Ndzinisa v Simelane and Another (1913/2018) [2019] SZHC 18 (11 February 2019);

IN THE HIGH COURT OF ESWATINI

JUDGMENT

CIVIL CASE NO.: 1913/2018 

In the matter between:

 

NDZINISA EPHRAIM THEMBA                            APPLICANT

                                                                                                             

And  

 

SIKHUMBUZO SIMELANE N.O.                          1^ST RESPONDENT 

CROOKS PLANTATIONS                                     2^ND RESPONDENT

 

Neutral Citation:                              Ephraim Themba Ndzinisa vs. Sikhumbuzo Simelane N.O. and Another (1913/18) [2019] SZHC 18 11^th February 2019

Coram:                                              MLANGENI J.

Heard:                                               14^th December 2018.

Delivered:                                          11^th February 2019.

 

 

 

 

 

Summary:             Civil procedure – application to review and set aside the decision of the chairman of a disciplinary hearing in terms of which the Applicant was denied legal representation

 

                             No general right to representation by an outsider in respect of internal disciplinary proceedings.  Application to be allowed representation of own choice must be made to the chairperson of the hearing, who must exercise discretion judiciously in determining whether or not there exits exceptional circumstances in favour of the Applicant.

 

                             Guidelines discussed.

 

Held:                    On the facts, there does exist exceptional circumstances in favour of the Applicant.

Application granted. No order as to costs.

         

[1]      The Applicant is an employee of the Second Respondent.  His position is described as Installations Controller[1]. On the 23^rd November 2018 he was served by his employer with charges of dishonesty, fraud, forgery and falsification of documents.  Perceiving the charges to be complex and serious, he sought to engage the services of an attorney to represent him in the internal hearing.  He was informed by the Second Respondent that this being an internal disciplinary hearing, he was not allowed to have legal representation. He could only be represented by someone within the Second Respondent’s establishment.  Acting upon advice, he moved an application before the chairperson of the hearing, seeking permission to secure legal representation.

 

[2]      At paragraph 10 of his founding affidavit the Applicant makes the following pertinent averments:-

 

“I needed to be represented by an attorney.  I also stated that, due to my position I could not be represented by a representative of a union or staff association.   I further stated that my colleagues who are the senior managers refused to represent me citing victimisation by the Initiator who is the Estate Manager.  My colleagues told me that they are afraid that in the event they were to represent me, their lives may become unbearable as the Initiator has a tendency of victimizing employees”.

 

[3]      His application to be allowed legal representation was declined by the chairperson of the hearing, the First Respondent.  The present application before me is a sequel to such refusal, and in it the Applicant seeks the following orders:-

 

                             “1      ……………….

2.       That pending finalization of this application, the disciplinary hearing…….be stayed.

3.       Reviewing and setting aside the decision of the 1^st Respondent issued on the 29^th November 2018.

4.       Directing and authorizing that the Applicant is entitled to be represented by a person of his choice who do (sic) not need to be an employee of the 2^nd Respondent such person including a legal representative.

The last prayer is for legal costs.

[4]      The Application is opposed on the following grounds:-

4.1     The charges against the Applicant are simple and not complex[2].

4.2     The Applicant failed to demonstrate exceptional circumstances[3] warranting legal representation.

4.3     The court is loathe to interfere with incomplete disciplinary proceedings.

 

[5]      Ground 4.3 above is particularly apposite in view of the fact that the disciplinary hearing actually did commence and proceeded to the stage where the employer closed its case.  The present application was served upon the Respondents at a time when the Applicant was to open his defence case.  Respondents’ counsel Mr. Gamedze made much of this at the hearing of legal arguments, and rightly so.  At best the Applicant’s belated application can be seen as an afterthought. If, on the facts of the matter, this was a significant consideration, the Applicant’s case would be falling on it.

 

[6]      I am not certain whether there is an objective standard to determine whether charges are simple and not complex, or otherwise.  There could well be a subjective element in such determination, such as the level of literacy of the employee.  One of Gumedze’s submissions at the hearing, for the Applicant, was that the charges raise an issue of common purpose between the Applicant and two other co-employees, namely Mbhekwa Dlamini and Timothy Mkhabela, and that to a lay person such as the Applicant this is by no means simple.  Indeed, the extent of participation of each of the alleged co-perpetrators may become a big factor in the equation.  It is my view, however, that the present case does not turn on this aspect.

