IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE
CASE
NO. 196/2000
In
the matter between:
MOSES
K. SHIBA...................................
APPLICANT
And
SWAZILAND
MEAT INDUSTRIES.......RESPONDENT
CORAM:
NDERI
NDUMA : PRESIDENT
JOSIAH
YENDE :MEMBER
NICHOLAS
MANANA : MEMBER
FOR
APPLICANT : D. MSIBI
FOR
RESPONDENT : Z. JELE
JUDGEMENT
- 04/11/05
The Applicant
was charged with the offence of fraud in that on the 15th May
1997, he submitted a claim of an amount of E100.00 and E80.00 in
respect of commission for cattle "runners" by the name of
Tutu Shiba and Mr. Siboniso Shiba respectively, who upon
investigation by the Respondent were found to be non - existent.
It was alleged
by the Respondent that two "runners" by the name of Paulos
Zwane and Mveli Dlamini who had lawfully assisted the Applicant to
buy cattle were as a consequence of the misrepresentation by the
Applicant not paid commission due to them in the sum of E30.00 and
E50.00 respectively. The two made a complaint to the Respondent and
this led to the investigations that uncovered the fraudulent claims.
The following
facts are common cause:
That the
Respondent had a system in terms of which cattle buyers sourced
"runners" in respective areas to help them source cattle.
These "runners" were paid a commission of E5.00 per cow and
the buyer also received a commission of E5.00.
The "runners"
were paid their commission on a monthly basis and the cattle buyer
received his commission with his salary at month end.
The two cheques
of E80.00 and E100.00 in respect of a commission due to "runners"
were issued in the name of Tutu Shiba and Siboniso Shiba
respectively.
The Applicant
collected the two cheques from the Respondent and the same were
cashed by the drawee.
That the
Respondent had received all the 36 cattle in respect of which the
commission was paid.
The Respondent
while conducting its investigations did not find Tutu Shiba and
therefore was not able to question him regarding the allegations made
by the Applicant in answer to the charges.
According to the
Applicant, on the material day he had bought 20 cattle from
Ekupheleni and 16 from Nkhaba. The cattle were bought out of a joint
effort from Tutu Shiba, Paulos Zwane of Swaziland Meat Industries
(SMI); and one Mveli Dlamini and himself.
As a result, he
owed commission to the "runners" as follows:
E30.00 to Paulos
Zwane; E50 to Mveli Dlamini and E100.00 to Tutu Shiba.
There were rules
that he followed in the recruitment of "runners". They had
to be registered as "runners" for the areas in question,
and had to have identity documents for purposes of cashing out the
cheques.
For that reason
and to avoid complications he separated the commission in two and
made a claim for Tutu Shiba in respect of the 20 cattle from
Ekupheleni and a separate claim for E80.00 in respect of the 16
cattle from Nkhaba. This he made in the name of Siboniso Shiba, for
the purposes of identification with the instruction to him to cash
the money and hand it over to the Applicant to pay E30.00 to Zwane
and E50.00 to Dlamini.
It was only Tutu
Shiba who was a registered "runner" at the time, hence he
could not have claimed in the name of Mveli Dlamini or that of Paulos
Zwane.
He had used
their help to source the cattle and was bound to pay them. He had no
intention to defraud the Respondent nor deny the two commission in
respect of the cattle they had helped him acquire. The only reason
they had lodged a complaint was because he had delayed in paying them
because he had not returned to their area in time due to personal
complications resulting from a breakdown of his motor vehicle. He
estimated the delay to have been between 2-3 weeks. He eventually
paid them the commission.
The Applicant at
the disciplinary hearing explained that the rural community often had
no documentation for identification. He recalled a case of one
Lusekwane Kunene who used his nephew's name Sabelo Dlamini to make
out the claims because he had no passport document. There was nothing
untoward with these arrangements provided the people concerned
eventually received their commission.
In this case,
neither Mveli Dlamini nor Paulos Zwane were registered as his
"runners". He used the different names of Tutu Shiba and
Siboniso Shiba to separate Shiba's commission from that of Zwane and
Dlamini.
This arrangement
may be difficult to understand by a sophisticated person who did not
understand how the community lived, the witness explained. Zwane who
was a former employee of the Respondent was paid commission because
he had assisted in the acquisition of the cattle.
The Applicant
produced an old graded tax certificate to prove existence of Tutu
Shiba. In any event, it was not in dispute that the two cheques in
Shiba's name had been cashed at the bank with no problem. The two
were produced at the trial and had been cashed by the drawee.
After some
effort to find Zwane, he testified before the disciplinary tribunal
wherein he confirmed that Tutu Shiba was the community cattle
"runner" at Ekupheleni. He had introduced the Applicant and
Tutu Shiba to the community officially as "runner" and
cattle buyer. The two knew each other before. He confirmed that Tutu
was present when the cattle was bought and loaded on the material
day. Zwane confirmed he knew of the arrangement to pay out commission
in Tutu's name. He said the farmers, Magagula Gama, Thomas Shiba, V.
A. Ngubeni and Mthimkhulu knew Tutu Shiba well.
There were no
rules and regulations in place as to how cattle was to be bought. The
Applicant used his discretion.
The story of the
Applicant as told at the disciplinary hearing was repeated in court
with various variations. These may largely be attributed to the
passage of time and the inherent difficulty in detailing these long
transactions in exactly the same fashion.
The Applicant
was found guilty by the chairman of the disciplinary hearing. This
was conducted after an appeal because the initial proceedings had
been conducted in the absence of the Applicant.
The conclusion
of the chairman was that Tutu Shiba alias Siboniso Shiba was non
existent and therefore, the Applicant had falsely crooked up the
names to fraudulently claim commission.
This is inspite
of the evidence by Zwane, the SMI employee that he had appointed Tutu
Shiba as a "runner" and that he had helped the Applicant to
procure cattle. The evidence of a tax certificate in Tutu Shiba's
name was rejected as false.
Evidence that
the commission was cashed by Tutu was not controverted by any
credible evidence. There was evidence that the complainants Mveli
Dlamini and Paulos Zwane had been paid commission. That the sum of
E180.00 commission in respect of 36 cattle delivered to the
Respondent had been fully paid to the "runners" and there
were no more complaints.
There were no
conventional rules operational at the rural environment where the
Applicant bought cattle. He had to use his wit and experience to
procure cattle. There was no formal complaint by the authorities of
the communities against the Applicant with respect to procurement of
cattle and for payment of commission.
The Respondent
called several witnesses to prove its case against the Applicant.
RW1 was Trevor
P. Wolverson an Engineer by profession. He was the chairman of the
disciplinary tribunal that eventually dismissed the Applicant. He
told the court that he had worked for the Respondent for 21 years. He
chaired the hearing and the complainant/prosecutor was one Fakudze.
He told the court that the Applicant made claims in the name of Tutu
Shiba and Siboniso instead of Mveli Dlamini and Paulos Zwane.
He could not
recall properly the exact explanation given by the Applicant for
this, but he had said that Tutu Shiba was his "runner" and
was the same person as Siboniso Shiba.
He went to visit
the community in question during the hearing and no one could recall
Tutu Shiba. The Applicant refused to accompany them because he said
he was booked for an interview at Simunye. He produced a graded tax
certificate in the name of Tutu Shiba. The Applicant had alleged that
he had gotten the certificate from Tutu Shiba's girlfriend at
Mahlanya market. He reached the conclusion that the Applicant had
fraudulently paid the commission to his brothers instead of paying
the correct "runners". He told the court that Mveli Dlamini
and Paulos Zwane did not appear before the tribunal. It is clear
however from the record of the disciplinary hearing that Paulos Zwane
appeared and testified to the authenticity of Tutu Shiba and the fact
that he had already received his commission from the Applicant in
respect of the cattle in question.
The witness
explained that the Applicant was not charged for not paying Mveli
Dlamini and Paulos Zwane but for his misrepresenting that Tutu Shiba
And Siboniso Shiba were his "runners" when they were non
existent.
RW2 was Kenneth
Mfanimpela Fakudze. He was the initiator of the hearing and was the
supervisor of the Applicant at work. He had received a complaint that
the Applicant did not pay commission to Paulos Zwane and Mveli
Dlamini. He refuted the evidence of the Applicant that one Tutu Shiba
was a registered cattle runner. The claim for E 100.00 and E80.00 in
respect of Tutu Shiba and Siboniso Shiba were therefore false
according to him. He confirmed that the Applicant had delivered 36
cattle to the Respondent in respect of which the two commissions were
paid.
He concluded
that there was fraud. He acknowledged that the two complainants had
belatedly received their commission. That there was no direct
relationship between the Respondent and the "runners". They
were directly recruited and paid by the Applicant.
Several issues
fall to be determined as follows:
1. Was the Applicant an
employee to whom Section 35 of the Employment Act applied?
2. If so, was there a fair
reason for his dismissal in terms of Section 36 of the Employment
Act?
3. If there was a fair
reason for his dismissal, was it fair and reasonable in all the
circumstances of the case to dismiss him?
From the
totality of the evidence before us, it is clear that the Applicant
had served the Respondent as a cattle buyer from 1992 till he was
dismissed on the 8th October 1998. At the time he earned a
monthly salary of El,041.48 per month and received a commission of
E5.00 per every cattle he bought for the Respondent. He was
authorized to pay E5.00 commission to people who assisted him to look
for the cattle he bought for the Respondent.
There was no
direct relationship between the people the Applicant selected to
assist him buy cattle and the Respondent as such, other than paying
the commission of E5.00 to them through the Applicant.
The Applicant
was assisted by the local community in the selection of the cattle
buying assistants in each community.
