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Citation: 2010 3 BLR 569 CA
Court: Court of Appeal
Case No: Civ App 41 of 2010
Judge: Ramodibedi, Foxcroft and Howie JJA
Judgment Date: July 29, 2010
rnrnM Marumo with him L Morapedi for the appellant.rnB G Toteng for the respondent

Courts - Industrial Court - Jurisdiction - Trade disputes - Requirements -  Certificate of referral a prerequisite for hearing in Industrial Court - Trade Disputes Act (Cap 48:02), ss 8(10), 8(11) and 18(1).


The appellant was retired from the public service under s 15(3) of the  Public Service Act (Cap 26:01) and General Order 18.3. He challenged the validity of that decision in the Industrial Court. The respondent raised the objection in limine that the Industrial Court lacked jurisdiction to hear the matter as no referral certificate had been issued in terms of either s 8(10) or s 8(11) of the Trade Disputes Act (Cap 48:02). The court upheld  the objection and dismissed the appellant's claim. The appellant appealed against that decision.

Held: (1) The objection was correctly upheld: the Industrial Court lacked jurisdiction to entertain a trade dispute in the absence of a referral certificate issued in terms of either s 8(10) or s 8(11) of the Trade Disputes Act as it was not then properly before the court in terms of s 18(1) of the Trade Disputes Act. Botswana Railways' Organisation v Setsogo and Others [1996] B.L.R. 763, CA applied.

Case Information

Cases referred to:  

Botswana Mining Workers' Union v Debswana Diamond Company (Pty) Ltd [2009] 1 B.L.R. 138, CA

Botswana Railways' Organisation v Setsogo and Others [1996] B.L.R. 763, CA

APPEAL against upholding of objection in limine. The facts are sufficiently  stated in the judgment.

M Marumo (with him L Morapedi) for the appellant.

B G Toteng for the respondent.


Foxcroft JA:  

On 19 May 2008 the appellant received a letter from the office of the President informing him of the decision of the Permanent Secretary to the President (the Permanent Secretary) to retire the appellant from the public service with effect from 30 May 2008. The decision had been taken in accordance with s 15(3) of the Public Service Act (Cap 26:01) and  General Order 18.3. The appellant challenged the validity of this decision in the Industrial Court claiming that procedural irregularities had occurred in reaching the decision, and that he had had a legitimate expectation that he would work until the age of 60 years.

Before filing the answering affidavit of the Permanent Secretary the respondent filed a notice to raise points in limine. It reads as follows:

     '1.      In terms of section 18(1)(a) of the Trade Disputes Act, this court has no jurisdiction to hear this matter as it involves a dispute of interest.

     2.       To the extent that Applicant seeks to set aside the exercise of an executive power, instant proceedings amount to a Review and Industrial Court has no reversionary jurisdiction except in limited circumstances  provided for under section 18(1)(c).

     3.       The jurisdiction of the Court cannot be invoked without a referral certificate except in urgent applications as provided in section 20 of the Trade Disputes Act.'

This was not an urgent application.  

The Permanent Secretary set out a defence on the merits in his answering affidavit but, by agreement, only the points in limine were argued when the matter came before the Industrial Court. De Villiers J, presiding in that court, dismissed the first two points in limine but upheld the third point in limine. The finding of the court was that the matter had not been referred to the Commissioner of Labour or a delegated labour  officer for mediation and therefore no s 8(10) or s 8(11) certificate had been issued. Since the required referral to the Industrial Court had not taken place, the:

     '... alleged trade dispute is therefore not properly before this Court in terms of Section 18(1) of the said Act and therefore this Court has no jurisdiction to determine this alleged trade dispute.'

It is this last finding which was on appeal to this court. No counter-appeal  has been launched in respect of the findings on the first two points in limine and the only issue before this court is whether or not the Industrial Court had jurisdiction to determine the matter in the absence of a referral certificate issued either in terms of s 8(10) or 8(11) of the Trade Disputes Act (Cap 48:02).  

Mr Marumo, who appeared with Mr Morapedi for the appellant, submitted that it would never have been the intention of the legislature to make a certificate which is entitled a 'certificate of failure' in s 8(10) and 8(11) of the Trade Disputes Act an absolute prerequisite for the invocation of the jurisdiction of the Industrial Court. He also submitted that the appellant  sought a declaration of rights in the Industrial Court and that a mediator is not empowered to issue a declaration. Accordingly, so the argument ran, it could have served no purpose to first approach a mediator.

Developing this point in argument, Mr Marumo submitted that the decision of Amissah P in Botswana Railways' Organisation v Setsogo and Others [1996] B.L.R. 763, CA that a certificate of referral was an essential  prerequisite for a hearing in the Industrial Court, was not a bar to the relief sought by his client in this matter. The reason for this advanced by Mr Marumo was that that decision of the Full Court was reached before the amendment brought about by s 2 of the Trade Disputes Act which made the Commissioner a public officer subject to the Public Service Act.

The Public Service Act provides in s 8(1) that:  

     '(1) The Permanent Secretary to the President shall be the head of the public service and shall, subject to the Constitution and this Act, be responsible for the administration of the public service.'

It followed, Mr Marumo submitted, that the Commissioner of Labour,  labour officers and persons constituting the panel of mediators are all under the ultimate control of the Permanent Secretary. This was emphasised by s 3(4) of the Trade Disputes Act. Because the mediation process in this matter would only have involved a junior public officer seeking to resolve or facilitate a settlement between the principal secretary (his ultimate supervisor) and another public officer (appellant), it  was unthinkable that the legislature would have made a 'certificate of failure' an absolute prerequisite in such a situation, lacking independence, so it was said.

I do not agree with this argument. There is nothing to show that a junior public officer would have been the mediator in this case, and, in any event, the mediator could not, as a matter of law, have made the declaratory order which the appellant sought. No perception of bias could therefore ever have arisen. A 'certificate of failure' would have been  readily obtained, regardless of the status of the mediator. Mediators are appointed from a panel which has no necessary link with the public service.

Another argument advanced by Mr Marumo was that s 18(1) of the Trade Disputes Act permitted the Industrial Court to hear every matter properly before it, while s 18(1)(g) drops the reference to properly before the court so allowing the court:

     '(g) generally to give such directions and do such things as may be necessary  or expedient for the expeditious and just hearing and determination of any dispute before it'

regardless of the manner by which the matter came before the court.

In my view, this is an untenable interpretation of the subsection. Section 18(1) grants jurisdiction to the Industrial Court in all matters properly  before it, and goes on to spell out powers of the court exercising jurisdiction. Section 18(1)(g) was clearly intended to empower any other actions of the court dealing with any matter which is properly before it not specified in subs (a) to (f).

Finally, Mr Marumo submitted that Rule 4(1) of the current Rules for the Conduct of Proceedings in the Industrial Court of Botswana lent support  to his argument. That rule provides that any trade dispute:

     '(1) ... which need not necessarily be referred to and which has not been referred to the Commissioner of Labour, may ... be referred  directly to the Industrial Court ...'

Then Rule 4(2) provides that:  

     'Any trade dispute ... which has ... been referred to the Commissioner of Labour ... may as soon as possible after the Commissioner of Labour has issued a certificate in terms of ... the Act, be referred to the Industrial Court for hearing and determination ...'  

The two sub-rules are clearly dealing with two different situations, one where a referral certificate is not necessary, and the other where it is.

There is no merit in this argument.

In any event, rules of this kind cannot override the intention of the Trade Disputes Act to exhaust the remedial efforts of the Commissioner as fully set out by Amissah P in Botswana Railways' Organisation v Setsogo  (supra) at p 806D-F.

See also Botswana Mining Workers' Union v Debswana Diamond Company (Pty) Ltd [2009] 1 B.L.R. 138, CA where it is pointed out at p 145 that Rule 1(2) provides as follows:

     '(2) These Rules shall not have the force of law and shall serve merely as  guidelines for the conduct of proceedings in the Industrial Court.'

It is also worthy of note that the decision in the Botswana Railways' case (supra) was reached a year after the current rules came into force, as Mr Toteng, for the respondent, correctly pointed out.

Mr Toteng submitted that no factual basis for the present argument by  Mr Marumo had been laid in the founding or replying affidavits of the appellant. It is so that the case presented in the founding affidavit rested on two main points. One was that the Permanent Secretary had not made the necessary recommendation to the director in regard to the retirement of appellant. The other was that the appellant had a legitimate expectation that he would work until 60 years of age. At this stage of proceedings, the point in limine had not yet been raised. After it was, by notice of 29 December  2008, the question of the need or not for a certificate was not addressed in the replying affidavit. All that was said in relation to this was:

     'Constitutional provisions referred to by the Respondent are not mandatory nor do they bar a party from approaching the Court without first having gone to the Public Service commission.'  

While the argument before us was somewhat different, it was raised in the Grounds of Appeal and is, in any event, a matter of law.

In my view, a party to a trade dispute cannot decide that no purpose would be served by following a laid down procedure for approaching the  Industrial Court. If the relief sought by a party were a declarator and reinstatement (as in the present matter) a mediator would, as a matter of law, not be able to grant such relief. A certificate of failure would then be easily obtained. All the more so if the party seeking such relief were to challenge the independence or authority of the mediator. I remain unpersuaded that the decision of this court in the Botswana Railways'  case (supra) is no longer binding in the light of the passing of the Trade Disputes Act.

It follows that the decision of the Industrial Court that this matter was not properly before it was correct. The appeal is dismissed with costs.

Ramodibedi and Howie JJA concurred.

Appeal dismissed.