Nedbank Swaziland (Pty) Ltd v Williamson and Others (1898/2017) [2018] SZHC 17 (27 February 2018);

 

 

IN THE HIGH COURT OF SWAZILAND

                JUDGMENT

Case No. 1898/2017

In the matter between:

NEDBANK SWAZILAND (PTY) LTD                      Applicant  

AND

SYLVIA WILLIAMSON                                             1st Respondent

SWAZILAND UNION OF                                           2nd Respondent

FINANCIAL INSTITUTION

AND ALLIED WORKERS

UNION

 

THE PRESIDING ACTING                                        3rd Respondent

JUDGE OF THE INDUSTRIAL

COURT

 

Neutral citation:  Nedbank Swaziland (Pty) Ltd v Sylvia Williamson & 2

                             Others [1898/2017] [2018] SZHC 17 (27th February, 2018)

 

Coram:                FAKUDZE, J

Heard:                  8th February, 2018                  

Delivered:            27th February, 2018                                             

Summary:           Civil Procedure – Review of decision by Industrial Court – basis for review that Judge bias towards the Applicant when application for stay pending appeal was filed – 1st Respondent maintains that no bias as court was repeating what it has said earlier in the judgement – court in agreement with 1st Respondent and Application dismissed – each party to bear its own costs.   

 

JUDGMENT

 

BACKGROUND

[1]     The 1st Respondent was on the 4th April, 2017, charged with the offence of gross negligence resulting in a financial loss of Four Hundred and Twelve Thousand Emalangeni (E412,000.00) to the Applicant.

 

[2]     The 1st Respondent was found guilty as charged and her services were terminated on the 5th May, 2017.  The 1st Respondent then appealed the decision to dismiss her and the Applicant appointed an outside Chairman.

 

 

[3]     The Chairman of the appeal hearing gave a ruling on the 10th September, 2017 and a recommendation in terms of which he found that although the employee was guilty of gross negligence, that the summary dismissal of the Applicant was not appropriate and recommended a final written warning.

 

 

[4]     After discovering that the Chairman had exhibited bias in the hearing, in that he appeared he had contact with the 1st Respondent outside of the disciplinary hearing and had arranged at his own cost to have the 1st Respondent examined by a psychologist to substantiate his own argument about the 1st Respondent’s state of mind, the Applicant refused to adopt the recommendations of the Appeal Chairperson and dismissed the appeal.   He did this without giving the employer’s representative an opportunity to make representations. 

 

[5]     The 1st Respondent then approached the Industrial Court on an urgent basis, seeking an Order setting aside the Applicant’s decision not to implement the recommendations of the Appeal Chairperson and seeking a declaration that the Applicant’s act of terminating the 1st Respondent’s services was unlawful,

          irregular, null and void and of no effect.

 

 

[6]     The Applicant raised a special plea in limine, citing inter alia, the urgency of the matter and disputing the jurisdiction of that court to entertain the application, on the basis that it amounted to an application for review, which the Industrial Court cannot entertain.

 

 

[7]     The 3rd Respondent in dismissing the Applicant’s points in limine, made the following Orders:

          (a)     The point in limine is dismissed with costs;

          (b)     The effect of the Respondent’s letter dated September 2017 is stayed           pending the finalisation of these proceedings.

 

[8]     On the 6th October, 2017, the Applicant filed a Notice of Appeal on the Ruling on jurisdiction.  On the 9th November, 2017 the Applicant filed an Application to stay the Order granted by the Industrial Court in this matter.  The Applicant was seeking to stay the Order that the matter should proceed to argument on its merits, pending the appeal.  The 3rd Respondent dismissed the application to stay the proceedings.

 

 

[9]     The above narration of events is the basis upon which the Applicant invited this court to review the Orders and judgment of the Industrial Court with a view of same being clarified.  When the matter was argued before me, the Applicant indicated that he is no longer pursuing this point.  He indicated that the review is now based on another point.

 

 

          ISSUE FOR DETERMINATION

          Applicant’s case

[10]   The Applicant states that in “Bundle C” of the Book of Pleadings at page 23, the Presiding Judge of the Industrial Court uttered words to the effect that the Applicant wanted to renege out of the Collective Agreement.  The effect of this utterance by the Industrial Court Judge was that he had already made up his mind on an issue that had not been fully explained and canvassed by the Applicant by way of an Answering Affidavit.  The Industrial Court had already dealt with the merits on why the Applicant decided not to reinstate the 1st Respondent which is something the court never made mentioned of in the October 2017 judgment.  In other words, the court did not make any finding that the employer had acted wrongfully in refusing the reinstatement.

