is an urgent application brought by the applicant against the
respondents for an order:
Dispensing with requirements of the Rules of court relating to
service, forms and time limits, and permitting that this matter be
heard as one of urgency.
hereby issue, calling upon the respondents to show cause on a date
and time to be determined by the above Honourable Court why an order
in the following terms should not be made.
That the 1st
respondents be and are hereby interdicted from proceeding with a
disciplinary hearing scheduled for Johannesburg on Tuesday the 21st
August 2007 against the applicant pending the finalization of this
That the disciplinary hearing, preferred by the 1st
against the applicant be held in Swaziland.
That the decision of the 2nd
respondent to the effect that the disciplinary hearing be held in
Johannesburg, be and is hereby set aside.
That the 2nd
respondent be and is hereby removed as chairperson of the
the respondents pay the costs of this application.
Further and/or alternative relief."
The application is opposed by the 1st
An employee charged with misconduct is entitled to a fair
disciplinary hearing. The components of a fair disciplinary hearing
right to be informed of the charges in proper time for one to
prepare himself, the right to appeal, the right to be represented,
especially in serious charges that may result in summary dismissal,
the right to call witnesses and the right to cross-examine the
The employer has a right to prefer charges against any employee who
has or is suspected of having committed any misconduct. The right to
hire, discipline and dismiss an employee is the sole prerogative of
In the present case the applicant stands to face a disciplinary
hearing scheduled to be held in Johannesburg, South Africa. He has
approached this court for an order that the disciplinary hearing be
The applicant was employed by the 1st
respondent in May 1984. He has been in the continuous employment of
respondent since that period. He is currently holding the position
of Export Manager responsible for regional sales in Africa and
overseas, but excluding South Africa, Lesotho, Namibia, Zimbabwe,
Botswana and Malawi. His superior is Mr. Lester Davies who is also
based locally in Matsapha. From an operational point of view the
applicant reports to Mr. Andrew Taylor who is based in the
Johannesburg branch of the 1st
The applicant is currently on suspension with full pay.
The chairperson of the disciplinary hearing has been appointed. She
is the 2nd
respondent and is based in Johannesburg. She is an Attorney and the
hearing is scheduled to be conducted in her offices.
The applicant wrote a letter addressing it to Mr. Taylor and
indicated that he will not attend the disciplinary hearing if it is
to be held in Johannesburg and that he was willing to attend a
hearing held in Swaziland. In that letter the applicant also
requested to have legal representation.
These issues were referred to the 2nd
respondent for her determination. She ruled in favour of the
applicant on the issue of legal representation and ruled against him
on the question of the venue. The applicant said he did not know
that these issues were going to be referred to the 2nd
respondent for her determination and that had he known of that, he
would have made elaborate submissions on the question of venue. He
feels that as it is, he did not get an opportunity to make full
submissions on that question. He now thinks that the 2n
will not be fit to preside over the hearing as she has had some
contact with the 1st
respondent without his knowledge. The applicant says it is clear
that no one is prepared to listen to him on the question of the
venue thus he has approached the court.
the question of perceived bias on the part of the chairperson, that
issue can adequately be dealt with by the chairperson. The applicant
is at liberty to raise that issue before the chairperson (See: NDODA
H. SIMELANE V. NATIONAL MAIZE CORPORATION (PTY) LTD (IC) CASE NO.
court is being asked to address a very delicate question. The court
must strike a balance between the right of the 1st
to decide where the venue shall be and the interests of the
applicants and his right to a fair hearing.
court in determining the questions raised in this matter will get
guidance from the decisions of this court in the cases of GRAHAM
RUDOLPH V. MANANGA COLLEGE & ANOTHER (IC) CASE NO. 94/07 and
that of SAZIKAZI
MABUZA V. STANDARD BANK OF SWAZILAND LIMITED & ERROL NDLOVU N.O.
(IC) NO. 311/07 and
the cases referred to therein. The court will also consider the
principles of law raised in the South African case of
V. UNIVERSITY OF DURBAN -WESTVILLE & OTHERS (2000) 5 LLO 459
respondent's arguments that the hearing be held in South Africa are
Practical considerations dictate that it be held in South Africa
because all its witnesses are in that country.
There was no authority cited in court that a disciplinary Hearing
cannot be held outside the country
It has not been shown that grave injustice would result if the
hearing is held in South Africa.
It has not been shown that this is an exceptional case where the
court may interfere with the discretion of the employer as to decide
where the hearing would be held.
behalf of the applicant it was argued that;
The applicant is resident in Swaziland and is employed by a company
that is based in Swaziland and therefore the laws of Swaziland
should be applicable to his hearing.
His witnesses are based in Swaziland.
It is likely that new issues may arise during the hearing
necessitating a quick rebuttal by means of evidence that is locally
He will need to call witnesses who are not employees of the 1st
respondent and are not likely to agree to go to South Africa for a
number of days.
court believes that all the parties involved want justice to be
done. Justice in this matter will be seen to be done if both
parties' witnesses are able to attend. The court cannot know at this
stage what evidence will be led at the hearing. But clearly, should
it happen that during the hearing certain evidence is led against
the applicant which requires rebuttal by the applicant and the
applicant is unable to do so because he could only have access to
that piece of evidence if he is in Swaziland, it cannot thereafter
be said that justice has been done.
respondent can argue that the applicant will be free to ask for
postponement should the need arise. We do not know how many times
the applicant will want do that, if at all. If the applicant does
apply for postponements because he wants to access information in
Swaziland, he will be at the mercy of the chairperson. The
chairperson may, using her discretion, decline to grant the
application. Will the applicant come out of that hearing feeling
that justice has been done?
The charges against the applicant involve acts of dishonesty when
dealing with certain companies in the course of his duties. That
clearly shows that he will need those individuals from those
companies in his defence.
It was argued that the applicant was not candid to the court as he
did not disclose the names of the witnesses. We do not think that
that should be held against the applicant. It may well be that he
will need to call some of the witnesses depending on the evidence
that will be led against him at the hearing.
It was further argued on behalf of the 1st
respondent that there will be no prejudice on the part of the
applicant as the 1st
has undertaken to pay for the travel and accommodation costs of the
applicant's witnesses and attorney. The charges against the
applicant are serious. They involve acts of dishonesty. If the
applicant is found guilty, can it be said that the hearing was not
tainted when one takes into account that his accuser spent his money
to have the applicant's witnesses and attorney to come to the
Attorneys are guided by ethical considerations in carrying out their
duties. No attorney worth his salt would want to attend a hearing of
his client knowing that it is his client's accuser who will finance
his travelling expenses. The applicant in this case will have to
compromise and look for an attorney who is not his
but one who is desperate and is prepared to go against the dictates
of the legal profession. Further, the 1st
respondent says it will foot the bill for traveling and
accommodation expenses only. That clearly means that the applicant
will cater for the food and other expenses of his witnesses and
attorney. That could be avoided if the hearing were to be held in
Swaziland. Why should the applicant be out of pocket when there are
simple ways of avoiding that?