IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE CASE NO. 34/2002
In
the matter between:
FUTHI
P. DLAMINI APPLICANT
and
TEACHING
SERVICE COMMISSION 1ST APPLICANT
THE
SCHOOLS MANAGER 2ND APPLICANT
THE
HEADTEACHER/NKILIJI
SECONDARY
SCHOOL 3RD RESPONDENT
THE
ATTORNEY GENERAL 4TH RESPONDENT
CORAM
KENNETH
NKAMBULE: JUDGE
DAN
MANGO: MEMBER
GILBERT
NDZINISA: MEMBER
RULING
The
applicant has brought an application for an order -
1) Dispensing
with the usual forms and time limits provided for in the rules and
that this matter be heard as one of urgency.
2) That
a rule nisi do hereby issue calling upon the respondents to show
cause why an order in the following terms should not be granted:
2.1. That
the disciplinary proceedings of 1st, 2nd and 3rd respondent against
applicants be reviewed and set aside on grounds of irregularity.
2.2. That
the decision of the first respondent of the 21st January 2002 be
reviewed and set aside.
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2.3. That
the 1st respondent's decision:
a) terminating
applicant's housing allowance,
b) Deducting
certain sums from applicant's salary be hereby set aside as irregular
and unlawful.
2.4 That
first respondent be enjoined and directed to pay applicants the
deducted sums.
2.5 That
1st, 2nd and 3rd respondents are hereby called to dispatch to the
Registrar records of all disciplinary proceedings instituted against
the applicant from the 30th August, 2001 to the 21st January 2002
which all the proceedings sought to be set aside -together with such
reasons as they by law are required or desired to give or make and to
notify the applicant that they have done so.
2.6. That
the applicant be and is hereby re-instated with immediate effect.
2.7. That
prayer 2.6 operate as an interim order pending finalisation of the
review proceedings.
At
resumption of the proceedings applicant's representative made an
application in court that case No, 34/2002 be consolidated with case
No. 35/2002 and 36/2002. The application was granted.
There
is filed of record three affidavits in support of the applications.
Though the facts in all the affidavits are similar, it is necessary
to point out the minor points of departure in so far as dates and
amounts are concerned.
According
to applicant in case No. 34/2002, Futhi P. Dlamini on the 5th June
1996 she was employed as a teacher and posted at Mpini Primary
School. During the month of January 1998 she was transferred to
Nkiliji Secondary School in the Manzini District at a salary Grade 8.
Due
to unavailability of housing at the secondary school and as a
temporary measure, she was housed at the primary school on a rental
basis.
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According
to the applicant the house allocated to her was in a very poor state
of repair with leaks and cracks all over. On numerous occasions she
had to make her own repairs, as the school authorities could not
attend to reported faults.
After
lengthy discussion with the head teacher, a certain Mr. S'khumbuzo
Thwala, the regional education officer and the school committee it
was agreed that she and the other three colleagues, namely S'bongile
Ngwenya, Nhlanhla Shongwe and Walter Kunene would be given housing
allowance which was back paid to April 2000 to compensate for the
poor housing facility. The application to this effect was made. It
was vetted and approved by the Regional education officer as is
always the case.
In
December 2000 the head teacher Mr. Thwala was transferred and was
replaced by a Mr. Matsebula in January 2001 who is the current head
teacher.
According
to applicant Mr. Matsebula started to make sexual advances towards
her. She told him that she was not interested. This, according the
applicant went on for some time and when she received her salary
advice on the 23rd July 2001, a sum of E345-33 had be deducted as an
"overpayment of salary current".
Upon
enquiry at Treasury Department the applicant was informed that the
deduction was in respect of housing allowance paid to her which she
was not entitled to. On further investigation it became apparent to
applicant that Mr. Matsebula wrote to the Teaching Service Commission
stopping payment of her allowances and those of her three colleagues.
According to applicant Mr. Matsebula further admitted at the staff
meeting of the 6th July that he had instructed the Teaching Service
Commission to stop payment of such allowances - to Miss Sbongile
Ngwenya. According to applicant the total deductions from her salary
now amounts to E2,417-31.
Towards
the end of the second term, the head teacher produced and circulated
an invigilation time table to be used during the end of term
examinations. According to the applicant the time table was
unworkable as it did not give enough time to teachers to mark their
scripts in readiness for the school closure. As a result the teachers
failed to submit results at the end of term.
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On
the 18th September 2001 applicant and the three teachers in question
namely, Sbongile Ngwenya, Nhlanhla Shongwe and Walter Kunene received
letters from the head teacher dated 30th August 2001 raising among
other issues that they failed to have reports out by Friday 17th
August 2001.
On
1st October 2001 applicant received a letter from the second
respondent, the schools manager Mr. Doctor Simelane making reference
to the head teacher's letter and calling upon her to respond to the
charges. On a point by point basis and to submit the report within 7
(seven) days. According to applicant she was not aware of the charges
she was called upon to respond to. She was at a loss as to what was
expected of her in terms of the directive.
Before
she could consider an appropriate response, on 4th October 2001 she
received another letter from the second respondent calling her to a
meeting on the 9th October 2001 "concerning her misconduct".
She attended what she thought was going to be a meeting whereat 2nd
and 3rd respondent were present. The second respondent read from a
piece of paper what he called charges.
