IN THE
INDUSTRIAL COURT OF SWAZILAND
HELD AT
MBABANE
CASE NO. 402/04
In the matter between:
MOSES
DLAMINI..................................................APPLICANT
and
THE TEACHING
SERVICE COMMISSION........1st
RESPONDENT
THE ATTORNEY
GENERAL...............................2nd
RESPONDENT
CORAM
N. NKONYANE: ACTING JUDGE
DAN MANGO : MEMBER
GILBERT NDZINISA: MEMBER
FOR THE APPLICANT: MR. V.
DLAMINI
FOR THE RESPONDENT: MR. T.
DLAMINI
RULING ON
POINT OF LAW 01.09.05
The applicant
brought an application for the determination of an unresolved dispute
before this court.
The applicant in
its papers states that he was dismissed from the teaching profession
with effect from 27 January 2004 by the 1st respondent
after he was found guilty of misconduct.
The applicant
was accused of having love relationships with the pupils of the
school where he was teaching.
He was called to
a disciplinary hearing and he was found guilty by the chairman.
The applicant
wants this court to make an order re-instating him to his position.
The grounds upon
which he relies for his application are contained in paragraph 10 of
the application. These grounds appear as follows, inter alia:
"10.1 The
Chairman wanted to re-open a case on which he had already acquitted
the applicant.
10.2 The
Chairman also refused to have applicant inspect the letters written
by the witnesses under count 3.
10.3 First
Respondent's disciplinary tribunal admitted inadmissible evidence
and/or statements about the character of the Applicant when that was
not the issue for determination. The Chairman did not protect the
Applicant, but seemed to be amused by the opening remarks of the then
deputy Head teacher.
10.4 The First
Respondent failed to apply her mind to the facts of the case, but
were only hell-bent on drawing inference convenient to then (sic) as
long Applicant was found guilty.
10.5 The First
Respondent denied Applicant the opportunity to call the boy who was a
crucial defence witness especially because even the First
Respondent's witnesses in their written statements before the actual
hearing had made mention of him having allegedly facilitating
Applicant's meeting with the girl...
10.8 The
Chairman of the First Respondent's tribunal restricted the applicant
from conducting his defence in that he would interfere when Applicant
was cross-examining witnesses and uttered statements that showed that
he had already formed an opinion that the Applicant was guilty even
before all the evidence was presented ...
10.11 The
Chairman denied the Applicant an opportunity to cross-examine a vital
witness in the case, that is the girl who implicated him as having an
affair with her.
10.12 Further
the conduct of the panel clearly showed that they formed an opinion
not only even before the girl testified but also before the Applicant
attempted to his case (sic).
10.13 The
Chairman and his panel denied the Applicant the opportunity to
present his case and call his witnesses after the girl had testified,
by stating that whatever Applicant said after her answer was useless
because the girl admitted the existence of a relationship with
Applicant. In the premises the Applicant's dismissal was both unfair
and unreasonable in the circumstances and Applicant claims the fo
llowing..."
The applicant's
papers were clearly not elegantly drafted.
On behalf of the
respondent's a point of law was raised that the grounds relied upon
by the applicant for the order of re-instatement that he seeks were
grounds for review.
It was argued
that this court has no power to review irregular proceedings of
statutory bodies.
The court was
referred to the case of FUTHI P. DLAMINI AND OTHERS VS. TEACHING
SERVICE COMMISSION, THE SCHOOL MANAGER, THE HEADTEACHER/ NKILIJI
SECONDARY SCHOOL, THE ATTORNEY GENERAL AND REGISTRAR OF THE
INDUSTRIAL COURT OF APPEAL COURT OF APPEAL CASE NO. 12/2002.
In that case the
Industrial Court of Appeal held that the Industrial Court has no
power to review decisions of other statutory bodies, as it is also a
creature of statute.
Although in the
present case the applicant has not specifically stated in its papers
that it wants the disciplinary proceedings of the 1st
respondent to be reviewed and set aside on grounds of the patent
irregularities, it is clear that the grounds upon which he challenges
his dismissal are grounds for review.
His complaint is that he
did not have a fair hearing taking into account the way that the
chairman conducted the hearing.
In order for this court to
make a ruling that the dismissal was unfair, it must make a finding
on the irregularity or impropriety in the manner that the chairman
conducted the disciplinary hearing. That can be done by way of
review. Taking into account the above observations the court will
uphold the point of law raised with no order as to costs. That will
be the order that the court makes.
The application is
therefore dismissed. The members agree.
N. NKONYANE
ACTING JUDGE- INDUSTRIAL
COURT
