IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 1685/2017
In the matter between:
DANIEL SHABANGU
and
SWAZILAND INDUSTRIAL DEVELOPMENT COMPANY 1ST RESPONDENT
PHIWAYINKOSI GININDZA N.O 2ND RESPONDENT
ZWELI JELE N.O. 3RD RESPONDENT
Neutral Citation : Daniel Shabangu v Swaziland Indusrrial Development
Company (1685/17) [2018] SZHC 08 (13 FEBRUARY 2017)
Coram : MABUZA – PJ
Heard : 9 NOVEMBER 2017
Delivered : 13 FEBRUARY 2018
SUMMARY
Civil Law – Employer/Employee relations – Application for review - Correcting and setting aside of ruling of a disciplinary hearing – Application dismissed with costs.
JUDGMENT
MABUZA -PJ
[1] This application came by way of urgency wherein the Applicant sought the following orders:
1. That the rules of the above Honourable Court relating to time limits,
forms and manner of service be dispensed with and that this matter be heard as one of urgency.
2. Condoning Applicants non-compliance with the usual forms, notices
and procedures on the ground that this matter is urgent;
3. Reviewing, correcting and/or setting aside the 2nd Respondent’s ruling
to make representations in mitigation before the Chairman before a verdict is pronounced thereto;
4. That should prayer 3 above be granted that Applicant be granted leave
to make representations in mitigation before the Chairman before a verdict is pronounced thereto;
5. That a rule nisi returnable on a date to be determined by the above
Honourable Court calling upon the 1st and 2nd Respondent to show cause why prayers 1 – 4 should not be made final;
6. Costs of suit in the event the application is opposed;
7. Further and/or alternative relief.
[2] The application is opposed by the 1st Respondent who raised certain points of law namely: lack of jurisdiction by this Court to entertain the matter; and lack of urgency.
The 1st Respondent has also attacked the matter on its merits. However, the matter has been brought to this Court as a review and to that end this Court has jurisdiction to hear it.
Parties
[3] The 1st Respondent is Swaziland Industrial Development Company, a company duly incorporated in terms of the company laws of Swaziland, seeking to promote and aid Industrial Development and Trade in Swaziland.
[4] The 2nd Respondent is Phiwayinkosi Ginindza (N.O.), an adult Swazi male, Chief Executive Officer (CEO) of the 1st Respondent.
[5] The 3rd Respondent is Zweli Jele (N.O.), and adult Swazi male Attorney, cited herein in his capacity as Chairperson of the Disciplinary Hearing under review. He is only cited as a party with an interest as there are no specific orders sought against him.
Background
[6] The background hereto is that the Applicant is an (erstwhile) employee of the 1st Respondent. On the 14th September 2016, the Applicant was charged by the Acting Chief Executive Officer, Mr. Phineas L. Magagula mainly of charges relating to insubordination. The charges are contained in a letter addressed to the Applicant dated 14th September 2016.
[7] The disciplinary hearing was conducted by the 3rd Respondent who in the end found the Applicant guilty of four charges out of five. The 3rd Respondent made a recommendation to the 2nd Respondent who had replaced Mr. Phineas Magagula.
[8] The 3rd Respondent recommended to the 2nd Respondent that the Applicant be dismissed without notice. The 2nd Respondent by letter dated 20th October 2017, terminated the Applicant’s employment.
[9] During the disciplinary hearing the Applicant had through his attorneys wanted to know who would take the appropriate sanction should he be found guilty as Mr. Magagula was an immediate supervisor to the Applicant and was also a potential witness in the case against the Applicant.
[10] The Applicant was on the 29th September 2017, advised that such sanction would be taken by and communicated by the Chairman of the Recommendations Committee (REMCO). The Applicant argues that, this did not happen, instead he was dismissed from employment by the 2nd Respondent, and not the REMCO.
[11] The 1st Respondent in its answering affidavit admits that the undertaking to take the matter to REMCO was in the light of the fact that it did not have a CEO and that it would have been unfair on the Applicants part that Mr. Magagula be a complainant and also a judge in his own cause.
[12] The Applicant’s contention is that in view of the undertaking the 2nd Respondent was disqualified to make the decision of termination.
[13] In response to the Applicant’s contention the 2nd Respondent states that he was merely communicating a decision already taken by the REMCO when he issued the letter of termination dated 20th October 2017 (Annexure D4). And that REMCO had already taken a resolution to that effect on the 19th October 2017 (Annexure “SIDC1”). The contents of Annexure “SIDC1” are reproduced hereunder:
“RESOLUTION OF THE SIDC REMUNERATION AND HUMAN RESOURCE COMMITTEE (REMCO) MEETING HELD ON THE 19TH OCTOBER 2017, AT THE SIDC BOARD ROOM AT 0900 HRS.
IT WAS RESOLVED THAT:
1. The recommendation of the Chairman Mr. Zweli Jele dated the 14th August, 2017 be adopted.
2. The CEO of SIDC Mr. P. E. Ginindza be authorized to write the letter to Mr. Daniel Shabangu communicating the fact that his services at SIDC are terminated with immediate effect.
MICCAH NKABINDE
REMCO CHAIRMAN”
[14] The contents of Annexure “D4” are reproduced hereunder:
“Daniel Shabangu
c/o SIDC
P.O. Box 866
MBABANE
Dear Sir
RE: NOTICE OF TERMINATION OF SERVICES
1. We enclose the findings of the disciplinary Chairperson and the recommendation of termination of services.
2. Accordingly, we are adopting the recommendation of the Chairman, save and except the aspect of the notice. You are dismissed with immediate effect.
Yours faithfully
PHIWAYINKHOSI E. GININDZA
CHIEF EXECUTIVE OFFICER ”
[15] It is pertinent to note that the findings of the 3rd Respondent were sent to the Applicant because it is the 3rd Respondent that recommended the Applicant’s dismissal.
[16] The 2nd Respondent further states that his involvement only related to the issuance of the letter of termination which in his view did not border around procedural unfairness. And that he was only communicating a decision taken by REMCO as the CEO of the 1st Respondent clothed with the power to communicate decisions of any board and or committee that he sat in.
[17] I accept the 2nd Respondents explanation that he was merely conveying a decision of REMCO and cannot find any prejudice occasioned to the Applicant and find that the Applicant has not made out a case for this Court to “Review, correct and or set aside” the 2nd Respondent’s ruling on a disciplinary hearing instituted on the 14th September, 2016, because the 2nd Respondent did not issue any ruling in the matter. The 2nd Respondent did not issue the sanction, REMCO did as per the undertaking made to the Applicant. The Applicant’s apprehension was for the sanction to be taken by Mr. Magagula who was his immediate supervisor. The 2nd Respondent was not the Applicant’s immediate supervisor nor did he take the sanction. He merely conveyed the decision of REMCO.
[18] Prayer (4) should have been directed to the 3rd Respondent who made the recommendation for the Applicant’s dismissal. A decision he took after the Applicant failed to present any mitigation at the disciplinary hearing. However, the issue has been overtaken by events and it would serve no purpose at this juncture to pursue the issue.
[19] Even if the Applicant had challenged the 3rd Respondent’s ruling, it is difficult to see how the matter could be reopened for mitigation in the light of what the 3rd Respondent says with regard to the failure of the Applicant to avail himself for the purposes of mitigation.
[20] The contents of paragraphs 13 and 14 of the founding affidavit should have been presented as mitigation to the 3rd Respondent at the material time.
[21] In view of the foregoing, the application is refused and dismissed with costs.
_______________________
Q.M. MABUZA
PRINCIPAL JUDGE
For the Applicant : Mr. M. Khumalo
For the Respondents : Mr. B. Gamedze