 

[7]      It is well-settled in our labour laws that for purposes of an internal disciplinary hearing an employee is not entitled as of right to external representation.  There are numerous judgments on this point, and in this matter counsel made my work easy by providing me with such authorities[4]. For purposes of an internal disciplinary hearing an employer may be represented by his co-worker, preferably at his level or above.  To make out a case for external representation the employee must establish exceptional circumstances.  In the case of LYNETTE GROENING v STANDARD BANK SWAZILAND LIMITED, supra, P.R. Dunseith P. stated that the question whether or not special circumstances exist which require legal representation “is to be decided by the chairperson of the disciplinary hearing.”[5]

 

[8]      By way of guidance, the court has enunciated the following considerations[6] which, however, are not exhaustive.

8.1     Whether an employee of equal status to the Applicant is available to represent the Applicant.

8.2     If not, whether representation by a subordinate would or would not be degrading to the Applicant or hamper him in presenting his defence;

8.3     Whether an employee of the organization can satisfactorily represent the Applicant.

8.4     Whether the charges are sufficiently complex or legalistic to warrant the involvement of an attorney;

8.5     Whether the charges may result in the dismissal of the Applicant;

8.6     Whether the employer will be unreasonably prejudiced if the Applicant is permitted a representative of his choice, in particular a legal representative.

 

[9]      In my view the present case turns on whether or not the Applicant’s case does disclose exceptional circumstances, and I proceed to interrogate this aspect.  Although the employer, the Second Respondent, is said to be a huge international entity with branches in Eswatini and elsewhere, it is apparent that the management structure in the country is quite small.  The opposing affidavit of Kevin Fitzpatrick[7] mentions five possible names.  Viewed in the context of the Applicant’s averment that one of those that qualified to represent him, upon being approached, declined to assist, citing fear of victimization[8], the number is not a big one.  The case of STANDARD BANK v LYNETTE GROENING, supra, is on a totally different footing.  In that case there were 65 managers at the dispose of the Applicant.

 

[10]    One unavoidable result of a small management structure is close interaction among those in management.  This, in the nature of things, is likely, consciously or subconsciously, to occasion unnecessary sympathy and mutual support among those in management, to the prejudice of the employee’s case.  At paragraph 5 of his founding affidavit[9] the Applicant makes the following allegations:-

 

“My position is that of Installations Controller.  I report to the Estate Manager who is the last senior manager in the hierarchy of the 2^nd Respondent Eswatini.”

[11]    It is common cause that the Estate Manager is one Kevin Fitzpatrick who “is handling the prosecution himself”[10]. When the boss is the prosecutor, what is likely to happen? This aspect is particularly significant because the allegations of the Applicant in respect of the management structure of the Second Respondent has not been denied.  It has not been denied that Kevin Fitzpatrick is at the apex of the structure, and the Applicant reports to him.  Respondents’ response to this averment is at page 24 of the Book and it does not deny that Mr. Fitzpatrick is the last senior manager in the country and who, in the hearing, doubles up as initiator and witness.  This situation has an enormous potential to influence the proceedings, to the prejudice of the Applicant. 

 

[12]    The charges faced by the Applicant are of a serious nature.  If found guilty he is more than just likely to be dismissed.  Of course, if he is dismissed, one day the Industrial Court might find in his favour, but I see no reason why he must wait until that stage, in view of the odds that I have adumbrated above.

 

[13]    Further, I do not readily perceive any prejudice that would be occasioned to the employer as a result of the legal representation of the Applicant.  This is especially so in view of the fact that the chairperson of the hearing is an attorney who commands vast experience in such matters.  

 

[14]    I have therefore come to the conclusion that the application must succeed.  However, in view of the Applicant’s relative highhandedness in bringing the application, and given that he remains an employee of the Second Respondent at this point in time, costs will not follow the event.

 

[15]    It remains to express appreciation to attorney Sikhumbuzo Simelane, the chairperson of the hearing, for not proceeding with same despite the fact that no order was made for a stay.  This level of maturity has become a rare commodity in our noble profession.

 

[16]    The orders that I make are as follows:-

16.1   The decision of the First Respondent dated 29^th November 2018, in terms of which the Applicant was denied legal representation, is hereby set aside.

16.2   It is hereby declared that the Applicant is entitled to representation by a person of his choice who may or may not be an attorney.

16.3   No order as to costs.

 

_______________________

MLANGENI J

 

For the Applicant: Mr. Gumedze

For the Respondents: Mr. Gamedze