Botswana Railways Organisation v Setsogo and Others (Civil Appeal No. 51 of 1995) [1996] BWCA 3; [1996] B.L.R. 112 (CA) (1 January 1996)

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Botswana Railways Organisation v Setsogo and Others (Civil Appeal No. 51 of 1995) [1996] BWCA 3; [1996] B.L.R. 112 (CA) (1 January 1996)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
COURT OF APPEAL
CIVIL APPEAL NO. 51/95
In the matter between:
BOTSWANA RAILWAYS ORGANISATION - Applicant
and
J. SETSOGO & 198 OTHERS - Respondents
Mr. M. Motswagole for the Respondents Mr. Ian Kirby as Amicus Curiae
JUDGMENT
CORAM: Amissah J.P. Aguda J.A. Steyn J.A. Tebbutt J.A. Hoexter J.A.
AMISSAH J.P.:
A. The Reasons for the Ruling on the Preliminary Object
This matter originated from the Industrial Court. The applicant,
m

the Botswana Railways Organisation, which is not represented before us, brought an urgent application before that Court on Good Friday, 14 April 1995. The respondents to the application were all train crew members employed by the applicant. The urgency of the application lay in the fact that the respondents had gone on strike and, in the view of the applicant which was accepted by the Court, were as a result disrupting the Botswana

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railway transport service, which is an essential service.

Because of the differences in interpretation which have been put on the decisions and orders of the two tribunals before which this matter had come, and of the submissions and arguments presented to them by the parties and the Attorney General, I find it necessary to set out in some detail the history of the matter as I see it.

Upon the judge of the Industrial Court being satisfied that the
papers disclosed that the application involved issues of law, he
decided to sit on the matter, as he was entitled to do under
Section 18 (2) of the Trade Disputes Act (Cap. 48:02), without
nominated members. Having read the papers and having heard
Counsel for the applicant, the Industrial Court issued a rule
nisi interdicting the alleged strike. The terms of the order
made by the Court were as follows:

"1. The Applicant's failure to comply with this Court's Rules as to notice and service of documents is hereby condoned.

2. That a Rule Nisi do issue calling upon the Respondents to show cause to this Honourable Court on Tuesday, the 25th day of April 1995 at 09.30, why an order should not be made in the following terms:

2.1 declaring the industrial action embarked upon by the Respondents with effect from 10th April 1995 and any continuation or repetition thereof, to constitute a strike as defined in the Trade Disputes Act (Cap 48:02) (hereinafter referred to as "the Act) and unlawful industrial action in terms of the Act.

[sic] 2.3 interdicting and restraining the Respondents from participating in or continuing any industrial action as aforesaid;

2.4

ordering the Respondents to report for work forthwith and to comply with their contracts of employment, in any event not later than Saturday, 15 April 1995 at 07.00;

2.5

ordering the cost of this application be paid by such of the Respondents as oppose it, jointly and severally, the one paying the other to be absolved.

That paragraph 2.3 and 2.4 operate as an interim interdict with immediate effect, pending the return date of this application.

That the Applicant be granted leave to serve this order and the application upon the Respondents by publishing same in the Botswana Railways weekly notice affixing same to all train crew notice boards at all train stations, and to serve same on the First and Second Respondents, and to announce through Radio Botswana the granting of this Order."

The respondents duly filed their answering affidavit opposing the
application. In the answering affidavit the respondents raised
two objections in limine against the jurisdiction of the Court.
The first was in respect of the lawfulness of the judge of the
Court sitting without involving the assessors as required by
Section 6 of the Trade Disputes (Amendment) Act, 1992*(Act No.
23 of 1992) . That objection is not relevant to the issue before
us and I say no more about it. But the second objection is
relevant and I reproduce it. It said:

"The order of the Learned Judge captured in paragraph 2.4 of the order of Court, ordering the Respondents to report to work forthwith and to comply with their contracts of employment, in any event not later than Saturday 15 April 1995 at 07:00 is incompetent and a nullity in law in that it infringes the provisions of Section 6 of the

