Assessors Industrial Court – appointment and suspension

CIV. CASE NO. 1686/96

In the matter between

JOSIAH M. YENDE 1ST APPLICANT

NICHOLAS R. MANANA 2ND APPLICANT

And

PRINCIPAL SECRETARY, MINISTRY OF JUSTICE 1ST RESPONDENT

MINISTER OF ENTERPRISE AND EMPLOYMENT 2ND RESPONDENT

ATTORNEY GENERAL 3RD RESPONDENT

JUDGEMENT

(06/01/99)

Maphalala J:

The matter came by way of motion for an order in the following terms:

The applicants filed founding affidavits with annexures to support their case. The matter is opposed by the respondents. The 1st respondent filed an answering affidavit of the Principal Secretary in the Ministry of Justice and Constitutional Affairs. The two applicants filed replying affidavits to the respondents answer. The matter came before me in the contested motion of the 30th October 1998, where I heard arguments from Mr. Khumalo for the applicants and Miss Gama for the respondents. Mr. Khumalo submitted from the Bar of the detailed Heads of Arguments, which I must say have been very useful to me in the preparation of this judgment.

The case for the applicants is that during or about the 22nd January 1992, the 1st applicant was appointed by the President of the Industrial Court as nominated member of the Industrial Court of Swaziland in terms of Section 4 (2) of the Industrial Relation Act. The letters of appointment are attached marked “A”. The 2nd applicant was appointed as a nominated member of the said court during or about 21st February 1995. The appointments as nominated members of the Industrial Court had no fixed period of termination. However, in terms of the amended Industrial Relations Act 1996, the period of such appointment became fixed and were for a period of three years effective from the 20th January 1996 which is the date of coming into operation of the Act.

The applicants submit that their appointments, in the absence of any legal instruments terminating the same, continued to be in force despite the amendment to the Industrial Relations Act 1980. However, it is their further submission that with the promulgation of the Industrial Relations Act 1996 their appointments became fixed and determinable. They were for a period of three years (3) and should expire say, about the 20th January 1999.

The applicants aver that the 2nd applicant and that of the 1st respondent acted wrongfully and unlawfully in suspending their appointments to the Industrial Court. The 1st respondent acted beyond his powers in that he had no right to suspend their appointments or employment with the Government of the Kingdom of Swaziland because in the first place he is not the appointing authority in terms of the Industrial Relations Act 1996. Accordingly therefore the 1st respondent wrongful conduct constitutes an infringement to their lawful right to gainful employment. Notwithstanding the fact that the Minister responsible for labour had not prescribed by regulation the fees which the applicants were to be paid. The 1st respondent paid them an average wage of E6, 594-00 per month depending on the days worked and excluding public holidays. They were each required to submit vouchers for payment every month. When they submitted the vouchers for May and June 1998, the 1st respondent refused to pay them on the ground that the contract of the President of the Industrial Court, Mr. Banda with whom they sat as nominated members had expired on the 31st March 1998. The amount owing and due to them by the Government of Swaziland is the total sum of E13, 188-00 per person for the months of May and June 1998. Their nomination as members of the court were made in accordance with the requirements of Section 4 (4) of the Industrial Relations Act No. 1 of 1996 in that the 1st applicant was nominated by the employee’s organization whereas the 2nd applicant was nominated by the employers organizations. In terms of the said Act their respective organization were obliged to make them available for work of the court at all times. Consequently, each of them was then obliged to have no other form of employment so as to be always available for the work of the Industrial Court. This meant that they had to give up all other sources of gainful employment and rely on the fees, which they obtained while they worked for the Industrial Court. They submit that their appointments as nominated members of the Industrial Court were never dependent or subject to the subsistence of Mr. Banda’s contract with the Government. The wrongful suspension from work by the 1st respondent has caused irreparable harm in that the applicant’s are presently unable to maintain themselves and their families and to meet other financial commitments they had entered into in contemplation of gainful employment for at least the duration of their appointment.

