THE INDUSTRIAL COURT OF APPEAL OF SWAZILAND
CASE NO.: 04/2005
the matter between
ANN AND ALE JP J.M. MATSEBULA JA S. B. MAPHALALA JA
P.R. DUNSEITH ATTORNEYS
JUDGMENT 27 February 2006
This is an appeal against a judgment of the Industrial Court and
involves the Industrial Relations Act, 2000 (Act 1 of 2000) ("the
The appellant was employed by the Government as a teacher in about
1983 and was eventually promoted to the post of headmaster.
From an audit of his school records an alleged shortage of E30 415,14
was found to have been unaccounted for. Disciplinary proceedings were
instituted against the appellant by the Teaching Service Commission
("the Commission") and the appellant was found guilty and
the respondent was informed through a letter written by one W.S.A.
Shongwe, the then Executive Secretary of the Commission of the
Government, that he was demoted to the position of deputy headmaster
at another school with effect from the 1st January 1999. He was also
surcharged for the amount of E30 415.14.
The appellant appealed against the said decision and a second audit
was conducted at the school. The second audit allegedly revealed that
a lesser amount of E9 992,70 was missing. The reduction from the
amount of E30 415,14 was apparently brought about as a result of
further documentation becoming available.
The appellant, per letter dated the 24th September 1999 addressed to
the Commission, queried the findings of the second audit and
indicated that he himself and the auditors had gone through the
entire foliage of records and established that E4,328.55 was at that
stage not accounted for and not E9,920.70 as was alleged in the
The aforesaid letter apparently was not acted upon by the Commission
and the Commission by letter dated the 24th January 2000 informed the
appellant that he was now surcharged for the E9,920.70.
The respondent did not respond to the said letter of the appellant
dated the 24th September 1999 and as the time period in which the
appellant could report the dispute had apparently lapsed, the
appellant applied for an extension of the period in which to report
the dispute and the Commissioner of Labour on the 10th November 2002,
who extended the period until April 2003. The matter was reported and
on the 16th June 2003 and a Certificate of Unresolved Dispute was
issued by the CMAC Commissioner.
The matter was then instituted in the court a
Paragraph 7 of the application by the appellant to the court a
Applicant was granted an extension of time to report the dispute to
the Labour Commissioner. The CMAC conciliated but was unable to
resolve the dispute."
Paragraph 5 of the respondent's reply to paragraphs 6 and 7 of the
appellant's application to the court a
5. AD Paragraph 6 and 7: The contents herein (sic) are noted."
The matter then went to trial.
The aspect of the extension of the time period was not canvassed
during the hearing before the court a
was apparently also not raised during argument stage.
Surprisingly, the court a
quo mero motu in
its judgment raised the question of extension of time and stated the
following on page 123 of the record (unfortunately the court a
not number the paragraphs of the judgment):
point worth noting first is that, the demotion and transfer was done
in December 1998 but the matter did not come before court until the
12th September 2003 approximately five (5) years from the date of the
the dispute was not reported to the Commissioner until on or before
terms of Section 76(4) of the Industrial Relations Act No. 1 of 2000,
a dispute way not be reported to the Commissioner of Labour if more
than six months have elapsed since the issue giving rise to the
dispute first arose, but the Commissioner may extend the time during
which a dispute may be reported though in any event, he shall not
have the power to extend the time in which a dispute may be reported
where a period of thirty six months have elapsed since the dispute
issue was not canvassed at all during the hearing of this matter nor
is there any indication from the papers filed of record that
extension of time was sought and granted by the Commissioner of
would appear to the court that at the time the report was made, the
Applicant was barred from reporting the dispute unless the same was
done in terms of section 41 of the Employment Act which provided no
time bar. The documentation before court and in particular the
certificate of Unresolved Dispute indicates that the matter was
reported in terms of the Industrial Relations Act 2000. On that score
alone, the application should fail."
As I have indicated in paragraph 9 supra
extension was duly pleaded by the appellant and the "CERTIFICATE
FOR THE EXTENSION OF TIME", annexure "MD2", itself
appears on page 101 of the appeal record. The court a
and unfortunately overlooked this and misdirected itself and erred in
The aspect of the extension of time was also referred to in
paragraphs 1, 1.1,1.2 and 1.3 of the grounds of appeal set out in the
notice of appeal.
The aspect of the extension of time was also pertinently raised in
paragraphs 1,2, 3,4, 5, 6 and 7 of the appellant's heads of argument.
The respondent did not, in it's heads of argument, respond at all to
the appellant's arguments with regard to the extension of time aspect
in their heads as it clearly was common cause that extension of time
With regard to the merits of the matter the court a
its judgment stated that: "the
charges of misconduct and negligence were established against the
Applicant on a balance of probabilities." How
and on what basis this finding was made is not set out in the
judgment. To be able to make such a finding there must at minimum be
acceptable evidence in that regard.
The evidence of the witnesses before the court a
now be examined to ascertain whether the charges of misconduct and
negligence were established. It was the appellant's evidence that
there was no disciplinary hearing by the Commission. There was no
evidence to the contrary. It must be pointed out that the record of
the disciplinary proceedings before the employer was not put before
the court a
excuse that the Commission's file went missing is not sufficient
enough. There must at least be somebody who took part in the
disciplinary proceedings, if ever there were such proceedings, who
would have been able to testify to that respect. Yet no witness was
called by the respondent in respect of those proceedings, adducing
any admissible evidence.
The appellant testified in the court a
did not call any other witnesses to support his case.
The appellant testified that he was summoned to the Commission to
come and answer allegations by an auditor that there were funds
missing from the school. He proceeded to the Commission where he was
presented with a letter from the auditor to the effect that
E30,415.15 was missing from the school's funds. He disputed this and
asked for time to consider the report of the auditor and was given a
week to do so. He was thereafter to report again at the Commission.
He testified that during that week he tried to reconcile the figures.
He stated that he discovered some discrepancies in the banking
statements and that bank deposit slips were apparently forged by
students who added figures thereon to reflect amounts allegedly
deposited in excess of the amounts actually deposited and that the
forged receipts were given by the students to the school secretary
who entered the falsified amounts in the school's records. Some
students brought copies of their respective deposit slips to the
school secretary who entered it into the school's records and later
the students brought further copies of the same slips to the
secretary who entered it again into the school's records as further
payments. Some of the monies which was paid in 1994 was only
receipted in 1995 which satisfactorily explained the query regarding
underbanking of funds.
He explained that initially he tried to reconcile the amounts all by
himself and that he was later joined in this by a lady auditor, one
Ms Nomcebo Mdziniso, and that they went through the records together.
He also explained that it was found that some of the payments into
the bank went into wrong accounts as the numbers were incorrectly
filled in on the slips.
He stated that the lady auditor was eventually satisfied and that
they found that only about El,000.00
was unaccounted for but that they did not have sufficient time to
check the records further and that Ms. Mdziniso then stated to him
that "no they will kill me bo Thoko if they find out this is
what is missing" and that she stated that she must report a
shortage of at least E 10,000.00 and that they, apparently meaning
the Commission, would accept that amount.
In response to questions from the court a
stated that in fact all the amounts were accounted for but despite
that he was demoted and transferred.
He testified that he was to report at the Commission on a particular
date. He did so but was late as he himself had to wait for somebody
else who turned up late. He was asked by a Mrs. Nkambule of the
Commission to write an apology for being late which he did. He was
instructed to come back the following week. He did so and waited from
10:00 until 12:00. Mrs. Nkambule eventually came out of an office and
she told him that he was not billed for that day as there was a long
case involving a teacher which would last well into the afternoon and
that he could leave and she told him that they would invite him by
letter when he was to report again.
He stated that he waited in vain but that no notice in that regard
arrived at all. About three weeks later he got the letter informing
him that he was demoted and transferred.
He denied having misappropriated any funds. He reiterated that by the
time he and Ms. Mdziniso went through the school's records the
decision had already been taken that he be demoted. He stated that
Ms. Mdziniso concocted her report to indicate an inflated shortage to
protect her job and that he neither agreed to nor accepted her
concocted figure. He stated that he at some stage agreed that a
certain stage during their investigations he agreed that an amount of
E4,328.55 was by then still unaccounted for. His evidence must be
read as a whole. He also testified that when he and Ms. Mdziniso had
to terminate their investigation receipts of only two amounts were
still outstanding and that he was to get them from the store which
banked the cheques. The respective amounts of the two cheques were
E518.88 and E262,38, totalling E781.26.
At this stage of the proceedings the presiding judge in the court a
earlier in the proceedings intervened quite often, unfortunately
seemed to enter into the dust of the arena and he took over the
questioning of the appellant. It appears, for instance, from page 20
to 30 of the record that the appellant's counsel asked 12 questions
and the presiding judge 40 questions. It is clear that these
questions of the presiding judge and the manner in which they were
put unfairly upset the appellant.
The appellant then testified again that in the end only the receipts
relating to two cheques in the amounts of E518.88 and E262.38
respectively remained outstanding. He stated that Ms. Mdziniso
instructed him to get copies of the receipts but that she still
falsely concocted her report to show a shortage of E9,920.70.
He stated that he raised this conduct of Ms. Mdziniso with the
Commission and that they stated that Ms. Mdziniso would be called
upon to come and answer his allegations. On three occasions she did
not turn up and the Commission then stated that they could not wait
for her as that she could not be found. They finalised the matter
resulting in his demotion and transfer without Ms. Mdziniso either
answering his allegations or placing it in perspective, nor refuting
it. Most surprisingly Me. Mdziniso did not testify in the court a
no acceptable explanation was given for this on behalf of the
respondent. The evidence of the appellant in this regard was thus not
rebutted by the respondent.
The appellant stated that after he received the letter demoting him
he reported the dispute to the Labour Commissioner.
On page 42 of the record it appears that, despite the clear evidence
of the appellant as to what happened on the various occasions when he
attended at the Commission, the presiding Judge misdirected himself
with regard to this evidence by stating that the Commission in fact
gave the appellant appeal hearings.
On page 45 of the record it appears that it was put to the appellant
by the respondent's counsel that the appeal was dismissed by the
Commission because some of the documents the appellant submitted were
forged in order to decrease the amount unaccounted for cash. The
appellant disputed this. It must be noted that no witness was called
by the respondent to verify this most serious accusation against the
appellant. See in this regard for instance President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
(2000(1)SA 1(CC)) where it was ruled:
as a general rule it is essential, when it is intended to suggest
that a witness is not speaking the truth on a particular point, to
direct the witness's attention to the fact by questions put in
cross-examination showing that the imputation is intended to be made
and to afford the witness an opportunity, while still being in the
witness-box, of giving any explanation open to the witness and of
defending his or her character".
the questions were put it is the duty of the cross examiner to
lead evidence to prove the contents of the allegations against the
witness. As I have stated it was not done in this case and it is
unacceptable. Before a cross examiner can put to a witness that he
forged documents the examiner must make sure that he is able to lead
evidence in support of the allegations. The respondent will be
censured for this as will appear from the order for costs in the
was put to the appellant that as accounting officer it was his duty
to stop the students from falsifying documents. He acknowledged this
and stated that it was a new system that was put into operation and
that they were not aware of all the tricks the students could play
with the system. His evidence in this regard was not rebutted and his
answer seems to be a reasonable and acceptable explanation under the
circumstances. He further stated that in fact they caught out some
students which have falsified documents.
The appellant also explained that in cases of emergency, for instance
repairs to the school's electricity system, in the absence of the
school board's chairman and in view of the vast distance from a bank,
he would ask a local store to advance the school some cash against
school cheques so that he could pay these amounts awaiting the return
of the chairman to authorise the expenditure. In this regard the
appellant clearly relied on the maxim
necessity knows no law. How that could be regarded as grounds for the
demotion and transfer of a headmaster mystifies this court. There was
no evidence led by the respondent to the effect that the appellant
was ever warned against this and the chairman of the school board was
not called by the respondent to rebut the evidence of the appellant.
It must be reiterated that the respondent did not call any witnesses
to rebut the appellant's evidence.
8] The appellant's case was then closed.
The respondent called as a witness one Moses Vusumuzi Zungu whose
evidence is to be found on p. 68 et
the record. He testified that he was employed as Executive Secretary
of the Commission from the 6th February 2004. He testified that the
applicant was demoted by a letter dated the 14th December 1998 with
effect from the 1st January 1999. He stated that the applicant
appeared before the Commission in August 1998 charged with the
misappropriation of school funds in the amount of E30,415.14. He
testified further that the original file relating to the matter went
missing and he conceded that he was not present at the alleged
proceedings before the Commission and that he was not the secretary
of the Commission at the time. At this point in time the presiding
judge in the court a
correctly, pointed out that the witness was giving hearsay evidence
as he was not present at the alleged disciplinary proceedings and
actually could not testify about the facts of the matter. After the
out that the evidence of the witness was of no value counsel of the
respondent asked leave to call another witness.
The next witness for the respondent was one Thoko Zwane. She
testified that she worked in the Department of Education as Financial
Controller and that she had been in the post for two weeks and before
that she was Principal Accountant. She testified that when she was
Principal Accountant a team of auditors went to audit the school
books at appellant's school and that upon their return they wrote a
report. She testified that the procedure is that thereafter a copy of
the report is furnished to the person having been audited and that
person's response is awaited. The matter is then handled further by
the Schools Managing Officer. She stated that she also testified at
the disciplinary hearing of the appellant but that she could not
remember when she testified. She stated that she explained "a
few things about the audit." It
is clear from her evidence that she received reports and obviously
was also giving hearsay evidence about the matter. On page 78 of the
appeal record her evidence is recorded as follows:
So yourself you inspected the school books?
inspected the report and I read from the report that he was not
banking the money before using it, the regulations say you bank the
money before you can use it.
that you make(sic) a report of your findings?
a minute to the TSC.
have the minute?
you hand that in as part of your testimony?
don't know which things I should hand in and which things.... I don't
know I've never been to court I don't know which things I hand in and
what not to hand in.
Did you conduct an audit yourself?
didn't conduct any audit I just wrote a minute.
what? RW2:About the findings. RC: Findings by yourself or.... RW2:By
What else did you do yourself in relation to this matter?
except to go and be a witness at the hearing."
She also testified that none of her officers (clearly the auditors)
testified during the disciplinary proceedings.
She was cross examined and as she herself was not involved in the
matter she could not help the court a
any meaningful way. The evidence of this witness was absolutely
unreliable. This court needs to refer to only one example of the
worthlessness of her evidence. After stating, and after some
prompting and in reply to a leading question, that the shortage was
about E30,000.00, she changed her evidence and conceded that she
doesn't know how it came about that the amount was reduced from
E30,415,14 to E9,920.70. She also stated that she doesn't know
whether there were further audits.
is clear that there could be no finding against the appellant which
on her evidence. The respondent's case was then closed.
The court a
on page 124 of the appeal record, with regard to the merits of the
matter, simply stated the following:
Court however will go further to state that the Applicant has failed
to establish that the demotion was unlawful, substantively and
are satisfied that the charges of misconduct and negligence were
established against the Applicant on a balance of probabilities."
Unfortunately the court a
not in its judgment deal with the evidence and it is not clear on
what basis and on which evidence the court a
its decision. It is clear to us that the appellant should have been
successful on the merits in the court a
There is one more matter to deal with. The respondent, most
surprisingly, raised a point of law in its heads of argument to the
effect that "The Industrial Court does not have jurisdiction to
review a decision of an employer".
The respondent apparently lost sight of the enabling provisions of
sections 6(1), 8(1) and 8(3) of the Act.
Thus, in discharging its functions under the Act, the Industrial
Court may exercise the power to review decisions of statutory boards
and bodies acting qua
provided, in terms of section 8(1) of the Act, that the decision
relates to an infringement of labour legislation or "any
matter which may arise at common law between an employer and
employee in the course of employment".
The decision of the Industrial Court in the case of Moses
And Another (Case
no. 402/2004) seems to be clearly wrong.
What this court is dealing with in this matter is an appeal to this
Court by the appellant. Appeals to this court are regulated by
section 19(1) of the Act which reads as follows:
shall be a right of appeal against the decision of the Court on a
question of law to the Industrial Court of Appeal."
Appeals against pure factual finding are thus not permitted under
the legislation as it stands.
It is clearly a question of law when the decision of the Industrial
Court is based, as it is in this matter, on hearsay, irrelevant and
insufficient evidence. When a factual finding is incorrectly applied
by the Industrial Court it is a legal issue which can be appealed
against. See in this regard National
Union of Mineworkers v
Rand Gold and Uranium Co. Ltd. 1992
(1) SA 700(A) at 723E-F (also known as the "Ergo"
where it was decided:
would appear that we are required to determine whether, on the facts
found by the Labour Appeal Court, it made the correct decision and
order. That is a question of law. If it did then the appeal must
fail. If it did not, then this Court may amend or set aside that
decision or order or make any other decision or order according to
the requirements of the law and fairness."
case was cited with approval in Media
Workers Association of SA v
Corporation of SA Ltd. 1992
(4) SA 791 (A) at 802C by E.M. Grosskopf JA. See also the judgment
of Ebersohn AJA in the matter of VIP
Protection Services v
no. 10/2004 in this court. This Court is in respectful agreement
with those judgments.
The respondent thus errs where it regards that which is now before
this Court which should have been brought before the High Court as a
It is clear that the appeal should succeed.
There is no reason why the appellant should not be awarded costs and
in any case the respondent is to be censured for its accusal of the
appellant of forging documents without any supporting evidence.
The refund of the surcharge by the respondent to the applicant, in
the event of the applicant being successful, was not an issue in
this appeal and can be dealt with in another forum if the appellant
elects to do so.
This court notes and shares the concern expressed by the court a
regard to the delay in the fmalization of the matter.
accordingly make the following order:
The appeal succeeds with costs.
The order of the court a
set aside and is replaced with the following order:
The application succeeds with costs, including the costs in the
The demotion of the applicant by the respondent is set aside.
The respondent is ordered to forthwith reappoint the applicant in
his post as headmaster or to appoint him in a post of similar
The respondent is ordered to pay to the applicant, within 30 days of
this order, the balance, with interest a
tempore morae at
the rate of 9% per
what he was paid and what he should have been paid had he not been
respondent is ordered to afford to the applicant all other benefits
and privileges with regard to pension contributions and all other
benefits to which he would have been entitled to if he was not
demoted by the respondent.
PRESIDENT OF THE INDUSTRIAL COURT OF APPEAL OF SWAZILAND
OF THE INDUSTRIAL
OF APPEAL OF SWAZILAND
OF THE INDUSTRIAL
OF APPEAL OF SWAZILAND