Dube v Ezulwini Municipality and Others (274/2014) [2015] SZIC 37 (31 July 2015);

INDUSTRIAL COURT OF SWAZILAND

HELD AT MBABANE                                        CASE NO. 274/2014

In the matter between:

 

DERRICK DUBE                                                        Applicant

And

EZULWINI MUNICIPALITY                                    1^st Respondent

COUNCILLOR GEORGE FALCOMER                            2^nd Respondent

COUNCILLOR SIBUSISO MABUZA                       3^rd Respondent

ZONKE MAGAGULA N.O.                                        4^th Respondent

 

Neutral citation:       Derrick Dube v Ezulwini Municipality and 3 Others

                                  (274/2014) SZIC 37   (2015)

 

Coram:                        MAZIBUKO J,

(Sitting with A.Nkambule & M.Mtetwa Nominated      Members of the Court)

          Heard:                          27^th April, 2015

          Delivered                   31^st   July 2015

         

Summary:              Labour Law; Court’s power to intervene in uncompleted disciplinary hearing, Court can intervene to prevent grave injustice from occurring or where justice cannot by other means be attained.

                                Applicant failed to meet the test; application dismissed.

JUDGMENT

1. The 1^st Respondent is Ezulwini Municipality, a body corporate established under the Urban Government Act No.8/1968, operating as such at Ezulwini area, Swaziland.

 

1. The Applicant, Mr Derrick Dube is an employee of the 1^st Respondent.

 

1. The 2^rd and 3^rd Respondents are Councillors who sit in the board of the 1^st Respondent.  They constitute a committee that has a responsibility to oversee the disciplinary hearing of the Applicant.

 

1. The 4^th Respondent is the chairman of the disciplinary hearing wherein the Applicant is the accused.  The 4^th Respondent is also a practising attorney of the Courts of Swaziland.

 

1. About the 20^th June 2014 the Applicant moved an urgent application before Court under the same case number, citing Ezulwini Municipality and Dumisani Ngcamphalala as 1^st and 2^nd Respondents respectively.  The Applicant prayed for the following relief:

 

5.1   “Pending the finalisation of this Application, the Respondents be and are hereby interdicted from proceeding with the disciplinary hearing of the Applicant.

5.2        The 2^nd Respondent be and is hereby removed from acting as the Chairperson in the Disciplinary Hearing of the Applicant.

1.  

5.4         The Committee of Council be and is hereby ordered to appoint a new Chairperson of the disciplinary hearing of the Applicant.

1.  

5.6         The Respondents in the event of any of them opposing this application be ordered to pay costs on the scale as between attorney and client.

1.  

                                   The matter was opposed

1. Briefly, the Applicant’s argument was that he had a quarrel with the Town Clerk (Mr Vusi Matsebula).  The Town Clerk is also the Chief Executive Officer in the Municipality.  The quarrel arose allegedly from a loan of E2000.00 (Two Thousand Emalangeni) which the Applicant claimed to have loaned and advanced to the Town Clerk.

 When payment was due the Applicant demanded payment and the Town Clerk failed to pay.  A quarrel broke out between the two (2) gentlemen.  The Town Clerk denied these allegations in the answering affidavit.

 

1. The Applicant was challenging the manner the chairman of the disciplinary hearing had been appointed.  Mr Dumisani Ngcamphalala (who had been cited as 2^nd Respondent in that matter), had been appointed chairman of the disciplinary hearing by the Town Clerk – exercising his authority as such.  When the Court read the disciplinary charge and heard the submissions made by both counsel, it became clear to the Court that the Town Clerk is a potential witness in the disciplinary hearing wherein the Applicant is the accused.

 

1. Since the Town Clerk was a potential witness in the pending disciplinary hearing; justice and fairness required that the Town Clerk be restrained from further participation in the advancement and management of the disciplinary hearing.

 

 Instead, someone else should be appointed to take over the responsibilities of the Town Clerk in as far as the disciplinary hearing was concerned.  The role of the Town Clerk in appointing a chairman of the disciplinary hearing conflicted with his role as a potential witness in the same hearing.

 

1. The possibility of the Town Clerk having conflicting roles in the disciplinary process began when the Applicant was charged with a disciplinary offence.  The Town Clerk could not serve the function of initiator and witness in the same matter.  The Town Clerk appointed Mr Ngcamphalala as chairman at the time he had become potential witness in the pending disciplinary matter.

 

1. Consequently the Court issued an order that set aside any further involvement of the Town Clerk in the disciplinary process from the time the disciplinary charge was preferred against the Applicant.

 

 

 In particular the Court concluded that it would not be proper for Mr Ngcamphalala to chair a disciplinary hearing wherein he had been appointed by the Town Clerk at a time when the Town Clerk had potentially conflicting roles.  The Court ordered as follows on the 7^th August 2014:

1. “That the 2^nd Respondent is hereby removed from acting as the Chairperson in the disciplinary hearing of the Applicant.
2. That the 1^st Respondent is hereby ordered to appoint a Committee of Council to handle the disciplinary hearing of the Applicant, subject to some modalities to be agreed upon by the parties.
3. That the committee of council is hereby ordered to appoint a new chairperson of the disciplinary hearing of the Applicant.
4. That the disciplinary hearing of the Applicant shall commence under the chairperson to be appointed by the committee of council.
5. That each party is to pay its own costs.”

 

1. The Court did not say that Mr Ngcamphalala would be partial in his deliberations or in the management of the disciplinary hearing.  Mr Ngcamphalala is an attorney and therefore an officer of this Court.  The Court had no reason to doubt his skill or bona fides.  Also the Court did not make any finding on the character of the Town Clerk.  In particular the Court did not find the Town Clerk to be biased or abusing his office.

 

1. About the 6^th October 2014 Ezulwini Municipality moved an urgent application before Court wherein the Court was requested to interpret or clarify its Order of the 7^th August 2014, particularly clause 2 therein.  This Order has been reproduced in paragraph 10 above.  In this second urgent application Mr Derrick Dube was Respondent and Ezulwini Municipality was the Applicant.  However for the sake of convenience the Court will continue to refer to the parties as they are mentioned in the first application. 

 

1. The Applicant argued that the Respondent is conducting the disciplinary hearing unfairly, in that it has preferred the same disciplinary charge which the Applicant was facing in the initial hearing i.e. before the first application was filed in Court.  The Applicant’s erstwhile Counsel (Mr L Mdziniso) raised this argument from the bar when addressing the Court in opposition to the urgent application which Ezulwini Municipality had filed.  The Court explained to the Applicant’s Counsel that the point raised was not before Court.  The issues that were before Court had been dealt with in terms of the Order dated 7^th August 2014.

 

1. On the 20^th March 2015 the Applicant (Mr Derrick Dube) filed another urgent application before Court which the Court is currently faced with.  This is the third application under case no.274/2014 involving Mr Derrick Dube and Ezulwini Municipality.

 

1. There are four (4) Respondents in this application.

15.1      The 1^st Respondent is Ezulwini Municipality.

15.2      The 2^nd Respondent is Mr George Falcomer, a member of the 1^st Respondent’s Council.

15.3      The 3^rd Respondent is Mr Sibusiso Mabuza, another member of the 1^st Respondent’s Council.  The 2^nd and 3^rd Respondents form the Committee of Council which was appointed to manage the disciplinary hearing in which the Applicant is the accused.

15.4      The 4^th Respondent is Attorney Zonke Magagula.  Mr Magagula was appointed by the Committee of Council to chair the disciplinary hearing of the Applicant.

16.   The Applicant has prayed for relief as follows:

“1. Dispensing with the usual forms and procedures relating to the institution of proceedings and allowing this matter to be heard as a matter of urgency.

2.     Condoning any non-compliance of this application with the rules of this Honourable Court in terms of Rule 14, on grounds of urgency set out in the Founding Affidavit filed herewith.

3.     That the Respondents be and hereby interdicted from proceeding with the disciplinary enquiry of the Applicant, pending an investigation by the 2^nd and 3^rd Respondents whether to prefer charges against the Applicant in respect of the conduct complained of.

4.     Setting aside the charges investigated by and formulated by the 1^st Respondent’s Chief Executive Officer, against the Applicant.

5.     In the event the 2^nd and 3^rd Respondents deciding to proceed with the charges against the Applicant, 4^th Respondent be removed as Chairperson of the disciplinary enquiry of Applicant.

6.     Directing the 2^nd and 3^rd Respondent to appoint a new chairperson of the disciplinary enquiry of the Applicant.

7.     The disciplinary hearing of the Applicant to commence under the Chairperson appointed in terms of prayer 6 above.

8.     The Respondent, in the event of any opposition to pay costs on the scale between … attorney and own client….

9.     Granting such further and/or alternative relief.”    

17.   The Applicant has been called to a disciplinary hearing and has been charged as follows:

                                “Gross Dishonesty in that in your letter dated 3^rd April 2014 to Council you deliberately and intentionally lied to Council by stating that in 2012 you were bribed by the Town Clerk (Vusi Matsebula).  The letter you wrote to the Town Council was false, misleading and malicious.  Your action is in violation of Section 36(b) of the Employment Act 1980 as amended.”

                              The charge sheet is attached to the founding affidavit marked DD1.

18.   The Applicant appeared before the chairman at the hearing accompanied by his legal representative (Mr L. Mndziniso).  The Applicant stated that the disciplinary charge he is facing arises from a letter which he wrote to the Town Clerk dated 3^rd April, 2014.  The letter has been attached to the founding affidavit marked DD2.  The letter reads thus:

                                                                         “Ezulwini Town Council

                                                                          P.O.Box 344

                                                                         Ezulwini

                                                                       03 April 2014                  

                         The Town Clerk

                         Ezulwini Town Council

                         P.O.Box 344

Ezulwini           

                        

RE: REFUSAL TO REPLACE BRIBERY LETTER TO MY FILE

Mr Town Clerk I would like to inform you about your refusal of replacing/putting all the letters that were being used when you commit that offence.

Ever since you bribe me 2012, I have decided to continue to the next step of authority, as indicated by our standing orders.  I came out with this solution since you told me in writing that you are not in a position to help me on my request.

Yours Faithfully

Signed

Derrick Dube”

 

19.   The Applicant accused the Town Clerk of abusing his position by charging the Applicant with a disciplinary offence as afore-stated.  The Applicant added that the disciplinary charge emanates from a friendship between himself and the Town Clerk which has turned sour.  The Town Clerk is therefore using his power and authority as a senior officer in the Ezulwini Municipality either to remove the Applicant from work or to discredit the Applicant as a loyal employee of the municipality. 

 

        The Town Clerk allegedly removed certain documents from the Applicant’s file at the workplace which were meant to confirm that the Applicant is a loyal employee of Ezulwini Municipality and that the Town Clerk had private dealings with the Applicant.  The Applicant intended to use some of those documents to prove the loan which the Town Clerk allegedly received from the Applicant.

 

20.   The Applicant further alleged that the letter he wrote the Applicant, annexure DD2, was directed to the Town Clerk and not the Council of Ezulwini Municipality.  The disciplinary charge is therefore unjustified and should accordingly be dismissed forthwith. 

 

21.   When the Applicant appeared before the new chairman Mr Magagula, he noticed that he was charged with the same offence which he was facing when he appeared before the previous chairman Mr Ngcamphalala.  This was the charge that was preferred by the Town clerk (also referred to as Chief Executive Officer).

        The Applicant added that the Court had ruled that the Town Clerk should play no role in the disciplinary proceedings.

 

22.   The Applicant expected the Committee of Council to conduct its own investigation into the allegations of misconduct made against him and decide whether or not to charge him with an offence.  The Applicant would be willing to face that disciplinary charge even if it is the same or similar to the charge that was instituted by the Town Clerk. The Applicant argued that the Town Clerk was “irredeemably tainted" in as far as the disciplinary hearing of the Applicant was concerned and therefore a disciplinary charge that was instituted by him was also ‘tainted’.  The Court has noted that a portion of the argument that the Applicant has raised in the third application is similar to that which he raised in the second application.  This repetition has caused the Court to revisit some of the issues that the Court had already canvassed when dealing with the argument raised in the second application.

 

23.   The Applicant further prayed that the chairman Mr Magagula be removed from the chair and be replaced by a new chairperson.  In the Applicant’s opinion the chairman (Mr Magagula) cannot be impartial in the disciplinary hearing.

 

24.   According to the Applicant, the chairman is a very close friend to one of the members of the 1^st Respondent’s Council; namely Mr Zweli Jele.  The Council is the governing body of the Ezulwini Municipality.  Besides being a member of the Council, Mr Jele is also chairman of the Finance Committee of the Council.

 

25.   The Applicant added that the chairman of the disciplinary hearing will have to submit his invoice for services rendered (as chairman) to the Council for payment.  The Finance Committee will have to approve the invoice before it pays it.  As a member of the Finance Committee Mr Jele will have a say in whether or not the invoices should be paid.  Mr Jele accordingly has influence over the chairman (Mr Magagula). 

        Mr Jele’s influence both in the Council and the Finance Committee will cause the chairman to compromise his neutrality and be induced to yield in favour of the municipality in the disciplinary hearing.

 

26.   Both the chairman at the disciplinary hearing and Mr Jele have not filed affidavits in response to the allegations made against them.  Their reasons for not filing affidavits is understandable.   The Court has further noted that the 2^nd and 3^rd Respondents (the Committee of Council) have also refrained from filing affidavits in this matter.  If any of the said gentlemen were to file affidavits, they may have to deny some of the allegations made against them by the Applicant.  They may be seen to be supporting the 1^st Respondent in the matter before Court.  Their neutrality would thereby be compromised.  The Applicant would be justified in challenging their neutrality in the subsequent disciplinary hearing. 

 

        The chairman in the disciplinary hearing, the Committee of Council and Mr Jele have clearly exercised prudence in this matter by refraining from filing affidavits.

 

27.   The Court has noted that the Applicant has made a bald statement about an alleged friendship between the Chairman (Mr Magagula) and a Council member Mr Zweli Jele.  The Applicant states as follows in his founding affidavit concerning these gentlemen:

 

27.1  “I was concerned with the neutrality of Mr Magagula as a Chairperson of the disciplinary enquiry having regard to the fact that he is a very close friend of one of the Councillors Mr.Zweli Jele.”

                         Paragraph 20

27.2   “I have a reasonable apprehension that due to the long standing friendship between Mr Jele and the 4^th Respondent, the 4^th Respondent may not be impartial in acting as a Chairman of the disciplinary enquiry.  This renders him unsuited to continue as Chairperson.”

                    Paragraph 23

27.3   “Owing to the 4^th Respondent’s close friendship with the influential Councillor Jele, who will have a say in many aspects of the matter I would not be comfortable with the 4^th Respondent continuing as Chairperson of the disciplinary enquiry.”

                       Paragraph 24

28.   The Applicant’s statement on the alleged friendship between Mr Magagula (chairman) and Mr Jele constitutes the Applicant’s opinion or an inference.  That opinion or inference should be based on ascertainable facts.  The Applicant has a duty to place facts before the Court which the Court can examine and be able to draw its own conclusion on whether or not the said gentlemen are indeed friends (as alleged), and that the nature of their friendship is such that it is likely to induce the chairman to act with partiality in the pending disciplinary hearing.

        The Respondent must also be able to challenge the Applicant and to present evidence in rebuttal.  That exercise takes place in a trial or disciplinary hearing.

 

29.   The Applicant does not state how well does he know each of the said gentlemen (the chairman and Mr Jele), how long has he been observing them and what evidence has he unearthed which could lead the Court, unequivocally, to the conclusion that they have the type of friendship that the Applicant is complaining about. The Applicant’s affidavit is clearly deficient, it lacks the necessary detail, to support the Applicant’s claim.

 

30.   The shortcoming in the Applicant’s affidavit was brought (by Court) to the Applicant’s attention through his present Counsel (Mr M. Magagula).  The answer given was that, the Applicant’s allegations had not been denied by the persons mentioned therein (i.e. the chairman and Mr Jele), there was no need therefore to provide evidence to prove those allegations.

        With respect to the Applicant, he appears to have missed the point and overlooked the requirements of an affidavit that is filed in support of a Notice of Motion (also known as a founding affidavit).  The requirement of a founding affidavit or an affidavit in support of a Notice of Motion has been described as follows in some of the leading authorities:

 

30.1      “The supporting affidavits must set out a cause of action.  If they do not, the respondent is entitled to ask the Court to dismiss the application on the ground that it discloses no basis on which the relief can be granted.

30.2      In application proceedings the affidavits constitute not only evidence but also the pleadings and,… [the supporting affidavits must contain] in the evidence they set out, all that would have been necessary, in a trial.

 

30.3      “It is clear, therefore, that an application not only takes the place of a declaration in an action but also of essential evidence to be led at trial. An application must include facts necessary for determination of the issue in the applicant’s favour.

                           (Underling added)

HERBSTEIN AND VAN WINSEN:  THE CIVIL PRACTISE OF THE HIGH COURT OF SOUTH AFRICA: 2009, volume 1, 5^th edition, Juta. ISBN 978 0 7021 7933 4 at page 439.

30.4      “In application proceedings the affidavits take the place not only of the pleadings in an action, but also of the essential evidence which would be led at a trial.

                                     (Underlining added)

  ERASMUS H.J: SUPERIOR COURT PRACTICE, 1993, Juta.  ISBN 0 7021 3213 6 at page B1 -39.

 

30.5      “An oath is administered because the information contained in an affidavit constitutes evidence.”

                                    (Underlining added)

            PETE et al: CIVIL PROCEDURE; A PRACTICAL GUIDE, 2005, NAE. ISBN

 1-86928-525-5 at page 135.

 

31.     The point being made by the authorities cited above and which this Court respectfully agrees with, is that a founding affidavit must contain evidence to support the allegations made therein and to underpin the prayers sought in the notice of motion.The evidence may be contained in more than one document.  Where an affidavit contains no evidence or insufficient evidence to support the allegations made by the Applicant, those allegations become ineffective.

 

32.     The Applicant’s affidavit is defective in as far as it lacks evidence to support the allegation that the chairman, at the disciplinary hearing,

will compromise his impartiality as a result of a long standing and close friendship between himself and Councillor Jele.  This particular point, raised by the Applicant accordingly fails.   The requisite evidence should appear in the founding affidavit irrespective of whether or not the application is opposed.  Inter alia, the requisite evidence must persuade the Court to find in the Applicant’s favour.  Without evidence, the Court cannot be so persuaded.

 

33.     Even if there was evidence before Court to prove the allegation that the chairman was a close friend of Councillor Jele, that evidence on its own would not necessarily lead to a conclusion that the chairman would therefore be biased against the Applicant.

 

34.     There is neither allegation nor indication that Mr Jele has a personal interest in the outcome of the pending disciplinary hearing. 

It has not been shown that Mr Jele has anything to gain if the Applicant is convicted or anything to lose if the Applicant is acquitted at the disciplinary hearing.  Mr Jele is not among the Respondents that are cited in this matter.  Mr Jele has been introduced as one of the councillors of the 1^st Respondent.  It does not necessarily follow that when a person is appointed Councillor at a municipality he would then desire to see employees at that municipality dismissed.  There is no evidence that would link Mr Jele with the outcome of the disciplinary hearing such that his influence (if any), would cause the chairman to compromise his impartiality at the disciplinary hearing.

 

35.     The Applicant has stated that Mr Jele is chairman of the Finance Committee.  The Finance Committee is responsible for paying municipality bills including the chairman’s fee, for services rendered.  Assuming that allegation is correct, still it is difficult to see how that fact would affect the outcome of the disciplinary hearing. 