The application is opposed by the respondents who filed the answering affidavit of the Principal Secretary in the Ministry of Justice and Constitutional Affairs Mr. Elliot Bhembe who admits paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 9 of the applicant’s founding affidavits. He denies that the 1st applicant was re-appointed for a period of three years as alleged in his paragraph 9 of his founding affidavit. He further denies that he suspended the appointment of the 1st applicant and 2nd applicant as alleged. He merely advised the applicants in his administrative capacity that they would not be required to convene as an Industrial Court in terms of the Industrial Relations Act until further notice as the contract of the President of the Industrial Court, Mr. Banda had expired on the 31st March 1998, and same had not been renewed. He confirms that he is charged with the overall administrative functions of the Ministry of Justice and Constitutional Affairs, under which the Industrial Court operates and was at all times in charge of all administrative matters of the applications including processing of allowances for the applicants and it was therefore within his competence to advise them of non-availability of the President of the Industrial Court. He further submits that the applicants were at all material times paid allowances as when they convened as a court and they are not entitled to any allowances when they are not sitting as an Industrial Court. He confirms that he paid the applicant’s allowances based on the number of days they convened as a court and such allowances excluded public holidays. He denies that the applicants were entitled to any payments for the months of May and June 1998, as the court did not convene during that period. The deponent further denies paragraph 13 of the 1st applicant’s founding affidavit in its entirety and a proper interpretation of Section 4 (1-6) of the Industrial Relations Act No. 1 of 1996 will be fully canvasses when the matter came for arguments. He avers further that by accepting the nominations as an assessor 1st and 2nd applicant knew or ought to have known that they would not be paid allowances except for days they sat and that the principle of volenti non fit injuria applies. The 1st respondent denies that he suspended the applicants wrongfully and states that the applicant’s will continue to sit as and when the Industrial Court to which they were nominated resumes its normal operations. The respondent denies that the applicant’s have suffered any irreparable harm as alleged at all. The respondents apply to the court to dismiss this notice of motion with costs.

The applicants filed a replying affidavit of the 1st respondent who replied that AD paragraph 6 of respondent’s affidavit argument shall be advanced on behalf of the applicants at the hearing of this matter to show that applicants have been appointed de facto for an indefinite period of time in view of the fact that the instrument by which the applicant were appointed as members of the Industrial Court does not stipulate the duration of office and upon coming into force of the Industrial Relation Act 1996 “(The 1996 Act)”. The applicants continued to serve as such court members without any changes or stipulations regarding the duration of their appointment. Alternately that the applicant’s were implied re-appointed for a period of three years to be reckoned from the date of coming into force of the 1996 Act by operation of the law and the application of the provisions of Section 4 of the 1996 Act. The deponent further addressed the issue of the power of the secretary to suspend sitting (see paragraph 6, 6.1, 6.2, 6.3, 6.4 of the replying affidavit of the 1st applicant. The gravamen of his reply is that the power of appointment lay with the President of the Court and there were no terms and conditions relating to the appointment of the applicant; there are no regulations either. In the absence of the terms and conditions and regulation, there is no legal basis for the variation of the order and manner of sittings or the convening by the applicant of the Industrial Court or either attendance to court in discharge of their duties. Even if there was such basis, the power to make such variation would lie with the President of the Court and not the 1st respondent.

The 1st respondent further replied to paragraphs 7.3 and 8 of the respondent to wit, the remuneration of the applicants. The 1st applicant went in great detail to outline the issue of remuneration. He avers that none of the instruments by which the applicants were appointed addressed or made any provisions for remuneration reference is made to annexure “A” and “B” to the applicant’s founding affidavit. Immediately upon his appointment he discussed the matter with the court President of the time, Mr. Martin Banda who advised that the matter of remuneration was still being considered by him and the Minister as it was to form part of comprehensive terms and conditions of their engagement and that the remuneration of members of the court in the interim was to be made up of a fixed rate of income for the number of days worked in every month, which effectively meant the members of the court were to be paid every month an amount that represented a daily rate payment multiplied by the number of working days which exclude only weekends and public holidays. As appears in copies of form TF 92, being claim voucher/payee advice, annexed hereto marked “JY1” to “JY2” and “NRM 1” to “NRM4”. The number of days worked, being the number of working days in each week of the month given are indicated in the third column. As the form in question was adopted for purposes of use by employees in our circumstances, “date o departure” stands for the first day of the working week and “date of return” stands for the last day of the week. 1st applicant avers that he is advised that the form was designed for claim relating to conference attendance outside an officer’s usual station. The fixed daily rate appears on the fourth column as E225-00 while the total amount for each week appears on the right column. There is no reference to sitting days of sitting and hours of sitting, etc. At the top of each one of the claim voucher/payment advice is a date stamp by the Treasury Department showing date of payment. The annexures are examples of payment that were made by the respondents at all times that the vouchers were submitted by the applicants showing a claim for a monthly payment based on a daily rate and which payments were made without question. The payments by the respondents were made by respondents even during such days when the court President of the day was not available to hold court as he was on leave. These dates are as follows and copies/payment voucher that records the payment to the applicant in the month in question:

During the days when there is no President to hold court with the court members the applicants still worked in that they attended court for purposes of attending to postponement of cases; allocating trial dates, receiving replies files by defending parties and attending to clerical work such as reading and perusal of evidence to be used in the formulation of court judgements. Even during the months of April, May and June 1998, the applicants did attend court to discharge their duties even in the absence of the President. The court did not shut down. It never shuts down except during official recess. The applicants further aver that the law makes no reference to sitting allowance, but to a fee to be stipulated by the President. Reference is made to Section 4 (5) (a) of the 1996 Act and there are no regulations in place providing for such sitting allowance as a means and form of remunerating of the applicant.

The applicants further submits that it would be grossly unfair, unjust and against public policy for the respondents to be allowed to avoid liability to pay the stated monies to the applicants and thereby prejudice the applicants in circumstances where the respondents as the applicants’ employer represented by the court President, deliberately, or for no stated and justifiable reason, omitted to create and put in place acceptable terms and conditions of the engagement of the services of the applicants. The respondents, through their omission, error or neglect, are responsible for the office of the President falling vacant in the period in question, April to June 1998, and the applicants, in discharge of their contractual duty with the respondents, dutifully presented themselves at all times to do their work as such court members. To uphold the assertions of the respondents would be to allow the respondents to benefit from their own error, omission, or neglect, to the prejudice of the applicant.

These are the facts leading to the dispute. The court entertained submissions on the contested roll of the 30th October 1998, and reserved judgement in the matter. The court is mindful of the apparent delay in handing judgement in this matter, but certain events not connected with this matter placed the court off-rail and further I needed more time to consider the issue raised more particularly those raised by Mr. Khumalo in the applicant’s heads of argument.

When the matter came for arguments Mr. Khumalo for the applicant lead the court through applicant’s Head of Arguments which as I have already stated are detailed. Mr. Khumalo’s gripe is that the applicants were appointed to serve three years and thus cannot be called casually paid or daily paid. They were to be paid fees. Applicants are members of the Industrial Court appointed as such in terms of Section 4 of the Industrial Relations Act. They served as such until April 1998 when they each were served with a letter from the Principal Secretary of the Ministry of Justice which requested them not to attend court since there was no person serving as a court President at that time upon the non-renewal of President Mr. Martin Banda’s contract on the 31st March 1998. The effect of the letter was that officers of state were instructed to stop the execution of their duties (without being disengaged or suspended vide answering affidavit paragraph 7 and 11), the country’s and specialized court was instructed to grind to a halt, indefinitely, on the mistaken assumption that it could not function without a President sitting. Employees of the state (the applicants) were to be suspended from duty indefinitely without remuneration’s, an officer (P.S. of the Justice Ministry) without authority took it upon himself to extend his administrative powers to the management and running of the Industrial Court, including the variation of terms of service of duty appointed court officials.

Mr. Khumalo contended that the P.S. acted irregularly to issue any directive, request or instructions of the kind that was issued; he had no power or authority to do so for the following reasons:

a) Thee Industrial Court is a creature of statute which provides for the appointment of its own judges in the same manner as the judges of the High Court – i.e. appointed by his Majesty The King.

For these reasons alone, argued Mr. Khumalo. The instructions or request or order by the P.S. in terms of his letter (annexure “C” to the founding affidavit) should be set aside as irregular, and so should be all its effects including the suspension of court sitting and the witholdal or retention by the Swaziland Government Treasury Department of the monthly remuneration to the applicant.

