25 October 2018

On the 24^th of October 2018, the leadership of the union received a judgement of Industrial Court of Appeal under case No. 06/2018, a matter between smawu and ATUSWA. This was as a result of an appeal that was noted after the Industrial Court of Swaziland dismissed an application by a group of individuals who took ATUSWA to court after they were disciplined by the union and in response sought to undo the gains that have been made by workers.

The Industrial Court of Appeal has since upheld the Appellants’ application, a decision that takes both parties to the state of confusion that prevailed before the matter was taken to court at the first instance. In studying the judgement we noted very serious inconsistences which suggest that the judgement was written and delivered in haste. We appreciate the unfortunate difficulties within the judicial system whereby judges who specialize in industrial matters are reviewed by judges who specialize in criminal matters, but the incoherent decision of the court compounds the problem we had before approaching the court.

The union leadership met on the 24-25 of October where a decision was taken to engage TUCOSWA, our federation and our international allies on the possibility of taking the matter to the international stage in view of the fact that there are limited avenues to pursue the matter within our judicial system. We are reminded that it was a struggle to register ATUSWA, which was ONLY registered after the pressure exerted by the international community; not as a result of a court order as founded by the Industrial Court of Appeal. We are of the opinion that the Industrial Court of Appeal judgement undermines Article 3 of the ILO Convention 87 (Freedom of Association) which reads; “Workers’ and employers’ organizations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes”. Furthermore, the above Convention in Article 8 reads; “The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention”. It is our respectful view that the Industrial Court of Appeal Judgement impair the right as guaranteed by the above convention.

It becomes a problem when the courts provide prescriptions that are not even provided for in our legislation, more especially when the said prescription impair the right to Freedom of Association. The mandate of the courts as we understand it is to interpret the law as opposed to usurping legislative powers and or functions. It is not in dispute that various organizations, in particular SMAWU took a resolution to dissolve itself in terms of their own constitution in order to form ATUSWA through an amalgamation process that was supervised by TUCOSWA through its appointed deployees.

We wish to inform our members in particular and workers in general that the leadership of the union is seized with the matter, understanding that the unity of the workers is fundamental. Workers out of their own free will decided to form this glorious organization to respond to the disadvantages of their material conditions, and no entity should be seen to be disuniting workers. The leadership of the union shall be communicating broadly with it constituency in various workplaces on charting a way forward. We request workers to continue cooperating with us as we endure life with this unfortunate judgement because it must be accepted as is, whether we agree with it or not; it is binding.

Released by

Wonder Mkhonza

Secretary General