The chairman would be paid his fee irrespective of the outcome of the disciplinary hearing.   There is no suggestion (let alone evidence), that the chairman would be paid more if he convicted the Applicant at the disciplinary hearing or would be paid less if the Applicant is acquitted. There is therefore no link between the work of the Finance Committee in paying bills (including the chairman’s invoice) and the outcome of the disciplinary hearing.

 

36.     The Applicant has stated further that Mr Jele is an influential member of both the Council and the Finance Committee.  The Applicant has not stated how he arrived at that conclusion.  The Applicant stated in his affidavit that he works as a labourer and part-time or relief driver of the 1^st Respondent.  He did not say that he is also a Councillor.  The Applicant does not sit in the Council meetings or meetings of the Finance Committee.  The Applicant has failed to state how he formed the opinion or drew a conclusion that Mr Jele is an influential member both in the Council and Finance Committee meetings.

 If the Applicant does not attend Council meetings or Finance Committee meetings, he would not be in a position to determine which Councillor is more influential and which is less influential than the others.  There is no evidence before Court to show that the chairman and the Councillors are malleable and that their decisions are subject to Mr Jele’s influence.   The Applicant’s opinion therefore that Mr Jele is an influential Councillor and that he will exert his influence on the chairman and the other Councillors, is baseless and unjustified.  The contents of the Applicant’s affidavit is conjecture rather than evidence.

 

37.     The Applicant has overlooked the fact that Mr Jele is not in the Committee of Council.  At the end of the disciplinary hearing the chairman will present his report to the Committee of Council on his findings.  Based on that report the Committee will make a decision on behalf of the 1^st Respondent.  Mr Jele has no role to play in the disciplinary process at all.  There is no justification for the removal of the chairman from the disciplinary hearing. 

There is further no basis for the allegation that Mr Jele is influential, and that his influence will negatively affect the chairman in his ability to dispense justice at the disciplinary hearing.  The Applicant’s argument is accordingly dismissed.

 

38.     The Applicant has further prayed that the disciplinary charge be set aside because it is the same charge that the Town Clerk preferred against the Applicant.  Instead, the Committee of Council should conduct its own investigation and then decide whether or not to charge the Applicant.  If the Committee elects to charge the Applicant it may prefer the same or a different charge according to its discretion.  The charge that the Applicant is currently facing is irregular and should be set aside because it was not investigated by the Committee of Council. This argument was initially raised by Applicant in his argument in the second application.  The Applicant did not succeed.  The Applicant has raised the same argument in the third application.  It is necessary for the Court to re-consider this matter.

 

39.     An employer has a right and duty to take disciplinary action against its employee for a work – related offence.  When instituting disciplinary action, the employer must have had reason to believe that a work-related offence has been committed, and the accused – employee is the suspect.  It is the prerogative of the employer to investigate elements of misconduct at its workplace.  An employer must however be aware of the risk of instituting a disciplinary action against an employee in the absence of a thorough investigation.  An obvious manifestation of that risk is that the charge may not be proved.  The Applicant has now invited the Court not only to set aside the disciplinary charge but also to order the Committee of Council to investigate the allegation of misconduct which he is suspected of having committed.

 

40.     In the previous afore-mentioned applications, the Court did not order that the disciplinary charge be set aside.  The Court did not order the Committee of Council to conduct its own investigation of the disciplinary offence. 

The Court has not made a finding that the charge is irregular, tainted or unfair.  If the Applicant has evidence to prove that the charge as well as the investigative process is irregular, he is entitled to bring that evidence before the chairman at the disciplinary hearing. The Respondent will also be given an opportunity to challenge that evidence, which will include cross-examination of the Applicant and his witnesses.  The chairman will then make his determination on the evidence and arguments presented before him.  On the affidavits placed before Court, the Court is unable to conclude that the investigation of the disciplinary charges was irregular and that the charge is tainted.

