the argument, this court must decline jurisdiction and send
the matter back to the Industrial Court for determination of
the merits. This, of course, is what this court will do
irrespective of the outcome on the constitutional issue. The
Industrial Court will then be enjoined to deal with the merits
on the basis of the outcome on the constitutional issue.
[11] The matter is before this court by order of a competent
court, the Industrial Court. That order was not appealed
against or challenged in any other way, hence it remains
valid and binding. Is the respondent entitled to challenge it
through the back door, as it were? The respondent relies on
the case of MINISTRY OF TOURISM AND ENVIROMENTAL
AFFAIRS AND ANOTHER v STEPHEN ZUKE AND ANOTHER5. In
this case the employee’s complaint was that he had not
been afforded administrative justice in terms of Section 33 of
the constitution and the court, invoking the principle of
avoidance, held that the matter was resolvable without
reference to the constitutional provision, in that audi alterum
patem is part of Labour Law, the dispute being between an
employer and an employee.
[12] I am in respectful agreement with the Zuke judgment, but to
what extent does it assist the respondent on the present
5
(96/2017) [2019] SZSC 37 (2019)
10
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos