IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE
CASE
NO. 326/2000
In
the matter between:
MALAWULA
GROENING…………………..APPLICANT
and
CROOKES
PLANTATIONS LIMITED……RESPONDENT
CORAM
N.
NKONYANE: ACTING JUDGE
DAN
MANGO: MEMBER
GILBERT
NDZINISA: MEMBER
FOR
APPLICANT: MR. N. MTHETHWA
RESPONDENT:
MR. M. SIBANDZE
JUDGEMENT
25.08.05
This
is an application for the determination of an unresolved dispute in
terms of Section 85 (2) of the Industrial Relations Act No. 1 of
2000.
It
is common cause that the applicant was employed by the respondent in
1982 as sprayer. He was in continuous employ of the respondent until
July 2000 when he was dismissed. At the time of his dismissal he was
an irrigator. He was earning E784.14 per month.
It
is also common cause that the applicant was dismissed after he was
found guilty of using a highly toxic chemical, that he sprinkled on
cut oranges in order to trap birds.
The
applicant denies that he committed the offence, thus his claim that
he was unfairly dismissed by the respondent. He now wants the court
to issue an order directing the respondent to pay him all terminal
benefits and also compensation for unfair dismissal.
The
applicant was the only witness for his case. On behalf of the
respondent two witnesses testified. The minutes of the disciplinary
hearing were also produced in court. There was annexed to the minutes
an excerpt from the internet about the use of poison by poachers to
kill wildlife. The court will not however consider that document for
the purposes of this judgement.
The
evidence revealed that on 11.07.2000 the applicant was in the field
together with another employee by the name of Mdumiseni Mngomezulu.
There were in the field at the instruction of RW1, David Maphalala
who was their supervisor and who had instructed them to go and
irrigate orange trees. RW1 then decided to go to the field to see if
the instructions were being carried out. He did not find the two
workers where he expected to find them that is, near the dam. He then
started to look for them.
RW1
found the applicant cutting oranges and putting the poisonous
chemical called temik. He asked the applicant why he was doing that
and the applicant answered him by saying it was a long story. RW1
then went to the office to report the incident. In the office he
found Moscow Mkhonta, Zonke Mabuza and Emmanuel Fakudze. They told
RW1 to go with Mkhonta to the field.
The
two confronted the applicant. The applicant told them that he did not
get the chemical from the office but that he scooped it from the
ground from one of the fields that had been sprayed on a previous
occasion. The applicant directed them to the spot where he got the
chemical. The applicant also told them that he used it in order to
trap birds.
The
applicant also showed them the remainder of the chemical, which was
in a tobacco plastic bag that was put in a dried gourd.
The
applicant was called to a disciplinary hearing. At the hearing he was
represented by a shop steward by the name of Themba Dladla. He was
found guilty and was dismissed. He did not appeal. He said he did not
appeal because he was given twenty-four hours to do that and that
period elapsed on a Saturday and therefore could not lodge the appeal
as the offices were closed.
The
evidence further revealed that the employees were aware that the
chemical was highly toxic. When it had been applied in a particular
field warning signs were put up to warn other workers not to get into
that field. The evidence also revealed that there was an employee of
the respondent who died after having consumed the chemical. The
employees were also aware of an incident where two beasts (cows) died
after having eaten mealies sprayed with the chemical.
During
cross-examination the applicant denied that he was called to a
disciplinary hearing. The applicant also said he did not remember the
respondent telling the employees that anyone found in possession of
the chemical would be dealt with severely. He also denied that he was
found by RW1 cutting the oranges and applying the chemical.
The
applicant did not deny that he was in the field on 11.07.2000. His
defence was that the chemical came with RW1 and RW2, David Mkhonta
and the two accused him of having sprinkled it on the oranges.
The
tenor of the accused's defence was that the respondent's witnesses
were fabricating or making up the story against him. It was argued on
his behalf that it was highly improbably that he could have exposed
himself to the chemical as he knew that it was extremely toxic.
