IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE CASE NO.226/2002
In
the matter between:
MHLONHLO
N. DLAMINI APPLICANT
and
SWAZILAND
DEVELOPMENT & SAVINGS BANK RESPONDENT
CORAM:
NDERINDUMA: PRESIDENT
JOSIAH
YENDE: MEMBER
NICHOLAS
MANANA: MEMBER
FOR
APPLICANT: MUZI SIMELANE
FOR
RESPONDENT: MUSA SIBANDZE
JUDGEMENT
20/09/02
The
application was brought on a Notice of Motion seeking for an order in
the following terms:
1. Dispensing
with the usual forms and procedures relating to the institution of
proceedings and allowing this matter to be heard as a matter of
urgency.
2. Ordering
that a Rule Nisi be issued calling upon the Respondent to appear and
show cause, if any, on a date to be determined by this Honourable
Court why an Order in the following terms should not be made final:
2.1 Interdicting
and restraining the Respondent from proceeding with a disciplinary
hearing against the Applicant.
2.2 Directing
the Respondent to pay costs of this application in the event that the
same is opposed.
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3. Directing
the Rule Nisi referred to in paragraph 2 above operate with immediate
effect pending the outcome of these proceedings.
4. Granting
the Applicant further and/or alternative relief as the above
Honourable Court may deem meet.
By
consent of the parties a rule was granted subsequent to which the
Respondent filed Answering Affidavit and Replying Affidavit was
filed.
The
Applicant advances in his Founding Affidavit grounds why the
Respondent ought to be injucted from instituting disciplinary action
against him as follows:
(i) That
at the time he was recruited by the Respondent as a systems operator
in 1992, he was already since 1986, a director of a company called
Standard Computer Systems (Pty) Ltd and was specifically upon
employment exempted from the bank's condition of service that
prohibited employees from engaging in business.
(ii) That
at the time, few people had computer expertise, hence he was still
involved in projects from his previous employment which required his
supervision and support.
(iii) That
since 1997, the Applicant's company was contracted by the Respondent
for purposes of obtaining quotations for computer consumables.
The
Applicant further avers that the Managing Director of the bank in
1997 Mr. Alan Dixon became aware of the Applicant's directorship from
the letterheads and since he was also a co-signatory of the purchase
authority, where an order was placed with Standard computers, he
approached the Applicant for a discount and the Applicant would
earnestly negotiate for such a discount with his co-directors.
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April 2002, the new managing director called the Applicant to his
office and showed him a forensic audit report and stated that
Applicant should resign as he was not prepared to work with corrupt
managers.
The
Applicant declined to resign and was asked to respond in writing to
the allegations contained in the audit report. The Applicant complied
subsequent to which disciplinary charges were preferred against him.
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The
Applicant in his elucidation of the reasons why the disciplinary
hearing should be stopped states further:
(i) The
matters giving rise to the disciplinary hearing first arose in 1986
and it would be unconscionable to discipline him on such matters.
(ii) That
since 1997 when the previous MD became aware of his Directorship and
continued to trade with his company, the Respondent has waived its
right to institute such disciplinary hearing.
(iii) That
the terms and conditions of the bank's employment which prohibited
employees from engaging in business was not applicable to him due to
the knowledge the bank had of the applicant's involvement in business
from the time of his employment.
(iv) That
the Respondent had in any event prejudged the matter and requested
him to resign.
It
is common cause that a Mr. Sifiso Dlamini of Federation of Swaziland
Employers (FSE) has been contracted to chair the disciplinary hearing
against the Applicant on grounds of neutrality.
The
Respondent in its papers, assures the Applicant of a fair hearing
while asserting its unfettered prerogative to discipline any errant
employee.
The
preferred charges are contained in a sheet annexed to the Application
marked 'MD6'. The sheet contains six counts. The first two relate to
his directorship with a company styled Std computer systems, since
19th February, 1986 todate contrary to the Respondent's conditions of
service and without a written consent of the Board of Directors of
the Respondent.
Counts
three and four relate to the sourcing and ordering of computer
consumables from his company for the Respondent on the 22nd February,
1997 whilst he was the IT department manager of the bank to the
prejudice or potential prejudice of the bank.
Count
five relates to an authorization of payment to the Std Computer
Systems between 16th November, 1999 and 14th November, 2000 by
himself without evidence of delivery of supplies, whereas count 6
relates to a
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recommended
payment for the same goods from Std Computer Systems to the
Respondent.
The
Applicant's rights are well explained in the charge sheet.
In
the case of Swaziland Engineering Metal Automobile and Allied Workers
Union v Tracar Case No, 211/99 and Simon Mvubu v Ngwane Mills (Pty)
Ltd Case No. 189/99, I affirmed the court's reluctance to interfere
with management's right to hold a disciplinary hearing. The court
does not rule out such a possibility though such eventuality would be
an extreme rarity where an employee is able to establish a competing
right to that of the employer to hold a disciplinary hearing. Proof
of extreme vexatious conduct on the part of the employer would
suffice.
This
is clearly not the case here. The Respondent has made efforts to
arrange for an independent chairperson of the disciplinary hearing
and provided the charges to the Applicant well in advance to prepare
his case. His rights have been clearly explained in the charge sheet.
The
issues raised by the Applicant will no doubt be fully examined by the
disciplinary tribunal before it arrives at a verdict.
It
is essential however that the extent of the tribunal's mandate be
known to the Applicant prior to the commencement of the proceedings.
Following
our earlier decisions aforesaid, and the Industrial Court of Appeal's
decision in Swaziland Electricity Board and Mashwama Michael Bongani
& two (2) others Appeal Case No. 21/2000 I find that the
Applicant has failed to satisfy "the first and foremost
requirement, that of a prima facie case for the granting of an
interdict"
The
Applicant has also failed to show that it would suffer irreparable
prejudice since there is no evidence that the tribunal won't treat
him fairly. The Applicant's allusion of partiality is just a matter
of speculation. If indeed the Applicant is unfairly treated, he will
have recourse to the commission and this court for further redress.
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In
the result, the application is dismissed.
No
order as to costs.
The
members agree.
NDERI
NDUMA
JUDGE
PRESIDENT - INDUSTRIAL COURT
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