According
to the applicant she informed the second and third respondent what
she believed to be the friction between herself and the head teacher
-as already stated above. Applicant says 2nd respondent told her that
he was not prepared to hear such kind of talk and said that was a
common excuse among female teachers that they were being sexually
harassed by male teachers. The second respondent reprimanded the
applicant and further accused her of conspiring to disrupt the
functioning of the school. According to applicant her efforts to make
representations and deal with the allegations were frustrated
completely.
Applicant
was eventually called to a disciplinary hearing which was held on
19th December 2001. The letter of invitation reads thus:
Dear
Sir.
"I
am duly authorised to invite you to appear before the Teaching
Service Commission on the 5th December 2001 at 9 a.m. This is in
relation to the charges preferred against you by the school manager.
Should you require witnesses/evidence to bring it with you.
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The
head teacher by copy hereof is also invited bringing with him the
necessary evidence/witnesses "
The
facts of case No. 35/2002 and 36/2002 are similar, save to mention
that in case No. 35/2002 the bone of contention was the resignation
of applicant as the sports master of the school soccer team.
According to the applicant this was after numerous pleas to the head
master to cooperate with him in so far as equipment and other
necessities are concerned.
After
applicant's resignation the relationship with the head teacher was
strained.
The
respondents have filed answering affidavits justifying their actions
regarding the two subjects. Respondent state that the deductions were
made to recover movies paid to the applicants illegally. According to
respondent the applicants were accommodated at the school but
claiming housing allowance.
We
are not told whether applicants were called by the Teaching Service
Commission to discuss the issue with them so as to get their side of
the story. All we are told is that the deductions were made to
recover monies paid to the applicants illegally.
It
is clear that such a decision was arbitrary and illegal by reason
that it was taken without applicant's consent. The applicants were
not given an opportunity to express their side of the story. Clearly
the basic rule of natural justice was not followed.
Natural
justice is a well defined concept - which comprises two fundamental
rules of fair procedure:
That
a man cannot be a judge in his own cause; and that a man's defense
must always be fairly heard.
These
rules are so universal such that they are not only confined to
judicial power. They apply equally to administrative power - and
sometimes also to powers created by contract. It is in their
application to ordinary administrative power that public authorities
are prone to overlook them; For
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example
where a police authority is dismissing a constable or a head of
department gives an instruction to deduct money from an employees'
salary.
This
position has been stated by this court on numerous occasions. See the
case of Sonnyboy Zwane V Accountant General, Industrial Case No.
308/2000 where Lord Selbourn was quoted in A.G V Ryan (1980) A.C. 718
where he stated -
It
has long been settled law that a decision which offends against the
principles of Natural Justice is outside the jurisdiction of the
decision making authority ".
The
court remarked as follows:
"It
is therefore clear that violation of rules of Natural Justice makes
the decisions void. An administration act must be subject to the
requirements of Natural Justice because it affects rights or interest
and therefore involves a duty to act judicially ".
See
also Lord Reid in Ridge V Baldwin (1964) A.C, 40 at page 72
From
the foregoing it is clear that the deductions made from the salaries
of the three applicants were irregular.
Such
deduction could only be made after applicants were given proper
hearings by the administrative authority.
Regarding
the suspension of the applicant's respondent state that procedure was
followed before the suspension of applicants was effected. On the
other hand applicants attorneys stated in submission that the
disciplinary action was irregular as the respondent acted beyond the
Teaching Service Act.
The
question that this court has to answer is whether the respondents
acted irregular in suspending the three applicants. In order to
answer this question one has to look at the relevant legislation
establishing the Teaching Service Commission. The legislation is the
Teaching Service Act 1982 and the Teaching Service Regulations 1983.
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Section
3(1) of the Regulations provides as follows:
"3(1)
The function of the Commission shall be to:-
(e) compile
and publish a code of conduct binding on all persons in the teaching
profession;".
Circular
No. 1/1984 is part of the code of conduct compiled by the first
respondent in terms of Section 3(1) (e) of the Regulations. Article 3
of this circular provides for the procedure to be followed by the
head teacher in disciplining a teacher.
It
is the opinion of this court that this article was followed by the
head teacher. It is not disputed that the head teacher on numerous
occasions would hold talks with teachers and explain administrative
decisions he had taken in the school. It is also clear that the three
teachers perpetrated defiance campaign against the head teacher.
The
applicants failed to execute lawful orders given by the head teacher.
They also failed to complete their work in time for the end of term
results.
The
head teacher wrote to the teachers in this regard. The teachers
responded to the letters and some of them copied the letters to the
1st and 2nd respondent. The 2nd respondent then took the matter and
dealt with it in terms of Article 3.4 of Circular No. 1/1984.
He
(the manager), through a letter dated 7th November 2001 wrote to the
teachers informing them of their charges. He further told them that
these were serious charges and informed them that he was referring
them to the Teaching Service Commission for consideration.
This
was after the school manager had conducted a full investigation.
On
27th November 2001 the executive secretary of the Teaching Service
Commission invited the three to appear before the commission. At this
stage the three were aware of the charges they were facing.
It
is clear that before the decision to suspend was taken all procedural
steps were followed.
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Consequently,
it is my opinion and that held by the members of this court that the
respondents did not act above the Teaching Service Commission Act and
regulations in suspending the teachers.
We
therefore make the following order:
1. Housing
allowance.
That
the applicants be refunded all monies deducted from their salaries as
a result of the head teacher's unlawful action.
2. That
they are paid all their housing allowance from the date these
deductions were effected.
There
will be no order as to costs.
Members
have concurred.
KENNETH
P. NKAMBULE
(JUDGE)
INDUSTRIAL COURT
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