IN
THE INDUSTRIAL COURT OF APPEAL OF SWAZILAND
SWAZILAND
MEAT WHOLESALES
Appellant
Vs
KHUMALO
Zacharia Respondent
Appeal
Case No. 23/2001
Coram
SAPIRE, JP
MATSEBULA,
JA
MAPHALALA,
JA
For
Appellant Z. JELE
For
Respondent W. MKHATJWA
JUDGMENT
(01/07/2002)
We
have considered the appeal in this matter and have come to a
unanimous conclusion. The applicant carries on the business of a
wholesale butchery. The respondent in the matter was an employee and
he was an engineer whose work it was to
2
keep
charge of the machinery used in the slaughtering animals at the
appellant's premises.
The
dispute in this matter arose in the following way:
The
respondent for personal reasons applied for leave to his immediate
superior to be away from his job on 30th September 1998. The employer
refused him leave, for the afternoon and said that one of them had to
be on the premises while slaughtering was in progress and that as he,
the employer was going to Manzini for the day, the leave request
could not be granted. The respondent attended in the morning and
according to the evidence he was present in the afternoon until about
half past three when according to him the slaughtering was completed
and he took time off thereafter. The whole period involved, one and
half-hours. For this he was disciplined, brought before the employer
It was a stormy meeting at which words may have been used
inappropriate in the work place The respondent was dismissed on the
grounds of absenteeism.
He
took the matter to the Industrial Court which ruled, that the then
respondent, who is now the appellant had not succeeded in proving a
proper and fair dismissal and gave judgement in favour of the
appellant.
Against
this the appellant has appealed. The appellant is faced with
insuperable difficulties. First of all the appeals to this court are
only on questions of law. It is not for this court to consider the
correctness of the decisions on questions of fact that have been made
in the court a quo. The central question of fact in this case is
whether the respondent was in fact absent or not, in terms of Section
36 (f) but in terms of Section 36 (1) which is in general terms.
The
indisputable fact found by the court a quo was that the appellant
only left after the slaughtering for the day had been completed. The
only other evidence to contradict this was the evidence from the
employer's side, which was hearsay. Quite clearly those who gave
evidence had no personal knowledge of the events. If indeed the
slaughtering for the day had been completed the evidence is that all
the employees
3
including
the engineers had nothing further to do and it was usual for them to
leave before the closing time.
We
cannot disturb this finding. In view of this there is no basis for
the appeal at all.
Mr.
Jele who argued the matter for the appellant constantly came up
against this obstacle but he could not displace it. The respondent
was not shown to have been absent in any way detrimental to the
appellant's business by a wrongful act which can be visited with a
dismissal.
Accordingly
the appeal must be dismissed and the order of the court a quo is
confirmed.
SAPIRE,
JP.
I
AGREE
MATSEBULA,
JA
I
AGREE
MAPHALALA,
JA