There was a
misunderstanding between the Applicant and two of the cattle
'runners" due to a delayed payment of the commissions due to
them. The two "runners" were eventually paid their
commission although after they had already made complaints to the
Respondent. There did not appear in the whole to have been any
problem arising from the daily purchase transactions conducted by the
Applicant since he was employed in 1992. It therefore comes as
surprise to the court that what appears to have been a minor spat
between the Applicant and his own recruits in respect of the E80.00
commission resulted in his dismissal.
A careful
analysis of the explanation given by the Applicant as to why he
preferred the commission of E80.00 to be made out in Siboniso Shiba's
name appear quite reasonable in the context of the daily transactions
he conducted at the community level. It is extremely naive to adopt a
know it all, armchair attitude regarding the various relationships
between the Applicant and his cattle runners.
The court has
reached the conclusion that there was no basis for the Respondent to
find that Tutu Shiba did not exist nor was the conclusion that the E
180.00 commission was claimed fraudulently based on any facts at all.
The Respondent
had received all the 36 cattle in respect of which the commission of
E180.00 was made.
Mr. Paulos
Zwane, in his testimony before the disciplinary tribunal confirmed
the Applicant's version of events as far as the existence of Tutu
Shiba was concerned and the role he had played in the purchase of the
cattle and the claim of the commission. After all, the two cheques
written in Tutu Shiba's and Siboniso Shiba's name were duly cashed by
the drawee (himself) and no complaint came from the bank with regard
to the two encashment.
The Respondent
in the court's view, for reasons not candidly placed before the court
chose to interfere in matters outside of its province, with a view to
victimize an employee who had no adverse record, up to the time these
spurious allegations were made by his agents.
The charade by
the chairman of the disciplinary hearing in visiting and
interrogating members of the community where the cattle was bought
amounted to unwarranted and misdirected investigations, by an officer
who was supposed to act impartially, while chairing the hearing. He
instead became the investigator, took over the prosecution from Mr.
Fakudze and sat as a judge at the same time. His conclusions that
Tutu Shiba and his girlfriend who had provided the tax certificate
for Tutu Shiba were fictitious were without reasonable foundation.
This was the
basis for imputing fraud on the Applicant. The evidence presented to
the court to establish fraudulent conduct by the Applicant was
grossly insufficient to establish such a case on a balance of
probabilities.
It follows
therefore that the Respondent failed to show that it had dismissed
the Applicant for an offence permitted by Section 36 of the
Employment Act. The Applicant himself established that he was an
employee protected by Section 35 (2) of the Employment Act. He could
only be dismissed for a fair reason in terms of Section 36. This was
clearly not the case in all the circumstances of the case. The
Respondent therefore failed the test placed upon it by Section 42 (2)
(a) of the Employment Act.
The further onus
placed on the Respondent by Section 42 (2) (b) was to prove that the
dismissal of the Applicant was fair and reasonable in the
circumstances. The Applicant did not commit any offence against the
Respondent. He was employed to purchase cattle and had constantly
delivered it since 1992. Even on this occasion he bought 36 cattle
and claimed commission in respect thereof. The evidence that he had
paid his agents was un-controverted. The Respondent could not fairly
dismiss him for the delayed payment of his agents. This was because
the cattle
'runners:"
were not agents of the Respondent and it had no direct responsibility
over them. There was no basis for rejecting the plausible narration
by the Applicant of the events that took place at Ekupheleni and
Nkhaba on the material occasions described.
The dismissal
was unwarranted and obviously gross in all the circumstances of the
case.
The Applicant
had lost his means of livelihood; he had been shamed in the community
where he conducted his business of buying cattle. He was over 50
years old and chances of alternative employment were very slim. He
was without gainful employment up to the time the case was heard. He
had suffered serious financial loss, and his dependants were greatly
affected.
As stated
earlier, the Respondent had no tangible basis in arriving at the
conclusion it had. There was no justification for the frolic by the
Respondent out of its jurisdiction to victimize its employee. There
was no loss whatsoever to the company nor any evidence of potential
prejudice from the track record of the Applicant.
Accordingly, the
court finds this to be a proper case for awarding the Applicant
sixteen (16) months salary as compensation for unfair dismissal in
terms of the 1996 Industrial Relations Act that was operative when
this application was filed before court.
The Applicant was not paid
any terminal benefits upon dismissal. Heclaims one month's salary in
lieu of Notice in the sum of .El,
041.48
Additional Notice …....E
680.00
Severance
Allowance El, 700.00
Total...........................E2,
421.48
This would be in
addition to the compensation in the sum of 16 x El, 048.48 = E16,
663.63.
Total payment to
the Applicant by the Respondent amounts to E19, 085.16 (Nineteen
Thousand and Eighty Five Emalangeni Sixteen Cents)
The costs to
follow the result.
The members
agree.
NDERI NDUMA
JUDGE PRESIDENT-INDUSTRIAL COURT