Constitution of Botswana, that prohibits forced labour."
Clearly the competence of the Industrial Court to make the order
it did was here raised. The Industrial Court gave careful
consideration to that objection. In doing so, it recited the
relevant part of Section 6 of the Constitution which states that:
"(2) No person shall be required to perform forced labour.
(3) For the purposes of the section, the expression 'forced labour' does not include
(a) any labour required in consequence of the sentence or order of a court;"

The argument put forward by Counsel then appearing for the respondents to the Court was founded on the determination of the question whether the Industrial Court was or was not a "court" within the terms of Section 6 of the Constitution. This objection was so fundamental to the legality of anything the Industrial Court did on this case that it had to be properly determined. It was the argument of the respondents' Counsel that forcing people to work against their will as, according to Counsel, the order nisi had done, could result in imprisonment for contempt and other adverse legal consequences, if the respondents were to fail or refuse to comply, but that the Industrial Court was not entitled to make such an order as it was not a "court" within the meaning of Section 6 (2) and 3 (a) of the Constitution. If the challenge was valid, then in my view, it went further than the limited confines of this case as

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5
commenced, and affected any mandatory, coercive or injunctive order that the Court might make.
According to the judgment of the Industrial Court, Counsel for
the respondents-
" consequently requested, as the Courts' said

order, ordering the Respondents to report to work, is in his submission a contravention of the provisions of Section 6(2) of the Constitution of Botswana, that this question be referred to the High Court in terms of Section 18(3) of the Constitution, which provides as -

(3) if in any proceedings in any subordinate court any question arises as to the contravention of any of the provisions of Section 3 to 16 (inclusive) of this Constitution, the person presiding in that court may, and shall if any party to the proceedings so requests, refer the question to the High Court unless, in his opinion, the raising of the question is merely frivolous or vexatious."

Opposing the submission, Counsel for the applicant submitted that raising this question was frivolous and the Court should exercise its discretion and not refer it to the High Court.

The Industrial Court considered the matter and decided that the
m
objection was not frivolous or vexatious and that as the Court,
was a subordinate court within the meaning of Sections 18(3) and
127(1) of the Constitution, it was obliged to refer the question
to the High Court. Thereafter the judgment proceeded thus:
"From the aforesaid submissions it is clear that the
parties differ in their interpretation as to the
meaning of 'forced labour' and 'court' as used in
subsections 6(2) and (3) (a) of the Constitution of
Botswana.
The Court therefore finds that Section 105(1) of the

6
Constitution is also applicable, which provides as follows:

•(1) Where any question as to the interpretation of this Constitution arises in any proceedings in any subordinate court and the court is of the opinion that the question involves a substantial question of law, the court may, and shall, if any party to the proceedings so requests, refer the question to the High Court.'

The reason for such finding is that a question as to the interpretation of the Constitution has arisen and the Court is of the opinion that such question involves a substantial question of law."

Then followed this most crucial paragraph of the judgment.
Crucial, because it gives the clearest indication of the
intention behind the order subsequently made by the Industrial
Court and helps determine the scope of that order. Crucial
because it led to the appearance of the Attorney General as
amicus curia of the High Court to assist that Court to determine,
not the narrow issue of a trade dispute between the Botswana
Railways Organisation and its striking employees, but the
legality of the Industrial Court itself as a court within the
meaning of the forced labour provisions in Section 6 of the
Constitution. Crucial because it helps to determine the*validity
of the Attorney General's objection in limine before us after the
High Court in turn had referred the interpretation of the
Constitution to us for our consideration. Immediately after the
paragraph quoted above, the judgment proceeded as follows, and
in my opinion its words are so important that I lend them
emphasis by underlining:

"The reason for such opinion is that in all future applications involving strike action, employers are

bound to request similar orders, namely that the

striking workers be ordered to return to work. If

there is no clarity on this point, it is almost

certain that similar points in limine will be raised in all such cases."

The interest of the Industrial Court was in a superior definitive
judicial pronouncement of its status, not only because the matter
had been raised in this case but in order to avoid the same or
similar objections to its very capacity to make competent orders
for the resolution of industrial disputes being raised, as it
suspected was otherwise bound to be the case, in every future
dispute of this kind. If that were to be allowed to happen, no
doubt, the Industrial Court's existence would be useless and
intolerable. In a well considered judgment of some eleven
printed pages, not one other issue had been considered by the
Industrial Court up to this point except this issue affecting the
legitimacy of the Industrial Court as a court. The judgment then
immediately proceeded to make the following orders:

"1. In terms of Section 18(3) of the Constitution of Botswana the following question is hereby referred to the High Court for a determination in terms of Section 18(2) (b) of the Constitution: Was the interim order of the Industrial Court, dated 14 April 1995, ordering the Respondents to report for work forthwith and to comply with their contracts of employment, in any event not later than Saturday, 15 April 1995 at 07:00, a contravention of the provisions of Section 6(2) of the Constitution of Botswana, which prohibits forced labour.

2. The question as to the interpretation of the words 'forced labour' in Section 6(2) and the word 'court' in Section 6(3) (a) of the

Constitution of Botswana is hereby referred to the High Court in terms of Section 105(1) of the Constitution for a decision in terms of Section 105(2) of the Constitution.
3.

The rule nisi granted on 14th April 1995 and extended on 25 April 1995 is hereby discharged.
4. No order as to costs."

One of the questions which arises for consideration by this Court is the meaning of the order itself. On the face of the order, did the Industrial Court intend, by discharging the rule nisi it granted, to terminate the proceedings before it and to render any future judicial consideration of the questions posed by it academic or moot? Did the Court actually terminate consideration of the issues raised in paragraphs 1 and 2 of the order by paragraph 3? This point I shall come to later. Meanwhile, I return to the narrative of the historical evolution of this referral before us.

The case came before Gaefele Ag.J. in the High Court. Because
of the importance of the questions posed which involved the
legitimacy of the Industrial Court under the Constitution and
related questions the Attorney General appeared before the High
Court as amicus curiae. He raised no objection to the High Court
dealing with the referral of the questions by the Industrial
Court. He submitted a detailed and well argued Heads of Argument
to the High Court, which opened in the following manner:
"There are two points referred for decision by this Honourable Court:

A. Is the Industrial Court a "Court" for the purposes of
Section 6(3) of the Constitution?

B. Was the interim order of the Industrial Court dated 14
April 1995, a breach of the Constitutional prohibition
of forced labour?'

After posing these questions the Heads of Argument to the High
Court continued:
"A.l THE STATUS OF THE INDUSTRIAL COURT

A.1.1. It is submitted that (subject to it having been constitutionally established) the Industrial Court is clearly a "Subordinate Court" in terms of Section 18(3) of the Constitution, and also a 'Court' in terms of Section 127(1) of the Constitution."

In sub-paragraph A.1,2 the Attorney General adopted the
respondents' Heads of Argument Nos. 1-3 inclusive in order to
avoid duplication, and then proceeded as follows:-
"A.2. THE CONSTITUTIONALITY OF THE COURT

Respondents seek to challenge the Constitutionality of the Industrial Court on four broad grounds.

A.2.1 Ouster of the Jurisdiction of the High
Court, as purported breach of S.95 of
the Constitution. _m

A. 2.2 Lack of independence as a purported breach of the Constitution.

A. 2.3 Unconstitutional appointment of the Judge and members of the Industrial Court, as a purported breach of S.104 of the Constitution.

A. 2.4 Restriction of public attendance in certain circumstances as a purported breach of S.10 (10) of the Constitution."

This argument made by the Attorney General to the High Court
clearly showed that he, at least, was keenly aware that one of
the fundamental issues, if not the only issue, was the
constitutional validity of the Industrial Court as a "court".
The argument must have been in response to, or in anticipation
of, the argument in paragraph 4 of the respondents Heads which
opened thus:
"4. The question is whether 'the Industrial Court' was properly lawfully and constitutionally established.

