The Swazi courts have been battling to resolve the question of where the judges of the industrial court and the industrial court of appeal fit into the court hierarchy. In a long, complex and technical decision, that country’s highest court has laid down the law: the two industrial courts are inferior in the legal hierarchy to the high court and the supreme court, not equal to them. In a unanimous decision, five judges of the supreme court have sorted out the problem, but not without an immense struggle, for while they stress that the intention of the law makers has to be respected, that “intention” was clearly exceedingly difficult to fathom. “Mind-boggling”, in fact, to use the supreme court’s own words. 

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At 77 pages, the Supreme Court’s decision on the status of the two Swazi industrial courts has to be one of the longest ever produced in that country.

Five Supreme Court judges wrestled with the complexities but in the end it was authored by Judge “M J” Majahenkhaba Dlamini with the concurrence of the others.

The question before the court was whether the High Court was empowered to review decisions of the Industrial Court of Appeal. But Judge Dlamini said that to him this question was “really part of a bigger jurisdictional issue involving the relationship between the High Court/Supreme Court on the one hand, and the Industrial Court/Industrial Court of Appeal on the other hand.

Were the labour specialist courts even “courts” in the usual sense? After all, they were established by different legislation. “If there is no common ground between these sets of courts, then we are talking of apples and oranges. Either these ‘court’ systems are separate and stand-alone entities or they are part of the Judiciary.”

To cut an extremely long and complex story short, the Supreme Court concluded that the Industrial Court (IC) and the Industrial Court of Appeal (ICA) are not “superior courts”. They are not comparable in the way many people had thought: that the IC was on the same “level” as the High Court, and the ICA on par with the Supreme Court. Instead, both are “inferior” to the High Court.

In getting to this outcome, the judges noted on more than one occasion how unclear the wording of the legislation turned out to be: the law “is not entirely intelligible”, they observed.

Any similarity (in status) between the Supreme Court and the ICA was “artificial and not real”, they said. There was an “unbridgeable gulf” between the two. There was “simply no way” that the ICA could be equal in status to the highest of the Swazi courts, the Supreme Court.

Judges of the industrial courts were indeed “part of the judiciary” but they were not “equal” to the judges of the other two courts.

“The conclusion we have reached in this matter is that a court, tribunal or adjudicating authority exercising a judicial function established by Act of Parliament in regular sitting can never be equal to the High Court or Supreme Court, no matter how it is composed in terms of its membership and alleged power.”

The review jurisdiction of the High Court over decisions of the industrial courts was thus not ousted. “It would not make sense to say that by reason of the reviewability of its decision it is the IC alone that is inferior to the High Court and not the ICA as well. In my view, the low standing of the IC attracts a similar treatment (for) the ICA. That is, by submitting to the authority of the High Court, the IC, as it were, inevitably pulls the ICA down with it. Whether this result was the intention of Parliament or a glitch in (the drafter’s) workmanship is not for us to determine here. But it certainly looks awkward to have the Industrial Court equal in status to the High Court and at the same time have the Industrial Court of Appeal perfectly equal to and at peace with the Supreme Court.”

This led to the inevitable conclusion that the IC/ICA could not be equal to the HC/SC as the Industrial Relations Act might appear to suggest. “This also means that the ICA is only an inferior court of appeal.”

One of the many serious difficulties in understanding the legislative scheme was that “there cannot be an appeal and a review in the same matter,” no matter which party brought such a challenge. The choice had to be made between review and appeal. If a party wanted a High Court review of the Industrial Court’s decision, it would mean the decision of the IC on the merits could not be appealed. Otherwise “there must be an appeal rather than review on the understanding that whatever reviewable defects might be present the appeal will take care of those as well.”

  • Newsletter, Judicial Institute for Africa (Jifa), 14 March 2019