 

41.     The Court has already stated that the disciplinary process began when the Applicant was served with the charge sheet.  It is the Respondent, as employer, that charged the Applicant with misconduct- irrespective of the identity of the employee who had been authorized to draw and/or serve the charge sheet. 

It is not irregular for the 1^st Respondent to authorise its Town Clerk and Chief Executive Officer, to draw the charge sheet and deliver it to the Applicant. If the Town Clerk acted without authorization from the employer (1^st Respondent), the 1^st Respondent would be expected inter alia, to discipline the Town Clerk for misconduct and withdraw the charge.  The conduct of the 1^st Respondent indicates that the Town Clerk performed his duty as mandated by its employer (1^st Respondent).

 

42.     It was the disciplinary charge that revealed that the Town Clerk is a potential witness in the upcoming disciplinary hearing.  When the charge sheet was delivered to the Applicant, the Town Clerk had to approach future developments in the disciplinary process with circumspection in order to avoid having conflicting roles.  The Applicant’s role as a potential witness in the forthcoming disciplinary hearing began when the Applicant was charged and not before.  The Applicant could not have been a potential witness in the absence of a disciplinary hearing.  The investigation of the disciplinary offence is an event that took place before the Applicant was charged.

If the Town Clerk took part in the investigation of the offence and was further mandated to deliver the charge sheet to the Applicant, that specific role by the Applicant does not render the investigation irregular as well as the disciplinary charge.  There is nothing that precludes an employer or employer representative who took part in an investigation of misconduct at the workplace to proceed to charge a suspected employee with misconduct.  The role of the Town Clerk was that of initiator.  After the Applicant had been charged, the Town Clerk assumed another role of being potential witness.

 

43.     When the Town Clerk appointed Mr Ngcamphalala as chairman of the disciplinary hearing, the chairman’s role as a potential witness conflicted with his role as initiator of the disciplinary process.  An initiator of a disciplinary process may appoint a person to chair the disciplinary hearing, however a witness may not.

 

 The Court intervened in the first application by setting aside the appointment of Mr Dumisani Ngcamphalala and gave directive regarding the appointment of his replacement.  The appointment of the new chairman (Mr Magagula) was done by the Committee of Council.  There are no conflicting roles in the manner Mr Magagula was appointed.  There is no justification therefore for the removal of Mr Magagula from the chair.

 

44.   The Applicant has argued further that the disciplinary charge should be set aside because the Town Clerk is using it as a means to victimize him.  The charge is allegedly based on a loan which the Applicant advanced the Town Clerk.  The Town Clerk failed to pay on due date.  The Town Clerk is abusing his position by instituting a disciplinary process in order to avoid paying the debt.  The allegations made by the Applicant have not been presented as evidence before the chairman.  The Applicant has not testified yet before the chairman.

 

         The Applicant’s erstwhile Counsel raised preliminary arguments at the commencement of the disciplinary hearing and thereafter asked the chairman to make a finding in the Applicant’s favour inter alia, dismissing the disciplinary charge.  The chairman dismissed the preliminary points. 

 

45.     The Town Clerk has not testified yet before the chairman concerning the allegations made against him in the Applicant’s founding affidavit.  The Applicant’s allegations are yet to be tested under cross-examination at the disciplinary hearing.  The Court is not in a position to determine whether or not the charges are an abuse of office, by the Town Clerk.  That issue is intertwined with the merits of the matter.  A determination of that matter cannot be made without a hearing of the merits.  The chairman has not been given a chance to hear the merits yet. It would be premature for the Court to intervene at this stage.

 

46.     Another reason the Applicant applied for the removal of the chairman is that, he alleges that the chairman is biased.  The Applicant’s evidence reads thus:

“There is clearly no basis for the charges as I addressed the letter to Mr. Matsebula and not to Council.  For that reason, the charge should naturally fall away without any further ado.  The 4^th Respondent’s [chairman’s] rejection of this preliminary point was without basis and has further convinced me that he is not impartial.”

(Paragraph 29)                 

 

47.     The Applicant raised a preliminary point at the disciplinary hearing in terms of which he urged the chairman to set aside the disciplinary charge.  The chairman ruled that the matter should proceed to its merits.  According to the Applicant, that ruling meant that the chairman is not impartial.

