Facts:
The applicant, Godfrey Exalto, employed as an accountant by the first respondent, Royal Eswatini National Airways, faced disciplinary charges for bringing the employer into disrepute through a social media post on Facebook. The post, criticizing the government as a dictatorship amidst a public debate on government expenditure on luxury motor vehicles, led Exalto to seek a declaratory order from the High Court. He argued that his post was an exercise of his constitutional rights to freedom of speech and opinion under Sections 23 and 24 of the Eswatini Constitution. The Industrial Court, recognizing the constitutional issues involved, referred the matter to the High Court.
Issue:
Does the High Court have jurisdiction to hear a labor dispute referred by the Industrial Court involving constitutional issues?
Does the Facebook post by the applicant fall within the exercise of constitutional rights to freedom of speech and opinion?
Rule:
Section 23 of the Constitution of Eswatini: Protects the right to freedom of thought, conscience, and religion.
Section 24 of the Constitution of Eswatini: Protects the right to freedom of expression and opinion.
Section 35(3) of the Constitution: Allows any subordinate court to refer constitutional issues to the High Court.
Doctrine of Avoidance: Suggests resolving disputes without resorting to constitutional provisions if possible.
Analysis:
Jurisdiction: The High Court accepted jurisdiction, noting the referral by the Industrial Court was competent as it occurred before a Supreme Court decision that would have made such a referral irregular. The respondent's objections based on the doctrine of avoidance and the nature of the dispute being purely labor-related were dismissed.
Freedom of Speech: The court examined whether the Facebook post, criticizing the government, fell within the constitutional rights protected under Sections 23 and 24. The court referenced various international human rights principles, emphasizing that freedom of expression includes political discourse and commentary on public affairs, even if offensive or controversial.
Clawback Clauses: The court considered whether any exceptions under Sections 24(3) and 14(3) applied. These clauses allow limitations on rights in the interests of public safety, order, morality, or health, and to protect others' reputations and rights. The court found that the applicant’s post did not impact any of these interests and was merely an expression of opinion.
Conclusion:
The High Court concluded that the applicant's Facebook post was a permissible exercise of his constitutional rights to freedom of speech and opinion. The disciplinary charges did not constitute misconduct as the post fell within the protections provided by Sections 23 and 24 of the Constitution.