4.1 We respectfully submit that this was not so, for the reasons that will appear hereunder."

Then followed a detailed statement citation of authorities in
support of the refutation in paragraph 4.1 of the broad question
raised in paragraph 4 and ending with these concluding
subparagraphs:

"4.2 We submit in conclusion therefore that the Act, No. 23 of 1992, is ultra vires the constitution of Botswana and therefore null and void, in particular, the following sections, 17(2) 17(3), 17(6), 17 (8),. 18 (3), 22 and 23.

4.3 Accordingly the 'decision' directing the Respondents to return to work and to comply with their contracts of employment is void and [o]f no force ana? effect, and this applies to the proceedings in respect thereof."

Paragraph 8 of the respondents' Heads of Argument concluded:

"8. Finally it is submitted that the order of the 14th April, 1995 [that is the rule nisi! compelling the employees of Botswana Railways to return to work not later than 15th April, 1995 despite hazardous conditions of work was unconstitutional and hold no force or effect, and that the court was not entitled to grant such an order."

-*jm??

All this argument, of course, was part of the development of the case of the respondent that the Industrial Court was not a "court" within the meaning of Section 6 (3) of the Constitution.

It is clear from these recitals, therefore, that one of the live issues, indeed, if I may say so, the basic issue, before the High Court was the constitutional validity of the Industrial Court. From the response of the Attorney General, he must have appreciated that fact at that time. He must have known that the constitutional validity of the Industrial Court was the main reason for the reference to the High Court, and not some adventitious or exoteric point raised in limine by the respondents. He argued accordingly. If the High Court did not appreciate that position, it certainly rendered itself incapable of giving a proper answer to the first question posed by the Industrial Court and, flowing from that, from giving a proper answer to the second question.

The learned judge, after considering the papers and hearing the arguments of Counsel, answered the first question referred to him in the negative. He also gave his interpretation of the words "court" and "forced labour" as required by the second question. But he referred the question of the constitutionality of the Industrial Court to this Court for consideration under section 15 of the Court of Appeal Act [Cap 04:01]. The reasons set out by him for adopting this course are significant and ought to be

12
reproduced here in full. He said:

"It is convenient to nov; deal with the objection raised by the Applicant's Counsel at the commencement of argument. In the Respondent's heads of argument there were additional constitutional questions. The Respondent's Counsel sought to argue the questions whether or not the 'Industrial Court' is a Court of Law having jurisdiction in Botswana and secondly whether the Industrial Court was properly, lawfully and constitutionally established.

In a nutshell this Court was being invited to decide on the status of the Industrial Court. This I declined to do because the Applicants were not fully prepared and ready to argue such additional questions. The other reason was that there are only two questions referred to this Court by the Industrial Court. It was therefore, not necessary for the Court to deal with the matter not properly before it and decide on questions not relevant to the issues it is asked to decide.

After careful thought I have decided that the additional questions that the Respondents sought to argue be referred to the Court of Appeal for consideration and determination. This I now do under the provisions of Section 15 of the Court of Appeal Act [Cap 04:01]. It may also be necessary to have the issue determined once and for all. The same question appear [s] to have been posed but not decided in the case of BOTSWANA BANK EMPLOYEES UNION & ANOTHER v. BARCLAYS BANK OF BOTSWANA LIMITED C.A. No. 1/95 Industrial Court Case No. 40/95. It appears that the Deputy Attorney General appearing amicus curiae in these proceedings was in fact ready to argue the questions as reflected in the' heads of argument. Now that the Government's representative is appearing amicus curiae it may be opportune for the Court of Appeal on the issues raised. I may mention that I would have heard argument on the additional questions, out since the Applicants were not ready I could not have adjourned the matter as Counsel was involved and it would have necessitated more costs as a result. This is because the matter has been adjourned on a number of occasions.

Having said all that, the following questions are hereby reserved under Section 15 of the Court of Appeal Act, for consideration by the Court of Appeal namely.

1. Is the Industrial Court a Subordinate Court in terms of Section 105 of the Constitution or a specialised division of the High Court in terms of sections 17 and 18 of the Trade Disputes Act (as amended) and if so, is it competent to adjudicate on constitutional issues

11
brought before it, or

2. Does the Trade Disputes Act (as amended) offend against the provisions of Section 10(a), 95 and 104 of the Constitution.

