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 established under s 73A of the

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

that ‘the Tribunal shall have exclusive jurisdiction to hear and determine

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

labour matters can be divided into two categories: civil and criminal.

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

The Tribunal started operation in November 2008. Between 3 December

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

2021 (when the research for this article was conducted) the Tribunal

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

criminal cases/les and on the basis of that study. The aim of the study

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

Act when dealing with the following issues: the offences under the Act;

the prosecution of the offences under the Act; the right to a fair trial; the

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

companies before the Tribunal; and penalty and sentencing issues. The

author argues, inter alia, that the Tribunal should respect the principle of

corporate legal personality when dealing with juristic persons accused

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

unconstitutional; during sentencing, the Tribunal should clearly distinguish

between mitigating factors that are applicable to juristic persons and those

applicable to natural persons; and that the Attorney-General does not

need the consent of the competent ofcer 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) LLM (UFS) LLD (UWC), Professor of Law, Faculty of Law,

University of the Western Cape.

1 Employment Act, Chapter 6 (1995).

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

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(2022) 35 SACJ 198

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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 matters

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 two categories:

civil and criminal. Section 76 of the Act provides for employment and

labour related offences. The Tribunal started operation in November

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

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

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

rest having been transferred to the archives). 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 distinction 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 start 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 & Others v Hill View

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

paras 26– 31.

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

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

5 The number of cases registered each year is indicated in the brackets: 2008 (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 number of cases registered each year is indicated in the brackets: 2008 (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 records show that between 2 December 2021 and 22 August

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

pending by the time my research visit came to an end.

7 The Tribunal’s les are not available online and its decisions are not reported. The

author visited Seychelles between 14 November and 15 December 2021 to conduct

research at the Tribunal. The ofcials at the Tribunal granted him access to the

les and the article is written based on the les accessed during this research

visit. Because of the condential nature of the cases, the author uses the case/le

numbers as opposed to t he names of the parties.

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