 

48.     The Applicant has lost sight of the fact that the alleged quarrel between the Applicant and the Town Clerk, and the events that led to the disciplinary charge being preferred against the Applicant, are subject of dispute.  The matter cannot therefore be resolved on affidavits.  The disciplinary hearing is the proper forum to ventilate those issues.  There is no evidence that the chairman is biased in his ruling.  The fact that the chairman has made a finding against the Applicant does not mean that he is therefore biased.  The Applicant’s statement is an unfair attack on the chairman.  The Court’s finding on this issue is similar to that of the chairman,viz. that the matter should proceed to its merits at the disciplinary hearing.

 

49.     The Court is mindful of the fact that it is called upon to intervene in an uncompleted disciplinary hearing.  The principle that guides the Court in such cases was aptly pronounced by Justice OTA, in the matter of ABEL SIBANDZE V STANLIB SWAZILAND (PTY) LTD AND LIBERTY LIFE SWAZILAND SZIC case no. 5/2010 (unreported), who stated as follows:

“The attitude of the Courts therefore, is not to intervene in the employers [employer’s] internal disciplinary proceedings until they have run their course, except where compelling and exceptional circumstances exist, entitling the Court to do so.  This is from time immemorial the general attitude of Courts in all instances where the powers of a superior court is invoked to interfere in an ongoing proceedings of an inferior court.”    

 

50.     The learned authors GARDINER AND LANSDOWN enunciated the principle as follows:

“While a superior court having jurisdiction in review or appeal will be slow to exercise any power whether mandamus or otherwise upon the unterminated course of proceedings in a court below, it certainly has the power to do so, and will do so in rare cases where grave injustice might otherwise result or where justice might not by other means be attained….

In general, however, it will hesitate to intervene, especially having regard to the effect of such a procedure upon the continuity of proceedings in the court below, and to the fact that redress by means of review or appeal will ordinarily be available.”

GARDINER AND LANSDOWN: SOUTH AFRICAN CRIMINAL LAW AND PROCEDURE, Vol.1, 6^th edition, Juta, 1957. ISBN (not available) at page 750.

 

51.     The principle stated by the learned authors as shown above and followed by OTA J, in the Abel Sibandze case is the legal position that is followed in the Courts of Swaziland.  The question before Court therefore is whether the Applicant can attain justice by other means? 

 The answer is in the affirmative. Alternatively, will the Applicant suffer grave injustice (or irreparable harm) if the Court does not intervene at this stage?  The answer is in the negative.  The reasons are stated below.

 

51.1         The Applicant can appear before the chairman at the disciplinary hearing and lead evidence to expose the relationship he had with the Town Clerk which led to the alleged loan of money which the Applicant has claimed it was not paid.  Based on that evidence, the Applicant can give the chairman a reason to set aside the disciplinary charge.  If persuaded, the chairman might set aside the disciplinary charge.

51.2         If the Applicant is not satisfied with a decision of the chairman, he may appeal that decision, internally.

It is possible that the appeal tribunal may have a different interpretation of the facts as compared to that of the chairman.

51.3         If the Applicant has evidence to prove that the chairman was biased at the hearing, he may apply for such order as he may deem appropriate.

51.4         Subject to compliance with the provision of the Industrial Relations Act No 1/2000 as amended, the Applicant may approach the Industrial Court for relief, if he is dissatisfied with the decision of the employer.

               

52.      This is not a case where the Court should intervene in an uncompleted disciplinary hearing.  The application accordingly fails.  The general rule is that costs follow the event.  The application is accordingly dismissed with costs.

 

 

 

 

Members agreed

 

 

__________________________

D.MAZIBUKO

INDUSTRIAL COURT JUDGE      

 

Applicant’s Attorney              Mr M. Magagula

                                           Magagula &Hlophe Attorneys

 

Respondent’s Attorney           Mr S. Mdladla

                                            S.V. Mdladla Attorneys