The criminal jurisdiction of the Seychelles Employment Tribunal

• Author: Mujuzi, J.D.
• DOI: https://doi.org/10.47348/SACJ/v35/i2a4
• Published date: 03 October 2022
• Date: 03 October 2022
• Citation: (2022) 35 SACJ 198
• Pages: 198-221

The criminal jurisdiction of the

Seychelles Employment Tribunal

JAMIL DDAMULIRA MUJUZI*

ABSTRACT

The Seychellois Employment Tribunal was est ablished under s 73A of the

Employment Act (the Act). Section 6(3)(1) of Schedule 6 to the Act provides

that ‘the Tribunal shal l have exclusive jurisdiction to hear and deter mine

employment and labour related matters’. Under the Act, employment and

labour matters can b e divided into two categories: civi l and crimina l.

Section 76 of the Act provides for employment and labour- related offences.

The Tribunal star ted operation in November 200 8. Between 3 December

2008 (when the Tribunal handed down it s rst decision) and 1 December

2021 (when the research for this article was conduc ted) the Tribunal

received 2,478 civil cases and 172 criminal c ases. The author studied the

crimina l cases/les and on the basis of that s tudy. The aim of the study

is to illustrate how the Tribuna l has interpreted and/or applied s 76 of the

Act when dealing with the followi ng issues: the offences under the Act;

the prosecution of the offences u nder the Act; the right to a fair tr ial; the

burden(s) of proof under s 76 of Act; the prosecution of legal persons/

companies before the Tribunal; and pen alty and sentencing issues. T he

author argues, inter alia, t hat the Tribunal should respect t he principle of

corporate legal persona lity when dealing with j uristic persons accu sed

of committing of fences; the reverse onus under s 76(3) of the Act is not

unconstitutional; du ring sentencing, the Tribunal should clearly d istinguish

between mitigating fac tors that are applicable to juristic pe rsons and those

applicable to natural persons; a nd that the Attorney-G eneral does not

need the consent of the competent ofce r before he/she can institute a

prosecution before the Tribunal.

1 Introduction

The Seychellois Employment Tribunal was established under s 73A

of the Employment Act (the Act).1 Its jurisdiction is provided for in

Schedule 6 to the Act. Section 6(3) of Schedule 6 to the Act is to the

effect that:

(1) The Tribunal shall have exclusive jurisdiction to hear and determine

employment and labour related matters.

(2) Without prejudice to the generality of the foregoing, the Tribunal shall

hear and determine matters relating to employment and labour that have

* LLB (Makerere) LLM (UP) LL M (UFS) LLD (UWC), Professor of Law, Faculty of L aw,

University of the Wester n Cape.

1 Employment Ac t, Chapter 6 (1995).

https://doi.org/10.47348/SACJ/v35/i2a4

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(2022) 35 SACJ 198

© Juta and Company (Pty) Ltd

not been successful at mediation if a party to the dispute instigates such

matter.

(3) The Tribunal shall not hear and determine any claim relating to damages

for personal injuries.

The exclusive jurisdiction of the Employment Tribunal to hear

and determine employment and labour-related matters has been

emphasised by both the Court of Appeal and the Supreme Court.2

Although s 6(3) of Schedule 6 does not refer to criminal mat ters

expressly, it provides under s 6(3)(1) that the Tribunal has jurisdiction

to ‘determine employment and labour related matters’. Under the Act,

employment and labour matters can be divided into t wo categories:

civil and crimi nal. Section 76 of the Act provides for employment and

labour related offences. The Tribunal started operation in November

2008. Between 3 Decemb er 20083 and 1 December 2021,4 the Tribunal

had received 2,478 civil cases5 and 172 criminal cases.6 Of the

172criminal ca ses, 57 les were available at the Tribunal’s registry (the

rest having been transferred to the arch ives). The author studied the

57 cases to understand how the Tribunal has interpreted or applied

s76 of the Act.7 This jurisprudence shows, inter alia, that the Tribunal

has, in some cases, blurred the dist inction between natural and juristic

persons; it has not been clear on the rights of the accused persons

and has not been consistent in the approach it has taken to decide the

appropriate ne to impose on an offender. It is argued that apart from

the competent ofcer, both an attorney and a private prosecutor can

prosecute offences under the Act. The author will sta rt by explaining

the nature of offences under s 76 of the Act.

2 Seyche lles Petroleum Company Limited v Rober t Morel & Another (Civil Appeal SCA

11/2015) [2017] SCCA 30 (11 August 2017) para 28; Albert & Othe rs v Hill View

Resorts (Seychell es) Ltd & Another (CS 31/2019) [2020] SCSC 60 (27 January 2020)

paras 26– 31.

3 When t he Tribunal regis tered the rst complai nt it received.

4 When t he author read through the Master Files of t he Tribunal.

5 The num ber of cases registe red each year is indicated i n the brackets: 200 8 (8);

2009 (234); 2010 (331); 2011 (173); 2012 (242); 2013 (229); 2014 (206); 2015 (157);

2016 (134); 2017 (230); 2018 (249); 2019 (114); 2020 (98) and 2021 (73).

6 The num ber of cases registe red each year is indicated i n the brackets: 200 8 (0);

2009 (48); 2010 (19); 2011 (04); 2012 (11); 2013 (17); 2014 (27); 2015 (09); 2016 (07);

2017 (07); 2018 (0); 2019 (07); 2020 (08) and 2021 (08). In August 2022, I visited

the Tribunal and the re cords show that between 2 De cember 2021 and 22 August

2022, the Tribunal h ad received 14 criminal complaints. However, they were al l still

pending by the time my r esearch visit came to a n end.

7 The Tribu nal’s les are not available onl ine and its decisions a re not reported. T he

author visited Seychelles b etween 14 November and 15 December 2021 to conduct

research at the Tribuna l. The ofcials at t he Tribunal granted h im access to the

les and the art icle is written bas ed on the les accessed dur ing this resear ch

visit. Because of the co ndential natu re of the cases, the author u ses the case/le

numbers as opposed to t he names of the parties.

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