I have broadly set out the questions in view of the arguments appearing in both the Respondents, and Attorney General's heads of argument."

Pausing here for the moment, I must observe that I find it
difficult to understand how the respondents, in putting forward
constitutional arguments in support of their contention that the
industrial Court was not a "court", as they have always
maintained, and as a result of which the question of the status
of the Industrial Court was referred to the High Court, could be
described by the High Court as putting forward questions
additional to those referred to the High Court. And I am totally
at a loss to understand how the unpreparedness of the applicant
to answer the respondents' argument makes any difference to the
nature or relevance of the argument presented by the respondents
to the reference to that Court.
The above account, in my view, shows the circumstances in which
m

this matter came before us on 23 January, 1996. At the hearing Mr. Kirby, Deputy Attorney General on behalf of the Attorney General raised an objection in limine. We were taken aback by this objection as we had no prior notice of it, and at the time of raising it, no papers. We, nevertheless, heard the objection and thereafter asked Counsel appearing before us to file Heads of Argument which crystallise the points they made for our

14.

assistance. We are grateful for the Heads submitted. At this stage, I think I should set out the objection raised, which was as follows:
(a)

the referral by the Industrial Court to the High Court was improper; and
(b) The reservation of questions for the Appeal Court was not proper.
The nub of the objection to the reference by the Industrial Court
to the High Court was the fact that in the same order making the
reference, the Industrial Court discharged the rule nisi which
it had previously made declaring the industrial action embarked
upon unlawful in terms of the Act, and making other consequential
orders. According to the Attorney General's argument, as the
order was discharged, it terminated whatever matter the
Industrial Court was seized of. In support of this argument
reference was made, as had been made by the Industrial Court, to
Sections 18(3) and 105 as the two sections under which referrals
of under the Constitution could be made. Section 18 (3) provides
that:

"18(3) If in any proceedings in any subordinate Court any question arises as to the contravention of any of the provisions of Sections 3 to 16 (inclusive) of this Constitution, the person presiding in that Court may, and shall if any party to the proceedings so requests, refer the question to the High Court unless, in his opinion, the raising of the question is merely frivolous or vexatious."

Sections 3 to 16 of the Constitution are the sections in the Constitution on the Fundamental Rights and Freedoms of the Individual. What section 18(3), therefore, says is that if in

any proceedings in any subordinate court a question arises as to the contravention of any of the provisions on the protection of the fundamental rights and freedoms of the individual, that question may, and if any party to the proceedings so requests, must be referred by the person presiding in that court to the High Court, unless in his opinion the raising of the question is merely frivolous or vexatious. If there was indeed a question of law arising in proceedings before a subordinate court as to whether a fundamental right protected by Sections 3 to 16 of the Constitution had been breached, that subordinate court was entitled to refer the question to the High Court. The question which had arisen in the proceedings before the Industrial Court was whether in making the rule nisi ordering the respondents to report back to work it did or did not require them to perform forced labour contrary to section 6(2) of the Constitution. The Industrial Court took the view that it was not contravening the provision on forced labour because it was a "court". In so far as the question of infringement of Section 6 (2) of the Constitution had been alleged, the procedure laid down in Section

18(3) for referral is eminently appropriate. The Industrial Court, taking the view that it was a subordinate court, as the reference order itself recites, made the reference of the first question under that subsection. As far as I can see, no one can quarrel with that.

In the view of the Industrial Court there was also a question of

If
interpretation of the terms "court" and "forced labour" for the
High Court to consider and in respect of that it referred the
second question under Section 105 of the Constitution. I must
here say that, in my view, if the High Court properly determined
the first question, there would be no further need for an
interpretation of the word "court" as posed by the second
question. However, I proceed with a recital of Section 105. It
provides as follows:

"105(1) Where any question as to the interpretation of this Constitution arises in any proceedings in any subordinate court and the court is of the opinion that the question involves a substantial question of law, the court may, and shall, if any party to the proceedings so requests, refer the question to the High Court.

