TUCOSWA declared illegal
MBABANE – The Trade Union Congress of Swaziland (TUCOSWA) is illegal.
The Industrial Court has found that the entity is not a workers’ federation, in terms of the Industrial Relations Act of 2000 as amended. The court has ruled that TUCOSWA was not registered, as required in the Act.
Industrial Court Judge Nkosinathi Nkonyane, sitting with nominated members of the court, Gilbert Ndzinisa and Andreas Nkambule, found that there was no provision in the Industrial Relations Act spelling out how a federation should be registered, when on the other hand it stated that a federation must be registered on its terms.
This came in a judgment for a case filed by the Minister of Labour and Social Security, Lutfo Dlamini, seeking an order declaring that TUCOSWA was not a workers’ federation. Attorney General Majahenkhaba Dlamini appeared on the minister’s behalf in the matter while lawyer Thulani Maseko represented TUCOSWA.
Majahenkhaba submitted that TUCOSWA did not have a right to mobilise workers with a view to engage in a protest action, since it was not a federation in the eyes of the law.
The court stated that the Act defined ‘federation’ as a body registered in terms of the Act which is wholly comprised of employers or a combination of employers’ associations, trade unions or staff associations. "It is, therefore, not in doubt that it is a legal requirement that a federation should be registered in terms of the Industrial Relations Act of 2000," Judge Nkonyane said.
In response to Maseko’s submissions that TUCOSWA’s existence was provided for in the Act because it allowed for the registration of organisation, Judge Nkonyane said the Act defined ‘organisation’ differently from ‘federation’. He said ‘organisation’ was defined as a trade union, staff association or employers’ association in good standing as the context may be.
Judge Nkonyane rejected Maseko’s submission that the interpretation of the terms organisation should be generalised to also house federation. He said the word organisation could not be given a generic interpretation by the court, because, the Legislature had, in the Act, allocated a specific meaning. Maseko had also submitted that the term organisation should not be narrowed in interpretation as such could jeopardise the spirit of allowing employees the right to freedom of association and international labour organisations’ standards.
However, Judge Nkonyane said the country was a signatory to international instruments guaranteeing freedom of association and collective bargaining, but it would be improper for courts to interprete legislation in a manner that conflicts with global conventions Swaziland has subscribed to.
"In the present case the court is unable to give a generic meaning to the word organisation, so as to include federation. To do so would be to violate the principles of interpretation of statutes," he said.
He also said, "The word has been given a specific definition by the Legislature under Section 2 (Industrial Relations Act). In a statute where a definition clause occurs, the words and phrases it contains acquire, for the purposes of that particular statute, a technical meaning." He said the Act permitted employees to join associations or federations, but specified that such bodies must be registered in terms of the Act. He further said the freedom to join any collective bargaining body did not mean that requirements of regulation should be flouted.
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