The
court had the privilege of seeing the applicant in court. He told the
court that he was illiterate and that he did only grade one at
school. He indeed struck the court as being an unsophisticated
somebody in the way that he responded to questions during
cross-examination. He was a labourer at the respondent's undertaking.
It appears to the court that because of his station in life, even
though he knew that the chemical was highly toxic, out of imprudence
or carelessness it is possible that he did use the chemical as bait
on the oranges in order to catch birds.
The
evidence in any case revealed that the applicant when confronted in
the field admitted that he was using the chemical on the oranges in
order to catch birds. The evidence also revealed that when
confronted, the applicant told RW1 that it was a long story. By "long
story" RW1 said the applicant meant that he had a lot of
explanation to give, as he knew that he was not allowed to deal with
the chemical in the manner that he did.
The
applicant's story that the chemical came with the respondent's
witness is clearly not true as there was evidence that the oranges
that were found having been cut, had already been sprinkled with the
chemical.
The
evidence was that RW1 and RW2 were supervisors and the applicant was
a labourer. The court finds that it was highly unlikely that RW1 and
RW2 could scheme or concoct a story against the applicant in order to
gain any advantage in the eyes of the employer, and no such
allegation was made by the applicant in the pleadings or in his
evidence in court.
The
applicant first denied under cross-examination that a hearing was
held. He later admitted that and also said he was represented by a
shop steward by the name of Themba Dladla. He also denied that he was
served with the subpoena to appear at the hearing. He said he found
the document in the office and that it was given to him by a certain
Mr. Pretorius. When confronted with the evidence that it could not
have been Pretorius who served him as the person who served him wrote
in SiSwati that he refused to accept service, he maintained that
David Maphalala never served him with the notice to attend the
hearing. It is strange therefore how he got to appear at the hearing
if he was not served with the notice by Maphalala. This conduct of
the applicant of denying clear evidence against him only goes to show
that he is the type of person who denies anything if it is not in his
interest even if it is true.
The
applicant was clearly not an impressive witness. He had no defence to
the case against him, and he resorted to making bare denials of the
evidence presented in court. He also failed to successfully challenge
the evidence of the respondent's witnesses whose evidence
corroborated each other. He approached the trial with a simplistic
and old-fashioned type of defence that of simply denying all the
evidence connecting him to the charge.
The
applicant said he could not appeal because the hearing was held on a
Friday and had only twenty-four hours to file the appeal. He said the
twenty-four hours expired on a Saturday and the offices were closed.
There
was no evidence however that the applicant did draft the appeal and
the supervisors refused to accept it because it was a Saturday, or
that there was no one superior to the applicant that he could serve
with the appeal on that Saturday. There was further no evidence that
applicant attempted to file the appeal on the next working day, but
was refused because twenty-four hours had elapsed. There was also no
evidence that the applicant applied for an extension of time within
which to file the appeal and was refused. The evidence showed that on
Monday the applicant went to the Labour Office to report a dispute.
There was no evidence that the applicant did attempt to exercise his
right to appeal at all. In the light of these observations, the
failure of the applicant to appeal cannot be held against the
respondent.
The
court will accept the evidence of the two respondent's witnesses as
the correct version of what happened on 11.07.2000 that led to the
dismissal of the applicant.
The
court will therefore come to the conclusion that the respondent has
proved on a preponderance of probabilities that the applicant was
dismissed for a reason permitted by SECTION 36 (D) OF THE EMPLOYMENT
ACT NO.5 OF 1980.
The
court will also come to the conclusion that taking into account all
the circumstances of the case, it was reasonable for the respondent
to terminate the service of the applicant.
The
applicant's application is accordingly dismissed.
No
order for costs.
The
members agree.
N.
NKONYANE
ACTING
JUDGE - INDUSTRIAL COURT