(2) Where any question is referred to the High Court in pursuance of this section, the High Court shall give its decision upon the question and the court in which the question arose shall, subject to any appeal, dispose of the case in accordance with that decision."

On the face of the provisions, section 18(3) does not require that a matter referred to the High Court should be returned to the referring Court for further action. Section 105, on the other hand does. As I have stated earlier, the first question was referred under section 18(3), while the second question was referred under Section 105. The objection of the Attorney General applies to the reference of both questions on the ground that they became academic once the rule nisi was discharged. It is, therefore, necessary to consider whether references under Section 18 (3) must have the same objectives, attributes and

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consequences as those made under section 105. The Attorney
General contends in his Heads of Argument with respect to the two
referral sections that:

"A.3 In both procedures the question must arise 'in any proceeding* in any subordinate court. The question need not be the principal issue in dispute between the parties. In the case of a Section 105 referral it is made clear by subsection (2) that the matter must go back to the original subordinate Court which must give effect to the High Court's determination. the Constitution is silent on this point in a Section 18(3) referral.

A. 4 It is submitted that common sense dictates that determination of the question referred must be necessary for determination of the case in the subordinate court. If this were not so, then the question would be irrelevant to the issue being adjudicated by the Subordinate Court. The intention of the legislature could never have been that an irrelevant issue, however interesting or important, could be referred to the High Court at will.

A. 5 It follows that the Subordinate Court cannot determine the case before it before receiving the High Court decision on the point referred. Thus on a referral the subordinate Court must adjourn the proceedings to await the High Court decision, which, on receipt, it must apply in its determination of the case. It is submitted that this applies equally to Section 18(3) referrals, notwithstanding the silence of the legislature on the point."

With all due respect, I take a different view. As the*Attorney General rightly points out section 18(3) is silent on the point about the matter referred going back to the Court making the reference whereas section 105(2) requires that the matter must go back. The argument based on this difference by the Attorney General, therefore, amounts to a request for the use of section 105(2) to cut down the generality of section 18(3) . To my mind, the question which ought rather to be asked in these

13.

circumstances is why two sections dealing with referrals by subordinate courts,on questions of law in constitutional matters in the same Constitution should have been differently worded. If they served the same purpose and should be treated in the same fashion, surely only the one section would have sufficed. The obvious answer to why two sections were used is because the Constitution intended them to deal with different matters and to a have different scope or coverage.

Section 105 is the general provision which deals with questions involving the interpretation of the Constitution. Section 18(3) deals with the specific question of alleged contraventions of the constitutional provisions on the protection of fundamental rights and freedoms of the individual. They need not in their operation be cast the same way. If the framers of the Constitution had intended that in both types of referrals the answers must be returnable to the referring court before the questions acquired validity, I am sure the Constitution would have said so. It was the easiest thing to provide that in section 18(3) the matter

referred should be sent back to the referring court, or be dealt with in the same manner as in section 105. The Constitution did not choose to do so. Why, in the circumstances, should we use the provisions of section 105 to qualify or cut down the amplitude of section 18(3)?

I know of no other way of achieving this end except by arguing

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that section 105(2) impliedly amends section 18(3). But section
18(3) deals with a specific matter, namely, alleged infringements
of the provisions of the Constitution guaranteeing fundamental
rights and freedoms. And as we know, one of the cardinal maxims
of interpretation of statues is "generalia specialisms non
derogant." Of this maxim, Craies on Statute Law (7th ed. 1971)
says in explanation at page 377:

"The general rule, that prior statutes are held to be
repealed by implication by subsequent statues if the two
are repugnant, is said not to apply if the prior enactment
is special and the subsequent enactment is general, the
rule of law being, as stated by Lord Selbourne in Seward v.
Vera Cruz (1884) 10 hyperlink, "

In that case, his Lordship said at page 68:

"Now if anything is certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered,'or derogated from merely by force of such general words, without any indication of a particular intention to do so."

See also the cases of Corporation of Blackpool v. Starr Estate Company, Limi ted [1922] A.C. 27 and North Level Commissi oners v. River Weiland Catchment Board [1938] 1 Ch.379.