Mr. Khumalo further argued that applicant’s remuneration is not in terms of “sitting allowances”. The matter of the nature of the remuneration of the applicants whether on the basis of sitting allowances or fixed monthly payments based only on working days is relevant only upon the assumption that the P.S. of the Ministry had the right, power or authority to deal with the matter at all as to offer his views or interpretation of the statute. Mr. Khumalo submitted on behalf of the applicants that the P.S. was an unjustified interference in the operation of the court. His views are irrelevant since the applicant were appointed by the court President, the applicants’ terms and conditions of service were to come from the President not the P.S. for the Justice Ministry and in any event it is the applicants’ submission that they are not serving as members of the court on the basis of casual employees entitled only to “sitting allowances” as a form of remuneration. Firstly, the respondents collectively are the employers; the duty is on tem to prove their allegations that they engaged the applicants on such “sitting allowance” terms. Secondly, the respondents have given no evidence whatsoever of such terms or any terms at all upon which they employed the applicants. That paragraphs 7.8 and 10.1 of answering affidavit, where bare allegations were made that the P.S. Justice Ministry himself paid applicants’ allowances based on the days that they convened court. Thirdly, the assertions of the P.S. Ministry of Justice can only be incorrect, based on ignorance or an intention to mislead. The important term regarding remuneration is covered in reference to fees not allowance. The fees for the applicants are to be prescribed by the President in regulations which regulations are made by the Minister – i.e. Minister of Labour. In any event, evidence is that the applicants are paid by the Treasury Department. Nowhere is the role or participation of the P.S. Ministry of Justice provided for in the recruitment and remuneration of the applicants. Any act of the P.S. Ministry of Justice in connection with the applicants has been unlawful, illegal and reprehensible and completely ultra vires. The applicants have given a full uncontested account of how they are paid, as an interim measure pending the drafting and making of regulations by the Minister of Labour.

In reply Miss Gama for the respondent submitted two documents from the bar to wit, one Swaziland Government Gazette Extraordinary No. 214 dated the 17th December 1996 titled “Assignment of Responsibility ties to Ministers Notice 1996”. The other being Finance Circular No. 4 of 1993 dealing with sitting allowance and car mileage allowance for members appointed to serve on statutory boards. These two documents were introduced to firstly prove that the P.S. Ministry of Justice acted intra vires in the circumstances and secondly, that the applicant were merely paid sitting allowances (as per Circular 4 of 1993) and they cannot be said to be employees of the Ministry of Justice, but were casual worker engaged whenever need arose.

Mr. Khumalo on points of law directed the court to paragraph 10 of the applicant replying affidavit to counteract the point raised by the crown that the applicants are merely “casual workers”. The payment by the respondent was made even during such days when the President of the day was not available to hold court as he was on leave. Further Mr. Khumalo kicked against the reception of the two documents which were introduced after the pleading were closed from the bar by Miss Gama that she was not given legal authority to justify the admission of these documents and should thus be regarded by the court inadmissible.

These are the issues before court for determination. I have read the papers before me very carefully and also considered the able arguments by both counsel. I have also read the pertinent legislation governing this case. I am indebted to the instructive and insightful heads of argument advanced by the applicant’s, which took me through the maze beaurocratic machinery governing the Industrial Court. Before launching straight to the pertinent points raised I wish to start my judgement with the last point raised by Mr. Khumalo of the inadmissibility or otherwise of the two documents introduced by respondents’ counsel from the bar to wit, the notice for the Assignment of responsibilities to Ministers and Finance Circular No. 4 of 1993. I am inclined to agree with Mr. Khumalo this was a desperate attempt by the respondent’s counsel to shut the gate after the horse had already bolted (so to speak). It is not much of an excuse for Miss Gama to attempt to convince the court that the papers before court were not drafted by her but by the incumbent acting President of the Industrial Court Mr. Nderi Nduma, who was then before his alleviation to the bench of the Industrial Court was a Senior Crown Counsel in the chambers of the Attorney General and thus this tends to legitimize the 2nd respondent’s action. It is trite law that a litigant in motion proceeding is confined within the four corners of his papers and cannot be allowed to introduce new matter not alluded to in the papers at the prejudice of the other-side who is invariably taken by surprise and may not be able to counteract the new matter by way of affidavits. A proper approach in my view, would have been to approach the court for leave to file supplementary affidavits incorporating the new matter for the other side to be afforded a reasonable opportunity to reply thereto. Miss Gama does not cite legal authority to buttress this approach which I find with due respect to Miss Gama highly unorthodox in motion proceedings. My considered view as it relates to this issue is that the two documents for purposes of these proceedings are inadmissible. A litigant stands or falls on his papers.

