for 4.5.2021 and Heads filed out of time; no application for condonation 23.4.2021 | Appellant's application condonation incomplete record | Rule 17 above | Only 4 omitted pages concerned; date of filing of record not addressed 27.4.2021 | Respondent's Heads of Argument | Rule _22/3)_ : No later than 4 days before hearing of appeal | Filed in time. Issue is taken therein with pe1tinent affidavits and notices not having been included in record 28.4.2021 | Respondent application for leave to produce fresh evidence in respect of post- judgment developments | | (In **view** of the ultimate finding below this aspect needs not be considered any futiher) 4. It is immediately apparent that the Record had not been filed within the prescribed period and that there was no application for either an extension or for condonation. On a strict interpretation of _Rule 21(4)_ therefore, the appeal is deemed to be abandoned, which was the core submission on behalf of the respondent, accompanied by a complaint of an incomplete record (including the omission of papers relating to the stay application that had been refused and which is referred to in the Notice of Appeal.) 4. l'v1r Vilikati, on behalf of the appellant, vigorously urged this Court to hold that the filing of the Notice of Intention to amend the Notice of Appeal, resulted in the proverbial ticking of the clock being interrupted and that the period for filing had to be recalculated afresh as from date of filing of such notice. In the premises, it was contended, an application for condonation was not necessary. 4. This Court was not provided with, and is unaware of any applicable authority in support of such a contention. Nor do the Rules, either in general or specifically in _Rule 21,_ contain any _provisio_ to the effect contended for on behalf of the appellant. 4. Extension of the march of time towards a due date for filing or lodging or the performance of any other stipulated act, can be achieved by way of a successful _Rule 16_ application prior to such due date. If, in a particular case, an intention to amend a notice of appeal would constitute good and substantial reasons for such an extension, the appellant can make application accordingly and will then not fall foul of _Rule_ ___21(4)._ 4. Consequently, this Court declines to hold that any occurrence other than an application for extension, can serve to ward off the relevant provision deeming the appeal to have been abandoned. 4. Even were Mr Vilikati's argument correct, the record was still filed several days out of time. In addition, the record was incomplete; an appeal cannot be decided properly unless all the relevant material has been placed before Comi. 4. It then follows, absent an application for extension and in terms _ofRule 21(4)_ that the appeal is deemed to have been abandoned and absent an application for condonation, that the appeal had not been revived. 9. In the circumstances, all the other issues arising from the noting of appeal need not be considered for cunent purposes. 9. Accordingly, the following order is made: The appeal is dismissed, with no order as to costs. **J.M. VAN DER WALT JUSTICE OF APPEAL** I agree **S. NSIBANDE****JUDGE** **PRESIDENT** 1 See _Eswatini National Trust Commission v Swaziland National Trust Commission Staff Association and Another [2021] (12/2020} SZICA 3 {10 August 2021)_ ' ' 7 I agree **Nl(ONYANE** **STICE OF APPEAL** For the Appellant: Mr. M.M. Vilikati assisted by Mr M Manana, Attorney General's Chambers For the Respondent: Mr. M. Ndlangamandla ofMLK Ndlangamandla Attorneys #### __Related documents ▲ To the top >