 

 

[11]   The point the Applicant is making is that during arguments, the statement that the Applicant’s conduct of not reinstating the 1st Respondent was wrong; and this was grossly irregular in that first and foremost, the 3rd Respondent had not made such finding.  Second, the “finding” goes to the merits of the matter and deals with the matter definitively and finally in favor of the 1st Respondent when the merits have not been argued and no such finding has been made.  Third, the finding is prejudicial to the Applicant in that it indicated the state of mind of the 3rd Respondent, who was the Presiding officer, which was that he had formed a position on the merits of the matter.  This should have precluded him from continuing to hear the matter as his state of mind prejudiced him against the Applicant, thus denying the Applicant a fair hearing.

 

 

[12]   The Applicant finally prays that the review be granted and the decision of the 3rd Respondent refusing the stay be reviewed and set aside and that the court substitutes the decision with an Order granting the stay of the 3rd Respondent’s Order of 1st December, 2017.

 

 

The 1st Respondent’s Case

[13]   The 1st Respondent’s case is that the Chairperson of the internal disciplinary hearing made a finding that the appropriate sanction to be imposed upon the 1st Respondent was a final written warning and not a dismissal.  In complete disregard of the Chairperson’s finding, the Applicant went ahead to impose its own sanction of dismissal contrary to the provisions of the Disciplinary Code Clause 2.5.1.5.

 

 

[14]   The 1st Respondent approached the Industrial Court on urgent basis to challenge the Applicant’s power to deviate from the findings of the Appeal Chairperson.  In it finding the Industrial Court ruled that it was properly seized with jurisdiction to hear the matter, as it was not a review application.  The court further held that the effect of Applicant’s letter of 11th September, 2017 was stayed.

 

 

[15]   The 1st Respondent further avers that with that letter being stayed, the Appeal judgment of the independent Chairperson became operative as read together with the code.  That is, the 1st Respondent was to be reinstated with a final written warning valid for twelve months.  Instead of complying with the court directive to file an Answering Affidavit within seven (7) days the Applicant noted an Appeal to the Industrial Court of Appeal notwithstanding that the matter had not run its course.  This was a piecemeal appeal, and generally courts should not encourage this.

 

 

[16]   On 9th November, 2017, the Applicant moved a further application seeking to stay the decision of the 5th October, 2017.  In its decision of 1st December, 2017, the Industrial Court refused the stay thus paving a way for the continued staying of the effects of the letter of 11th September, 2017.

 

 

[17]   On the issue of the words that were uttered by the Industrial Court Judge which the Applicant alleges that they manifested bias, the 1st Respondent states that what the Judge said at page 23 of “Bundle C” of the Book of Pleadings was a repetition of what was in the judgment of the 5th October, 2017.  At paragraph 22.0, the court stated that:-

                             “22.0 We are of the opinion, further, that the Agreement is                         binding upon the parties to the extent that none of them should                            be allowed to do so as they wish whilst they remain in it.  Put                     differently, we are of the opinion that the doors of this Court must              not be closed to one of the two who finds himself at the mercy of             the other.”

 

 

[18]   Likewise, in paragraph 23.0, the court expressed itself as follows:-

                             “23.0 And it would appear to the court that in holding                               Respondent to the strict terms of their contract, Applicant has                     approached this court not by way of review but in terms of Rule                 14 of the Rules of this Court.  That in the mind of the Court                             cannot be said to be a matter beyond the scope of the Industrial              Court.”

 

 

[19]   The 1st Respondent argues that there was no bias on the part of the Industrial Court Judge as he was simply echoing what the court had said earlier in the 5th October, 2017 judgment.

 

 

          The Applicable Law

[20]   It is trite that a review can lie only if the fundamental principles of justice have been violated.  In the case of Musa Gwebu v Manzini City Council Civil Appeal Case No. 20/2003, His Lordship Tebbutt J.A. observed at pages 5 that:

                             “It is clear from a study of the judgment in that case (That is                       Councillor Mandla Dlamini v Musa Nxumalo: Appeal Case                    No. (10/2012) and from authorities cited in support of it that the             fundamental principle which now underlies any question of an                              interference with the decision of the tribunal is a consideration                          of whether the latter acted fairly in coming to the decision that it                    did.  In analysing what the court referred to the modern                                 approach to judicial review, Leon J.P. who gave the judgment of           the court in the councillor Mandla Dlamini case, cited what was                said by Corbett C.J. in the South African case of Administrator                          Transvaal and Others v Traub and Others 1989 (4) SA 731 (A)           at 761 A-D in relation to the evolution of the legal expectation                          principle.  He said:  And it was resolved, as I read the cases, in                            the social context of the age in order to make the ground of                         interference with the decisions of public authorities which                           adversely affect individuals co-extensive with notions of what is                   fair in the particular circumstances of the case.”

 

 

[21]   His Lordship Tebbutt J. A. went further to state that this test should apply when it comes to the determination of whether a decision was grossly unreasonable or not.  He said at page 6 of the Musa Gwebu Judgment (Supra):-

                             “In coming to the view that, in the light of the modern

                             approach to judicial review, the time has arrived in Swaziland                             “to jettison the narrow approach of gross unreasonableness.”                             This court emphasised that in cases of judicial review what was                  required was a determination of whether the tribunal whose                       decision it is sought to review acted fairly in coming to its                           decision or whether there had been a failure of justice.”