Now coming to the other issues raised the balance of probability favours the applicants in this case. It appears to me that there is glaring anomaly in the running of the Industrial Court. The Act “(1996 Act)” states that it is the President who appoints members of the court who is obligated to set terms and conditions regarding their service. There are no terms and conditions in force since at no time did the President draft and have approved by the appointment of the applicants. It appears to me that if the P.S. Ministry of Justice or any other authority of Government of Swaziland had power to do so the respondent, as employer of the applicants, would not be justified in law and in fairness to benefit from their own omission or neglect. That is to say, the Swaziland Government failed to make regulations in terms of Section 90 of 1996 Act in which clear terms and conditions regarding fees would be set out. The same Government may not now take advantage of that omission and seize an opportunity to state (or create) a remuneration term that was not communicated to the applicants at any time since their appointment, and which the applicant never accepted and which evidently was not the practice. This would be clearly be against public policy, fairness, natural justice and the spirit of the labour laws of Swaziland.

Coming to the point raised in argument by the respondent that applicants are merely “casual workers” and thus are only entitled to “sitting allowances” whenever the court sits. In the event the court does not sit then they are the poorer. However, this view flies against the face of the practice or custom in the absence of proper terms or conditions evolved over time when they were engaged to sit as assessors. There appears to be a practice started by the erstwhile President of the Court Mr. Martin Banda upon appointing the two applicants that the matter of remuneration was still considered by him and the Minister as it was to form part of comprehensive terms and conditions of their engagement. That the remuneration of members of the court in the interim was to be on the basis of a monthly salary which was to be on made up of a fixed daily rate of income for the number of days worked in every month, which effectively meant the members of the court were to be paid every month an amount that represented a daily rate of payment multiplied by the number of working days which exclude only weekends and public holidays. A form which is usually used for daily subsistence allowances in the absence of a proper mode of payment was adapted for purposes of use by employees in their circumstances “date of departure” stands for the first day of the working week and “date of return” stands for the last day of the week. There is no reference to sitting, days of sitting and hours of sitting, etc. It cannot be said therefore in my view that these applicants were casual employers who were only engaged when there was a Judge President sitting. This is explained by the uncontroveted evidence that payments by the respondents were made even during such days when the court President of the day was not available to hold court as he was on leave. To this effect the applicant directed the court’s attention to the copies/payment voucher that records the payment to the applicant in the months in question, Judge President sitting. This is explained by the uncontroverted evidence that payments by the respondents were made even during such days when the court President of the day was not available to hold court as he was on leave. To this effect the applicant directed the court’s attention to the copies/payment voucher that records the payment to the applicant in the months in question, Judge President sitting. This is explained by the uncontroverted evidence that payments by the respondents were made even during such days when the court President of the day was not available to hold court as he was on leave. To this effect the applicant directed the court’s attention to the copies/payment voucher that records the payment to the applicant in the months in question, thus:

One week leave up to 19th March 1997 annexure “JY1” and “JY2” and leave form “JY3”.

Twenty-five days leave – from 12th December 1996 to 23rd January 1997 – payment voucher “NRM2” and “NRM3”, and leave form “JY4” and leave forms “JY5” and “JY6”.

Seventeen days leave – from 24th April 1996 to 20th May 1996 - payment voucher annexure “NRM1”.

To me this gives credence to applicant’s story that during the days when there is no President to hold court the court members still attended court for inter alia attending to postponement of cases, attending to clerical work such as reading and perusing of evidence to be used in the formulation of court judgments, etc.

It is my respectful view that the P.S. Ministry of Justice when he issued the contentious directive, request or instruction of this kind did not have all the facts before him prior to him making such directive otherwise he would have come to a different conclusion.

In conclusion, I align myself in toto with the views advanced by Mr. Khumalo in his arguments in court and the incisive analysis of the issues in the applicants’ Head of Arguments. I thus rule in favour of the applicants and grant them an order in terms of prayers 1, 2, 3, 4 and 5 of the notice of motion.

As a postscript to this judgment I wish to state that it is imperative for the relevant authorities to put in place as matter of urgency proper conditions of service for the assessors as prescribed by the 1996 Act to avoid such messy and contentions litigation in the future.

S.B. MAPHALALA

JUDGE

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