This canon of interpretation applies in Botswana and to the
construction of its Constitution. For Section 32 of      the
Interpretation Act ? [Cap 01:04], which is described in   its
preamble as "an Act to provide for the interpretation of         the
Constitution and other enactments," provides that:

ZQ.

"32. Where an enactment expresses a general rule in terms which are wide enough to relate to a particular case for which a special rule has been provided in an earlier enactment, the special rule, if not repealed by the later enactment, shall not be affected by it."

And as the definition of "enactment" in Section 49, is " an

Act or statutory instrument or any provision of an Act or statutory instrument" this canon of construction applies not only to two different statutes but two different sections of the same statute. From the foregoing review, it should be clear that in my opinion, section 105(2) does not qualify or amend section 18(3). If section 18(3) chooses not to specify that the matter referred under it ought to be sent back to the referring court, there must be some reason for it. It could be, as in this case, that the reference should determine legal questions not only for the particular case from which reference is made, but for future cases. Further, situations may arise which we may not be able to categorise or conceptualise today where the freedom from the limitation which apparently characterises section 105 may be needed.

At best, therefore, the Attorney General's argument, in so far as it demands that the result of the reference must go back to the subordinate court while the proceedings from which reference was made continues, and must help the subordinate court in deciding the case before it, affects the second question on interpretation posed by the Industrial Court but not the first, which is the more important question of the Industrial Court's

21
own constitutional legitimacy.

Had it been necessary to rule that, in such circumstances, the second question referred under section 105 should be severed from the first question referred under Section 18(3) on the ground that the second question had been rendered incompetent by the termination of the proceedings before the Industrial Court as a result of the discharge of the rule nisi, I would have had no hesitation in doing so. But I must confess that I am not, in any case, impressed by the argument that a discharge of a rule nisi granted for a narrow purpose in a case where constitutional questions of major importance to the public arise automatically terminates the case by the discharge of that rule. The matter is one of construction of the whole order. The question in each case is whether on a reading of the whole order made the discharge of the rule nisi finally disposed of the case under consideration. I think not. Take this very case, for example, had the respondents succeeded on the arguments they advanced in support of their contention that the Industrial Court was not a "court; the logical consequence would have been that the order nisi was incompetent and should never have been made; the Industrial Court itself had no power to make an order requesting anybody to return to work and would, as a corollary, have no power to rescind such an order. What would be the purpose of sending such an answer to a body without constitutional legitimacy or authority? I illustrate the point by referring to

what was at stake in these proceedings. The relevant provisions of section 6 of the Constitution which give the protection against forced labour which is the section of the Constitution which the respondents claim has been contravened by the Act establishing the Industrial Court, which proscribes forced labour but excepts from this proscription any labour required in consequence of the sentence or order of a court.

The reasoning behind the argument of the respondents as I understand it, therefore, is that if the Industrial Court is not a "court" within the meaning of the exemption, and in their estimation the Industrial Court was not a "court" within the meaning of section 6(3)(a) of the Constitution, obliging them against their will to go back to work amounts to requiring them to perform forced labour contrary to section 6(2) of the Constitution.

On any view, the argument raises a point of great constitutional importance to the public regarding the machinery for the settlement of the industrial disputes in the country. That question is far weightier than the narrow question raised by the applicant which led to the issue of the decree nisi. I would go further to say that as far as those proceedings are concerned, the constitutional issue now overwhelmed and replaced the narrow issue of sending the respondents back to work, which the applicant had asked the Industrial Court to do. That

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constitutional question, nevertheless arose out of those narrow proceedings brought, and entitled the Industrial Court, if it took the view prima facie that it was a court until determined otherwise, as indeed the Industrial Court did, to refer the question of its own status to the High Court. It was the Industrial Court's decision to do so, and that is what it did. Discharging the rule nisi, the main objective of which was to get the respondents back to work at a time when the respondents had in fact already gone back, does not exorcise the existence, or diminish the importance, of that constitutional issue. Nothing prevents the High Court from sending the answer to the constitutional question back to the Industrial Court, except, of course, that if the High Court were to uphold the respondents' submissions on the constitutional question, that would terminate the existence of the Industrial Court. In that case, the next action might have to be taken, not by the Industrial Court, but by the legislature. If the Industrial Court, on the other hand were to be held to be a court; consequences might still flow, despite the discharge of the rule nisi, from its orders which would require it receiving the answers of the High Court.

