1
SWAZILAND
INDUSTRIAL COURT OF APPEAL
Swaziland
Television Authority
Appellant
v
Hlope
Lwazi & others
Respondents
Case
No 9/02
Coram SAPIRE,
JP
MATSEBULA,
JA
MAPHALALA,
JA
For
Appellant S. SHONGWE
For
Respondents MR. MKHWANAZI
Judgment
(09/08/2002)
The
Appellant is a body corporate established by statute, which
administers the television service in Swaziland.
The
Respondents were all employees of the Appellant. They had, so it has
been established, engaged in an illegal strike or work stoppage, on
26th and 27th October 1999, in connection with which broadcasting had
been interrupted.
A
disciplinary tribunal was established which sat on various dates
between 02 02 10 and 02 03 01. The sole member of the tribunal was Mr
Rudolf Matsenjwa. The terms of reference of the tribunal are a matter
of dispute but only in so far as Matsenjwa maintained that he was
mandated not to recommend suitable punishment but to impose it in the
event that those charged or some of them were found guilty of one or
more of the charges they faced. The Appellant maintains that his
authority was limited to making findings on the facts and
recommending punitive steps to the governing board in the event of
findings of guilty.
The
tribunal found that all the respondents had taken part in the illegal
strike and it is clear that they acted in concert. It was not however
found possible to hold all
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responsible
for the more outrageous behaviour of others, namely that is of
invading the newsroom and interrupting the service.
The
tribunal, having found all but four of those charged guilty, came to
the conclusion that a first written warning be issued to the
employees who were found guilty of participating in the illegal
strike. Those found guilty of obstruction of the news service by
invasion of the newsroom were to be given a final warning.
The
report was delivered to management and to the union. The former
considered that the treatment found appropriate by the tribunal
equivalent to trivialising of the situation. The Appellant after
considering the report dismissed all the Respondents. This gave rise
to the proceedings in the court a quo the Respondents claiming an
order
1. Declaring
the Respondent's purported dismissal of the Applicants from their
employment invalid and null and void ab initio and setting same aside
2. Re-instating
the Applicants to their various posts with immediate effect
3. Directing
the Respondent to pay to the Applicants their salaries from the date
of their purported dismissal to date of judgement
4. Declaring
the Respondent's purported dismissal as amounting to an unlawful
lock-out against the Applicant (sic)
5. Costs
on an attorney and client scale, but only in the event of this
application being opposed
6. Further
or alternative relief
3
The
claim so formulated presents a number of difficulties. As the
dismissal complained of is not described as "unfair" within
the meaning of Section 35 of The Employment Act1 (the Employment
Act).
The
reference to "Applicants' and "Respondent" is of
course to the parties as they were in the court a quo
In
the founding affidavit which supports the application the First
Respondent made it clear that the Respondents considered that the
punishment prescribed by the tribunal was final and precluded any
more serious steps being taken against the Applicants by the
Appellant following the findings of guilty. In other words the
Respondents were only to receive warnings effective for a limited
period. The Appellant maintained that the mandate of the tribunal was
to investigate the facts and to recommend what action should be taken
in the event of the tribunal finding the Respondents guilty of some
or all of the charges against them. The Appellant's management,
considered the report of the Tribunal to be advisory, leaving it open
to the governing board to differ there from and to act in accordance
with its own assessment of the situation. This difference was decided
in favour of the Respondents in the court a quo and is the. question
of law upon which the Appellant has appealed to this court
The
Respondents had every reason to be happy with the outcome of the
disciplinary hearing. Their offences were serious if one bears in
mind that at the time, the. service delivered by the Appellant, was
considered "essential" in terms of section 73 of the
Industrial Relations Act of 19962, which governed at the relevant
time and the respondents' strike was in terms thereof a criminal
offence.
In
the judgment of the Court a quo reference is made to the cases,
Swaziland United Bakeries v Armstrong Dlamini3 and The Central Bank
of Swaziland v Memory Matiwane4 and these words are quoted.
1
ACT 5/1980
2
ACT NO. 1 OF 1996
3
Appeal Case No. 117/94
4
Case No 11/1993
4
'"It
is clear from the provisions of Section 42 of the Employment Act that
the court is bound to consider all the circumstances of the case when
considering whether the employer has discharged the burden of proving
that the discharge was fair and reasonable " The court does not
appear to have given proper weight to these judgments
The
purpose of the hearing in the court a quo, notwithstanding the
wording in which the claim was couched, was to determine whether or
not the Respondents had been unfairly dismissed. In order to do this
the court had to take into consideration the provisions of sections
35, 36, 41, and 42. This the Court a quo has not done.
The
Court a quo based its decision almost exclusively on the ground that
the Appellant acting through its board of directors was bound by the
decision of the tribunal. The action to be taken against the
Respondents provided for in the report of the tribunal, was, so the
court a quo found, not a recommendation to be accepted or rejected by
management as it considered proper, but binding on the parties as if
it were a court order. This decision may be seen as being based on
mixed fact and law.
One
may test the validity of this conclusion by considering the obverse.
Had the tribunal found that dismissal of some or all of the
Respondents was appropriate following on the factual findings, would
that in itself have meant that the Respondents were automatically
dismissed? Would it no longer have been open to the Appellant as
employer to apply some lesser and more lenient sanction? The answer
would appear to be "no".
Dismissal
of an employee, or the imposition of some lesser sanction, is a
juristic act performed by the company itself through its management
constituted by the board of directors. Only in rare and special
circumstances would it be proper to hold that a disciplinary tribunal
has been delegated the power as its agent, to the exclusion of the
principal, to perform this function.
In
the instant case the court a quo seems to have accepted the say so of
Mr Rudolf Matsenjwa as to the extent of the mandate. He, Matsenjwa,
was the sole member of the tribunal. In this the court erred in law.
An agent cannot by his own
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evidence
establish his authority and the extent thereof. Such evidence as
there was coining from the employer was to the effect that the
tribunal's decision was only to be advisory. There was no evidence at
all that the Appellant had abdicated its powers in regard to the
treatment its employees. The court should not have found it proved
that the tribunal had been delegated the power of imposing its own
punishment on those of the respondents. The court should have
addressed the question of whether the dismissal was in all the
circumstances fair.
In
coming to its conclusion the court a quo relied heavily on Kohidh v
Beier Wool (Pty) Ltd.5, which is authority for the proposition that
if employees have been acquitted at a disciplinary enquiry or the
Presiding Officer has imposed a penalty less severe than dismissal,
they cannot be subjected to a second enquiry in respect of the
offence. Nor may the employer, so the effect of that judgment is,
ignore the decision of the chairman of a properly constituted
disciplinary hearing and substitute its own decision. A dismissal in
such circumstances, so the judgment holds, would invariably be
unfair. This is a decision of a foreign court and the reasoning by
which it came to its conclusion is not in accord with the provisions
of the local statute. It cannot be reconciled with the decisions of
Swazi courts to which reference has been made.
The
conclusion to which I have come is that the point of law raised in
the appeal must be answered in favour of the Appellant and the orders
of the court a quo in respect of each and all of the Respondents set
aside. This does not mean that those of them who have in fact been
reinstated should now automatically be dismissed. The case will be
remitted to the court a quo to determine whether in each case the
dismissal was fair or unfair in terms of the Employment Act.
SAPIRE,
JP
I
agree
MATSEBULA,
JA
I
agree
MAPHALALA,
JA
5
(1997) 18 ILH 1104 LLMA