 

 

[22]   It is also a well-established principle that a court will not interefere with a

          decision of a tribunal merely because it is one to which the court that is being called          upon to review it would not have arrived at.  In the case of Standard Chartered Bank Swaziland Limited v Israel Mahlalela 1994 Court of Appeal (Unreported) Schreiner J. A. stated at pages 11 to 12 that:-

                             “There was in my view a basis for the Industrial Court (whose                             decision it was sought to review), to have decided as it did…….                           It is not ………… the function of this court simply to substitute its                own judgment for that of the Industrial Court.”

 

 

[23]   The principles of common law review were recently applied in the High Court case of Unicorn Concepts (Pty) Ltd and Another v Simelane, High Court Case No. 459/2016 where His Lordship Maphalala P.J. stated in paragraph 17 as follows:-

                             “Having considered all the Affidavits of the parties, and the                        arguments of the attorneys of the parties, it is without question                             that as propounded in the Supreme Court Case of OK Bazaars                            (Supra) that in order for the Applicant to succeed with common                           law review, he must put forth facts that show and/or prove them.                 These are that:

                             5.1.1  The Arbitrators’ decision was arrived at arbitrarily or                                capriciously or mala fide;

 

                             5.1.2  The Arbitrators misdirected themselves in order to further                           an ulterior improper purpose;

 

                             5.1.3  The Arbitrators misconceived the nature of the discretion                            conferred upon them and took into account irrelevant                                 considerations or ignored relevant ones;

 

                             5.1.4  The Arbitrators’ decision was so grossly unreasonable as                           to warrant the inference that he failed to apply his mind to                          the matter.”

 

 

[24]   In the Takhona Dlamini v President of the Industrial Court and Another Case No. 23/1997,  Tebbutt J.A. stated with approval, the grounds for review propounded in the dicta of Corbett J.A in the case of Johannesburg Stock Exchange v Witwatersrand Nigel Ltd 1988 (3) SA (AD) at 152 A – E in the following fashion:-

                              “Broadly, in order to establish review grounds it must be                                     showed that the President failed to apply his mind to the                                      relevant issues in accordance with behests of the statute                               and tenets of natural justice………..”

 

 

          Court’s Analysis and Conclusion

[25]   The dispute between the parties centres around the issue of the words that were allegedly uttered by the Industrial Court Judge.  The Applicant seems to take the view that the words are a clear indication that the Judge showed signs of bias towards the Applicant.  Infact, the Judge had already made up his mind regarding an issue that should have been addressed by means of an Answering Affidavit when the Judge said that the Applicant wanted to renege from the Collective Agreement.  This position is in nowhere reflected in the court judgment of the 5th October, 2017.

 

 

[26]   The 1st Respondent counters the Applicant’s argument by saying that what said at page 23 of “Bundle C” of the Book of Pleadings was a repetition of what was at paragraphs 22.0 and 23.0 of the judgment.  In paragraph 22, the Judge had said that the court was of the opinion that the Collective Agreement was binding upon the parties to the extent that none of them should be allowed to do as they wish whilst they remain in it.  In paragraph 23.0, the court said in binding the Respondent (Applicant in this case) to the strict terms of their contract, Applicant (Respondent in this case) has approached this court not by way of review but in terms of Rule 14 of the Rules of the Court……….  On the day of the alleged utterance, the court was re-iterating what it had earlier said in the 5th October, 2017 judgment.

 

 

[27]   Having listened to the arguments of both parties and having considered the applicable law, this court is inclined to agree with the 1st Respondent.  Although the court did not quote word for word what had been said in the judgment, the import of the words uttered by the Judge and that are being objected to, do not in any way manifest any bias on the part of the Industrial Court Judge.  It is this court’s considered view that there is nothing worth reviewing.  In Takhona Dlamini v The President of the Industrial Court and Another Appeal Case No. 23/1997, (Supra) Tebbutt J.A. stated the grounds for review by reiterating the dicta of Corbett J. A in the Case of Johannesburg Stock Exchange v Witwatersrand Nigel Ltd 1988 (3) SA 132 at 152 as follows:

                             “Broadly, in order to establish review grounds it must be showed                that the President failed to apply his mind to the relevant issues                  in accordance with behests of the statute and tenets of natural                         justice……..”

 

 

[28]   I am of the humble view that the Judge of the Industrial Court applied his mind to the relevant issues in accordance with behests of natural justice.  His decision cannot therefore be faulted.  This Application is accordingly dismissed.

 

 

[29]   I have also considered the submission of the parties on the issue costs.  I am of the view that each party should bear its own costs.

 

 

 

______________________

                                                 FAKUDZE J.

                                       JUDGE OF THE HIGH COURT

 

 

APPLICANT:                M. NSIBANDE

1st RESPONDENT                  M.S. SIMELANE