It should not be forgotten that the reason given by the Industrial Court judge himself for referring the questions on interpretation of the Constitution to the High Court was that in all future applications involving strike action, employers were bound to request orders similar to what he had given in the rule

24.

nisi, i.e. that the striking workers be ordered to return to work, and if there was no clarity on the point, it was almost certain that similar points in limine, obviously by striking workers, would be raised in all such cases. For the respondents in this case, the order nisi even though discharged entailed serious consequences. The order was based on the decision of the Industrial Court that they were engaged in an illegal strike. Even though the order is discharged, the decision on which it was based would make them liable to penalties for engaging in an illegal strike under Section 39 of the Trade Disputes Act. For the Industrial Court, the consequences of the referral may be even more serious, if it were to be declared to be an unconstitutional body. Faced with circumstances such as these, to say that the issues before the Industrial Court were terminated and thereby _ relegated to the status of academic issues, by the bare discharge of a rule nisi, which was already spent in its primary purpose of getting striking workers back to work and which had no relevance to the existence or vitality of those constitutional issues which the proceedings gave rise to, is to take an extremely technical and narrow view of what the proceedings before the Industrial Court turned out to be. The Industrial Court judge himself asked the questions to which he needed answers. To say that in the same order he intended and indeed did deprive himself of his interest in receiving the answers, or the interest of the respondents in ensuring their own future from the consequences of adverse proceedings, is wholly

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unreal.

I find myself unable to accede to the submissions of the Attorney General on this point. To my mind, the two matters referred by the Industrial Court judge to the High Court were competent and live despite the discharge of the rule nisi.

The next objection was to the power of the High Court to refer this matter to us. That deserves to be dealt with more briefly. The High Court having given a judgment in the case, referred the constitutional point to this Court. In my view, the High Court in so far as it took the view that the constitutional issues raised by the respondents before it were additional to the questions posed by the Industrial Court, failed to appreciate the scope of the questions posed. To arrive at the conclusion whether the Industrial Court is or is not a "court" within the meaning of Section 6(3) of the Constitution the High Court had necessarily to advert its mind to any argument put forward, whether correct or not, which is relevant to that determination. In this case, that would include arguments on the constitutional legitimacy of the Industrial Court itself. For it seems to me that the determination of a challenge to constitutional legitimacy of a tribunal which purports to be a court is, a necessary precondition to a determination of the question whether or not the tribunal is a court. In the circumstances the view that the referral did not cover the constitutional legitimacy of

the Industrial Court, especially after the case of Botswana Bank Employees Union and Another v. Barclays Bank of Botswana Limited Civil Appeal No. 1/95, judgment of the Court of Appeal given on 13 July, 1995 (unreported), had been referred to, does seem to ne strange. In that case, if my memory serves me right, the question of the status of the Industrial Court was first raised incidentally and casually by Counsel in the course of an appeal in which the status of the Industrial Court was not in issue. Although, Counsel urged us to decide it as the question was bound to recur, we declined to do so, and I think quite properly, on the ground that it was a question which was academic with respect to the appeal before us. One of the considerations in our taking that view was that in the manner in which it was raised it was not, and could not have been, fully and properly argued to enable us to take a view. The Attorney General was unrepresented in the case, and in any case it was unnecessary to the decision of the issues before us. If the question was bound to recur, as Counsel claimed, then we would deal with it when it was properly before us. I think that time is now. In my view the invitation to decide on the status of the Industrial Court in this case was not issued by the respondents incidentally to some other issue before us, it was of the very essence of the issue referred to the High Court by the first question, as well as the request in the second question to interpret the word "Court". And as shown by the Heads of Argument of the Attorney General and of Counsel for the respondents already recited in this judgment, the way I

understand it was how those parties unde