IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE CASE NO. 14/99
In
the matter between:
NKOSINGIPHILE
SHABANGU APPLICANT
and
SWAZILAND
BOTTLING COMPANY RESPONDENT
CORAM
KENNETH
NKAMBULE : JUDGE
DAN
MANGO : MEMBER
GILBERT
NDZINISA : MEMBER
FOR
APPLICANT : MR. A. LUKHELE
FOR
RESPONDENT : MR. D. SMITH
JUDGEMENT
14/05/01
The
applicant seeks maximum compensation for unfair dismissal and various
terminal benefits arising thereof. The dispute was reported to the
Labour Commissioner in terms of Section 57 and 58 of the Industrial
Relations Act 1996. It was not reconciled and a certificate of
unresolved dispute dated 26th January 1998 was issued in terms of
Section 65 (1) of the Act.
It
is common cause that the applicant was employed by the respondent on
the 13th day of June 1988 and he was in the continuous employ of the
respondent until the 3rd of April 1998 when his services were
terminated.
On
24th October 1997 the applicant was suspended by the respondent as a
result of theft of money.
Applicant
was one of the suspects in the theft. He was thereafter arrested by
the police concerning the theft. It is the applicant's evidence that
at the police station he was assaulted by the police
1
by
use of a plastic bag which they used to suffocate the applicant. He
was assaulted by 10 police officers who also handcuffed him from the
back.
According
to the applicant he completely denied taking the company money. He
however, told the police that in his house he had a sum of
E30,000-which was obtained through the sale of a kombi which he
(applicant) had purchased from respondent. Police then accompanied
him to his residence where he showed them the money which was kept in
a speaker in his house.
The
police took the money and charged applicant for theft of respondent's
money. The police recorded a statement from the applicant in which
the applicant admitted stealing the money. He was charged with theft
of E207,796-. He was acquitted and discharged by the Manzini
Principal Magistrate at the close of the crown case.
According
to applicant the money taken by the police was proceeds from the sale
of a kombi which he bought from respondent. The kombi was sold for
E50,000-, Mr. Joshua Magongo (AW2) bought the kombi and paid an
initial deposit of E30,000-. Applicant stated that this was the money
taken by the police. He stated that there was no connection between
this money and the money stolen at the respondent's undertaking.
AW2
confirmed that he indeed bought a kombi from applicant - and that he
bought the motor vehicle for E50,000-. He also confirmed that he paid
the E30,000- deposit cash. He also showed the court Exhibit H, the
agreement they signed for the purchase of the motor vehicle.
Counsel
for respondent on cross-examination of both AW1 and AW2 concentrated
to a greater extent on the value of the motor vehicle. He enquired
from AW1 how he could sell a motor vehicle worth E23,811- for
E50,000-. Mr. Smith also questioned AW2 as to why he bought a motor
vehicle worth E23,811- for E50,000-
According
to applicant the motor vehicle was converted from a panel van into a
passenger vehicle. When Mr. Magongo (AW2) bought it for E50,000-it
was after the conversion.
At
the close of the applicant's case the respondent made an application
for absolution from the instance. Mr. Smith bases his application on
the following points:
2
That
applicant made a statement to the police as a confession for having
stolen the money.
That
money was found hidden in applicant's room.
That
the applicant sold a motor vehicle for E50,000- when the motor
vehicle only costs E23,000-
That
the applicant called a witness who came to court and corroborated a
lie. The same witness refused to disclose the bank statement which
shows a withdrawal of El0,000- which he allegedly made when he paid
the E30,000- deposit to applicant.
He
therefore stated that for the above reasons there was no case that
the respondent had to meet.
The
lines along which the court should address itself to the question of
whether it will at this stage grant a judgement of absolution have
been laid down in the leading case of GASCOINE V PAUL AND HUNTER 1917
TPD 170. See also LYMINGTON ESTATE LTD V MURPHY 1949 (1) SA 564.
In
GASCOIN'S case supra per De Villions JP at page 173 it is stated "at
the close of the case for the plaintiff therefore, the consideration
of the court is: Is there evidence upon which a reasonable man might
find for the plaintiff? ...The question therefore is at the close of
the case for the plaintiff was there a prima facie case against the
defendant; In other words, was there such evidence before the court
in which a reasonable man might but not should give judgement against
the defendant? "
Our
law of unfair dismissal is governed by the Employment Act. Section 42
(1) of the Employment Act states :-
"In
the presentation of any complaint under this part the employee shall
be required to prove that at the time his services were terminated
that he was an employee to whom Section 35 applied. "
3
Section
42 (2) provides:-
"The
services of an employee shall not be considered as having been fairly
terminated unless the employer proves:-
That
the reason for the termination was one permitted by Section 36; and
That,
taking into account all the circumstances of the case, it was
reasonable to terminate the services of an employee."
Clearly
once Section 42 (1) has been complied with the onus shifts to the
respondent to show that the termination of services was one permitted
by Section 36 of the Act.
In
the instant case it is our considered opinion that the applicant has
proved that he was an employee to whom Section 35 of the Act applied.
Secondly that his services were terminated by the respondent.
The
respondent should prove that applicant's services were terminated
fairly within the meaning of Section 36 of the Act, and that taking
into account all the circumstances of the case it was reasonable to
terminate the services of applicant.
This
is not one of the cases where the respondent can apply for absolution
from the instance. I agree with Mr. Lukhele for the applicant that
the application by Mr. Smith is misguided. The respondent must
discharge the onus resting upon it.
Under
circumstances the application for absolution from the instance is
hereby refused. Respondent to lead evidence proving that the
dismissal was fair and in line with Section 36 of the Employment Act,
and that taking into account all the circumstances of the case it was
reasonable to terminate the services of the applicant.
No
order as to costs.
4
The
two members have concurred.
KENNETH
NKAMBULE
JUDGE
(INDUSTRIAL COURT)
5
