The Supreme Court has granted special leave to appeal to the Swaziland Nazarene Health Institutions in a long-running labour dispute involving the promotion and upgrading of about 300 employees to the position of hospital orderlies.
The matter stems from an Industrial Court order directing the health institution to promote workers, including groundsmen, security guards and nurses’ aides, and backdate the promotions to 2018.
Chief Justice Bheki Maphalala delivered the judgment granting the institution leave to challenge a High Court ruling that had dismissed its review application and refused leave to appeal.
In the judgment, the apex court held that an applicant seeking special leave to appeal must establish reasonable prospects of success and demonstrate the existence of special circumstances warranting intervention by the Supreme Court.
The court further held that the matter involved genuine disputes of fact which could not properly be resolved through motion proceedings based solely on affidavits.
“The court a quo decided the matter on affidavit on motion proceedings despite the existence of genuine disputes of fact,” the Chief Justice stated.
The Supreme Court ruled that the dispute should have been referred to oral evidence to determine the actual duties performed by the employees and the institutional arrangements governing their employment.
According to the judgment, the Industrial Court had ordered the promotion and upgrading of approximately 300 employees to hospital orderly positions, with the promotions backdated to 2018.
The court noted that the order carried major financial implications for the health institution, including substantial back-pay liabilities and a permanent increase in personnel costs arising from upgraded salary scales.
The judgment further stated that the order created vacancies in the positions previously occupied by the affected workers and required the employment of additional personnel without a corresponding increase in workload.
The Nazarene institution had initially sought to challenge the Industrial Court ruling through review proceedings in the High Court in terms of Section 19(5) of the Industrial Relations Act.
However, the High Court dismissed the review application and later refused leave to appeal in terms of Section 147(1)(b) of the Constitution.
Following the refusal, the institution approached the Supreme Court seeking special leave to appeal in terms of Section 147(2) of the Constitution.
In its submissions before the Supreme Court, the institution argued that the matter raised substantial and arguable questions of law requiring authoritative determination by the country’s highest court.
It further submitted that the dispute carried broader public interest implications for labour relations within public enterprises.
The institution also argued that the Industrial Court order had significant institutional and financial consequences and that another court properly directing itself to the applicable legal principles could reasonably arrive at a different conclusion.
The respondent, Swaziland Health and Allied Workers Union (SHIAWU), opposed the application and argued that the matter was not ripe for hearing because pleadings from both the Industrial Court and High Court had allegedly not been filed.
The union sought to have the matter struck off the roll on that basis.
However, the appellant responded that all pleadings had been properly filed and urged the court to grant special leave so that the substantive issues could be ventilated before the Supreme Court.
In considering the application, the Supreme Court examined principles governing applications for special leave to appeal and cited several authorities from Eswatini, South Africa and India.
The court referred to the South African case of Westinghouse Brake and Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd, where it was held that, in addition to reasonable prospects of success, an applicant must show special circumstances warranting a further appeal.
The judgment also cited the Indian Supreme Court decision in Vinay Chandra Mishra, dealing with the supervisory role of apex courts in ensuring the proper administration of justice.
Chief Justice Maphalala further referred to the Eswatini Supreme Court decision in Director of Public Prosecutions v Sipho Shongwe, where the court affirmed its supervisory powers over lower courts and tribunals.
The judgment stated that Section 147(2) of the Constitution vests the Supreme Court with corrective jurisdiction to ensure that fundamental issues are not foreclosed at preliminary stages.
The court observed that the dispute was of considerable importance to the appellant because of the far-reaching financial consequences arising from the Industrial Court order.
It also held that refusing special leave could result in manifest injustice.
According to the judgment, the appellant denied employing hospital orderlies and maintained that the employees concerned had been engaged as cleaners, nurses’ aides, groundsmen and security guards.
The court found that this denial constituted a real, genuine and material dispute of fact.
The judgment stated that oral evidence was necessary to determine the employees’ daily duties, the extent of any alleged orderly functions, supervisory structures and the contractual arrangements governing their employment.
The court relied on principles established in the South African case of Plascon-Evans Paints Limited v Van Riebeeck Paints (Pty) Ltd, which deals with disputes of fact in motion proceedings.
In concluding the matter, the Supreme Court exercised its discretion in favour of granting the application.
“Undoubtedly this matter is important to the appellant because of the far-reaching financial consequences of the judgment of the court a quo, and a denial of the special leave would result in manifest injustice to the appellant,” the Chief Justice stated.
The court subsequently ordered that the Swaziland Nazarene Health Institutions be granted special leave to appeal the High Court judgment delivered on May 27, 2025.
The Supreme Court further ordered that costs be costs in the cause.
Attorney Zweli Jele represented the appellant, while Attorney Meluleki Ndlangamandla appeared for the respondent union.
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