Delivered:
25th March, 2022
Summary
Applicant is an employee of the First Respondent. Employer
instituted disciplinary charges against employee, alleging that
employee had brought disrepute upon the employer through the
use of social media. Employee had posted on his facebook page
that “We can go on and on but nothing will change,
because there is no will to change, because kutokhala
umzaqa. Dictactorship 101.” This post was in the backdrop of
a public concern about expenditure by the Government on luxury
motor vehicles.
Applicant approached the Industrial Court to interdict the
disciplinary hearing, and in the process invoked Section 35 (3) of
the Constitution to have the matter referred to this court for a
declaratory order to the effect that in publishing what he did he
was exercising his constitutional rights to freedom of speech and
opinion under Section 23 and 24 of the Constitution. The
Industrial Court duly referred the matter to the High Court for
determination of the constitutional issue.
In opposing the application for declaratory relief before this court
the respondent raised a two – pronged objection as follows: i)
ii)
that the dispute being a pure labour matter, the
High Court has no jurisdiction to deal with it;
that the dispute is resolvable without reference to
constitutional provisions, hence the doctrine of
avoidance is applicable.
Held: The matter having been referred to the High Court by a
competent court, and that order having not been
challenged in any way, there is no sound basis to decline
hearing the matter.
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