FULL BENCH FOR CIVIL SERVANTS VS GOVT CASE

MBABANE – Is the right to be heard not absolute in the Kingdom of Eswatini? This constitutional question will now be answered by a full bench of the High Court which will be constituted by the chief justice.

A constitutional question refers to any legal issue that requires the interpretation of the Constitution to resolve an issue rather than the interpretation of the statute.

The right to be heard in a court of law before a decision is taken is paramount in a constitutional dispensation but an Act of Parliament may allegedly curtail that right by issuing statutes that make such a right not absolute.

During the argument of the application, where government wanted to stop the strike action by civil servants, the court was informed that the right to be heard was not absolute in the Kingdom of Eswatini.

In his argument, Assistant Attorney General Mbuso Simelane gave an example of the provisions of Section 291 of the Companies Act of 2009 that deemed liquidation process to be invoked simply by filing of the application for winding up.

Section 291 allows a drastic action to be effected without hearing upon a company wherein a mere registration of a liquidation in courts deems such company liquidated, taking away the powers of the directors to manage the company or dispose of its assets.

Lucky Howe, who was representing the Swaziland National Association of Teachers (SNAT) and NAPSAWU, contended that the right to be heard was a Chapter III right, which was also confirmed by the High Court.

The chief justice is now expected to constitute a full bench of High Court judges to determine whether the right to be heard is absolute or not.
When the matter was argued in the Industrial Court on Sunday, the State sought to invoke Section 90 of the Industrial Relations Act in particular Section 90 (1).

Arbitrator

Section 90 (1) reads as follows: “A person, organisation, federation or a party to a dispute shall not continue or take  strike action or institute a lockout while proceedings in relations to the dispute to which the action relates are pending before court or an arbitrator.”

The respondents (unions) stated that the matter had not been enrolled and was therefore not pending before court, as a result Section 90 did not come into play.
Howe averred that Section 90 did not operate automatically but must be proved. He argued that there were also no averments invoking Section 90 made by the State and it was therefore not entitled to an order in terms of that section.

Post your comment

Your name:

Your e-mail address:

Add your comments:

Please enter the code you see in the image:

Image:

Code: