Apex courts in two African countries try to avoid ‘absurd results’ in labour matters

3 July 2020 · Carmel Rickard

Time limits on filing appeals and reviews can bring litigation to an abrupt end when they are not observed. But what is a court to do if it is not clear when the time limits actually start. The apex courts of two African jurisdictions have found themselves dealing with exactly this question – when do the days of a time limit begin to run? And the question was made even more complicated because the high courts in both countries had produced two contradictory positions from which the apex courts had to choose.

Read Eswatini Supreme Court judgment

Read Tanzania Court of Appeal judgment

By a strange coincidence, the highest courts of Tanzania and Eswatini have found themselves delivering judgment on a virtually identical problem within three days of each other.

The issues involved are of importance to all workers and employers in these two countries because it affects their ability to appeal decisions involving labour disputes. And in another strange coincidence, both these two apex courts had to deal with the fact that there were contradictory decisions and lines of thought on the disputed matter, in the courts below.

At its most basic, the question that had to be decided in both jurisdictions was this: after an initial court decision on a workplace dispute, how long would a party, dissatisfied with the outcome, have to lodge an appeal? Would the time allowed start from the date that the lower court delivered its decision, or from the time that the party, considering an appeal, was made aware of the outcome? The answer could be crucially important. Problems with timing affect many cases, leading to disputes being thrown out by the courts where the time limits are not follwed. Obviously this will affect many labour issues as well, and so the outcome was important for both employers and employees.

Arbitration

The case in Eswatini was heard by Supreme Court justices Benjamin Odoki, SP Dlamini and JP Annandale. It began before the Conciliation, Media and Arbitration Commission, but the parties could not agree. The employee then took the dispute to the industrial court where the president of that court referred the matter to arbitration.

The employer, Fletcher Electrical, was unhappy with the outcome at arbitration and asked the high court to consider the dispute and set aside the arbitrator’s decision.

But the two sides disagreed about whether the matter had been taken to the high court too late. The law says a review must be brought ‘21 days from the date of delivery of the CMAC decision’. One side said that the review had been brought late: the CMAC decision was issued on 25 October 2018 and the review application was filed on 5 December 2018 while the 21 days elapsed on 22 November 2018.

Aware

The other said that the 21 days began from the date that the party wanting to bring a review ‘becomes aware of the award’. To complicate matters there was a high court decision supporting both contentions.

In the high court, the judge followed one of these two schools of thought and Fletcher Engineering turned to the Supreme Court for a last attempt.

The judges found that in view of the conflicting high court judgments on the issue, they needed to resolve the question. If the 21 days ran from the date of an award, then the appeal had to be dismissed. If on the other hand the law meant that the day run ‘when the affected party becomes aware of the award’, then the appeal would be successful and the dispute returned to the high court for hearing on the merits.

Only hours

There was no dispute that the Fletcher Engineering was ‘only served with the award some 20 days after the award was made.’ This left the company with ‘virtually only hours to consider the award, find an attorney and have review papers filed’, if it was not to fall foul of the law as interpreted by the high court in this matter.

The judges said it was trite that ‘if a literal interpretation leads to an absurdity it must not be followed’ and added, ‘If what is depicted above is not an absurdity, I wonder what if anything would be an absurdity.’

It was accepted that the CMAC report was not delivered to Fletcher Engineering within two days of the award being made, but only 20 days afterwards. No explanation of this was given to the high court and the high court did not deal with the consequences of this delay at all.

Absurdities

In the view of the judges, the days could only begin to run ‘after a party has been made aware’ of the award’s delivery, otherwise there would be many absurdities and parties would be faced ‘with an impossible mission’. That would offend the law, constitutionalism, natural justice and fairness.

Three days earlier the court of appeal of Tanzania had delivered its decision in the case of William Mwakitalu and 29 others against PPF Pension Funds. Here too the dispute involved employees and the official arbitration body in that jurisdiction, the Commission for Mediation and Arbitration. It was given on 24 August 2015 and served seven days later.

PPF Pension Funds objected on the grounds that the application was filed ‘hopelessly out of time’. The trial court agreed, finding that the days start to count from delivery, and not from the day the party received the award.

Collection

Now the appeal judges had to consider the matter afresh. The award was ‘ready for collection’ by 24 August 2015 but the appellants were served with a copy on 31 August 2015. While the workers wanted the days to run from the date they received the award, the funds said the relevant date was when the determination ‘was delivered’.

The judges said they had had a similar case in 2015 where they held that there was a lacuna in the rules guiding labour arbitration proceedings. They held then that this was an inadequacy in the employment laws, creating an uncertainty that was unhelpful in labour disputes. They had also ‘directed’ that the labour laws be amended to resolve the problem of the two possible dates from which the days would start to run.

Lacuna

That lacuna had not yet been closed and the ambiguity still existed. However, in the 2015 case, the appeal judges had held that the appeal should be allowed and the high court directed to hear the merits of the matter. In this case the process adopted in 2015 should be followed as well, and the matter returned to the high court to hear the merits.

The Court of Appeal judges who heard the case were Justices Shaaban Lila, Sivangilwa Mwangesi and Barke Sehel.

Carmel Rickard

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