THE INDUSTRIAL COURT OF SWAZ1LAND
the matter between:
H. SIMELANE Applicant
MAIZE CORPORATION (PTY) LTD Respondent
R. DUNSEITH: PRESIDENT
APPLICANT: M. SIBANDZE
RESPONDENT: P. FLYNN
1. An employee charged
with misconduct is entitled to a fair disciplinary hearing.
2. It has been the view
of Labour courts and Labour jurists in South Africa for many years
that one of the essential requirements of a fair disciplinary
hearing is that the employee be afforded the right to be represented
at the hearing if he/she so wishes.
v CIM Peltak (1986)
7 ILJ 346
IC at 357;
Servistar (Pty) Ltd 2(1978) 8 ILJ 503 IC;
Right to a Hearinjg Before Dismissal
& Puzzles" (1988) 9 ILJ 147 at 154;
Rycroft: A Guide
to SA Labour Law (2nd
Principles of Labour Law 289;
International Labour Organization in its Termination of Employment
Recommendation No. 166 of 1982 suggests that "a worker
should be entitled to be assisted by another person when defending
himself..............against allegations regarding his conduct or
performance liable to result in the termination of his employment".
5. The Code of Practice
attached as a guideline to the Industrial Relations Act 2000 (as
amended) also recommends that every employee should be given the
right to be accompanied at his disciplinary hearing by an employee
representative - see article 44.
6. This court confirms
that it is also a requirement of fair labour practice in Swaziland
that an employee is entitled to be assisted by a representative when
defending himself/herself against charges of misconduct at a
disciplinary hearing, and that the employer must expressly and
timeously inform the employee of such right so as to give the
employee the opportunity to arrange representation.
7. This does not however
mean that an employee is entitled to be represented by a legal
practitioner at his/her disciplinary hearing. On the contrary, it
appears to be settled law that there is no general right to legal
representation at a disciplinary hearing.
V CAPE DISPLAY SUPPLY CHAIN SERVICES (1995) 16 ILJ 846 D
MEC, Department of
Finance, Economic Affairs & Tourism, Northern Province v
Mahumani (2004) 25 ILJ 2311 (SCA).
7. In Mahumani's case
(supra at 2312) the Supreme Court of Appeal pointed out that,
notwithstanding the general rule, there may be special circumstances
where fair disciplinary process requires that representation by a
legal practitioner be afforded to an employee:
terms of our common law a person does not have an absolute right to
be legally represented before tribunals other than courts of law,
the common law does require disciplinary proceedings to be fair and
if, in order to achieve such fairness in a
case legal representation may be necessary, a disciplinary body must
be taken to have been intended to have the power to allow it in the
exercise of its discretion, unless, of course, it has plainly and
unambiguously been deprived of any such discretion".
8. In Majola
v MEC, Departments of Public Works, Northern Province & Other
(2004) 25 ILJ 131 (LC)
court stated as follows:
a general duty to ensure that employees have a fair hearing prior to
disciplinary action being taken against them. Whether legal
representation is indispensable to ensuring a procedurally fair
hearing is a discretion conferred on the chairperson of the enquiry.
The chairperson must exercise that discretion judiciously having
regard to all the circumstances of the particular case"
present matter before court, the applicant was required to attend a
disciplinary hearing on the 30th
June 2006 to answer to charges of:
of procurement procedures.
10. The Respondent
appointed an external and independent person to chair the enquiry,
one Mr. Ernest Hlophe who is a labour law consultant and erstwhile
alternate member of the Industrial Court.
11. The Respondent
notified the Applicant of his right to be represented by a fellow
employee at the enquiry. The Applicant responded in writing to say
that due to his seniority in the company he cannot be expected to
ask a subordinate to represent him and he will be represented by his
attorney. Indeed, the Applicant's attorney accompanied him to the
enquiry and the Respondent objected to his presence.
12. Instead of
determining whether the applicant should be permitted legal
representation, the chairperson referred this issue to the parties
to be settled between them, and adjourned the hearing.
13. There was nothing
wrong with the chairperson in the first instance giving the parties
an opportunity to reach consensus on the issue of representation.
Unfortunately the parties were unable to reach agreement.
Respondent wrote to the Applicant's attorneys as follows:
"1 Mr. Simelane
is not entitled to be represented by an attorney as this is an
internal disciplinary hearing. If we were to permit legal
representation not only would we be contravening our own policies
but we would be setting a
2. It is not in the
interest of the National Maize Corporation to have attorneys
involved at internal hearings and there are no compelling
circumstances in this particular matter to warrant such. Mr.
Simelane will be prosecuted by an employee of NMC who has no
training, the Chairman of the hearing has no legal training as well.
There is in our view, merit in having Mr. Simelane's hearing handled
in such circumstances.
3. Discipline and the
conduct of disciplinary hearings is the prerogative of the employer
and as far as we are concerned Mr. Simelane has been accorded all
rights that are required for a fair hearing."
correctly records that the Applicant has no absolute right to be
represented by an attorney, but incorrectly assumes that the
decision whether there are compelling circumstances which warrant
legal representation is the prerogative of the respondent when
infact the decision must be made by the chairperson of the enquiry.
The Respondent followed
up its position in a subsequent letter (NS 27) by stating
unequivocally that "it
is definitely our intent to exclude attorneys at this stage and we
intend to exercise that hght."
The Respondent did
however concede that it would allow representation from outside the
organization but restricted this to an employee from one of the
other parastatal organizations in Swaziland.
The Applicant reacted by
instituting the present application seeking an order to allow him
representation by a person of his choice, including legal
representation by an attorney or a non-employee of the Respondent.
The Applicant seems to
have "jumped the gun" by coming to court instead of
attending at the disciplinary hearing and requiring the chairperson
to make a decision on the question of legal representation. Perhaps
the applicant did not appreciate that he had a right to do so; or
perhaps he feared that the Respondent would preempt the decision of
the chairperson by refusing his attorney access to the hearing.
Whatever the reasons, the fact remains that
19.1 the chairperson Mr.
Hlophe has a discretion to decide whether the Applicant should be
permitted legal representation by an attorney or a non-employee of
the Respondent of his choice;
he has not yet
exercised his discretion or brought his mind to bear on the issue;
the court is loathe to
usurp the discretion of the chairperson of a disciplinary enquiry
unless he has unreasonably fettered or abdicated his discretion.
Mahumanis case at p 2315 para 14)
Since the chairperson is
external and independent, the court is confident that he can
exercise his discretion judiciously and fairly, taking into account
all the relevant factors.
By way of guidance, the
court indicates that the following considerations should be taken
into account by the chairperson in deciding whether legal or other
external representation is indispensable to ensuring a procedurally
Whether a fellow
employee of equal status to the applicant is available to represent
if not, whether
representation by a subordinate would be unreasonably degrading to
the applicant and/or hamper him in the presentation of his defence;
whether an employee of
the organization can satisfactorily represent the interests of the
applicant in circumstances where the Chief Executive Officer is the
circumstances where external representation is appropriate,
it is reasonable to restrict the applicant's choice to an
from another local parastatal;
whether the charges are
sufficiently complex or legalistic as to warrant the involvement of
whether the charges may
result in the dismissal of the applicant;
whether the respondent
will be unreasonably prejudiced if the applicant is permitted a
representative of his choice, and in particular a legal
22. These considerations
are by no means exclusive. The parties may raise other factors, and
the chairperson may exercise his discretion taking into account all
issues which he may consider relevant.
23. In order to assist
the chairperson in reaching a fair decision on the issue of
representation the court considers it to be fair and proper that
trie Applicant is permitted representation by his attorney at this
initial stage of the enquiry.
The court makes the following order:
(a) The chairperson of
the disciplinary enquiry into alleged misconduct by the Applicant is
directed to hold a preliminary hearing to determine whether the
Applicant should be allowed representation by a legal practitioner
(or any other person nominated by him);
(b) The Chairperson
shall permit the parties to be represented by legal practitioners,
if they so wish, at such preliminary hearing;
(c) The respondent
shall furnish the chairperson with a copy of this judgement;
(d) Subject to the
aforegoing, the application is dismissed.
There is no order as to costs.
OF THE INDUSTRIAL COURT